A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Sunday, May 31, 2015

A "Wave-Through" is Legal Admission for Cancellation of Removal

A person "waved through" the U.S. border by an immigration officer constitutes an "admission in any status" for the purpose of applying for cancellation of removal, according to the Fifth Circuit Court of Appeals' holding in Tula-Rubio v. Lynch

Cancellation of removal is a form of immigration relief available to individuals who have been placed in removal proceedings by the Department of Homeland Security (DHS). Even legal residents of the U.S. may be placed in removal proceedings due to certain criminal convictions, security violatoins, or other serious immigration violations.   The requirements for lawful permanent residents (LPRs) are different from those of non-LPRs.  In both cases, a grant of cancellation means that the applicant may remain in the U.S. as legal residents. 

Pursuant to §240A(a) of the Immigration and Nationality Act (INA), cancellation is available for any LPR who
1) has been an alien lawfully admitted for permanent residence for not less than 5 years,
2) has resided in the United States continuously for 7 years after having been admitted in any status, and
3) has not been convicted of any aggravated felony.

Once a LPR commits a deportable offense or is served with a Notice to Appear (formally charging him/her with grounds of removal), the "stop-time" rule at Sec. 240A(d) would stop the person from accruing the required seven years residence.

The LPR in Tula-Rubio v. Lynch was in a passenger in a car that was waved through to enter the U.S. by an immigration officer.  The Board of Immigration Appeals (BIA) held that such an entry is not an "admission in any status” for cancellation of removal, since Tula-Rubio was not in any legal status when he was waved through. The Fifth Circuit Court disagreed.

The Court reasoned that even though there is no clear definition of the phrase “admitted in any status” in the INA, the word “admitted” is explained as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer" under the Immigration Act, which is exactly what happened to the LPR in Tula-Rubio.

Further, the Court held that the phrase “any status” does not impose additional requirements to the admission requirement. "Any status” means "all states and conditions", including somebody without any legal status.  Therefore the specific immigration status of the person being admitted is irrelevant. Consequently, Tula-Rubio’s wave-through admission satisfies this requirement, making him eligible for cancellation of removal relief under §240A(a) of the INA. 

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