Introduction: When is the Entry of an Inadmissible Alien “Admission”?
In order to be “admitted” into the United States as the term is defined in section 101(a)(13)(A) of the Immigration and Nationality Act (INA), an alien must make a lawful entry into the United States “after inspection or authorization by an immigration officer.” An interesting situation arises when an alien is “admitted” into the United States after inspection or authorization, but turns out to have actually been subject to one or more grounds of inadmissibility at the time of admission. The question is then whether the alien was, in fact, “admitted” into the United States. This distinction is especially important in the case of an alien who is admitted as a lawful permanent resident (LPR) but was in fact not eligible for such status. In this article, we will review the rules for when an alien is admitted to the United States but was in fact inadmissible or otherwise ineligible for admission at the time of entry.
Under section 101(a)(13)(A) of the INA, an alien is considered to be “admitted” after he or she has been inspected or authorized to enter the United States by an immigration officer. If an alien is paroled into the United States, he or she will not be considered to have been “admitted.”
Under section 101(a)(13)(C), an alien who has already been admitted as an LPR will not be considered to be seeking admission unless he or she (paraphrasing):
- i. Has abandoned or relinquished LPR status;
- ii. Has been absent from the United States for a continuous period in excess of 180 days;
- iii. Has engaged in illegal activity after having departed the United States;
- iv. Has departed the United States while in the midst of removal or extradition proceedings;
- v. Has committed an offense which causes inadmissibility under criminal and related grounds as defined in section 212(a)(2) of the INA (unless he or she has been granted relief under section 212(h) or 240A(a); or
- vi. Is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection or authorization by an immigration officer.
When is Admission of an Inadmissible Person Considered Admission?
In general, both the Board of Immigration Appeals (BIA) and the federal circuit courts view “admission” through the prism of “procedural regularity.” This means that usually, so long as an alien is inspected or authorized by immigration officers before being permitted to enter the United States, he or she will be considered to have been “admitted” notwithstanding the alien’s eligibility for admission.
However, this is not to say that a procedurally regular admission cures underlying inadmissibility. If an alien gains admission under false pretenses, he or she does not become entitled to immigration benefits or actually admissible. Furthermore, an alien who is admitted but is in fact inadmissible may accrue unlawful presence that counts toward the 3- and 10-year bars of inadmissibility. Additionally, as we will discuss, it can sometimes be to an alien’s detriment to be considered to have been “admitted” as an LPR.
Key Administrative and Judicial Precedents
In the Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), the Board of Immigration Appeals held that so long as an alien enters the United States after presenting him or herself for inspection and does not make a false claim of U.S. citizenship, he or she will be considered to have been admitted. The Board reaffirmed its precedent from the Matter of Areguillin in the Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010) where it held that admission refers to procedural regularity rather than whether the applicant for admission was actually admissible. The BIA limited the Matter of Quilantan in the Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013) where it held that an alien who gained entry by making a false claim of citizenship had not been admitted. This is because immigration officers do not have the authority to inspect U.S. citizens. This decision was consistent with the Supreme Court decision in Reid v. INS, 420 U.S. 619, 624 (1975).
In Emokah v. Mukasey, 523 F.3d 110, 118 (2d Cir. 2008), the Second Circuit held that an alien who obtained a B2 visa through fraud or misrepresentation had been “admitted” because she entered after inspection and authorization by an immigration officer. The Second Circuit noted that while she was inadmissible at the time of entry, she had been “admitted” to the United States.
Circuit Precedent on Unlawful Admission as an LPR
In Hing Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010), the Ninth Circuit held that an man who gained entry as an LPR despite being inadmissible at the time of entry had been admitted because he entered after inspection and authorization by an immigration officer. Had he not been considered to have been admitted, he would have been eligible for a section 212(h) waiver of inadmissibility. The Third Circuit supported the same conclusion regarding “admission” as an LPR in Martinez v. Att’y Gen. of the U.S., 693 F.3d 408 (2012) where it held that admission as an LPR refers to procedural regularity and not to the underlying admissibility of the applicant for admission at the time of authorized entry.
With Regard to Reinstatement of Removal
An alien who reenters the United States illegally after having been previously removed or having left under a grant of voluntary departure under a removal order may be subject to reinstatement of removal.
In Cordova-Soto v. Holder, 659 F.3d 1029 (10th Cir. 2011), the Tenth Circuit limited the Matter of Quilantan by holding that, in the context of triggering reinstatement of removal, a procedurally regular entry that is otherwise illegal is an “illegal entry” for purpose of reinstatement of removal. The Ninth Circuit adopted this line of reasoning in Tamayo-Tamayo v. Holder, 725 F.3d 950 (9th Cir. 2013).
In general, provided that an alien does not make a false claim of U.S. citizenship, entry after inspection and authorization will constitute admission to the United States. However, it is important to remember that such an admission will not cure any underlying issues with the alien’s immigration status, and may in fact lead to complicated immigration problems (e.g. accrual of unlawful presence or ineligibility for certain forms of relief from removal). It is also important to note that, at least in the view of the Ninth and Tenth Circuits, that a procedurally regular admission may trigger reinstatement of removal.