News Update - February 5, 2011

By Alan Lee, Esq.

BIA’s New Interpretation of “Date of Admission” Benefits People who Commit Excludable Acts.

The BIA has changed its interpretation of the term “date of admission” in regards to crimes of moral turpitude as to which date of admission starts the 5-year clock and, in the case of an alien that has been admitted multiple times, which date of admission applies. Under § 237(a)(2)(A)(i) of the INA, an alien who “is convicted of a crime involving moral turpitude committed within five years…after the date of admission” that may carry a sentence of one year or longer is deportable. Admission previously meant either entrance into the U.S. with permission after inspection at a port of entry or adjustment to LPR status for those that had entered without permission or were paroled.  The BIA has re-examined the statute and found that it had neglected to accommodate Congressional changes to the text of the statute from 1990 and 1997. Previously, the BIA had interpreted in Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), that the 5-year clock is reset each time an alien is admitted so that any date of admission could be used to apply the statute. Therefore, adjustment to LPR status was seen as a date of admission that could be used to start the 5-year count. With the changes in grammatical structure, the “any entry” rule no longer applies. Adjustment of status will no longer be seen as an admission.

The BIA now holds that the “’date of admission’ refers to the date of the admission by virtue of which the alien was present in the United States when he committed his crime.” Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011) at 406. The BIA looked to the date of the crime to see if it fell within the 5-year period “after the date of admission pursuant to which he was then in the United States….The 5-year clock is also not reset by a new admission from within the United States (through adjustment of status).” Ibid, 406. The hypothetical given was of an individual who first came to the U.S. as a child in 1990 on a tourist visa for 2 weeks, who was later re-admitted to the U.S. in 1998 as a college student. He committed a crime in 2002 involving moral turpitude and was convicted in 2004. Based on this example, he is deportable because he was in the U.S. pursuant to his student visa from 1998 and the crime committed in 2002 is within the 5 year period.

In Matter of Alyazji, the respondent was admitted to the U.S. in 2001, adjusted status in 2006, and committed the crime in 2007. Since the clock was not reset by the adjustment, the crime did not fall within the 5 year period and the BIA accordingly found him not removable and terminated the removal proceedings.

 


The author is a 30+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

This article © 2011 Alan Lee, Esq.

 

Copyright © 2003-2011 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.