Saldivar v. Sessions allows waiving in as an ‘admission in any status’ in permanent-resident Cancellation.

Sunday, November 19th, 2017
By: Jonathan MontagJ.D.

In Saldivar v. Sessions, filed on November 7, 2017, the Ninth Circuit Court of Appeals held that for purposes of eligibility for Cancellation of Removal for Certain Permanent Residents, INA § 240A(a), the requirement at INA § 240A(a)(2), that the alien had resided in the United States continuously for seven years after having been admitted in any status includes persons waived into the United States. In Saldivar, an alien was convicted of possessing methamphetamine six years after he adjusted status but nineteen years after he was waived into the United States. Noting that the Immigration and Nationality Act refers to persons being in lawful or unlawful status, admission in an unlawful status, what occurs when someone without a visa is waived into the United States, counts as “any” status required by INA § 240A(a)(2). This decision is in accord with the Fifth Circuit’s decision in Tula Rubio v. Lynch.

Judge Kozinski dissented, finding it absurd that someone with no status could be considered having any status. He also found it is absurd that a person who had the guile to be waived into the United States is better off than someone who got in by sneaking in. He does not mention that a person admitted as a child with a border crossing card is far, far better off than someone with equally long or longer residence who entered without inspection or, if it had gone his way, was waived in, which was the result of Matter of Blancas-Lara, on which Judge Kozinski heavily relies. Nor is there any concern about the absurdity that Mr. Saldivar, a 34 year old man who has lived in the United States for the 24 most recent of those years, who is married to a United States citizen and who has three children can be deported for a five year old simple possession charge because of a lack of sufficient residence in the United States.

The dissent makes clear that Judge Kozinski does not approve of waiving in conferring any advantage to an alien. He does not make any reference to Matter of Quilantan, or its predecessor, the thirty seven year old decision in Matter of Arreguin, giving advantages to waive-ins.

Judge Kozinski does win some of his waive-in battles. In a case from a year ago written by Judge Kozinski, Tellez v. Lynch, discussed here, someone waived in was deemed to have entered illegally for purposes of reinstatement of removal under INA § 241(a)(5) and thus subject to reinstatement. In Saldivar, a waive in starts the seven-year residence clock for eligibility for Cancellation of Removal in contrast to entering without inspection which does not, while in Tellez, a waive in affords no benefit and is considered the equivalent of entry without inspection for purposes of reinstatement of removal. Let’s hope Judge Kozinski doesn’t get a Quilantan-type case. Posted November 19, 2017.


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