dissenting:

As noted by the majority, this case concerns a narrow legal issue: whether, in removal proceedings where the alien is charged under 8 U.S.C. § 1227 (a)(1)(A) with being inadmissible at the time of adjustment of status, the adjustment of status date is the date the alien’s status was adjusted to legal temporary resident or the date on which it was adjusted to legal permanent resident. Section 1227(a)(1)(A) provides that any “alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable.” (Emphasis added.) We must therefore consider whether “adjustment of status” refers to November 10, 1988, when Perez-Enriquez presented himself to the government and claimed that he resided in the United States and had performed seasonal agricultural services for at least 90 days, see 8 U.S.C. § 1160 (a)(1), or December 1, 1990, when his status was automatically adjusted to lawful permanent resident, see 8 U.S.C. § 1160 (a)(2). Lacking any clear instruction in the statute, we are forced to look beyond the plain language of the statute to determine which date the government must use.

The majority believes that Matter of Jimenez-Lopez, 20 I. & N. Dec. 738 , 1993 WL 494088 (BIA 1993), is dispositive. I cannot agree. The issues decided in Jimenez-Lopez were different from the issue presented in this case. Furthermore, the majority seeks to impose its interpretation of Jimenez-Lopez against the government. I continue to think that the sounder perspective is that § 1227(a)(1)(A) allows the respondent to use the later date as the adjustment of status date. Accordingly, I dissent from the majority’s contrary conclusion. 1

I

Jimenez-Lopez presented a distinct factual setting and resolved distinct legal issues. Jimenez-Lopez applied for lawful temporary residence under the special agricultural worker (“SAW”) provisions on June 2, 1988. 20 I. & N. Dec. at 738-39 . On April 8, 1990, Jimenez-Lopez was returning from a trip to Mexico. Because the car in which he was traveling was found to contain marijuana, Jimenez-Lopez was arrested and “charged with ex-cludability as an alien who the immigration officer had reason to believe was a drug trafficker,” and paroled into the United States. Id. at 739 . On October 1, 1990, he was convicted of importation of a con *1018 trolled substance and possession of a controlled substance with intent to distribute. Id. On December 1, 1990, Jimenez-Lopez’s status was adjusted to lawful permanent resident pursuant to 8 U.S.C. § 1160 (a)(2). Id.

The government brought exclusion proceedings against Jimenez-Lopez. The IJ terminated the proceedings, holding that Jimenez-Lopez’s physical entry into the United States and the later automatic adjustment of his status to legal permanent resident constituted admittance into the United States, and he therefore was no longer excludable. Id.

The BIA vacated the IJ’s termination of the exclusion proceedings. Id. at 743 . It held that neither Jimenez-Lopez’s parole into the United States on the drug charges nor the automatic adjustment of his status to lawful permanent resident constituted “entry” into the United States. 2 Id. at 742 . In reaching this determination, the BIA noted that Jimenez-Lopez’s adjustment of status to legal permanent resident after he was paroled into the United States was automatic, and did not include an admissibility determination. Id. at 742-43 . Accordingly, he was properly in exclusion proceedings because he had not effected an “entry” into the United States. Id. at 743 . This determination appears to be of little assistance to our task of determining which of two adjustments of status dates is invoked under § 1227(a)(1)(A).

As noted by the majority, Jimenez-Lopez states that the automatic adjustment to permanent legal resident under § 1160(a)(2) does not constitute a new determination of the applicant’s admissibility to the United States. I do not, however, find in Jimenez-Lopez any direct support for the majority’s implicit conclusion that the critical “adjustment of status” date for purposes of § 1227(a)(1)(A) must be one for which there was a contemporaneous determination of admissibility. There is nothing in Jimenez-Lopez preventing an IJ, in a subsequent removal proceeding charging an alien with inadmissability under § 1227(a)(1)(A), from determining an alien’s admissibility as of the date his status was adjusted to legal permanent resident, notwithstanding the fact that the adjustment had been automatic.

In sum, Jimenez-Lopez’s holdings that the automatic adjustment to legal permanent resident did not constitute an entry and was not an admissibility determination is not dispositive because it does not answer the question of whether under § 1227(a)(1)(A) the critical “adjustment of status” for purposes of the unique SAW provisions is the initial adjustment to legal temporary resident or the subsequent adjustment to legal permanent resident. 3

II

Assuming that the applicability of Jimenez-Lopez to this case were established, I would still disagree with the majority’s position that Jimenez-Lopez is entitled to Chevron deference. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424 , 119 S.Ct. 1439 , 143 L.Ed.2d 590 (1999); see also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984). Jimenez-Lopez *1019 was decided thirteen years ago and it appears that reasonable minds may differ as to its meaning. 4 Moreover, the applicable immigration statutes have changed considerably since 1993, and the respondent in this case, the Attorney General of the United States, does not share the panel’s reading of Jimenez-Lopez. In Aguirre-Aguirre , the Supreme Court gave Chevron deference to a position advanced by both the BIA and the Attorney General. 526 U.S. at 424 , 119 S.Ct. 1439 . It seems anomalous to give deference to an agency determination that is contrary to the position taken by the head of the agency. 5

Moreover, if there is more than one possible construction of Section 1160, then neither this court nor the BIA is bound under Chevron to the majority’s interpretation of Jimenez-Lopez. As noted in Judge Bybee’s concurring and dissenting opinion, the Supreme Court has recognized that an agency can, and should be allowed to, change its mind. The Supreme Court has “rejected the argument that an agency’s interpretation ‘is not entitled to deference because it represents a sharp break with prior interpretations’ of the statute in question.” Rust v. Sullivan, 500 U.S. 173, 186 , 111 S.Ct. 1759 , 114 L.Ed.2d 233 (1991) (quoting Chevron, 467 U.S. at 862 , 104 S.Ct. 2778 ). “An initial agency interpretation is not instantly carved in stone,” because the agency “must consider varying interpretations and the wisdom of its policy on a continuing basis.” Chevron, 467 U.S. at 863-64 , 104 S.Ct. 2778 . Thus, “[t]he [Attorney General] is not estopped from changing a view [he] believes to have been grounded upon a mistaken legal interpretation.” Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417 , 113 S.Ct. 2151 , 124 L.Ed.2d 368 (1993). If the Attorney General is not estopped from changing his view, how can he be bound under Chevron to an interpretation of a BIA decision with which he does not agree?

In this case, the court is called upon to interpret Jimenez-Lopez and Section 1160. The majority’s statement, however, that its interpretation is compelled by Chevron deference is, I submit, wrong, contrary to Supreme Court precedent, and at odds with our usual criteria for deferring to agency interpretations. See Miranda Alvarado v. Gonzales, 441 F.3d 750, 754-59 (9th Cir.2006) (discussing Chevron deference in immigration cases and noting the importance of the role played by the Attorney General).

Ill

I remain of the opinion that the government’s perspective is reasonable and legal. The SAW provisions applied to numerous aliens who were in the United States illegally, and set forth a two-step process for adjustment to permanent resident status. See 8 U.S.C. § 1160 . The first step allowed these aliens to alert the government to their presence without penalty: they were granted temporary resident status. At the time of the application, the government presumably had no knowledge of the individual alien, other than what he or she set forth in the application. The time between the adjustment to temporary resi *1020-1028 dent and the automatic adjustment to permanent resident gave the government some time to investigate the applicant. Accordingly, to the extent that an adjustment of status determination gives an alien some additional procedural or substantive rights against any effort by the government to deport him or her, it makes sense to use the date of adjustment to permanent resident, even though the adjustment is automatic.

Furthermore, using the date of adjustment to lawful permanent resident is consistent with the fact that the benefits accorded a lawful permanent resident are far broader than those accorded a temporary resident. The IJ determined that in line with the benefits accruing from lawful permanent residence, “adjustment of status,” as used in 8 U.S.C. § 1227 (a)(1)(A), should refer to the date of adjustment of status to permanent resident.

Even if I did not find this approach persuasive, I would affirm because Perez-Enriquez has not shown that the respondent’s interpretation of the statute is unreasonable. For these reasons, I respectfully dissent from the majority’s contrary conclusion.

. I concur in the majority's determination that we have jurisdiction to review the petition.

. Indeed, the BIA noted that the SAW provisions appeared to allow an alien to “adjust his or her status to that of lawful permanent resident even if physically outside the United States.” 20 I. & N. Dec. at 742 .

. Support for the use of the later date may be gleaned from the BIA's observation in Jimenez-Lopez that the provision allowing the Attorney General to terminate legal temporary resident status was “permissive in nature only,” and its suggestion that a failure to do so should not weigh against the government. 20 I. & N. Dec. at 742 .

. The Immigration Judge in this case thought that Jimenez-Lopez was instructive and that Perez-Enriquez's “adjustment by operation of law does not in some way constitute a waiver or estoppel of the Service's ability to pursue the instant charge."

. Of course, a party might argue that an agency should be estopped from changing its position, or that it relied, on a prior agency position to its detriment. Such contentions, however, are very different from holding that deference to a difficult-to-comprehend BIA opinion requires that this court's interpretation of that opinion trumps a contrary position advocated by the Attorney General of the United States.