The Definition of “Admission” and “Seeking Admission” in Immigration Law

Section 101(a)(13)(A) of the Immigration and Nationality Act [codified as 8 U.S.C. 1101(a)(13)(A)] [PDF version] defines “admission” and “admitted” to mean:

“with respect to an alien, the lawful entry of the alien into the United States after inspection or authorization by an immigration officer.”

101(a)(13)(B) specifically excludes aliens who have been paroled into the United States or alien crewmen who have been permitted to temporarily land in the United States.

101(a)(13)(C) states that an alien admitted for lawful permanent residence (LPR) status shall not be regarded as seeking admission into the United States unless he or she:

i. has abandoned or relinquished that 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 from the United States while in the midst of removal [see article] or extradition proceedings,

v. has committed an offense that renders him or her inadmissible under criminal and related grounds [see article] as defined in section 212(a)(2), unless he or she has been granted relief [see section] under section 212(h) or section 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 the Entry of an Inadmissible Alien an Admission?

The Board of Immigration Appeals (BIA) and federal courts have had to address whether a person who is inspected and authorized to enter, but was in fact inadmissible at the time of entry, should be considered “admitted.” This distinction has a significant effect on adjustment of status eligibility as well as eligibility for other immigration benefits and relief.

The primary question is whether “admission” relies upon procedural regularity alone (that is, nothing more than “inspection and authorization”) or whether it relies upon the underlying legality of the entry.

Under the first reading- which both the BIA and multiple circuit courts have accepted — the underlying legality of the entry is not (with a limited exception [see section]) relevant to admission.

If “admission” did rely upon the entry being legal, “inspection and authorization” would be necessary, but not sufficient, for admission.

Special Case: Entry Under False Claim of U.S. Citizenship

In 2013, the BIA limited Matter of Quilantan [PDF version] with its decision in Matter of Pinzon [PDF version].6 In Matter of Pinzon, the BIA held that an alien who enters the United States by falsely claiming U.S. citizenship is not considered to have been inspected by an immigration officer, and thus cannot be considered to have been admitted under section 101(a)(13)(A). The BIA noted in Matter of Pinzon that because an immigration officer is not empowered to inspect a U.S. citizen, a person who enters under the false claim of U.S. citizenship “effectively eludes the procedural regularity of admission.”

This decision was consistent with the 1975 Supreme Court decision in Reid v. INS [PDF version], which held that entry under a false claim of citizenship constitutes EWI.

Distinguishing the Precedents with Regard to Reinstatement of Removal

The statute regarding reinstatement of removal [see article] presents an interesting question with regard to procedurally legal entries that are otherwise illegal. In order for a prior removal order to be reinstated, an alien must commit an “illegal reentry.”

In a 2011 case argued before the Tenth Circuit, Cordova-Soto v. Holder [PDF version], a woman who would have otherwise been subject to reinstatement of removal argued that based upon Matter of Quilantan [PDF version], she had not reentered the United States illegally because her admission had been procedurally regular. However, the Eleventh Circuit was unpersuaded, and limited the BIA’s holding in Matter of Quilantan. It held that a procedurally regular entry that is otherwise illegal is an “illegal reentry” for purpose of reinstatement of removal. The Eleventh Circuit held that the issue with regard to reinstatement of removal is not whether the alien was “admitted,” but whether the entry was legal.

In a similar vein, the Ninth Circuit cited favorably Cordova-Soto v. Holder [PDF version] and distinguished its holding in Hing Sum v. Holder [PDF version] with regard to reinstatement of removal in its 2013 decision, Tamayo-Tamayo v. Holder [PDF version].

Fifth Circuit also adopted this position in 2014 in an unpublished decision, Avalos Martinez v. Johnson [PDF version].