Introduction: Matter of Castillo Angulo, 27 I&N Dec. 194, 203-06 (BIA 2018)

On January 29, 2018, the Board of Immigration Appeals (BIA) issued a published decision in Matter of Castillo Angulo, 27 I&N Dec 194 (BIA 2018) [PDF version]. The Board held that in order to establish having been “admitted in any status” for purpose of cancellation of removal for certain permanent residents under section 240A(a)(2) of the Immigration and Nationality Act (INA), an alien must prove that he or she possessed some form of lawful immigration status at the time of admission. However, the Board did not extend its rule in causes of action arising in the jurisdictions of the United States Courts of Appeals for the Fifth and Ninth Circuits due to contrary precedent in those circuits. In cases arising in the jurisdiction of the Fifth and Ninth Circuits, a “wave through” entry is deemed to constitute admission “in any status” for cancellation purposes.

We discuss the Matter of Castillo Angulo decision and its ramifications in detail in our full article on the subject [see article]. Before continuing with this post, please read the full article on the case. In this post, we will discuss an interesting opinion authored by Board Member Roger A. Pauley concurring in part and dissenting in part with the majority opinion in Matter of Castillo Angulo. Although Board Member Pauley’s decision is not controlling, it is worth examining given the split not only between the Board and the Fifth and Ninth Circuits, but also within the Board itself.

Matter of Castillo Angulo, 27 I&N Dec. at 203-06 (Pauley, Concurring and Dissenting)

Board Member Pauley began his opinion with an explanation of where he agreed with the majority opinion in Matter of Castillo Angulo. He concurred with the result reached in the instant case “because [the majority] acknowledge[d] that the decision of the United States Court of Appeals for the Ninth Circuit in Saldivar v. Sessions, 877 F.3d 812 (9th Cir. 2017) [PDF version], which holds that a wave through constitutes an ‘admission in any status’ for purposes of section 240A(a)(2) of the [INA], is binding on the Board since this case arises in that circuit.” Board Member Pauley disagreed with the Board to the extent that he believed that the Ninth Circuit in Saldivar and the Fifth Circuit in Tula-Rubio v. Lynch, 787 F.3d 288 (5th Cir. 2015) [PDF version], actually reached the correct result — that a “waive through” entry constituted “admission in any status — although he agreed with the Board majority that aspects of the reasoning in the Saldivar and Tula-Rubio decisions were flawed.

Board Member Pauley stated that he agreed with the Board majority in Matter of Castillo Angulo “that a wave through ‘admission’ as the term is defined by section 101(a)(13)(A) of the [INA] …, as the ‘lawful entry of the alien into the United States after inspection and authorization by an immigration officer,’ must be in some lawful status…” On this point, the Board unanimously disagreed with the decisions of the Fifth and Ninth Circuits.

To summarize, Board Member Pauley noted that he agreed with the Board majority and with the Fifth and Ninth Circuits that, if the respondent was “waved through” as she alleged in 1998, she was “admitted” under the Board’s standing precedent in Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010) [PDF version]. With this point granted, the question shifted to the meaning of admission “in any status” under section 240A(a)(2). Here, Board Member Pauley disagreed with the Board majority and agreed with the result of the Fifth and Ninth Circuits.

Board Member Pauley stated that the majority’s decision that “in any status” exclusively entails “lawful” status was “based on the mistaken premise that ‘admission in any status’ requires that the concededly lawful status under which the respondent was admitted must later be identified.” Here, Pauley read the “admitted in any status” language as not requiring that the admitted alien’s status be identified under section 240A(a)(2). He explained that the majority read the language as pertaining to the alien’s status at the time he or she was admitted. Yet, Pauley argued that this conclusion was “unpersuasive” in the context of the provision. First, he took the position that the INA does contemplate that a status may be “unlawful.” Here, he disagreed with the Board’s published decision in Matter of Blancas, 23 I&N Dec. 458, 60 (BIA 2002) [PDF version], to the extent that it held that “status” “denotes someone who possesses a certain legal standing.” He cited to, for example, section 245(c)(2) of the INA, which bars from eligibility for adjustment of status an alien “who is in unlawful immigration status.” Pauley also cited to several decisions of the Supreme Court of the United States where the Court “held … where a statute uses the expansive word ‘any’ … there is no basis in the text for limiting the application of the statute to only certain types of instances.” For example, he cited to the Supreme Court decision in Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 218-19 (2008) [PDF version].

Board Member Pauley agreed with the content of the Ninth Circuit’s comparison of the language of sections 240A(a)(1) and 240A(a)(2), which the majority in Matter of Castillo Angulo explicitly rejected. Section 240A(a)(1) requires that an alien must have been “lawfully admitted for permanent residence for not less than 5 years” in order to be eligible for LPR cancellation of removal. Both the Ninth Circuit and Pauley found it pertinent that section 240A(a)(2) omits the word “lawfully” and instead reads “in any status.” They took the position that 240A(a)(2) is not restricted to admission in “lawful status,” but rather any status lawful or unlawful.

Furthermore, after noting the “generous” language of section 240A(a)(1)’s requirement of having been a permanent resident for 5 years, Board Member Pauley considered it unlikely that Congress would have intended the initial “admitted in any status” provision to require the legal status of admission to be identified. In Matter of Blancas, the Board held that the initial admission in any status under section 240A(a)(2) did not have to be followed by a period of continuous lawful status provided that the alien satisfied the requirement of 5 years as an LPR under section 240A(a)(2). Furthermore, Pauley noted that in Matter of Blancas, the Board held that admission via a Border Crossing Card, which he described as “the most minimal form of lawful status,” was sufficient to satisfy section 240A(a)(2).

Finally, Board Member Pauley took the position that the majority opinion in Matter of Castillo Angulo was inconsistent with Matter of Quilantan. Here, Pauley noted that the Board had held in Matter of Quilantan that an alien who is waved through may be subsequently determined to have lacked lawful status. However, Pauley stated that this does not mean, and did not mean to the Board in Matter of Quilantan, that aliens who are waved through were not “admitted” because of any subsequent determinations of lack of status.

Conclusion

Although Board Member Pauley’s opinion is not controlling, the issue will be worth watching going forward given the split between the Board and the Fifth and Ninth Circuits on the issue. Please see our full article on the Board’s decision in the case to learn more about what it means going forward [see article].