WAVE IN EXCEPTION
Author: New York Immigration attorney Alena Shautsova
One of the requirements for adjustment of status (or process of receiving permanent residency without leaving the U.S.) is evidence of being “inspected and admitted” as defined by 8 USC § 1101(a)(13)(A).
What constitutes admission is an important questions to answer, because it defines person’s eligibility for different immigration benefits such as, inter alia, adjustment of status and cancellation of removal.
Admission and inspection commonly takes place when a person is undergoing a “check” at the border or port of entry and presents him/herself to a CBP officer with a valid document such as a passport and a visa. However, this is not always the case. What to do in a case of crossing the border between the US and Canada or US and Mexico where there is no traditional Immigration control and checkup? That is how a “waved in” exception to traditional admission occurred. Through years of litigation and fights, it was finally decided that a person who was “waved in”: allowed to come to the US without a check- up, is a person legally admitted for the immigration benefit purposes.
The Board of Immigration Appeals found that “the terms ‘admitted’ and ‘admission,’ as defined in [§ 1101(a)(13)(A)], continue to denote procedural regularity for purposes of adjustment of status, rather than compliance with substantive legal requirements.” In re Quilantan, 25 I. & N. Dec. 285 ,at 290. See also Martinez v. Att’y Gen., 693 F.3d 408, 414 (3d Cir. 2012); Sum v. Holder, 602 F.3d 1092, 1096 (9th Cir. 2010); Emokah v. Mukasey, 523 F.3d 110, 118 (2d Cir. 2008). The Board also considered the definition of admission at § 1101(a)(13)(A) in light of its interaction with other statutory provisions of the INA and the intent of Congress in enacting the definition. See In re Quilantan, 25 I. & N. Dec. at 291–92. It further rejected the Government’s argument that an alien “must be admitted in a particular ‘status’” to satisfy the definition of admission. Id. at 293.
It means that a person is admitted, when is allowed to come into the U.S. The particular status of admission does not matter, as the person is considered to be admitted in “any status.” See recent decision Tula-Rubio v. Lynch, 5/21/15 from 5th Circuit Court of Appeals.
How one can prove that he/she was in fact waved in?
The courts found the fact of admission where people were able to provide detailed testimony as to circumstances of entry and present witnesses to confirm the entry. Interestingly, that admission was found in cases where the exact time and date of admission was not recalled as long as overall testimony was found credible.