    Case: 14-60661    Document: 00513625553    Page: 1    Date Filed: 08/05/2016




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                No. 14-60661                             FILED
                                                                    August 5, 2016
                                                                    Lyle W. Cayce
                                                                         Clerk
SAMUEL GOMEZ,
 Also Known as Samuel Martinez Gomez, Also Known as Samuel Martinez,

                                          Petitioner,

versus

LORETTA LYNCH, U.S. Attorney General,

                                          Respondent.




                       Petition for Review of Orders of
                      the Board of Immigration Appeals




Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Samuel Gomez petitioned for review of two orders of the Board of Immi-
gration Appeals (“BIA”) finding him ineligible for adjustment of status, order-
ing his removal, and denying his motion to reopen. We issued an opinion
affirming the BIA’s factual determination that Gomez had not been lawfully
admitted into the United States and was therefore ineligible for adjustment of
status and was removable as an inadmissible alien. We granted the parties’
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                                 No. 14-60661
joint motion to withdraw that opinion and, after considering the new evidence
and supplemental briefing, we grant the petition for review and remand.

                                       I.
      Gomez, a citizen of El Salvador, entered the United States without
admission or parole in the early 1980s. He was granted temporary resident
status by applying for amnesty under the Immigration Reform and Control Act
of 1986 and was given a one-year temporary resident card in May 1992 (expir-
ing May 1993). In 2005, his application for asylum was denied, but he received
temporary protected status (“TPS”), which expired in 2009, and his application
for renewal was denied.

      In June 2010, Gomez was served with a notice to appear charging remov-
ability as an alien present without admission or parole in violation of 8 U.S.C.
§ 1182(a)(6)(A)(i). He sought an adjustment of status under Section 245(a) of
the Immigration and Nationality Act (“INA”), which provides that, at the dis-
cretion of the Attorney General, an alien lawfully inspected and admitted or
paroled into the United States may have his status adjusted to that of an alien
lawfully admitted for permanent residence (subject to certain requirements not
relevant here). See 8 U.S.C. § 1255(a).

      An immigration judge (“IJ”) held an evidentiary hearing to determine
whether Gomez was eligible for adjustment. The main issue was whether he
had ever been lawfully admitted. He produced evidence that he had traveled
to El Salvador in 1993 and returned on a flight to Houston. He claimed that
he had been inspected and admitted at the airport’s immigration checkpoint
in the ordinary course, but he had no immigration documents to support that
assertion. The government submitted Gomez’s TPS applications, on which he
represented that he had most recently entered the United States without
inspection at an immigration checkpoint.        Gomez claimed that he had
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                                 No. 14-60661
misunderstood the forms, which he thought required him to indicate how he
had initially entered the United States in the 1980s.

      After the hearing, the government successfully moved to pretermit the
application for adjustment of status. The IJ determined that Gomez was not
eligible for an adjustment. First, the IJ said that Gomez had not satisfied his
burden of showing that he was ever lawfully admitted. And second, the IJ
reasoned that, even if Gomez had been lawfully admitted in 1993 as he
claimed, expiration of his status as a temporary resident would have termin-
ated the legal effect of that admission under 8 C.F.R. § 245a.2(u)(4) (the regu-
lation governing the expiration of temporary resident status under the 1986
amnesty). At a later hearing, the IJ ordered Gomez removed to El Salvador.

      The BIA affirmed both of the IJ’s rulings. Gomez filed a motion to re-
open, which the BIA also denied. Gomez petitioned timely for review. After
briefing and oral argument, we issued an opinion affirming the BIA’s factual
determination that Gomez was never lawfully admitted. We therefore did not
reach the agency’s legal determination that, even if Gomez had been lawfully
admitted in 1993, the expiration of his temporary resident status rendered that
admission nugatory.

      The parties jointly moved to vacate. After representing throughout the
litigation that there was no record of Gomez’s purported 1993 admission (and
asserting at oral argument that records from the relevant time period did not
exist at all), the government reversed course. Now, it informs us, by letter,
that it has located records confirming that Gomez was in fact processed nor-
mally through a Houston immigration checkpoint in 1993. We granted the
motion to vacate and accepted supplemental briefing on the proper interpre-
tation and application of Section 245a.2(u)(4). In its supplemental brief, the
government explicitly concedes that Gomez was admitted in 1993. The only

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                                       No. 14-60661
basis on which it defends the BIA’s order is that the regulation renders that
admission legally ineffective. Thus, the question is whether the regulation’s
language stating that Gomez returned “to the unlawful status held prior to”
his adjustment to temporary resident status undoes Gomez’s 1993 admission.

                                              II.
       Ordinarily, we review the BIA’s legal conclusions de novo. Rodriguez-
Avalos v. Holder, 788 F.3d 444, 448 (5th Cir. 2015) (per curiam). But the BIA
is entitled to significant deference when it interprets its own ambiguous regu-
lations. See Auer v. Robbins, 519 U.S. 452, 461 (1997). That is so even when
the agency interprets an immigration regulation in a single-member, non-
precedential opinion. 1        Auer deference is typically strong; the agency’s


       1 See Corzo-Rodriguez v. Holder, 559 F. App’x 358, 362 (5th Cir. 2014) (per curiam)
(applying Auer deference to BIA’s nonprecedential interpretation of ambiguous regulation);
Belt v. EmCare, Inc., 444 F.3d 403, 415–16 (5th Cir. 2006) (applying Auer deference to infor-
mal Department of Labor regulatory interpretations contained in a nonbinding opinion letter,
a Field Operations Handbook, and an amicus curiae brief); Navarro-Miranda v. Ashcroft,
330 F.3d 672, 675 (5th Cir. 2003) (finding the BIA’s interpretation “reasonable”). Whether
nonprecedential BIA regulatory interpretations receive Auer deference is a matter of some
dispute among the courts of appeals. See generally Gourzong v. Attorney Gen., No. 15-2645,
2016 WL 3254900, at *3 & n.2 (3d Cir. June 14, 2016) (noting that the standard of review is
unsettled and collecting cases).
        One circuit has also distinguished the level of deference owed to the BIA’s interpreta-
tions of immigration regulations promulgated by the Department of Homeland Security and
the Department of Justice, noting that the BIA is part of the latter. See L.D.G. v. Holder,
744 F.3d 1022, 1028–29 (7th Cir. 2014). We do not need to decide the importance of that
distinction, because Section 245a.2 was promulgated by the Department of Justice.
       The Second and Eighth Circuits apply Auer to such decisions without comment. See
Mansour v. Holder, 739 F.3d 412, 414 (8th Cir. 2014); Linares Huarcaya v. Mukasey, 550 F.3d
224, 229 (2d Cir. 2008). The Seventh Circuit appears to disagree; it has stated in dictum that
regulatory interpretations in single-member, nonprecedential opinions do not merit full-bore
Auer deference, but it has not decided what sort of deference (if any) they are entitled to. See
Joseph v. Holder, 579 F.3d 827, 832, 833–35 (7th Cir. 2009). The Ninth Circuit refuses to
apply Auer, reasoning that nonprecedential interpretations (and especially those in single-
member opinions) are by definition not the sort of considered, expertise-driven agency judg-
ment that merits deference. See Lezama-Garcia v. Holder, 666 F.3d 518, 532 (9th Cir. 2011).
But that view has come under significant criticism. See Lezama-Garcia, 666 F.3d at 538
(Rawlinson, J., dissenting); Go v. Holder, 744 F.3d 604, 610 (9th Cir. 2014) (Wallace, J.,
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interpretations, even if relatively informal (as in this nonprecedential, single-
member BIA opinion), are given “controlling weight . . . .” 2 But deference is
“unwarranted when there is reason to suspect that the agency’s interpretation
‘does not reflect the agency’s fair and considered judgment on the matter in
question[,]’” as where “the agency’s interpretation conflicts with a prior inter-
pretation.” Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166–
67 (2012) (quoting Auer, 519 U.S. at 462).

       Thus, to decide how to approach the interpretive issue, we first must
determine whether Section 245a.2(u)(4) is ambiguous. If it is, we must decide
whether the BIA’s interpretation of it here represents its fair and considered
judgment regarding the proper interpretation. If it is the agency’s fair and
considered judgment, we must declare whether the agency’s interpretation is
a reasonable one.

       Although we conclude that the regulation is ambiguous, deference here
is inappropriate because the BIA’s interpretation of this regulation has not
been consistent. Therefore, we do not continue to the third step of the Auer
inquiry but instead interpret the regulation de novo.

       Surprisingly, the government did not brief any arguments invoking or
analyzing Auer deference. Instead, it urges only Skidmore deference, under
which we defer to an agency’s interpretation merely for its persuasive power:
its “thoroughness evident in its consideration, the validity of its reasoning, its



concurring) (criticizing Lezama-Garcia).
      We do not write on a blank slate. In Belt, we held that Auer was the proper lens
through which to review similarly informal agency regulatory interpretations, and we are
unaware of any meaningful distinction between that case and this one.
       2See Belt, 444 F.3d at 415; see also Encarnacion ex rel. George v. Astrue, 568 F.3d 72,
78 (2d Cir. 2009) (noting that Auer applies to an agency’s interpretation of its own regulations
“regardless of the formality of the procedures used to formulate it”).
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                                         No. 14-60661
consistency with earlier and later pronouncements,” and the like. Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944). Skidmore calls for significantly less
deferential review than does Auer. Under Auer, an agency’s interpretation of
its own ambiguous regulation is typically given “controlling weight,” while
Skidmore demands only that we pay respectful attention to the agency’s inter-
pretation. Belt, 444 F.3d at 416.

      The government’s failure to brief the more deferential Auer standard
apparently stems from its reliance on language in Rodriguez-Avalos, 788 F.3d
at 449 & n.8. There, we stated that Chevron 3 deference applies when we review
the BIA’s “interpretation of the statutes and regulations it administers when
its interpretations are precedential . . . .” Id. at 449 (emphasis added). “Com-
paratively, when examining the BIA’s interpretation of an ambiguous provi-
sion of a statute it administers that was rendered in a non-precedential BIA
decision, we use the standard announced in Skidmore . . . .” Id. at 449 n.8.

       The first statement is inexact, because regulatory interpretations in pre-
cedential agency rulings receive Auer, not Chevron, deference. 4 The second
statement, from the footnote, is strictly correct but could be read, in context,
as suggesting that Skidmore deference applies to agency regulatory interpret-
tations issued in nonprecedential opinions. Our caselaw does not support that
possible reading. We have applied Auer deference to a variety of relatively
informal agency determinations, including those in opinion letters, agency
operating handbooks, and litigation briefs. See Belt, 444 F.3d at 415.

      Despite the government’s choice to claim only Skidmore deference, “it is



      3   See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).
      4 See Gonzales v. Oregon, 546 U.S. 243, 255 (2006) (explaining that Chevron deference
applies when courts review agency statutory interpretations, and Auer deference applies
when courts review agency regulatory interpretations).
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                                       No. 14-60661
this court, and not the parties, that must determine the appropriate standard
of review.” 5 The difference is immaterial here, however, because we decline to
defer to the agency interpretation under even the more forgiving standard.

                                             A.
       We find 8 C.F.R. § 245a.2(u)(4) ambiguous. It reads as follows:
    Return to unlawful status after termination. Termination of the status
    of any alien previously adjusted to lawful temporary residence under
    section 245A(a) of the Act shall act to return such alien to the unlawful
    status held prior to the adjustment, and render him or her amenable to
    exclusion or deportation proceedings under section 236 or 242 of the
    Act, as appropriate.
The regulation is ambiguous because the meaning of the phrase “return such
alien to the unlawful status held prior to the adjustment” is opaque. It is not
obvious whether the “unlawful status” to which an alien returns encompasses
his lack of a lawful admission at the time he adjusted to temporary resident
status. Indeed, the regulation does not mention admission at all.

       Further, despite its centrality in modern immigration law, the term
“status” is not defined in the relevant statutes or regulations. See Tula Rubio
v. Lynch, 787 F.3d 288, 293 (5th Cir. 2015). And as Gomez reminds us, status
and admission are, at least in many applications, distinct concepts in immi-
gration law. A person can be in unlawful status despite a valid admission (as
when a tourist overstays his visa). And a person can be admitted without any
legal entitlement to be present in the country. Matter of Quilantan, 25 I. & N.
Dec. 285, 290–91 (BIA 2010). Thus, the plain text of the regulation does not
answer the question whether the expiration of Gomez’s temporary resident



       5United States v. Torres-Perez, 777 F.3d 764, 766 (5th Cir. 2015) (citing United States
v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992) (en banc)); United States v. Sanchez-
Rodriguez, No. 15-41056, 2016 U.S. App. LEXIS 12628, at *4–5 (5th Cir. July 8, 2016) (per
curiam) (unpublished).
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status undid the legal effect of his 1993 admission, thereby rendering him ineli-
gible for adjustment of status. The regulation is ambiguous.

                                           B.
      Because the regulation is ambiguous, we have to determine whether the
BIA’s opinion represents the agency’s considered judgment of how it should be
interpreted. That is not a hard standard to satisfy—the Supreme Court and
this circuit have blessed a wide variety of fairly casual agency pronouncements.
But the Supreme Court has specifically warned that deference is improper
where there is a strong reason to believe that the agency’s interpretation is not
in fact an expression of its considered judgment, and inconsistencies in the
agency’s interpretive pronouncements are sufficient reason so to believe. See
Christopher, 132 S. Ct. at 2166–67.

      The BIA’s interpretation of Section 245a.2(u)(4) has not been consistent.
In In re Castro Valdez, 2012 WL 3911586, at *3 (BIA Aug. 13, 2012), the agency
reached a contrary result on nearly identical facts. The alien entered without
inspection but was granted temporary resident status during the amnesty.
While a temporary resident, he departed the United States and, upon return,
was admitted as a lawful temporary resident. Later, his application for per-
manent residency was denied, and he lost his temporary-resident status. Id.
The Attorney General initiated removal proceedings, claiming that the peti-
tioner was inadmissible as an alien present without admission or parole. Id.
The IJ rejected that theory because it found that the alien had in fact been
lawfully admitted after his trip out of the United States. Id. at *2.

      On appeal to the BIA, the government urged that the IJ had erred,
because Section 245a.2(u)(4) meant that expiration of temporary resident
status nullified the legal effect of the admission that the alien had obtained as
a result of that status. Id. at *2–3. The BIA rejected that argument, reasoning,
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as Gomez does here, that the alien’s return to his previous unlawful status did
not alter the fact that he had been admitted. Id. at *3. It therefore affirmed
the IJ’s decision to terminate the removal proceeding. Id.

      Thus, in a nearly identical case, the BIA interpreted the regulation in
precisely the opposite fashion from how it does now. Those contradictory inter-
pretations show that its current litigation position does not represent the
agency’s considered and expertise-driven judgment as to the correct reading of
Section 245a.2(u)(4). Therefore, following Christopher, we decline to defer to
the agency’s proposed interpretation and, instead, review it de novo.

                                     III.
      The BIA erred in interpreting 8 C.F.R. § 245a.2(u)(4). The government
says that the regulation means that Gomez returned to his previous status and
that his previous status was “present without admission.” Gomez disagrees,
reasoning that there is no such status. By his account, admission and status
are fundamentally different concepts, and a return to his previous unlawful
status would not affect his 1993 admission. Rather, returning to unlawful
status means only that he no longer had affirmative permission to be in the
United States.

      To resolve this dispute, we must determine what it means for Gomez to
return to his previous unlawful status. Gomez is correct: His return to unlaw-
ful status had no effect on his 1993 admission. That is because there are no
fine-grained distinctions between and among various forms of unlawful status,
so there is no status of “present without admission” to which Gomez could
return.

                                      A.
      Admission and status are fundamentally distinct concepts. Admission is

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                                       No. 14-60661
an occurrence, defined in wholly factual and procedural terms: An individual
who presents himself at an immigration checkpoint, undergoes a procedurally
regular inspection, and is given permission to enter has been admitted, regard-
less of whether he had any underlying legal right to do so.                      Quilantan,
25 I. & N. at 290–91. Status, by contrast, usually describes the type of permis-
sion to be present in the United States that an individual has. See STEEL ON
IMMIGRATION LAW §§ 2:23, 3:1 (2015 ed.).

       Thus, aliens who enter lawfully have ‘immigrant’ or ‘nonimmigrant’
status and have various subsidiary descriptions within those categories,
depending on their specific characteristics. 6 In contrast to the INA’s extensive
enumeration of different types of legal presence in the United States, 7 there is
no analogous enumeration of different categories of illegal presence—those
illegally present are just “without status” or in “unlawful status.” 8 Those
phrases mean only that the alien lacks permission to be present.

       Because the concepts are separate, an alien can be admitted despite the
absence of any lawful status, as when an immigration officer accidentally pro-
cesses him through a checkpoint. Or an alien who was admitted in a lawful
status can acquire unlawful status, as by overstaying a visa—but that does not
mean he was never admitted. Conversely, an alien can have lawful status
without any factual admission at all. 9



       6See STEEL, § 3:1 (“Persons in the United States can generally be divided into seven
categories: citizens; nationals; permanent resident aliens; temporary residents; asylees and
refugees; nonimmigrants; and persons without legal status.”).
       7 See, e.g., 8 U.S.C. § 1101(a)(15) (defining immigrant status as any alien not included
in a lengthy list of nonimmigrant-status categories).
       8   See note 5, supra.
       9 In some rare cases, a status adjustment is treated as an admission. This category of
legally fictional admissions is the exception to the general rule that “admission” is a proce-
dural event. See United States v. Hernandez-Arias, 757 F.3d 874, 880 (9th Cir. 2014).
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                                       No. 14-60661
       To be clear, lack of admission can cause an alien to be in unlawful status,
but it is not part of that unlawful status such that reversion would undo a later
admission. 10 The alien’s “unlawful status” is just his lack of permission to be
present. There is no sub-category of unlawful status called “present without
admission,” and the government’s protestation to the contrary is not backed by
any citation to apt authority. 11

       Past decisions and our review of the statutory scheme confirm this view.
Our decisions and those of the BIA regularly distinguish among different types
of lawful status 12 but not among various types of unlawful status. 13 Nor does


       10Status similarly does not encompass work authorization—an alien can be in lawful
status but lack work authorization, or be in unlawful status but possess valid work authori-
zation. Bokhari v. Holder, 622 F.3d 357, 360 (5th Cir. 2010).
       11In its supplemental brief, the government provides—for the first time—a citation
for the proposition that Gomez’s status was “present in the United States without being
admitted or paroled.” But the government’s authorities are unpersuasive. First, it cites
8 U.S.C. § 1182(a)(6)(A)(i), a statute describing presence without admission as a ground of
inadmissibility. But nothing there suggests that grounds of inadmissibility are statuses. Nor
does the government point us to any authority that suggests that they are. For the reasons
described below, they are not statuses.
        Second, the government cites the concurring opinion in Hernandez-Arias, 757 F.3d
at 885, in which he claims that “[t]he statutory phrase ‘present in the United States without
being admitted or paroled’ describes a status . . . .” We respectfully disagree: The concurrence
cites only the same inadmissibility statute that the government relies on here. His assertion
that this ground of inadmissibility is a status is not backed by authority, and he offers no
reasoning.
       12See, e.g., Texas v. United States, 787 F.3d 733, 759 & n.76 (5th Cir.2015) (“The INA
expressly identifies legal designations allowing defined classes of aliens to reside lawfully in
the United States....”); Dhuka v. Holder, 716 F.3d 149, 151 (5th Cir. 2013) (distinguishing
among different forms of nonimmigrant status); In Re Blancas-Lara, 23 I. & N. Dec. 458, 460
(BIA 2002) (“‘Status’ is a term of art . . . . It denotes someone who possesses a certain legal
standing, e.g., classification as an immigrant or nonimmigrant.”); Matter of Rotimi, 24 I. & N.
Dec. 567, 576 (BIA 2008) (“Ordinarily, we would expect the privilege of residing in this
country to be reflected in a recognized status such as that of nonimmigrant, refugee, or asylee,
each of which is set out in the statute.”).
       13 E.g., Sattani v. Holder, 749 F.3d 368, 372 (5th Cir. 2014) (stating without additional
discussion that petitioner was in “unlawful status” and sought to adjust to lawful status);
United States v. Elrawy, 448 F.3d 309, 313 (5th Cir. 2006) (stating that the alien “acquired
illegal or unlawful status when he remained in the United States after the expiration of the
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                                       No. 14-60661
the statutory scheme discriminate among forms of unlawful status. 14 The INA
refers to “immigrant status” and “nonimmigrant status,” as well as numerous
sub-categories of each, thereby contrasting different types of lawful presence;
instances of the term “unlawful status,” however, are limited to those bare
words. See Tula Rubio, 787 F.3d at 295 & n.6 (collecting examples).

       The statute does describe “classes of deportable aliens,” see 8 U.S.C.
§ 1227, and “classes of aliens ineligible for visas or admission,” see id. § 1182,
but neither Tula Rubio nor any other decision refers to or treats those grounds
for deportability or inadmissibility as statuses. Further, the regulation treats
unlawful status on the one hand, and excludability and deportability on the
other, as distinct concepts. It operates to “return such alien to the unlawful
status held prior to the adjustment, and render him or her amenable to exclu-
sion or deportation proceedings under section 236 or 242 of the Act, as appro-
priate.” 8 C.F.R. § 245a.2(u)(4) (emphasis added).

       If a ground for removability were equivalent to a specific form of unlaw-
ful status, the regulation would not have needed separately to specify those
results. 15 The canon against surplusage thus supports our view that status
does not encompass admission.




authorized stay” and that he “acquired unlawful status on account of his overstay” but not
further specifying any specific sort of unlawful status).
       14 Tula Rubio is not to the contrary. There, we held, as a matter of first impression,
that “unlawful status” is a status in the same way that “immigrant status” or “nonimmigrant
status” is. See Tula Rubio, 787 F.3d at 293. But Tula Rubio stopped there—nothing in the
opinion supports the idea that there are sub-categories of unlawful status in the same way
that there are sub-categories of lawful status. And that is what the government would have
to show to demonstrate that Gomez’s previous status encompassed his lack of admission.
       15 Furthermore, an alien who, during the pendency of his application for temporary
protective status, was specifically shielded by statute from deportation is nonetheless in
unlawful status. See United States v. Flores, 404 F.3d 320, 327 (5th Cir. 2005). Thus, remova-
bility cannot be the touchstone for specifying sub-categories of unlawful status.
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                                  No. 14-60661
      Moreover, as Gomez aptly points out, 8 U.S.C. § 1255, the adjustment-
of-status statute, tracks the admission/status distinction. That section treats
lack of admission and unlawful status as separate bars to adjustment of status,
subject to different exceptions, and addressed in separate subsections. Section
1255(a) indicates that admission is in most cases a prerequisite to applying for
adjustment of status. But an alien classified as a self-petitioner under the
Violence Against Women Act need not have been admitted. Id.

      Unlawful status is treated in a different statutory subsection,
§ 1255(c)(2), which provides that an alien “who is in unlawful immigration
status on the date of filing the application for adjustment of status” is ineligible
for an adjustment. That rule is subject, however, to exceptions for immediate
relatives of citizens and certain other special immigrants. The government’s
conflation of admission and status would render redundant the separate artic-
ulation of those two grounds for ineligibility and would undo Congress’s careful
calibration of different exceptions for the two separate factors.

                                        B.
      The government argues that Hernandez-Arias supports its interpreta-
tion and that we should follow our sister court’s decision as persuasive author-
ity. By its own terms, however, that case is inapposite.

      Hernandez-Arias involved a collateral challenge to a deportation as part
of an appeal of a conviction; the defendant claimed he was not properly remov-
able as charged. Like Gomez, he been granted temporary status but never
permanent status under the amnesty. Although he had never been inspected
and admitted at a port of entry, he maintained that his adjustment to tempor-
ary status constituted an admission, so he was not removable as charged as an
alien present without being admitted or paroled. Hernandez-Arias, 757 F.3d
at 880. The Ninth Circuit noted that, in certain circumstances, the concept of
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                                 No. 14-60661
admission was not limited to the procedural event described earlier in our
discussion. Id. Rather, in select circumstances, admission will be imputed or
deemed by operation of law—for example, when an alien is accepted into the
Family Unity Program or receives an adjustment to lawful permanent resi-
dence, he is deemed admitted by operation of law regardless of whether he was
ever physically admitted at a port of entry. Id.

      The Ninth Circuit assumed, for the sake of argument, that adjustment
to temporary resident status under the amnesty was among the circumstances
in which an alien would be deemed admitted by operation of law. Id. at 881.
Nonetheless it rejected the alien’s claim, reasoning that a deemed admission
by operation of law resulting purely from an adjustment to temporary lawful
status would expire upon the expiration of the status adjustment. Id. On the
Ninth Circuit’s reasoning, 8 C.F.R. § 245a.2(u)(4) meant that, upon expiration
of temporary residency, the legal fiction of admission that was derived from
the temporary-resident status was undone. Hernandez-Arias, 757 F.3d at 881.

      Gomez posits that Hernandez-Arias is distinguishable. He notes that
the opinion, by its explicit terms, deals only with the narrow case of unusual
circumstances under which a change in one’s status under the immigration
laws is treated as a deemed admission by operation of law. See id. at 881 n.3.
On Gomez’s account, the Ninth Circuit’s careful effort to confine its decision to
those rare instances of admission by operation of law supports the idea that
the regulation could not undo the effect of a factual port-of-entry admission.
In other words, Gomez concedes that any fictional, deemed admission that
occurred by operation of law when he was adjusted to temporary resident
status was undone by the expiration of that status, but he reasons that that
does not matter: He was legally entitled to be admitted, and was in fact admit-
ted, during his temporary residency.

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                                  No. 14-60661
      We agree. Hernandez-Arias has no application here, for the reason
Gomez identifies: There is nothing in the opinion that supports ignoring the
historical fact of a port-of-entry admission that occurred during the period of
time when an alien was a temporary resident. The type of deemed admission
at issue in Hernandez-Arias would logically expire at the termination of a
temporary residency, because the only reason why courts sometimes treat
certain changes of status as deemed admissions is to avoid the oddities that
would accompany treating an alien accepted into Family Unity Program, or
given lawful permanent resident status, as unadmitted (which would render
him subject to removal and a variety of other sanctions plainly incompatible
with his status under those programs). See id. at 880. When an alien’s ad-
justed status expires, and he is no longer entitled to privileges inconsistent
with non-admission, it no longer makes sense to imply, legally, a fictitious ad-
mission from the adjustment, because there are no longer any absurd results.

      Thus, Hernandez-Arias’s holding makes good sense, but that decision
establishes nothing at all regarding a factual admission that occurs during a
period of time that the alien is legally entitled to exit and reenter the United
States, and its logic does not encompass such an admission. And, as the gov-
ernment acknowledges, Gomez was entirely free to leave the country for short
periods of time and could be “admitted” on his return. Hernandez-Arias is
materially distinct, so we decline the government’s invitation to treat it as
relevant, persuasive authority.

      The BIA has observed precisely the distinction that we describe here and
has reached results that that distinction suggests. The previous decisions
involving 8 C.F.R. § 245a.2(u)(4) that the government relies on follow the fact
pattern from Hernandez-Arias, not the fact pattern from Castro Valdez and the
instant case. That is, the aliens relied only on the fictional, deemed admission

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                                        No. 14-60661
resulting from their adjustment to temporary resident status, not a factual
admission that took place during their temporary residency. 16 In the only BIA
case cited by either party in which the alien relied on a factual admission at a
port of entry, rather than the fictional admission that occurred when he ad-
justed to temporary resident status, the BIA held that that admission was not
affected by Section 245a.2(u)(4). See Castro Valdez, 2012 WL 3911586, at *3.

                                               IV.
       In summary, the language in 8 C.F.R. § 245a.2(u)(4) that provides for an
alien to return to a previous unlawful status does not also undo a factual
admission that occurred during the time when he was in lawful status. That
is because his unlawful status does not encompass his lack of admission. Upon
expiration of his temporary resident status, Gomez returned to his previous
unlawful status (that is, he lost his permission to be present in the United
States). But that does not change the historical fact that he had been admitted.

       Because Gomez was admitted, and the regulation does not undo that ad-
mission, the petition for review is GRANTED, and this matter is REMANDED
for proceedings as needed. We express no view on what actions the BIA should
take on remand.




       16See Matter of Mujica, 2015 WL 5173569, at *1 (BIA Aug. 28, 2015) (“The respondent
argued that, although he initially entered the United States without inspection or authori-
zation, he was granted the status of temporary resident in 1988, and that this grant consti-
tuted an ‘admission,’ rendering him eligible for adjustment of status . . . .”); Matter of Osorio,
2015 WL 4537062, at *1 (BIA June 12, 2015) (“On appeal, the respondent contends that he
is not inadmissible under section 212(a)(6)(A)(i) because his grant of temporary resident
status was an ‘admission’ . . . .”); Matter of Aine, 2015 WL 3896288, at *3 (BIA May 28, 2015)
(“The respondent asserts that he is not subject to charges of inadmissibility under section
212 of the Act because his grant of temporary resident status was an ‘admission’ . . . .”).
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