IRLI/FAIR Advise the BIA on the Proper Interpretation of the Cancellation of Removal Statute

October 20, 2016

Assisting Government Administrative Tribunals

Properly Interpret the Law

 

(Washington, D.C.) – This week, the Immigration Reform Law Institute (IRLI) filed an important amicus brief on behalf of the Federation for American Immigration Reform (FAIR) with the Board of Immigration Appeals (BIA) in response to the BIA’s request for briefing on whether an inadmissible alien who was riding in a car that was “waved through” at the border is considered “admitted into any status” for purposes of the cancellation of removal provision in the Immigration and Nationality Act (INA). To be eligible for cancellation of removal under this particular provision, an alien must prove that he or she has (1) resided in the United States continuously for 7 years; (2) after having been admitted; (3) in any status.”

 

In its brief, FAIR argued that an alien who was waved through at the border fulfills neither the admission nor the status requirements necessary for cancellation of removal. First, FAIR strongly urged the BIA to require substantive compliance with the definition of “admission.” Congress has defined the term admission as “the lawful entry of the alien into the United States after being inspected and authorized by an immigration officer.”  INA § 101(a)(13)(A).  This definition is comprised of three statutory elements that must be fulfilled in order for an alien to be “admitted” to the United States: (1) lawful entry into the United States; (2) inspection; and (3) authorization by an immigration officer. In this case, the alien did not enter the country lawfully, as she was an inadmissible alien, and she was never inspected by the immigration officer who waved the car through. Second, FAIR reminded the BIA that the term “any status” in the INA refers to any lawful status, which the alien did not possess. Any other interpretation of that term would produce inconsistent and contradictory results considering many individual INA provisions discourage inadmissible aliens from entering or residing in the U.S.

 

Dale L. Wilcox, IRLI’s Executive Director commented, “Our Immigration law is clear and unambiguous regarding who can be admitted and under what terms.” Wilcox continued, “The alien in this case was inadmissible and should not have been allowed into the U.S. in the first place. The alien certainly should not be rewarded now with the benefit of cancellation of removal just because she successfully dodged immigration authorities for 7 years.”

 

FAIR’s brief is available here.

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