By Sarah Flinn
A recent decision by the U.S. Court of Appeals for the Fifth Circuit held that admission to the U.S. is met by a physical wave through the port of entry by an immigration official. Further, in relation to the INA provision governing cancellation of removal for lawful permanent residents, § 240A(a), the wave-through admission is valid for all immigrants, whether documented or not. Tula Rubio v. Lynch, No. 14-60183, slip op. (5th Cir. May 21, 2015).
In 1992, in very common circumstances, Ramiro Constantino Tula Rubio, age 4, entered the United States as a passenger in a car after an immigration officer waved the car through the port of entry. Id. at 1. Ten years later, in 2002, Mr. Tula Rubio obtained lawful permanent residence status and continued to reside legally in the U.S. Id.at 2. In 2006, Mr. Tula Rubio was convicted of two Texas state offenses: possession of marijuana and evading arrest or detention. Id. Upon his return from a visit to Mexico in 2013, Mr. Tula Rubio was served a Notice to Appear and charged as inadmissible under INA § 212(a)(2)(A)(i)(I) & (II) due to the 2006 convictions. Id. Mr. Tula Rubio subsequently conceded that he was removable based on the Texas state offenses. However, he then filed an application for cancellation of removal pursuant to INA § 240A(a). Id.
INA § 240A(a) permits immigration judges to cancel the removal of an immigrant who establishes that (1) he “has been an alien lawfully admitted for permanent residence for not less than 5 years”, (2) he “has resided in the United States continuously for 7 years after having been admitted in any status,” and (3) he “has not been convicted of any aggravated felony.” INA § 240A(a). Mr. Tula Rubio’s case pivoted on the second element regarding whether he was admitted in any status. Tula Rubio, No. 14-60183 at 2. Both the immigration judge and Board of Immigration Appeals (BIA) determined that Mr. Tula Rubio’s 1992 entry was not an admission and therefore Mr. Tula Rubio was not eligible for cancellation of removal under INA § 240A(a)(2). Id. Specifically, the BIA held that Mr. Tula Rubio’s entry did not fit within the definition of “any status” because he entered illegally and the immigration officer’s wave did not confer any legal status upon him. Id. at 6.
The Fifth Circuit, on the other hand, determined that Mr. Tula Rubio’s entry was both an admission and that his status as an unauthorized migrant is included in the term “any status.” Id. The Fifth Circuit relies on a number of cases to justify their conclusion that “any status” includes all states and conditions of immigrants in the U.S. Id. at 7. Building off United States v. Gonzales, 520 U.S. 1, 5 (1997), the Fifth Circuit concluded that Congress did not limit the use of the word “any.” In reference to prison sentences, Gonzales specifies that when there is no additional qualifying language such as “lawful” or “legal” added to “any status”, the term will include “all of the type to which it refers.” Gonzales, 520 U.S. at 5. The Fifth Circuit applies the Supreme Court’s reasoning in Gonzales to the situation of migrants and concludes that in situations that use “any” without qualifying language, the court will interpret “any” to include all possible statuses of a migrant. Tula Rubio, No. 14-60183 at 7.
Additionally, the Fifth Circuit found further justification for reaching the conclusion that the definition of “any” in INA § 240A(a)(2) includes both authorized and unauthorized migrants within the structure of the statute itself. INA § 240A(a)(1) specifies that an immigrant must have been “lawfully admitted for permanent residence for not less than 5 years.” The additional language requirement of “lawfully admitted” in the immediately preceding section highlights the fact that lawfully admitted is not a requirement of INA § 240A(a)(2). Id. at 9. Using the difference in structure, the court concluded that Congress intended to have two different requirements for the different elements. Id. Congress intended INA § 240A(a)(2) to include migrants that entered both legally and illegally but who later obtained lawful permanent resident status. Id.
Further, the Fifth Circuit also relies on the use of the term “status” throughout the INA itself. The statute repeatedly uses “status” to encompass both immigrants and nonimmigrants alike. Id. at 10. Further, the INA refers to “unlawful immigration status,” “lawful status,” and “lawful nonimmigrant status,” which indicates that the term “status” includes lawful and unlawful conditions. Id. Because the court concludes that the term “any status” includes all migrants that were admitted, whether in the U.S. lawfully or unlawfully, the court concluded that Mr. Tula Rubio´s was admitted in any status and had been in the U.S. for seven years by the time he was convicted of the Texas state crime. As a result, Mr. Tula Rubio satisfied the requirements of INA § 240A(a)(2), making him eligible for cancellation of removal. The court remanded the case for further proceedings to consider discretionary aspects of his application.
[Editor’s Note: On October 28, 2015, the Fifth Circuit denied a request for rehearing en banc. Judge Jones wrote a vigorous dissent from the denial of rehearing, which three other judges joined. The rehearing denial and dissent are available here.]
Sarah Flinn is a current 2L student at the University of Denver Sturm College of Law. She is currently completing an externship in Santiago, Chile and plans to continue studying immigration law when she returns. Ultimately, she hopes to work in the field of immigration law helping Latina youth that have been trafficked to the United States.
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