Border Crossing: “Waived In” as Admission to the U.S.

By Attorneys Robert L. Reeves and Eric R. Welsh

Lawful admission to the United States is a prerequisite to adjustment of status to permanent residence under section 245(a) of the Immigration and Nationality Act (INA).  An alien seeking an adjustment to either conditional or full permanent resident status on the basis of a petition filed on his or her behalf by a U.S. citizen “immediate relative” (such as a spouse) need only show that he or she was lawfully admitted, and that no other grounds of inadmissibility apply.  The immediate relative beneficiary can then adjust status, even if he or she is out of status or has worked in the U.S. without authorization.  As such, proving “lawful admission” may be critically important.

A “lawful admission” is generally not difficult to demonstrate when the alien enters the United States at an airport and is processed for entry by Customs & Border Patrol.  The alien normally must submit an I-94 entry document and proof of permission to enter, such as a visitor’s visa and a valid passport.  But sometimes, “admission” is not so clear, as in the case of an alien who enters the U.S. by car or on foot at the U.S.–Canada or U.S.–Mexico border.  Oftentimes, especially before 9/11, the officials at the border would waive an entire car or an individual person into the U.S. without asking any questions or inspecting any documents.  In most cases, this kind of entry does constitute a “lawful admission,” and the alien so entering may be eligible for adjustment of status.

In Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), the Board of Immigration Appeals (Board) took the position that an alien can satisfy her burden of proving that she was “inspected and admitted” if she is waived through a border, even if the alien did not actually have any lawful entry documents.  The Board held that an alien is “inspected” if she physically presents herself for questioning and makes no knowing false claim to citizenship, and that she is “admitted” when the inspecting officer permits the applicant to pass through the port of entry.  Thus, an alien may be “inspected and admitted” even if she is asked no questions at entry, and even if she did not in fact possess any lawful entry documents.

The decision in Matter of Areguillin was thrown into great doubt in 1996 when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).  Prior to IIRIRA, the INA defined the term “entry” but did not define “admission,” and the INA did not state that an “entry” had to be lawful.  IIRIRA amended the INA to define “admission” as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”  INA § 101(a)(13)(A).  Many immigration experts predicted that this amended definition—particularly the emphasis on “lawful entry”—would overrule Matter of Areguillin and render ineligible those aliens that claimed that they were “waived-in” at the border.  Many of these fears were confirmed when the U.S. Court of Appeals for the Ninth Circuit issued a precedent decision in 2008 holding that an alien who passes through a border without lawful documents is not “admitted” under INA § 101(a)(13)(A).  Orozco v. Mukasey, 521 F.3d 1068 (9th Cir. 2008) (vacated Oct. 20, 2008).

On July 28, 2010, the Board issued a decision quelling those fears and reaffirming the rule in Matter of Areguillin that an “admission” need only comply with procedural regularity and not substantive regularity.  In Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), the Board held that an alien seeking adjustment of status has satisfied the definition of “admitted” at INA § 101(a)(13)(A) merely by demonstrating that the alien presented himself or herself for inspection, did not make a false claim to U.S. citizenship, and was permitted to enter the United States.  In Quilantan, the alien entering the United States was a passenger in a car traveling across the U.S.-Mexico border.  She did not have any valid entry documents.  At the border, the inspector asked the driver a few questions but did not ask the alien passenger any questions.  The car was waived through.  The Board found this entry to be an “admission” for purposes of adjustment of status because even though the alien did not actually have authorization to enter, her entry was “procedurally regular,” and therefore lawful and valid.

In light of Quilantan and Areguillin, aliens who entered the United States through a border after inspection are “admitted” to the United States and may be eligible to adjust status.  Difficulties may still arise in these cases when it comes to evidentiary support.  The applicant for adjustment of status must demonstrate eligibility by a preponderance of the evidence.  This normally requires credible testimony from the alien applicant, plus some physical evidence or other supporting evidence, such as testimony of witnesses, surveillance evidence from the border checkpoint, obtaining Customs & Border Patrol records of admission, or other proof of entry in the manner claimed by the applicant.

“Admission” to the United States is a term of art, and proving admission is an evidentiary hurdle that should not be lightly undertaken.  An alien wishing to apply for adjustment of status on the basis of a “waived-in” admission should consult an experienced law firm to discuss the strengths of his or her case and to prepare the substantial evidence necessary to prove eligibility for adjustment.