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.
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