Villalba Saldivar v. Sessions, No. 13-72643 (9th Cir. 2017)
Annotate this CaseThe Ninth Circuit granted a petition for review of the BIA's decision holding that petitioner was statutorily ineligible for cancellation of removal for failure to establish seven years continuous residence in the United States after being "admitted in any status." In this case, petitioner was "admitted" in 1993 when he was waved across the border after inspection by an immigration officer. The panel held that petitioner's procedurally regular admission in 1993 was an admission in any status under 8 U.S.C. 1229b(a)(2), because the phrase "in any status" plainly encompasses every status recognized by immigration statutes, lawful or unlawful.
Court Description: Immigration. The panel granted Abraham Villalba Saldivar’s petition for review of the Board of Immigration Appeals’ decision holding that Saldivar was statutorily ineligible for cancellation of removal for failure to establish seven years continuous residence in the United States after being “admitted in any status,” and vacated and remanded. For the purposes of the appeal, the panel assumed that Saldivar was “waved through” at a port of entry, and reaffirmed that an alien is “admitted” when he presents himself for inspection and is waved through a port of entry. The panel held that the term “in any status” plainly encompasses every status recognized by immigration statutes, lawful or unlawful. The panel therefore concluded that Saldivar was statutorily eligible for cancellation of removal because he established continuous residence in the United States for more than seven years after his admission. Dissenting, Judge Kozinski wrote that the majority defies structure, precedent and common sense by interpreting immigration status to mean both lawful and unlawful status. Judge Kozinski concluded that the only sensible way to read the term status is to refer to one of several specific lawful categories, and that the majority creates an intra-circuit conflict with Lai Haw Wong v. INS, 474 F.2d 739, 742 (9th Cir. 1973), where the court explained that “mistaken SALDIVAR V. SESSIONS 3 admission conferred no status, permanent resident or otherwise.” Further, Judge Kozinski wrote that if any doubt remains about the meaning of status, the court should defer under Chevron to the BIA’s interpretation.
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