Deferred Enforced Departure Is Not an Immigration “Status”: “Admitted in Any Status” Under 8 U.S.C. § 1229b(a)(2) Requires Entry in an INA-Recognized Classification

1. Introduction

This immigration case concerns statutory eligibility for cancellation of removal for a lawful permanent resident under 8 U.S.C. § 1229b(a). Petitioner Alejandra Montesinos Cisneros, a native of El Salvador, conceded removability after Virginia convictions (including petit larceny) and sought discretionary cancellation. Eligibility turned on whether she had “resided in the United States continuously for 7 years after having been admitted in any status” under § 1229b(a)(2).

The pivotal event occurred on December 14, 1994, when Cisneros returned to the United States under the Executive’s Deferred Enforced Departure (DED) program. An immigration officer stamped her passport “Admitted” and wrote “DED until Dec. 30, 1994.” The legal issue was whether that return trip constituted being “admitted in any status” so that Cisneros could accumulate seven years of continuous residence before the “stop-time” date triggered by her 2013 offense.

2. Summary of the Opinion

The Fourth Circuit denied the petition for review, affirming the Board of Immigration Appeals. The court held that—even assuming Cisneros’s 1994 entry was an “admission”—she was not admitted “in any status” because DED is not an immigration status. In the court’s view, “status” in the INA denotes membership in a congressionally defined immigration classification, whereas DED is a discretionary executive decision to defer removal, untethered to any statutory class.

Judge Thacker dissented, aligning with the Fifth and Ninth Circuits’ approach that “any status” includes admission in “unlawful status,” and that the “Admitted” stamp should be treated as controlling for admission.

3. Analysis

3.1. Precedents Cited

The majority’s reasoning is built from several lines of authority: (i) the admission/status distinction, (ii) the meaning of “status” as an INA term of art, (iii) interpretive methodology after Loper Bright, and (iv) cancellation-of-removal structure and history.

• Sanchez v. Mayorkas — Cited for the proposition that admission and status are distinct concepts. The majority uses this to frame the dispute: even if an admission occurred, the separate statutory requirement of being admitted “in any status” must still be met.
• Patel v. Garland — Used to clarify jurisdiction. While factual eligibility findings for discretionary relief may be insulated, the dispositive question here is a legal one, reviewable under 8 U.S.C. § 1252(a)(2)(D).
• Loper Bright Enterprises v. Raimondo — Central to methodology: the court expressly notes that, where it previously might have considered Chevron deference to the Board’s interpretation, Loper Bright requires courts to resolve statutory ambiguities using independent judgment. This is the opinion’s doctrinal “gateway” to treating the meaning of “status” as a judicial, not agency, determination.
• Matter of Castillo Angulo — Not deferred to, but treated as persuasive for textual/structural reasoning distinguishing “admitted” from “admitted in any status.”
• Holder v. Martinez Gutierrez — Used to describe § 1229b(a)(2) as requiring seven years after “a lawful admission” in “some other immigration status,” reinforcing that “status” is a recognizable immigration category.
• Matter of Rotimi and Matter of Blancas-Lara — Cited to support “status” as a technical immigration concept denoting legal standing reflected in statutorily recognized categories (nonimmigrant, refugee, asylee, etc.).
• Matter of Lok — Cited for the principle that government forbearance “does not legalize” an alien’s status; the beneficiary remains “at the sufferance of the Government.” The majority uses this to characterize DED as non-status, not as an entitlement.
• Ali v. Federal Bureau of Prisons — Used to discuss “any” as expansive but still bounded by a domain; “any status” expands which statuses qualify but does not eliminate the status requirement.
• Duncan v. Walker, Corley v. United States, Keene Corp. v. United States, Setser v. United States — Invoked for the canon against surplusage and the idea that Congress’s inclusion of “in any status” must do work beyond mere “admission.”
• Azumah v. USCIS — Important to the majority’s response to the “lawfully” argument. The court stresses that “lawfully admitted for permanent residence” is a term of art about status, not physical entry; thus the contrast between § 1229b(a)(1) and (a)(2) does not imply that (a)(2) includes “no-status” entries.
• Chavez v. Bondi — Forecloses any argument that Virginia petit larceny is not a CIMT; thus the stop-time date is treated as fixed and not revisited.
• Mohamed v. Holder, Xing Yang Yang v. Holder, Cabrera v. Garland, Herrera-Alcala v. Garland — Cited for standards of review and scope of review (reviewing both IJ and BIA where the BIA adopts and adds reasoning).
• Alexander v. S.C. State Conf. of the NAACP and Anim v. Mukasey — Used to reject the due process claim regarding the missing hearing transcript: no fundamental unfairness and no prejudice in a case turning on a legal question.
• Tula Rubio v. Lynch (Fifth Circuit) and Saldivar v. Sessions (Ninth Circuit) — The majority acknowledges it is departing from these circuits, which read “any status” to include unlawful status; the dissent adopts these decisions’ reasoning.

3.2. Legal Reasoning

The majority resolves the case in a three-step interpretive sequence:

1. Define “status” as an INA term of art. Drawing on contemporaneous legal dictionaries and the INA’s structure, the court treats “status” as membership in a legislatively defined immigration classification carrying durable legal consequences (rights and disabilities) recognized by law. Under this view, “status” is not merely a descriptive label for being lawfully or unlawfully present.
2. Characterize DED as executive forbearance, not an INA classification. The court emphasizes that DED is rooted in presidential foreign-relations power and is described by USCIS as “not a specific immigration status.” Because it is discretionary and revocable “at will,” DED lacks the statutory footing and stability the majority associates with “status.” The court analogizes DED to other “nonstatus” programs (e.g., deferred action) and quotes Matter of Lok for the proposition that forbearance does not legalize status.
3. Reject the “any status includes unlawful status / no-status” theory. The majority distinguishes between:
   • Holding a recognized status unlawfully (e.g., fraudulently obtained or violated), versus
   • Holding no status at all (which the court calls the “absence of status”).
   It concludes that reading “any status” to include “none” would collapse § 1229b(a)(2) into an “admission-only” test and render the words “in any status” surplusage. It further relies on the cancellation statute’s two-track design: § 1229b(a) (more favorable) for those with admissions in status, and § 1229b(b) (more demanding) for those without. A contrary interpretation, the court reasons, would irrationally reward “wave-through” admissions at ports of entry.

The dissent’s core disagreement is definitional and textual: it treats “status” as a broad descriptor of one’s legal condition (including “unlawful status”), relies heavily on Tula Rubio v. Lynch and Saldivar v. Sessions, and argues that an “Admitted” stamp is dispositive of admission. The majority responds that the case is not about whether DED is “lawful” or “unlawful” status, but whether it is a status at all, and concludes it is not.

3.3. Impact

This decision has several forward-looking effects in the Fourth Circuit:

• DED-based entries do not start the § 1229b(a)(2) clock. LPR cancellation applicants cannot rely on a port-of-entry admission where the only basis for being allowed to return was DED.
• Sharper doctrinal separation between “authorized presence” and “status.” The court’s reasoning will likely influence litigation involving other executive forbearance programs (especially those described administratively as “not a status”), even when they confer work authorization or other practical benefits.
• Deepened circuit tension. By rejecting the approach of Tula Rubio v. Lynch and Saldivar v. Sessions, the Fourth Circuit increases the likelihood of further en banc or Supreme Court attention to the meaning of “admitted in any status,” particularly in “wave-through,” parole, and forbearance-admission fact patterns.
• Post-Loper Bright recalibration. The opinion illustrates how courts may revisit immigration statutory interpretations formerly influenced by Chevron-era BIA reasoning—though here the court found the BIA decision persuasive on independent grounds.

4. Complex Concepts Simplified

• Cancellation of removal (§ 1229b(a)): A discretionary remedy for certain LPRs who meet threshold requirements (including years of residence) and convince the agency to grant relief.
• “Stop-time” rule (§ 1229b(d)(1)): Continuous residence ends when the person commits (or is served with charging documents relating to) certain offenses—here, the CIMT offense date was treated as the stop-time trigger.
• Admission vs. parole: “Admission” is a lawful entry after inspection and authorization (§ 1101(a)(13)(A)). “Parole” allows temporary entry but “shall not be regarded as an admission” (§ 1182(d)(5)(A)).
• DED (Deferred Enforced Departure): A presidential, discretionary deferral of removal for certain nationals; it can allow people to remain and sometimes travel, but (as the majority stresses) it is not created by the INA and is not an “immigration status.”
• TPS (Temporary Protected Status): Unlike DED, TPS is a statutory, congressionally created “status” under § 1254a, with defined eligibility and termination rules.
• Chevron after Loper Bright: Courts no longer defer to agency interpretations simply because a statute is ambiguous; they must decide the best reading themselves using traditional interpretive tools.

5. Conclusion

Alejandra Montesinos Cisneros v. Todd Blanche establishes (for the Fourth Circuit) that “admitted in any status” under 8 U.S.C. § 1229b(a)(2) requires an admission while holding a congressionally defined INA immigration classification, and that DED—executive forbearance—does not qualify. The decision tightens the statutory boundary between executive tolerance of presence and the positive-law concept of “status,” shaping cancellation-of-removal eligibility and sharpening an inter-circuit conflict over the breadth of “any status.”