When the BIA’s Interpretation of the Word “Admission” Depends on Who Needs It.

I wanted to take some time to write about the BIA’s sea change of a decision yesterday in Matter of Forjoe, 29 I&N Dec. 463 (BIA 2026). In that decision, Board member Hunsucker, writing for the majority, overruled its 2015 decision in Matter of Agour and held that adjustment of status does not constitute an “admission” for purposes of the fraud waiver found at INA § 237(a)(1)(H).

I swear that’s more important than it sounds. For practitioners who have spent the last decade litigating the scope of the fraud waiver, and for noncitizens who Congress said were eligible for that waiver, it is a significant shift.

In 2015, when the Board decided Matter of Agour, it opened the door to using § 237(a)(1)(H) to waive fraud committed at the time of adjustment of status. Multiple circuits have since cited and relied on Matter of Agour (the Fourth, Sixth, and Eleventh by my count). In 2016, in Matter of Tima, the Board narrowed what the waiver could reach once granted. Now, in Forjoe, the Board has pulled the rug on the whole thing, actively narrowing who can invoke the waiver in the first place.

Over the past eleven years, the battle has centered on one word in the immigration statute: “admission.” In Forjoe, the Board has chosen a more restrictive definition, but only in this context (leaving its looser definition of “admission” elsewhere intact).

What the Board Actually Held

INA § 237(a)(1)(H), sometimes just called “the fraud waiver,” allows the Attorney General to waive removal for certain noncitizens who were “inadmissible at the time of admission” because of fraud or misrepresentation under § 212(a)(6)(C)(i). The question in Forjoe was whether the phrase “at the time of admission” includes fraud committed during adjustment of status.

In Agour, the Board said definitely yes. In Forjoe, it says definitely no.

Relying heavily on the statutory definition of “admission” in INA § 101(a)(13)(A), which focuses on “the lawful entry” of the noncitizen, the Board concluded that “admission” in § 237(a)(1)(H) refers only to physical entry after inspection. Fraud occurring during adjustment of status is therefore no longer waivable under this provision.

The Board emphasized textual interpretation and the structural distinction between § 237(a)(1)(A), which refers to inadmissibility “at the time of entry or adjustment of status,” and § 237(a)(1)(H), which refers only to inadmissibility “at the time of admission.” Because Congress included “adjustment” in one provision but not the other, the Board concluded that the omission was intentional.

With that reasoning, Agour is no more.

Immediate Practice Implications

Whatever one thinks of the Board’s reasoning, Forjoe changes how fraud-based removal cases must be litigated.

1. The § 237(a)(1)(H) Waiver Is No Longer a Safety Valve for Adjustment Fraud

Before Forjoe, practitioners could argue, under Agour, that fraud committed at the time of adjustment of status could be waived under § 237(a)(1)(H). That waiver was powerful because:

• It required no separate application form or fee.
• It did not require a showing of “extreme hardship.”
• It waived the charge of removability itself.

Now, if the alleged fraud occurred during adjustment of status, § 237(a)(1)(H) is unavailable.

That leaves only § 212(i) as a way to waive prior misrepresentations, but § 212(i) is a very different animal. It requires a new adjustment of status in most cases to even be able to apply. Lots of folks won’t have a way to re-adjust. It also requires proof of extreme hardship to a U.S. citizen or LPR spouse or parent.

Practically speaking, every case involving alleged adjustment fraud must now include early analysis of § 212(i) eligibility and hardship development from the outset.

2. Conceding Removability Becomes Riskier

Under Agour, some practitioners conceded removability under § 237(a)(1)(A) while preserving a § 237(a)(1)(H) waiver. And some Immigration Judges seemed annoyed when we would challenge the charge given that we were applying for the waiver. That does make some sense – if you’re asking for forgiveness for committing fraud, it’s a hard sell when you’re also denying committing fraud.

After Forjoe, admitting removability may foreclose relief entirely if hardship evidence under § 212(i) is not viable. So charge strategy now matters more. Adn the government still has the burden to prove its case. So, I think we will more often be requiring them to do that, rather than just moving on to relief from removal.

And that brings us to the harder question:

Is the Board correct?

Why Matter of Forjoe Is Almost Definitely Wrong (And What to Do About It).

Although the decision was just published yesterday, I’ve re-read it at least 10 times. And it does not become more persuasive on repeated reading. The Board’s opinion reads as if the statutory text compels its conclusion. But it most certainly does not.

I see at least four serious problems with the reasoning in Forjoe.

1. The Board Treats “Admission” as Contextually Rigid, But Only in This Context (Denying Relief).

For decades, the Board’s interpretations were often reviewed through the lens of Chevron deference. After Loper Bright brought the end to the Chevron doctrine, that landscape has changed. Forjoe reads like an opinion written with that shift in mind. But independent judicial review cuts both ways. The Board no longer receives automatic deference, and its reasoning must stand on its own.

You can see in the way Forjoe is written that the Board knows it can’t rely on deference any longer. But I don’t think its statutory interpretation is good enough. And it leaves the same word, “admission,” to mean other things in other parts of the statute. All in spite of decades of contrary precedent.

The INA defines “admission” as “the lawful entry of the alien into the United States after inspection and authorization.”

But the Board has repeatedly decided that adjustment of status (getting your residence without leaving and re-entering) does constitute an “admission” in other contexts:

• Aggravated felony removability timing
• Unlawful presence recidivism bars
• Other deportability provisions

In those cases, the Board expanded the term “admission” to include adjustment (i.e. where the person doesn’t actually leave and come back) to avoid what it viewed as structural absurdities.

In Forjoe, the Board insists that “admission” must mean entry only, at least when it comes to the fraud waiver.

If a defined statutory term means one thing in § 237(a)(1)(H) but something broader elsewhere in the same section of the statute, the Board owes a stronger explanation than simply saying this case is “limited to the issue at hand.” I don’t think the circuit courts will look favorably on this statutory treatment without actually doing the heavy lifting that this kind of change requires.

Also, I think the Board overlooks the extensive history of its own decisions defining the term “admission” to include adjustment of status. In its 1965 decision in Matter of Smith the Board wrote that applicants for adjustment of status “stand[] in the same position as an applicant who seeks to enter the United States with an immigration visa for permanent residence.” And it justified defining “admission” to include adjustment of status for deporting those convicted of crimes involving moral turpitude in Matter of Alyazji on the same basis.

And that’s another reason that Forjoe is hopefully not long for this world. Just a few months ago, EOIR’s then acting Director wrote in a memorandum to all adjudicators at EOIR that a panel of the BIA couldn’t withdraw past precedent without doing so explicitly. She concluded, thus, that if a BIA precedent contradicts a previous BIA precedent without explicitly withdrawing the previous precedent, then the earlier decision should win out and judges were free to ignore the new one.

“Indeed, if adjustment of status were not considered an admission under the immigration laws, many lawful permanent residents would be considered inadmissible, despite their lawful status, based on their presence in the United States without having been admitted. It is the experience of this second group that best serves to explain why the Board has often held that adjustment of status is an “admission.”

So… what now? In Forjoe, the Board flips the table on the definition of “admission” without withdrawing the decades of precedent decisions that it purports to leave in its wake. I don’t think that’s going to work.

2. The Board’s View is Wrong, and the Text of § 237(a)(1) Proves It.

Section 237(a)(1)(A) makes a noncitizen who was inadmissible “at the time of entry or adjustment of status” removable. So, if a person obtained their residence but, at that time, was actually inadmissible, this ground of removability makes it possible for the government to go back and take their residency away.

The fraud waiver at section 237(a)(1)(H) waives the removal for those “inadmissible at the time of admission” when the reason for their inadmissibility was fraud – only if the noncitizen can prove they deserve it. These waivers aren’t guaranteed to be granted. But Congress left them in place because they are sometimes necessary.

The Board reads those two underlined sections above as some secret message from Congress. It claims that the absence of the word “adjustment” in (H) as intentional.

But there is another, far more natural, reading of this statute. The waiver section says that it applies to removability under paragraph (1). Paragraph (1) includes “entry or adjustment.” Deciding otherwise makes that reference to “Paragraph (1)” make basically zero sense.

Once removability under paragraph (1)(A) is triggered, the waiver addresses that removability. Nothing in the statute clearly states that the waiver only applies to fraud committed during physical entry or does not apply to fraud committed during an adjustment of status.

The Board’s reading is not the only, or even the best, textual reading. And I think that means the Department of Justice is going to have a lot of explaining to do when this gets to the circuit courts. At a minimum, this isn’t a case of “plain meaning” foreclosing debate. The Board kind of looks the other way from the “plain meaning” to achieve what looks like a results-driven conclusion.

3. The Decision Undermines the Humanitarian Purpose of the Waiver

Our current immigration regime is so absolutely cruel that maybe this section could come across as too cute. But there is a history here. The Supreme Court in INS v. Errico, way back in 1966, recognized that the fraud waiver was enacted to preserve family unity.

Forjoe pays some lip service to that history but then subordinates it entirely in its claim to be performing rigid textualism. To me, the result is stark:

• Fraud at entry: waivable.
• Fraud at adjustment: not waivable.

Yet that reading kind of turns the whole “family unity” ideal upside down. For one, adjustment of status applicants are already living in the United States and thus are quite likely to have begun a family here. They will have spouses and kids and parents here and are the kind of folks the Errico decision says we should stop for a moment and consider giving a second chance before we deport them over a mistake. People committing fraud upon their initial entry might have zero family at all, as they don’t live in the United States.

Also, adjustment of status typically involves far greater scrutiny and deeper integration into U.S. society than a person entering on a visitor visa at a port of entry. Yet the visitor can qualify for the fraud waiver and the longterm resident adjusting their status cannot. I genuinely don’t get it.

If Congress intended the waiver to prevent family separation in fraud-based admission cases, then I see little reason to assume that it meant to exclude adjustment-based fraud categorically. Yes, you might deny some waivers because the fraud was especially bad or the person just doesn’t deserve it. Fine. But to say they can’t even apply, because of this secret you found in the statute decades after the statute was written, really makes very little sense to me.

4. The Prospective-Only Application Suggests the Board is Aware its Decision is Vulnerable.

I’m kinda fired up about that last one, because it matters so much to people who will be actively harmed by this decision. But that’s not even the biggest problem with Forjoe. The Board sort of tips its hand that it knows it’s out on a limb in its discussion of retroactivity.

Forjoe says that its new rule applies prospectively only. Ok. But if the statute was always clear, why limit application?

To me, this prospective limitation suggests that the Board recognized that the prior interpretation was reasonable and relied upon. That weakens the assertion that the statutory text compels only one answer. And I think that on petition for review, courts will examine this closely.

It’s also almost impossible to know what this retroactivity decision even means. What cases does Forjoe apply to then? I don’t know.

Adding to the confusion is that unlike many forms of immigration relief, there is no application form for a § 237(a)(1)(H) waiver. There is no filing date. No receipt notice. No separate adjudication process. A respondent simply asserts eligibility during removal proceedings, the court schedules a trial, and then the judge makes a completely discretionary decision.

So what does “prospective” mean in this context? Does it mean:

• Only cases initiated after February 26, 2026?
• Only waivers first requested after that date?
• Only cases in which the Immigration Judge has not yet issued a decision?
• Or only future conduct?

The opinion does not say.

Removal proceedings usually span years, sometimes decades. I have a number of clients who are currently just waiting for their trial, for the judge to decide whether to grant the waiver that they’ve already applied for. Does Forjoe forclose relief for them? Many respondents currently in proceedings may have structured their litigation strategy around Agour. Some may have conceded removability under § 237(a)(1)(A) specifically because § 237(a)(1)(H) provided a path to relief without the extreme hardship requirement of § 212(i). Others may have declined to develop hardship evidence in reliance on Agour’s broader eligibility.

The Board’s retroactivity analysis acknowledges reliance interests but does not explain how those interests are to be protected in practice. Without a filing mechanism or triggering event, Immigration Judges are going to be left without a roadmap. How do they determine, case by case, whether “prospective” means “as of the date of decision” or something narrower?

That ambiguity alone is likely to generate inconsistent results across courts.

And hopefully this isn’t repetitive: if the statute’s meaning was truly clear all along, prospective-only application would be unnecessary. Courts reviewing this decision may reasonably ask why a purely textual interpretation requires protection of reliance interests at all. If they’re so sure that the statute has always meant that, they’re not showing it.

In short, I think that the retroactivity limitation appears designed to soften the impact of the decision, but in practice it really just looks like the Board silently conceding that what it’s doing here is shaky at best.

What Can Be Argued Now?

For folks litigating these cases, several arguments remain viable:

1. Preserve the statutory interpretation issue for appeal.
   Apply for the waiver, even though Forjoe now says you can’t. You may be in a circuit that has already acknowledged the reasoning of Matter of Agour. The Board and the Immigration Judges are required to follow that circuit’s law. And the question of whether “admission” includes adjustment for purposes of § 237(a)(1)(H) is a pure legal question subject to de novo review. Ultimately I think this is the better argument. The waiver statute addresses removability under paragraph (1). Paragraph (1)(A) explicitly includes adjustment.
2. Argue for consistent definition across the INA; Consider applying Forjoe in other contexts.
   If adjustment counts as an “admission” for aggravated felony timing and other § 237 contexts, it should not be selectively excluded here. On the other hand, if the Board is correct that “admission” excludes adjustment of status, then that reasoning should apply consistently across the INA, not only in contexts that restrict relief. The Board has previously held that adjustment of status constitutes an “admission” when doing so expands deportability. In Matter of Rosas the Board treated adjustment as an admission so that noncitizens who were “in and admitted to” the United States could be removed based on aggravated felony convictions. And in Matter of Alyazji the Board interpreted “date of admission” to include adjustment of status for purposes of the five-year clock in the moral turpitude ground of removability. Those cases were justified on structural grounds: if adjustment were not considered an admission, certain lawful permanent residents would fall outside the reach of the deportability provisions. But that logic cuts both ways. If “admission” now excludes adjustment of status for purposes of § 237(a)(1)(H), then the same textual reasoning would appear to undermine the premise of Rosas, Alyazji, and similar cases. Statutory terms should not expand when doing so facilitates removal and contract when doing so forecloses relief. If adjustment counts as an “admission” for aggravated felony timing and moral turpitude timing, then the Board must explain why it does not count as an admission for purposes of the fraud waiver. And if it truly does not count, then those other precedents are now ripe for revisiting.
3. Raise reliance arguments in pre-Forjoe cases.
   Especially where litigation strategy was shaped by Agour.

I’ll just say that this issue is unlikely to end at the Board. I have no idea how it will go. But fundamentally I think the Board is wrong and, reading through its somewhat timid positioning, I think the Board knows that it’s wrong.