Matter of Castillo Angulo, 27 I&N Dec. 194 (BIA 2018)
“(1) In removal proceedings arising within the jurisdiction of the United States Courts of Appeals for the Fifth and Ninth Circuits, an alien who was “waved through” a port of entry has established an admission “in any status” within the meaning of section 240A(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a)(2) (2012). Tula-Rubio v. Lynch, 787 F.3d 288 (5th Cir. 2015), and Saldivar v. Sessions, 877 F.3d 812 (9th Cir. 2017), followed in jurisdiction only.
(2) In removal proceedings arising outside the Fifth and Ninth Circuits, to establish continuous residence in the United States for 7 years after having been “admitted in any status” under section 240A(a)(2), an alien must prove that he or she possessed some form of lawful immigration status at the time of admission.”
BIA PANEL: Appellate Immigration Judges Greer, O’Connor, & Pauley
OPINION BY: Judge Blair O’Connor
CONCURRING/DISSENTING OPINION: Judge Roger A. Pauley
KEY QUOTE FROM DISSENT:
“I concur in the result, which the majority only reaches because it acknowledges 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), which holds that a wave through constitutes an “admission in any status” for purposes of section 240A(a)(2) of the Act, is binding on the Board since this case arises in that circuit. However, unlike the majority, I conclude that both the Ninth Circuit and the Fifth Circuit, whose similar holding in Tula-Rubio v. Lynch, 787 F.3d 288 (5th Cir. 2015), the Ninth Circuit followed, arrived at the correct result, even though, like the majority, I disagree with some aspects of those courts’ reasoning.
. . . .
I therefore respectfully dissent from the majority’s conclusion otherwise and would find that, in any circuit, an alien is eligible to seek cancellation of removal if he or she establishes an admission via a wave through, even if the alien cannot demonstrate the particular lawful status under which admission was authorized, and even if it is later found that he or she had no lawful status at that time.”
Gee, to me, “any status” means “any” status. But, hey, I’m just an old retired trial judge who in ancient time was Chair of the BIA. What would I know about “modern” concepts of statutory interpretation at the BIA?
For a quasi-judicial body that 1) often gets carried away with obtuse linguistic analysis, and 2) claims to see its role as maintaining nationwide consistency, it seems odd that the BIA has gone out of its way to a) rewrite the statute to its own liking, and 2) create a Circuit conflict where none previously existed.
The best way of understanding it is probably “doing what’s necessary to get to ‘no” for respondents not fortunate enough to be in the 9th or 5th Circuits.
My compliments to Judge Pauley for 1) having the backbone, and 2) caring enough to file a separate opinion that better follows the statutory language, produces a much better practical result, and, not surprisingly, is much closer to what the only Article III Courts to address this particular issue already have decided.