Alejandra Montesinos Cisneros v. Todd Blanche

majority opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-1090

ALEJANDRA MONTESINOS CISNEROS,

Petitioner,

TODD BLANCHE, ACTING ATTORNEY GENERAL,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Argued: October 22, 2025 Decided: July 17, 2026

Before AGEE, THACKER, and RICHARDSON, Circuit Judges

Petition for review denied by published opinion. Judge Richardson wrote the opinion, in

which Judge Agee joined. Judge Thacker wrote a dissenting opinion.

ARGUED: Jennifer Campos, GEORGETOWN UNIVERSITY LAW CENTER, for

Petitioner. Jonathan Aaron Robbins, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent. ON BRIEF: Erica Hashimoto, Director, Salvatore

Mancina, Supervising Attorney, Loro Schreiner, Student Counsel, Jerry Blake Blevins,

Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW

CENTER, Washington, D.C., for Petitioner. Brett A. Shumate, Assistant Attorney

General, Zoe J. Heller, Senior Litigation Counsel, Office of Immigration Litigation, Civil USCA4 Appeal: 23-1090 Doc: 72 Filed: 07/17/2026 Pg: 2 of 37

Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent.

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RICHARDSON, Circuit Judge:

Alejandra Montesinos Cisneros, a native of El Salvador, seeks cancellation of

removal under 8 U.S.C. § 1229b(a). That statute requires, among other things, that the

applicant have “resided in the United States continuously for 7 years after having been

admitted in any status.” 8 U.S.C. § 1229b(a)(2). We must decide whether Cisneros was

“admitted in any status” when she crossed the border on December 14, 1994, under the

Executive’s Deferred Enforced Departure (DED) program. The immigration officer

stamped “Admitted” in Cisneros’s passport but then handwrote “DED until Dec. 30, 1994”

within that stamp.

We hold that Cisneros was not “admitted in any status” on December 14, 1994.

Even assuming she was “admitted” by virtue of the officer’s stamp when she returned, she

was not admitted “in any status” because DED is not an immigration status. Her petition

for review is denied.

I. BACKGROUND

Cisneros is a native citizen of El Salvador who first came to the United States

without inspection in November 1985. She later applied for and was granted Temporary

Protected Status (TPS) under 8 U.S.C. § 1254a. 1 When the TPS designation for El

Salvador ended in 1992, President Bush—and later, President Clinton—delayed the

deportation of Salvadorans who had registered for TPS by allowing them to benefit from

TPS allows aliens to remain in the United States if their home country is in a state

of upheaval due to an ongoing armed conflict, natural disaster, or similar event. 8 U.S.C.

§ 1254a(a)–(b).

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Deferred Enforced Departure (DED). 2 In 1994, Cisneros received a Form I-512 under the

DED program, which authorized her to travel and seek return without abandoning her

DED-based protection, and she subsequently traveled outside the United States with this

document on November 17, 1994. Upon returning to the United States on December 14,

1994, an immigration officer at Dulles International Airport stamped Cisneros’s passport

with the pre-marked word “Admitted” and handwrote “DED until Dec. 30, 1994” within

that stamp. J.A. 253, 267.

Cisneros later traveled abroad twice more using DED documents, returning to the

United States on April 13, 1996, and December 28, 1997. On each of these trips back, the

immigration officer stamped Cisneros’s passport “Paroled” and wrote either “DED” or “I512.”

On November 29, 2006, Cisneros obtained lawful permanent resident status (LPR)

under the Nicaraguan Adjustment and Central American Relief Act (NACARA).

In 2012, Cisneros was arrested and pleaded guilty to falsely identifying herself to

law enforcement, in violation of Va. Code § 19.2-82.1. Then in 2013, Cisneros was

arrested and pleaded guilty to petit larceny, in violation of Va. Code § 18.2-96.

In September 2016, the Department of Homeland Security (DHS) issued a Notice

to Appear, charging Cisneros as subject to removal under 8 U.S.C. § 1182(a)(2)(A)(i)(I),

as an alien convicted of a crime involving moral turpitude (CIMT). At a hearing before an

Granted at the President’s discretion, DED is discretionary executive forbearance

that defers removal for a specified period. See Extension of Deferral of Enforced Departure

for Nationals of El Salvador, 58 Fed. Reg. 32,157-01 (June 8, 1993).

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immigration judge on September 26, 2017, Cisneros conceded removability and applied

for cancellation of removal under § 1229b(a). 3 Her eligibility turned on whether she met

the statute’s requirement of seven years’ continuous residence “after having been admitted

in any status.” § 1229b(a)(2).

Cisneros conceded that her period of continuous residence ended when she

committed petit larceny in February 2013. See 8 U.S.C. §§ 1229b(d)(1), 4 1182(a)(2)(A)(i) 5

(deeming a period of continuous residence to end when the alien has committed a

removable offense, such as a CIMT 6). She argued, however, that the clock started on

“The Attorney General may cancel removal in the case of an alien who is

inadmissible or deportable from the United States if the alien—

(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.”

8 U.S.C. § 1229b(a).

“Any period of continuous residence or continuous physical presence in the United

States shall be deemed to end . . . when the alien is served a notice to appear under section

1229(a) of this title, or . . . when the alien has committed an offense referred to in section

1182(a)(2) of this title that renders the alien inadmissible to the United States under section

1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or

1227(a)(4) of this title, whichever is earliest.” 8 U.S.C. § 1229b(d)(1).

“[A]ny alien convicted of, or who admits having committed, or who admits

committing acts which constitute the essential elements of . . . a crime involving moral

turpitude (other than a purely political offense) or an attempt or conspiracy to commit such

a crime . . . is inadmissible.” 8 U.S.C. § 1182(a)(2)(A)(i)(I).

Cisneros concedes that this question has been foreclosed by this Court’s holding

in Chavez v. Bondi, 134 F.4th 207, 222 (4th Cir. 2025), that Virginia petit larceny is a

CIMT. Her only argument on this question is that the issue should be reviewed by the

Supreme Court or by this Court sitting en banc. But we are bound by Chavez.

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December 14, 1994, nearly 20 years earlier, when the immigration officer stamped

“Admitted” in her passport.

At the November 5, 2018, merits hearing, the government initially conceded that

Cisneros had accrued seven years of continuous residence but withdrew that concession

before the hearing concluded.

On December 14, 2018, the immigration judge denied Cisneros’s application,

concluding that she was not “admitted in any status” when she returned under DED on

December 14, 1994. The IJ reasoned that Cisneros was paroled rather than admitted, and

that DED is not an immigration status within the meaning of § 1229b(a)(2). The IJ found

that Cisneros was not “admitted in any status” until she adjusted to LPR status on

November 29, 2006, which left fewer than seven years before her February 2013 offense.

The Board of Immigration Appeals dismissed Cisneros’s appeal on December 29, 2022,

affirming the IJ’s reasoning.

Cisneros timely filed a pro se petition for review on January 26, 2023. See 8 U.S.C.

§ 1252(b)(1). Venue is proper because the proceedings took place in Arlington, Virginia.

See Herrera-Alcala v. Garland, 39 F.4th 233, 242–43 (4th Cir. 2022) (citing 8 U.S.C.

§ 1252(b)(2)).

II. DISCUSSION

Cancellation of removal is a discretionary form of relief. See 8 U.S.C. § 1229b(a).

We have jurisdiction to review only questions of law arising from the denial of Cisneros’s

application. § 1252(a)(2)(D). The IJ and Board’s interpretation of the term “admitted in

any status” in § 1229b(a)(2) is “a question of law that we review de novo.” Mohamed v.

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Holder, 769 F.3d 885, 888 (4th Cir. 2014). 7 And “[w]here, as here, the [Board] has adopted

an IJ decision and issued its own decision, we review both rulings.” Xing Yang Yang v.

Holder, 770 F.3d 294, 302 (4th Cir. 2014); see also Cabrera v. Garland, 21 F.4th 878, 883

(4th Cir. 2022).

Our review is limited to whether the clock “started” on December 14, 1994. 8 In

other words, was she “admitted in any status” on that date? See § 1229b(a)(2). We hold

that she was not. We explain in three steps: first, what “status” means in the INA; second,

why DED is not one; and third, why Cisneros’s contrary arguments fail. Because this

conclusion makes her statutorily ineligible for cancellation of removal, we deny her

petition for review.

In its brief, the government suggests that we review the agency’s eligibility

determinations for cancellation of removal—including findings of continuous physical

presence—for substantial evidence. Respondent’s Br. at 15 (citing Ramos v. Holder, 660

F.3d 200, 203 (4th Cir. 2011)). This is incorrect. In Patel v. Garland, the Supreme Court

clarified that § 1252(a)(2)(B)(i)’s jurisdictional bar extends to factual findings underlying

determinations of a petitioner’s eligibility for discretionary relief—including findings

made in the course of deciding eligibility for relief under § 1229b. See 596 U.S. 328, 347

(2022). But the dispositive question here is legal, and thus falls within § 1252(a)(2)(D)’s

carve-out. So we review it de novo.

The question, in particular, asks us to interpret the INA. Before Loper Bright

Enterprises v. Raimondo, 603 U.S. 369 (2024), we might have afforded Chevron deference

to the Board’s interpretation of “admitted in any status,” because this interpretation relied

on an opinion by a three-member Board panel in Matter of Castillo Angulo, 27 I. & N. Dec.

194, 198–202 (BIA 2018). Now, however, courts—not agencies—must resolve statutory

ambiguities “by exercising independent legal judgment.” Loper Bright, 603 U.S. at 401.

So we must interpret §§ 1101(a)(13)(A) and 1229b(a)(2) for ourselves, using the

traditional tools of statutory construction. Id.

Cisneros concedes that our precedent in Chavez precludes any argument that the

clock “stopped” in February 2013. See 134 F.4th at 222.

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A. Cisneros Was Not Admitted “in any status”

Assuming that Cisneros’s ingress on December 14, 1994, constituted an

“admission,” it was not an admission “in any status.” 8 U.S.C. § 1229b(a)(2). She arrived

with the same immigration status she had when she left the United States: none.

1. “Status” under the INA denotes membership in a legislatively

defined immigration classification

Admission and status are distinct concepts. See Sanchez v. Mayorkas, 593 U.S. 409,

414 (2021). Admission is a historical event—the act of lawfully entering the country after

inspection and authorization by an immigration officer. 8 U.S.C. § 1101(a)(13)(A). Status

is different. Status is a positive-law construct. It may be held only by those who fit a

legislatively defined class. It carries legal entitlements the government must recognize

until the conditions prescribed by law are no longer met.

“Status” had precisely this meaning when Congress enacted the INA in 1952.

Black’s Law Dictionary defined it as “[s]tanding; state or condition. . . . The rights, duties,

capacities and incapacities which determine a person to a given class. A legal personal

relationship, not temporary in its nature nor terminable at the mere will of the parties, with

which third persons and the state are concerned.” Status, Black’s Law Dictionary 1580

(4th ed. 1951); 9 see also Status, Bouvier’s Law Dictionary 3129 (Francis Rawle rev. 8th

The dissent reads Black’s reference to “incapacities which determine a person to

a given class” to mean that aliens without status form a class—“unlawful status”—by virtue

of their shared incapacity to claim a right to be in the United States. Dissent at 32. That

inverts the definition. The “incapacities” Black’s describes are legal disabilities that flow

from membership in an already-defined class. For example, a child’s minor status—that

is, membership in the class of people under eighteen—disables him from entering into nonvoidable contracts. See Restatement (Second) of Contracts § 14 (A.L.I. 1981). Or, in an

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ed. 1914) (“The rights, duties, capacities and incapacities which determine a person to a

given class.”). 10 At the time of the INA’s enactment, then, “status” was a matter of

belonging to a defined class, with membership in that class creating a durable entitlement

that is claimable against others, including the state.

The INA reflects precisely this understanding. It is a taxonomy of statuses:

Congress classifies aliens into defined categories—immigrants and nonimmigrants,

refugees and asylees, LPRs and temporary visitors—and attaches to each a legally

earlier era, a married woman’s status—her coverture—disabled her from contracting in her

own name, owning property independently, and suing or being sued without her husband

joined as a party, while simultaneously creating the capacity to bind his credit for

necessaries. 1 William Blackstone, Commentaries *430 (1765).

So the law defines the class; rights and disabilities follow from membership. The

dissent proceeds backwards. Each recognized status identifies the class of people who hold

that status and then defines the terms of the law’s relationship with them, i.e., the class

members’ capacities and incapacities. The dissent instead gathers everyone with whom

the law has established no such relationship and treats that shared absence as a status of its

own. But, as we’ve just discussed, a status is “[a] legal personal relationship,” Black’s

Law Dictionary 1580 (4th ed. 1951), and a group united only by the lack of any relationship

is precisely the absence of what that definition requires, not an instantiation of it.

Moreover, a status must be “not temporary in its nature nor terminable at the mere will of

the parties.” Id. Yet presence at the Executive’s sufferance is terminable at will, at any

moment, for any reason. The inability to claim any enduring legal position is not itself a

legal position.

See also Status, The New Century Dictionary 1832 (1952) (“[I]n law, the standing

of a person before the law in the class of persons indicated by his or her legal qualities; the

relation fixed by law in which a person stands towards others or the state.”); Status, The

Concise Oxford Dictionary of Current English 1234 (E. McIntosh rev. 4th ed. 1952)

(“(Law) person’s relation to others as fixed by law; position of affairs.”). For later

formulations of the same legal sense, see Status, Oxford English Dictionary (2d ed. 1989)

(“The legal standing or position of a person as determined by his membership of some class

of persons legally enjoying certain rights or subject to certain limitations.”); Matter of

Blancas-Lara, 23 I. & N. Dec. 458, 460 (BIA 2002) (“‘Status’ is a term of art . . . . It

denotes someone who possesses a certain legal standing.”).

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cognizable entitlement to remain in the United States. Every immigration “status”

recognized by the INA is thus a creature of statute. Matter of Rotimi, 24 I. & N. Dec. 567,

576 (BIA 2008) (“[T]he privilege of residing in this country [is] reflected in a recognized

status such as that of nonimmigrant, refugee, or asylee, each of which is set out in the

statute.”); see also Holder v. Martinez Gutierrez, 566 U.S. 583, 587 (2012) (explaining that

under § 1229b(a) “the alien must have lived in the United States for at least seven

continuous years after a lawful admission, whether as an LPR or in some other immigration

status”) (emphasis added). 11

The pattern for each of these statuses is the same: An alien who satisfies the

eligibility criteria for a status receives a defined period of authorized presence, so long as

he satisfies the conditions required to maintain that status. See generally 8 U.S.C.

§ 1101(a)(15)(A)–(V) (enumerating nonimmigrant statuses 12 and their attendant eligibility

criteria, periods of authorized stay, conditions for maintenance, and grounds for

deportability); § 1101(a)(20) (same, for LPR status); § 1157 (same, for refugees); § 1158

(same, for asylees); § 1254a (same, for holders of temporary protected status).

Only Congress may create an immigration status. See Galvan v. Press, 347 U.S.

522, 531 (1954) (“Policies pertaining to the entry of aliens and their right to remain here

are peculiarly concerned with the political conduct of government. In the enforcement of

these policies, the Executive Branch of the Government must respect the procedural

safeguards of due process. But that the formulation of these policies is entrusted

exclusively to Congress has become about as firmly imbedded in the legislative and judicial

tissues of our body politic as any aspect of our government.” (citations omitted)); see also

Fiallo v. Bell, 430 U.S. 787, 792, 796 (1977).

The nonimmigrant statutory scheme establishes the framework for temporary

lawful presence tied to specific purposes (e.g., work, study, tourism).

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Thus, throughout the INA, “status” refers to membership in a specific,

congressionally defined class. See, e.g., 8 U.S.C. § 1101(a)(20) (defining LPR as “the

status of having been lawfully accorded the privilege of residing permanently in the United

States”); § 1254a (entitled “Temporary protected status”) (emphasis added). It does not

refer to a general description of the alien’s legal condition. An alien must affirmatively fit

into one of these legislatively defined categories to hold a “status”; an alien who occupies

none of them holds no status at all. In the INA, status refers to membership in a statutory

immigration classification, not merely to the lawfulness of one’s presence in the United

States.

2. DED is not a “status”

There is no dispute that Cisneros was the beneficiary of DED when she crossed the

border in December 1994. The question, then, is whether DED is an immigration “status”

as required by § 1229b. It is not. DED is not a creature of the INA but a discretionary act

of executive forbearance—a decision not to enforce the law against an alien who has no

entitlement to be in the United States and is therefore removable. Forbearance of this kind

does not create a status. Indeed, it presupposes the absence of one. The beneficiary of

such forbearance remains in the country only at the government’s sufferance, with no

statutory entitlement that he can claim against it. 13 His presence in the country is permitted

The Board recognized this principle decades ago (albeit in a somewhat different

posture) in Matter of Lok: The government’s forbearance from enforcing an alien’s

deportation “does not legalize the status of the beneficiary of the Government’s

forbearance. He remains in the United States at the sufferance of the Government, not

under any lawful status accorded him by the Act.” 18 I. & N. Dec. 101, 108–09 (BIA

1981) (emphasis added). Lok addressed a LPR whose lawful domicile under former

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by executive grace alone, untethered to any class that Congress has defined in the INA. 14

Resting on no statutory footing, his presence is “terminable at the mere will” of the

executive, at any moment and for any reason. Cf. Status, Black’s Law Dictionary 1580

(4th ed. 1951). Because the beneficiaries of such executive grace occupy no

congressionally created category, they hold no entitlement that the law obliges the

government to recognize. In other words, they lack status. 15 And a lack of status is not a

status.

§ 212(c) ceased to accrue once he became deportable, that is, an alien who held a

recognized status and forfeited its lawfulness. As we explain, a DED beneficiary stands a

step further removed: He never possessed an INA-recognized status at all. If forbearance

cannot preserve the lawful presence of one who once held a recognized status, it cannot

manufacture a status for one who never held any status at all.

See Adjustment of Status; Certain Nationals of the People’s Republic of China,

62 Fed. Reg. 63,249, 63,253 (Nov. 28, 1997) (codified at 8 C.F.R. pt. 245) (“Deferred

action does not confer any immigration status on an alien, nor is it in any way a reflection

of an alien's lawful immigration status. . . . Since deferred action is not an immigration

status, no alien has the right to deferred action. It is used solely for the administrative

convenience of, and in the discretion of, the Service and confers no protection or benefit

on an alien. Deferred action does not preclude the Service from commencing removal

proceedings at any time against an alien.”); Press Release, U.S. Dep’t of Homeland Sec.,

Secretary Napolitano Announces Deferred Action Process for Young People Who Are Low

Enforcement Priorities (June 15, 2012) (explaining that “[t]he use of prosecutorial

discretion [under DACA] confers no substantive right, immigration status, or pathway to

citizenship” and that “[o]nly Congress, acting through its legislative authority, can confer

these rights”); see also Adam B. Cox & Cristina M. Rodríguez, The President and

Immigration Law Redux, 125 Yale L.J. 104, 219–20 & n.319 (2015) (“[T]he Executive has

created a variety of immigration non-statuses like deferred action that leave their recipients

at the mercy of executive discretion.”); Geoffrey Heeren, The Status of Nonstatus, 64 Am.

U. L. Rev. 1115, 1129 (2015) (“If the government exercises its discretion and does not

deport an unauthorized immigrant, what is that individual’s status? The government would

likely answer that such individuals have no status . . . .”).

For this reason, courts have repeatedly recognized that an alien who lacks a status

as defined in the INA is “without status.” See, e.g., United States v. Orellana, 405 F.3d

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This picture describes the situation of those who are present in the United States

under DED. DED is grounded in “the president’s power to conduct foreign relations,” not

in any provision of the INA. USCIS, Deferred Enforced Departure,

https://www.uscis.gov/humanitarian/deferred-enforced-departure (last updated July 1,

2026) [https://perma.cc/3Y8H-EMB8]. It “is not a specific immigration status.” Id. 16 As

one scholar puts it, DED has “no application process . . . let alone a formal hearing,”

leaving its beneficiaries “in a state of perpetual uncertainty”—the “paradigmatic” case of

immigration “nonstatus.” 17 Heeren, The Status of Nonstatus, 64 Am. U. L. Rev. at 1129–

360, 370 (5th Cir. 2005); Reyes-Melendez v. INS, 342 F.3d 1001, 1002 (9th Cir. 2003);

Zheng v. Gonzales, 422 F.3d 98, 111 (3d Cir. 2005); Jiang v. Gonzales, 425 F.3d 649, 652

(9th Cir. 2005); Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 964 (9th Cir. 2017).

See also USCIS, Adjudicator’s Field Manual § 38.2 (2026); USCIS, Policy

Manual, Vol. 10, Pt. A, ch. 2, n.14 (2026); USCIS, Affirmative Asylum Procedures Manual

97 (Feb. 2025); cf. Jill H. Wilson, Cong. Rsch. Serv., RS20844, Temporary Protected

Status and Deferred Enforced Departure 4 (Dec. 5, 2024) (describing DED as “a

temporary, discretionary, administrative stay of removal” with “no statutory basis”).

This also describes the situation of DACA beneficiaries, for example. See

Brewer, 855 F.3d at 964 (DACA recipients “enjoy no formal immigration status”); 62 Fed.

Reg. at 63,253 (“Since deferred action is not an immigration status, no alien has the right

to deferred action.”); DHS Immigration and Customs Enforcement, Office of Detention

and Removal, Detention and Deportation Officers’ Field Manual § 20.8 (Mar. 27, 2006)

(“[Because] deferred action is not an immigration status, no alien has the right to deferred

action. It is used solely in the discretion of the [government] and confers no protection or

benefit upon an alien.”).

That deferred-removal programs like DACA or DED may create interests

reviewable by the courts does not help Cisneros. See DHS v. Regents of the Univ. of Cal.,

591 U.S. 1, 18–19 (2020) (explaining that DACA’s conferral of “affirmative immigration

relief” created “an interest courts often are called upon to protect.”). The creation of

reviewable interests does not imply the conferral of status under the INA, with an attendant

substantive right to remain in the United States. See id. at 16. By contrast, TPS, while also

a form of reprieve from removal, is status, because Congress said so in § 1254a. That the

Secretary may terminate a TPS designation does not dissolve this distinction. Termination

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32; see also Jiang, 425 F.3d at 652 (explaining that DED does not confer lawful

immigration status on one who did not already possess such a status); Zheng, 422 F.3d at

111 (explaining that “DED is not an admission status” because it involves “the President

simply order[ing] the Attorney General to defer deporting” foreign nationals). DED is

forbearance, not status.

Because Cisneros returned to the United States as a DED beneficiary and nothing

more, she was not admitted “in any status.” She is thus ineligible for cancellation of

removal under § 1229b(a)(2). 18

3. Cisneros’s arguments to the contrary are unavailing

Relying on Fifth and Ninth Circuit precedent, Cisneros argues that “in any status”

includes both “lawful” and “unlawful” immigration statuses. See Tula Rubio v. Lynch, 787

of TPS is not an act of executive will but the discharge of a statutory duty: Congress

required the Secretary to review country conditions, to terminate by determining that the

statutory “conditions for [the] designation” are no longer met, and to do so by published

notice on a timetable Congress fixed. 8 U.S.C. § 1254a(b)(3)(A)–(B). See also Mullin v.

Doe, No. 25–1083, 609 U.S. ___, ___ (2026) (slip op., at 3–4) (explaining that Extended

Voluntary Departure—the predecessor to DED—made “the grant and termination of

humanitarian relief . . . purely a matter of executive discretion,” and that “[a]fter critics

objected that [EVD] lacked proper guidelines or standards, Congress created TPS,” a

“regime [that] provided standards to govern the grant and termination of TPS”) (cleaned

up). But DED and DACA may be extended or withdrawn at the President’s unfettered

discretion because no statute defines their beneficiaries, supplies their conditions, or

governs their termination. That congressional silence forecloses treating DACA or DED

as immigration statuses.

Notably, the dissent does not contend that DED is itself a status. On that much,

we agree. The dissent instead contends that Cisneros was admitted in an “unlawful status,”

whether because her TPS had expired two years earlier or simply because she held no INA

status at all when she was admitted. We address that contention below.

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F.3d 288, 293 (5th Cir. 2015); Saldivar v. Sessions, 877 F.3d 812, 816 (9th Cir. 2017).19

She contends that because the INA repeatedly refers to both “lawful” and “unlawful”

statuses, the word “status” without any qualifier must include both lawful and unlawful

statuses. See, e.g., 8 U.S.C. § 1255(c) (referring to “unlawful immigration status,” “lawful

status,” and “lawful nonimmigrant status”). Thus, she claims that reading “status” to

require lawfulness violates a “cardinal principle of statutory construction” and makes other

provisions of the INA that use terms like “lawful status” “superfluous, void, or

insignificant.” See Duncan v. Walker, 533 U.S. 167, 174 (2001). Cisneros also makes

much of the difference in language between subsections (1) and (2) of § 1229b(a). See

also Tula Rubio, 787 F.3d at 294–95; Saldivar, 877 F.3d at 818–19. Whereas § 1229b(a)(2)

requires admission “in any status,” § 1229b(a)(1) requires that the alien have been

“lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(a). 20 From the narrower

language of subsection (a)(1), Cisneros infers that “any status” in (a)(2) must sweep

broadly enough to include unlawful statuses. She argues that the statute distinguishes

between those with lawful permanent residence status under subsection (a)(1) and those

who are merely admitted in any other status under (a)(2), by imposing different residency

We recognize that our conclusion places us at odds with two of our sister circuits.

While we weigh their reasoning carefully, we do not defer to it blindly.

Subsection (a)(1)’s requirement of “lawful[] admi[ssion] for permanent

residence” is not, as Cisneros’s argument suggests, simply “admission” qualified by

“lawful[ness].” This Court has held that the phrase is a statutorily defined term of art that

“has nothing to do with ‘admission’ at all,” referring “not to an applicant’s admittance but

instead to his status.” Azumah v. USCIS, 107 F.4th 272, 276 (4th Cir. 2024) (emphasis in

original). So the two subsections do not stand as parallel provisions differing only in

whether admission is lawful.

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requirements for each. Compare § 1229b(a)(1) (requiring five years of residency for those

who have been “lawfully admitted for permanent residence”), with § 1229b(a)(2)

(requiring seven years of residency for those “having been admitted in any status”).

These arguments misconceive the question. 21 The issue is not whether DED is a

“lawful” status or an “unlawful” one; it is whether DED is a status at all. As we have

explained, it is not. Cisneros’s framing assumes the opposite—that DED is a status, just

not a lawful one. In other words, Cisneros presumes that the INA’s references to “unlawful

status” use the word “status” in some loose, nontechnical sense, to describe the situation

of any alien present in the country—lawfully or not—without regard to that alien’s

membership in a defined status. But when the INA speaks of “unlawful status,” there is

no reason to suppose that it is abandoning the technical sense of “status” that pervades the

rest of the statute. See Martinez Gutierrez, 566 U.S. at 587 (recognizing “status” as an

immigration-law term); United States v. Hansen, 599 U.S. 762, 774–75 (2023) (explaining

that a term of art in a statute generally assumes its technical meaning). Rather, the phrase

describes an alien who holds an enumerated status and asks whether the alien obtained and

maintained that status in conformity with the law. The “lawful” and “unlawful” qualifiers

thus specify the alien’s relationship to an INA-defined status; the word “unlawful” does

not conjure a status that does not exist under the INA.

The dissent says we read “status” to mean “lawful status.” Dissent at 32. We do

not. That was the characterization of the government’s argument in Tula Rubio and

Saldivar; it is not ours. Our holding is that “any status” means any status: membership

in some classification Congress defined. Whether an alien holds a status and whether she

holds it lawfully are different questions. Cisneros fails at the first.

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So “unlawful immigration status” does not simply sweep in everything that is not a

lawful status and thereby include the absence of status altogether. Rather, an “unlawful”

status presupposes the existence of a status: The phrase “unlawful immigration status”

describes a recognized immigration status that the alien unlawfully obtained or has

violated. A student visa holder who fraudulently claimed university enrollment to obtain

status holds a status that was never lawful. Similarly, a student visa holder who fails to

maintain a full course of study still holds a status, albeit one with which she has fallen out

of compliance.

A DED beneficiary, by contrast, holds no INA-recognized status by virtue of

DED—the program neither creates a classification nor places its beneficiary in one. True,

Cisneros once held a recognized status: TPS. But that status ended in 1992, when the

designation for El Salvador terminated. See 8 U.S.C. § 1254a(b)(3). So when Cisneros

presented herself at Dulles in December 1994, TPS provided no contemporaneous status,

and DED supplied no replacement. Section 1229b(a)(2) asks what status the alien was

admitted “in.” To be admitted “in” a status, the alien must hold it at the moment of

admission. A status that has expired is not a status the alien holds in unlawful fashion; it

is a status the alien no longer holds at all. After June 1992, then, Cisneros held no status—

she was simply an alien present in the United States without one. And presence without

status is not something an alien “holds”; it is a fact about where she is and therefore lasts

only as long as the alien remains in the country, and ends when she leaves.

Congress understood this distinction. In the same Act that created § 1229b(a)(2),

Congress addressed the alien who remains “after the expiration of the period of stay

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authorized,” and it described such an alien’s condition not as an unlawful status, but as

unlawful presence. 8 U.S.C. § 1182(a)(9)(B)(ii). So presence and status are different

things. Status is a legal classification created by Congress which an alien may occupy.

Presence is a fact about where the alien is. An alien can be present in the country without

occupying any classification at all, whether her presence is unauthorized (as

§ 1182(a)(9)(B) contemplates) or authorized (as Cisneros was under DED). Either way,

the alien holds no status. What § 1229b(a)(2) requires is status. It asks not whether the

alien was present (lawfully or otherwise), but whether she held a statutorily created status

when admitted. When Cisneros presented herself at Dulles in December 1994, she may

have been lawfully present under DED, but she held no status: none, lawful or unlawful. 22

The dissent responds that Cisneros remained here “in unlawful status,” whether

because her TPS had expired two years earlier or simply because she held no INA status

when she was admitted. The second theory is not really an argument about unlawful status.

It simply repackages the contention—already rejected—that the absence of an INA status

is itself a status “in” which an alien may be admitted.

For the first theory, the dissent invokes Orquera v. Ashcroft, 357 F.3d 413 (4th Cir.

2003). But Orquera cannot carry the weight that the dissent wants it to. To be clear, we

do not deny that § 1255a speaks of aliens who “resided continuously in the United States

in an unlawful status.” The question is what that phrase means. And on that question,

Orquera did not exercise its independent judicial judgment: Because IRCA “does not

define ‘unlawful status’ at all,” we deferred under Chevron to the INS regulations

implementing the amnesty program, 357 F.3d at 424–25, under which the agency

“effectively index[ed] unlawful status to susceptibility to imminent deportation” “[i]n

deciding who qualified for amnesty.” Id. at 425. The dissent concedes both points:

Orquera “deferred to that definition pursuant to Chevron,” and it does not “directly

control[] this case.” Dissent at 35. We agree.

What remains, then, is an administrative gloss addressing a different question—

whose presence was unlawful enough to need legalizing—under a different statute

concerned with unlawful residence, filtered through implementing regulations, and

reviewed under a deference regime that Loper Bright has since interred. See Loper Bright

Enterprises v. Raimondo, 603 U.S. 369, 400 (2024). Whatever Loper Bright leaves of

Orquera’s holding as to § 1255a, see id. at 412, that does not mean we should adopt a

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Cisneros also protests that “any” is an inherently expansive modifier. Even at its

most expansive, “any” is confined to a certain domain: It sweeps broadly across the

recognized categories of the relevant class without limitation to a particular member of that

class. See Ali v. Federal Bureau of Prisons, 552 U.S. 214, 219 (2008) (explaining that

“any” has “an expansive meaning” that is “not limited to” a specific subset). Here, “any

status” means any of the immigration classifications that Congress has defined in the INA.

“Any” broadens the range of qualifying statuses beyond, for example, permanent

residency. But it still assumes that the alien has some status. It expands the class of statuses

deference-driven gloss on one program as the best reading of a different statutory

provision.

And—pace the dissent’s contention to the contrary—consistent usage is our ally:

Throughout the INA, “status” is used to denote a defined classification, and if intra-INA

usage is the measure, the most telling comparison is the Act that created § 1229b(a)(2)

itself—IIRIRA—which described the condition of remaining without authorization as

unlawful presence, not unlawful “status.” See § 1182(a)(9)(B). So Orquera tells us

nothing about the classification “in” which an alien is “admitted” under § 1229b(a)(2).

If anything, Orquera helps our reading. Both conditions it describes—a legal status

that “has expired or otherwise terminated” and a legal status the alien “has violated”—

presuppose a recognized status to expire or to violate. Id. “Unlawful status” there, as here,

is parasitic on the statuses Congress created; it is not a freestanding classification that

attaches to anyone the law would remove. Nor does Orquera say that expiration confers

some further status that the alien holds from then on. A status that “has expired” is a status

that has met its end; the phrase describes what happened to a classification that the alien

once held, not one that she now occupies. Indeed, Orquera rejected the petitioners’

argument that violating their visa terms placed them in “unlawful status,” because they

“technically remained under the auspices of an A-2 visa.” Id. at 425 & n.7. Status turned

on the objective existence of the classification, not on the alien’s conduct or deportability.

So too here: When Cisneros’s TPS terminated, no classification remained—and none

called “unlawful status” sprang up in its place. The dissent’s argument does not fail

because an expired status can never have downstream legal consequences. It fails, on our

reading, because it treats an ended TPS status as the classification in which Cisneros was

admitted two years later. Section 1229b(a)(2) asks about the status at entry, not whether

an earlier period of residence became unlawful when a former status expired. When

Cisneros returned in 1994, TPS had ended and DED supplied no replacement classification.

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that qualify; it does not dispense with the status requirement altogether. Cisneros’s reading

would make “in any status” include those with no status at all. That is not what “any”

means. “Any” means “whichever one” or “no matter which”—not “none.” It ranges over

members of a class; it does not erase the need to be a member of that class.

Cisneros’s reading of “in any status” would render that language superfluous. Were

we to read “in any status” to include anyone under any circumstance, then the statutory

phrase simply collapses into “admitted”; the inquiry would end after a determination that

the alien was admitted. Tula Rubio v. Lynch, 805 F.3d 185, 187 (5th Cir. 2015) (Jones, J.,

dissenting from denial of reh’g en banc) (“If the 7-year residence requirement runs from

an alien’s being ‘admitted in any status,’ and ‘in any status’ includes immigrants, nonimmigrants, and illegal aliens, then what does ‘status’ exclude? What significance does it

have in the provision?”).

But “admitted in any status” differs from language in provisions like § 1255(a),

which requires only that an alien be “inspected and admitted” and makes no mention

whatsoever of the alien’s “status” upon admission. Accord Castillo Angulo, 27 I. & N.

Dec. at 197. 23 And because (1) we should assume that Congress acts intentionally when it

includes particular language in one section of a statute and not in another, and (2) we should

give effect to all parts of the statute, the phrase “in any status” in § 1229b(a)(2) must mean

that there is at least some category of aliens who are not admitted “in any status.” See

Keene Corp. v. United States, 508 U.S. 200, 208 (1993); Corley v. United States, 556 U.S.

While we do not defer to Castillo Angulo, its reasoning is persuasive insofar as it

tracks the statute’s text, structure, and history.

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303, 314 (2009) (a “statute should be construed so that . . . no part will be inoperative or

superfluous, void or insignificant”) (cleaned up); see also Martinez Gutierrez, 566 U.S. at

587 (recognizing “status” as an immigration-law term of art and interpreting § 1229b(a)(2)

to mean that “the alien must have lived in the United States for at least seven continuous

years after a lawful admission, whether as an LPR or in some other immigration status”)

(emphasis added). If “in any status” is to mean anything, Cisneros’s interpretation cannot

be right. 24 See Setser v. United States, 566 U.S. 231, 239 (2012) (“[W]e must ‘give effect

. . . to every clause and word.’”) (quoting United States v. Menasche, 348 U.S. 528, 538–

39 (1955)); see also Lai Haw Wong v. INS, 474 F.2d 739, 742 (9th Cir. 1973) (explaining

that “mistaken admission conferred no status, permanent resident or otherwise, on [the

aliens in question]”).

The broader structure of § 1229b reinforces this conclusion. Congress created a

two-track system for cancellation of removal. Subsection (a) provides a more favorable

path for aliens who have been “admitted in any status,” § 1229b(a)(2). It requires three

things: (1) having been “an alien lawfully admitted for permanent residence” for not less

than five years; (2) seven years of continuous residence after having been “admitted in any

status”; and (3) no aggravated-felony conviction. § 1229b(a). Subsection (b), by contrast,

governs cancellation for aliens who have not been admitted in any status. § 1229b(b)(1)

Statutory terms generally take their technical meaning when the context indicates

that Congress used a term of art like “status.” See, e.g., Hansen, 599 U.S. at 774–75; Van

Buren v. United States, 593 U.S. 374, 386–87 (2021); see also Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal Texts 73 (2012) (“Sometimes context

indicates that a technical meaning applies. Where the text is addressing a . . . technical

subject, a specialized meaning is to be expected.”).

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(“The Attorney General may cancel removal of, and adjust to the status of an alien lawfully

admitted for permanent residence, an alien who is inadmissible or deportable from the

United States if the alien . . .”). It requires four, more-demanding criteria: (1) ten years of

continuous physical presence, (2) good moral character, (3) no conviction for a variety of

offenses, and (4) the difficult showing that “removal would result in exceptional and

extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the

United States or an alien lawfully admitted for permanent residence.” Id. An alien’s place

within this two-track structure turns on whether the alien was admitted in a recognized

immigration status. If “admitted in any status” were read to encompass anyone who

crossed the border after inspection—regardless of whether she possessed any legal status—

then any alien who happened to pass through a port of entry rather than crossing without

inspection would qualify for the subsection (a) track’s more favorable treatment. Two

identically situated aliens with no legal status would receive dramatically different

treatment based solely on the happenstance of whether a border officer waved them

through. The availability of cancellation relief does not turn on such fortuity.

The statute’s history confirms that admission alone is not enough. When Congress

enacted former § 212(c)—§ 1229b(a)(2)’s precursor—in 1952, it limited that provision’s

discretionary relief to aliens “returned to a lawful unrelinquished domicile of seven

consecutive years.” 8 U.S.C. § 1182(c) (1994) (repealed 1996). The courts of appeals

divided over when “lawful domicile” began to accrue. This Circuit, like the Board, held

that lawful domicile required LPR status. See Chiravacharadhikul v. INS, 645 F.2d 248,

250–51 (4th Cir. 1981). Other circuits took a broader view, recognizing lawful domicile

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during periods of any lawful status. See, e.g., Lok v. INS, 548 F.2d 37, 41 (2d Cir. 1977);

Castellon-Contreras v. INS, 45 F.3d 149, 153 (7th Cir. 1995). But under either

interpretation, the alien needed a lawful immigration status at some point—an alien who

came illegally and remained without any sort of status was ineligible. See, e.g., MadridTavarez v. INS, 999 F.2d 111, 112–13 (5th Cir. 1993); accord Castillo Angulo, 27 I. & N.

Dec. at 198.

Congress enacted § 1229b(a)(2) in 1996 against this backdrop. Its purpose, the

Supreme Court has explained, was to reconcile the two competing readings of “lawful

unrelinquished domicile,” not to abandon the lawful-status-upon-entry premise on which

both readings rested. See Martinez Gutierrez, 566 U.S. at 592–93. And because we

presume that Congress legislates with knowledge of the settled judicial and administrative

interpretations of the statutes that it amends, there is no reason to think that Congress

intended to do away with the requirement that an alien hold a recognized immigration

status when it enacted § 1229b(a)(2). See, e.g., Lorillard v. Pons, 434 U.S. 575, 583

(1978); Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 267–68 (1992).

We also reject the argument—advanced in Tula Rubio and Saldivar and pressed by

Cisneros here—that the use of the phrase “lawfully admitted” in § 1229b(a)(1)—but not in

§ 1229b(a)(2)—shows that Congress intended for § 1229b(a)(2) to apply to aliens admitted

with no recognized immigration status. See Tula Rubio, 787 F.3d at 294–95; Saldivar, 877

F.3d at 817.

“Lawfully admitted for permanent residence” in § 1229b(a)(1) is not “lawfully” plus

“admitted.” Rather, it is a single, unified term of art that “has nothing to do with

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‘admission’ at all,” and everything to do with status. Azumah, 107 F.4th at 276. Section

1101(a)(20) of the INA defines it as “the status of having been lawfully accorded the

privilege of residing permanently in the United States.” 8 U.S.C. § 1101(a)(20). The term

encompasses aliens who obtained LPR status by any means, whether at the time of a

physical ingress or through later adjustment of status while already in the country. See

Negrete-Ramirez v. Holder, 741 F.3d 1047, 1053 (9th Cir. 2014). It does not refer to a

physical ingress. By contrast, “admitted in any status” in § 1229b(a)(2) does refer to a

physical ingress: The alien must have been “admitted,” that is, she must have made a

“lawful entry . . . after inspection and authorization by an immigration officer.” 8 U.S.C.

§ 1101(a)(13)(A). And she must have held status when she returned.

Because (a)(1) asks about the acquisition of a particular legal status—whereas (a)(2)

asks about the circumstances of a physical ingress—the presence of “lawfully” in one and

its absence in the other tells us nothing about whether “status” in (a)(2) includes those with

no immigration status at all. The word “lawfully” in (a)(1) is part of an already-defined

term of art, not a freestanding modifier that Congress deliberately included in one

subsection but omitted from another. See Saldivar, 877 F.3d at 819–20 (Kozinski, J.,

dissenting) (explaining that § 1229b(a)(1) refers to acquisition of permanent resident

status, not physical entry, while § 1229b(a)(2) refers to the alien’s immigration

classification when she first enters the country); accord Castillo Angulo, 27 I. & N. Dec.

at 202. The operative work that “in any status” does in (a)(2) is to require that the alien

have held a recognized immigration status at the time of her physical admission; it does

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not expand the universe of qualifying statuses to include the absence of any status

whatsoever. 25

For these reasons, Cisneros’s attempts to bring DED within the meaning of “any

status” are unpersuasive. 26

* * *

Cisneros was not admitted “in any status” within the meaning of § 1229b(a)(2) when

she returned as a DED beneficiary. DED deferred her removal; it did not give her status.

Section 1229b(a)(2) demands status. Only Congress can create status under the INA. The

Executive can defer enforcement; it cannot confer a place in the statutory scheme Congress

wrote. The petition for review is therefore

DENIED

See also Tula Rubio, 805 F.3d at 189–90 (Jones, J., dissenting) (observing that

“‘[l]awfully admitted for permanent residence’ is a specific type of status—LPR status—

rather than a generic phrase for any alien who is legally allowed to be present” and that “no

other legally recognized statuses use the word ‘lawful’ as a descriptor”) (citing 8 U.S.C.

§§ 1101(a)(15)(A)–(V)).

We also reject Cisneros’s claim that her due process rights were violated because

no transcript of the November 2018 hearing exists. As the Board concluded, the absence

of the transcript neither rendered the proceedings fundamentally unfair nor prejudiced their

outcome. Anim v. Mukasey, 535 F.3d 243, 256 (4th Cir. 2008). It was not fundamentally

unfair because she was still able to address the merits of her cancellation of removal claim

on appeal. And Cisneros has failed to show how the lack of the transcript prejudiced her:

This case turns on a question of law and no party’s concession can bind this Court. See

Alexander v. S.C. State Conf. of the NAACP, 602 U.S. 1, 19 n.6 (2024). Therefore, Cisneros

failed to demonstrate a violation of her due process rights.

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THACKER, Circuit Judge, dissenting:

As the majority explains, cancellation of removal is a discretionary form of

immigration relief for which noncitizens are statutorily eligible only if they have been (1)

“lawfully admitted for permanent residence” for at least five years; (2) have “resided in the

United States continuously for 7 years after having been admitted in any status”; and (3)

and have “not been convicted of any aggravated felony.” 8 U.S.C. § 1229b(a). In this

case, the only question before us is whether Alejandra Cisneros (“Petitioner”) was

“admitted in any status” in 1994 when the immigration officer stamped her passport

“Admitted.”

I agree with the Fifth and Ninth Circuits. Like those courts, I would conclude that

Petitioner was “admitted in any status” on December 14, 1994, when an immigration

officer stamped her passport “Admitted.” Accordingly, I dissent.

First, rather than assuming as the majority does that Petitioner was admitted on

December 14, 1994, I would hold that she clearly was.

The Immigration and Nationality Act (the “INA”) defines “admission” and

“admitted” to mean, “with respect to a [noncitizen], the lawful entry of the [noncitizen]

into the United States after inspection and authorization by an immigration officer.” 8

U.S.C. § 1101(a)(13)(A). As we have long recognized, “a noncitizen is ‘admitted’ to the

United States for purposes of the INA when she enters with ‘procedural regularity’ by

physically presenting herself at a port of entry for inspection and questioning by an

immigration official.” Mauricio-Vasquez v. Whitaker, 910 F.3d 134, 136 (4th Cir. 2018)

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(quoting Matter of Quilantan, 25 I. & N. Dec. 285, 293 (B.I.A. 2010)). And entry with

“procedural regularity doesn’t require entry on a particular visa or status.” Id. In other

words, admission can occur separate and apart from the status a noncitizen holds or does

not hold.

Related but distinct from admission is the concept of parole. The “Secretary of

Homeland Security may . . . in his discretion parole into the United States temporarily

under such conditions as he may prescribe only on a case-by-case basis . . . any [noncitizen]

applying for admission to the United States.” 8 U.S.C. § 1182(d)(5)(A). But “parole . . .

shall not be regarded as an admission of the [noncitizen].” Id. The Secretary has authorized

immigration officers at points of entry to grant parole in their exercise of discretion. 8

C.F.R. § 212.5(a). Immigration officers “may, after review of the individual case, parole

into the United States temporarily in accordance with section 212(d)(5)(A) of the Act, any

[noncitizen] applicant for admission, under such terms and conditions . . . as he or she may

deem appropriate.” Id. § 212.5(c). Noncitizens already present in the country may apply

for advanced parole. Id. § 212.5(f). If the application is granted, the noncitizen “shall be

issued an appropriate document authorizing travel,” which the noncitizen should present

to the immigration officer upon reentry. Id.

At points of entry, immigration officers have passport stamps to identify whether an

entry is an admission or a grant of parole. The only other option an immigration officer

has is to deny entry. “[A]ny procedurally proper entry into the United States that is not

parole is an ‘admission.’” Duarte v. Mayorkas, 27 F.4th 1044, 1058 n.11 (5th Cir. 2022).

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Here, the immigration officer exercised their discretion and stamped Petitioner’s passport

“Admitted.”

Nonetheless, the IJ and BIA determined that Petitioner was paroled into the country

in 1994, despite the “Admitted” stamp in her passport. They reasoned that because

Petitioner had been granted advanced parole and DED, she could only possibly have been

paroled. Petitioner argues that holding is incorrect as a matter of law. In her view, because

she entered the country in a procedurally regular way (by flying into Dulles and going

through customs) and presented herself to an immigration officer for inspection (including

by presenting her advanced parole document), and because the immigration officer

conveyed to her that she was admitted (through the “Admitted” stamp in her passport), she

is admitted. I agree.

The Government argues that because Petitioner had been granted advanced parole,

she could only have been paroled into the country despite the stamp’s clear statement:

“Admitted.” In the Government’s view, the “Admitted” stamp must be chalked up to a

mistake, and we must instead read it to mean “paroled.” I would do no such thing. The

Government’s position defies logic and reality.

Petitioner entered the country in a procedurally regular manner when she appeared

at a port of entry for inspection and authorization. See Mauricio-Vasquez, 910 F.3d at 136.

The immigration officer, who I assume was competent, had just two stamps at their

disposal -- just two choices: “Admitted” or “Paroled.” While Petitioner did have an

advanced parole document, the immigration officer exercised their discretion to stamp

Petitioner’s passport “Admitted.” That was all that was required to render her admitted.

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After all, the INA gives immigration officers discretion to authorize admission, and, absent

some false claim of citizenship, it is not for us to second guess whether the immigration

officer actually meant something other than “Admitted.”. Particularly where, as here, the

intent of the officer is clear given that literally in black and white. See 8 U.S.C.

§ 1101(a)(13)(A) (defining “‘admission’ and ‘admitted’ [to] mean . . . the lawful entry of

the [non-citizen] into the United States after inspection and authorization by an

immigration officer” (emphasis supplied)); see also Matter of Quilantan, 25 I. & N. Dec.

285, 291, 293 (B.I.A. 2010) (explaining that an admission occurs when a noncitizen

“presents herself for questioning and makes no knowing false claim to citizenship,” and

the officer “communicates to the applicant that he has determined that the applicant is not

inadmissible”).

II.

Next, I would conclude that Petitioner was admitted “in any status.”

Although we have not considered what it means to be admitted “in any status,” the

Fifth and Ninth Circuits have. Both have concluded that § 1229b(a)(2)’s requirement that

an admission be “in any status” does not “impose[] an additional requirement that a[]

[noncitizen] must satisfy in addition to being admitted to the United States.” Tula-Rubio

v. Lynch, 787 F.3d 288, 293 (5th Cir. 2015). The petitioner in Tula-Rubio entered the

United States as a passenger in a car that was waved through a port of entry. Tula-Rubio,

787 F.3d at 290. Though Tula-Rubio was lawfully admitted by virtue of that wave through

entry, he had no documentation or claim to any lawful immigration status. Thus, when

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Tula-Rubio applied for cancellation of removal pursuant to § 1229b(a), the BIA found him

to be ineligible. Id. But the Fifth Circuit vacated that decision and concluded that TulaRubio had been “admitted in any status.”

The court began by recognizing that “[a]lthough the word ‘status’ is not defined in

the INA, its general meaning is ‘[a] person’s legal condition.’” Tula-Rubio, 787 F.3d at

293 (quoting Black’s Law Dictionary 1542 (10th ed. 2014); Merriam-Webster’s Collegiate

Dictionary 1220 (11th ed. 2007) (defining “status” as “the condition of a person or thing

in the eyes of the law”)). And “it is well settled that ‘the word “any” has an expansive

meaning, that is, one or some indiscriminately of whatever kind.’” Id. (quoting Ali v. Fed.

Bureau of Prisons, 552 U.S. 214, 219 (2008)). Thus, the Fifth Circuit concluded that “in

any status” is an unambiguous phrase that “broadly encompasses all states or conditions,

of whatever kind, that a[] [noncitizen] may possess under the immigration laws.” Id.

In application, the Fifth Circuit explained,

[T]he phrase “any status” naturally encompasses those

[noncitizens] whose status allows them to lawfully remain in

the United States after admission, as well as those [noncitizens]

in an unlawful status. The use of the term “any,” without

qualifying language such as lawful or legal to modify the word

“status,” requires us to broadly define the phrase to include

[noncitizens] admitted in an unlawful status.

Tula-Rubio, 787 F.3d at 294 (emphases in original). “That Congress did not also specify

a particular status or that the status be lawful in § 1229b(a)(2), but instead used the word

‘any,’ makes clear that no specific status, lawful or otherwise, is necessary to satisfy this

requirement.” Id.

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The Tula-Rubio court also explained that this reading of “in any status” comports

with the use of the term “status” throughout the INA. See Tula-Rubio, 787 F.3d at 295;

see also Comm’r v. Lundy, 516 U.S. 235, 250 (1996) (“[I]dentical words used in different

parts of the same act are intended to have the same meaning.” (citation omitted)). The

Fifth Circuit noted that the INA refers to both “immigrant status” and “nonimmigrant

status,” as well as to noncitizens “who are ‘in unlawful immigration status,’ ‘lawful status,’

and ‘lawful nonimmigrant status.’” Tula-Rubio, 787 F.3d at 295 (quoting 8 U.S.C.

§ 1255(c)). These references “confirm[] that the term status encompasses both lawful and

unlawful legal conditions under the INA.” Id. (emphasis in original).

When it was presented with the same question, the Ninth Circuit adopted the Fifth

Circuit’s reasoning and reading of § 1229b(a)(2). See Salvidar v. Sessions, 877 F.3d 812,

816 (9th Cir. 2017) (“[W]e join the Fifth Circuit in concluding that the plain meaning of

the phrase ‘any status’ unambiguously includes all states or conditions, of whatever kind,

that a[] [noncitizen] may possess under the immigration laws, including any lawful or

unlawful status.” (cleaned up)). In further support of this conclusion, the Ninth Circuit

explained that the Government’s attempt to write in “lawful status” was “facially incorrect”

because “the word ‘lawful’ is conspicuously absent from the broadly inclusive phrase ‘in

any status’ in § 1229b(a)(2).” Id. at 817 (emphasis in original). “One need look no further

than § 1229b(a)(1), the immediately preceding provision, to confirm that Congress

understands the necessity of using the word ‘lawful’ or ‘lawfully’ when it intends to be

restrictive.” Id.

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And the Ninth Circuit explained that reading “in any status” to include lawful and

unlawful status does not “render the phrase ‘in any status’ surplusage.” Saldivar, 877 F.3d

at 818. Because § 1229b(a)(1) requires that a noncitizen have been “lawfully admitted for

permanent residence” for at least five years, the use of “in any status” in § 1229b(a)(2) for

the continuous residency requirement “serves to distinguish § 1229b(a)(2) from

§ 1229b(a)(1).” Saldivar, 877 F.3d at 818.

The majority disregards the reasoning of both the Fifth and Ninth Circuits because

it views “status” as a term of art that inherently means “membership in a specific,

congressionally defined class,” supra at 11, otherwise known as “lawful status,” see TulaRubio, 787 F.3d at 295. The majority does so despite the fact that “status” is not defined

in the INA, nor does the INA limit its view of “status” to the classifications it creates.

Moreover, the majority takes this view because it defines status as “belonging to a defined

class, with membership in that class creating a durable entitlement that is claimable against

others, including the state.” Id. at 9. Importantly, however, the Black’s Law Dictionary

definition offered by the majority recognizes that “status” can be defined both by the

“capacities and incapacities which determine a person to a given class.” Id. (quoting

Status, Black’s Law Dictionary 1580 (4th ed. 1951)) (emphasis supplied). Certainly,

noncitizens with no lawful status have the incapacity of asserting any right to presence in

the United States. And such noncitizens are part of a given class: unlawful status.

As both of our sister circuits aptly explain, Congress knows how to require “lawful

status” or membership in a particular INA-created status when it wants to do so. By not

including such a requirement in § 1229b(a)(2), Congress made clear that it did not intend

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to “impose[] an additional requirement that a[] [noncitizen] must satisfy in addition to

being admitted to the United States.” Tula-Rubio, 787 F.3d at 293. And it is not our job

to rewrite the statute. “In short, any is any, and a status is a status, be it lawful or unlawful.”

Saldivar, 877 F.3d at 819.

Sidestepping this reasoning, the majority pivots and concludes that even if “in any

status” includes “unlawful status,” Petitioner could not have held such a status.

In the view of the majority, “unlawful status” does not arise from the mere lack of

lawful status or the expiration of it. Instead, the majority concludes -- without any

supporting citation -- that Petitioner could not have been in unlawful status unless she

“unlawfully obtained or has violated” the conditions of a “recognized immigration status.”

Supra at 17 (emphases in original). Thus, the majority concludes that because Petitioner’s

TPS expired in June 1992 and “DED supplied no replacement” status, she “held no status—

she was simply a[] [noncitizen] present in the United States without one.” Id.

I see things differently. For the reasons explained in Tula-Rubio and Saldivar, I

would conclude that “any status” includes “unlawful status.” And I would conclude that

Petitioner was admitted in unlawful status in December 1994 because she was admitted

without belonging to an INA-created classification and because her earlier TPS had

expired.

First, the INA itself recognizes the existence of “unlawful status.” Take as an

example 8 U.S.C. § 1255a, which provides a legalization process for certain noncitizens

who entered the United States before 1982 and have “resided continuously in the United

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States in an unlawful status since such date and through the date the [legalization]

application is filed under this subsection.” 8 U.S.C. § 1255a(a)(2)(A) (emphasis supplied).

The majority claims I read § 1255a with a “gloss,” and that the statute really asks courts to

consider “whose presence was unlawful enough to need legalizing,” rather than being

concerned with status. Supra at 18 n.22 (emphasis in original). On the contrary, the statute

plainly says what it means -- it applies to those noncitizens who have “resided continuously

in the United States in an unlawful status.” 8 U.S.C. § 1255a(a)(2)(A).

Consider, too, that “unlawful status” encompasses more than those noncitizens who

unlawfully obtain or violate the conditions of a lawful status. In Orquera, we were tasked

with deciding whether the petitioners, who had applied for legalization pursuant to § 1255a,

had resided in the United States in unlawful status after their B-2 visitor visas expired on

January 1, 1982. Orquera v. Ashcroft, 357 F.3d 413, 415 (4th Cir. 2003). The problem for

petitioners was that, in addition to their B-2 visas, they had also been “accredited, as

consular employees or family of such employees, with A-2 visas.” Id. Because they

possessed A-2 visas, the Immigration and Nationalization Service (“INS”) 1 determined that

petitioners were not in “unlawful status” after the expiration of their B-2 visas. Id. at 415–

“Before the Homeland Security Act, federal immigration laws and regulations

were administered by the [INS] . . . . The Homeland Security Act abolished the INS and

transferred most of its functions to three new entities: [United States Citizenship and

Immigration Services (“USCIS”)], U.S. Immigration and Customs Enforcement (ICE), and

U.S. Customs and Border Patrol (CBP).” Mestanek v. Jaddou, 93 F.4th 164, 170 (4th Cir.

2024). “[T]he Homeland Security Act generally assigned INS’s adjudicative functions to

USCIS.” Id. (citing 6 U.S.C. § 271(b)); see also Delegations of Authority Regarding

Immigration Laws, 68 Fed. Reg. 10,922 (Mar. 6, 2003) (codified at 8 C.F.R. pts. 1, 2, 103,

239).

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16. It reasoned that “an A–2 visa holder was not in ‘unlawful status’ as of January 1, 1982,

unless prior to that date the employment underlying the issuance of the A–2 visa had

terminated, or the Secretary of State had withdrawn recognition of the A–2 visa.” Id. at

423.

In reviewing that decision, we explained that the statute “does not define ‘unlawful

status’ at all.” Orquera,357 F.3d 424. But we concluded that the INS “generally considers

an applicant [for legalization] to be in unlawful status . . . if the applicant’s legal status has

expired or otherwise terminated, e.g., [8 C.F.R.] § 245a.2(b)(6), (12), or if the applicant

has violated the terms of his legal status such that he is ‘amenable to deportation

proceedings.’” Id. at 425 (emphasis supplied) (citation omitted). “Both of these conditions

(expiration or violation of status) place an individual in direct jeopardy of deportation.” Id.

(emphasis omitted). Orquera deferred to that definition pursuant to Chevron, finding that

it was a reasonable construction of the statutory term. Id. Thus, while the petitioners had

remained in the United States following the expiration of their B-2 visa, they were not

“amenable to deportation proceedings” because of their A-2 status and so they were not in

“unlawful status.” Id.

Though we are no longer required to defer to agency interpretations of statutory

terms, “prior cases that relied on the Chevron framework . . . are still subject to statutory

stare decisis despite our change in interpretive methodology.” Loper Bright Enterprises v.

Raimondo, 603 U.S. 369, 412 (2024). The majority chastises that we “should [not] adopt

a deference-driven gloss on one program as the best reading of a different statutory

provision.” Supra at 19 n.22. But the Immigration Reform and Control Act, which

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encompasses § 1255a, was enacted as part of, and as an amendment to, the INA. Pub.L.

No. 99-603, Section 1(b) (1986). Thus, its terms should generally be interpreted

consistently with other provisions of the INA. See Erlenbaugh v. United States, 409 U.S.

239, 243 (1972) (recognizing that “a legislative body generally uses a particular word with

a consistent meaning in a given context”). In any event, it is not my contention that

Orquera directly controls this case. Rather, Orquera recognizes the existence of unlawful

status, as opposed to merely unlawful presence, and makes clear that despite the lack of a

statutory definition, the agencies tasked with administering our immigration laws have long

considered “unlawful status” to include noncitizens like Petitioner, whose recognized

status expired.

Similarly, the USCIS policy manual itself explains that a noncitizen “is in unlawful

immigration status if he or she is in the United States without lawful immigration status

either because the [noncitizen] never had lawful status or because the [noncitizen’s] lawful

status has ended.” 7 USCIS-PM B.3(B), https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-3 [https://perma.cc/5J2E-4MUN] (emphases supplied). This included those

“[w]ho entered the United States without inspection and admission or parole” and those

“[w]hose lawful immigration status expired or was rescinded, revoked, or otherwise

terminated.” Id.

In my view, this is the better definition of “unlawful status.” We know that the INA

recognizes “unlawful status.” And if “unlawful status” is to mean anything, common sense

indicates that it means the absence of lawful status. The majority claims that this is simply

“unlawful presence,” and that presence is not the same as status. Supra at 18. Respectfully,

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I disagree. Consistent with the USCIS manual, and with the Fifth and Ninth Circuits, I

would conclude that any noncitizen present the United States possesses a status, be it lawful

or unlawful. I would conclude that when Petitioner’s TPS expired, she remained in the

United States in “unlawful status.” And when she was admitted in December 1994, that

admission, too, was in unlawful status -- whether that is because her earlier TPS had

expired or because she simply possessed no lawful status at the time of that admission.

III.

I would hold that admission “in any status” includes an admission in “unlawful

status,” and find that Petitioner satisfied that requirement here. Therefore, I would grant

the petition.

Alejandra Montesinos Cisneros v. Todd Blanche

Authorities cited

Opinion · public domain