Monday, February 7, 2011

BIA Overrules Matter of Shanu in Part; Finds Alien Present in U.S. Pursuant to Admission Occurring More than Five Years Before CIMT Offense Is Not Deportable

The Board of Immigration Appeals (BIA or Board) held in Matter of Alyazji, 25 I. & N. Dec. (B.I.A. Feb. 3, 2011), that, in general, an alien's conviction for a crime involving moral turpitude (CIMT) triggers removability under INA § 237(a)(2)(A)(i) [ 8 USCA § 1227(a)(2)(A)(i)] (2006) only if the alien committed the crime within five years after the date of the admission by virtue of which he or she was then present in the U.S., thus overruling its earlier holding in Matter of Shanu, 23 I. & N. Dec. 754 (B.I.A. 2005), review granted, order vacated, 450 F.3d 578 (4th Cir. 2006), that an alien's conviction for a CIMT supported removal under INA § 237(a)(2)(A)(i) so long as the crime was committed within five years after the date of any admission made by the alien, while leaving in place Shanu's holding that the term “admission” used in § 237(a)(2)(A)(i) refers to adjustment of status as well as admission at the border.


The respondent was admitted to the U.S. as a nonimmigrant student in August 2001. He remained in the U.S. thereafter, and in April 2006 his status was adjusted to that of a lawful permanent resident. In January 2008, he was convicted of indecent assault under Pennsylvania law based on a 2007 offense. The Department of Homeland Security (DHS) commenced removal proceedings, and the immigration judge denied the respondent's motion to terminate those proceedings on the ground that the indecent-assault conviction resulted from an offense committed more than five years after his “admission” as a nonimmigrant in August 2001. The IJ found that, under Matter of Shanu, the respondent was removable because he committed his offense less than five years after his “admission” to lawful permanent resident status.

INA § 237(a)(2)(A)(i) provides that an alien is deportable if he or she:

(I) is convicted of a crime involving moral turpitude committed within five years ... after the date of admission, and

(II) is convicted of a crime for which a sentence of one year or longer may be imposed

After discussing the controversy created by Matter of Shanu's holding that the term “admission” used in § 237(a)(2)(A)(i) refers to adjustment of status as well as admission at the border and expressing the Board's continued concern over some of the implications of the contrary rule, the Board concluded that, in the final analysis, resolution of the case before it did not warrant disturbing its precedent holding that adjustment of status constitutes an admission. However, the Board agreed with the respondent that it misconstrued the phrase “the date of admission” when it held that that phrase encompassed the date of any admission and held instead that “the date of admission” necessarily refers to a single date in relation to the pertinent offence so that not every “date of admission” triggers the five-year clock. Finding that INA § 237(a) is focused on admission plus presence, the Board concluded that the most natural reading of § 237(a)(2)(A)(i) is that the phrase “the date of admission” refers to the date of the admission by virtue of which the alien was present in the U.S. when he or she committed his or her crime. Thus, to ascertain an alien's deportability under § 237(a)(2)(A)(i), the Board explained that it must look first to the date when the alien's crime was committed. If, on that date, the alien was in the U.S. pursuant to an admission that occurred within the prior five-year period, then the alien is deportable. Conversely, the alien is not deportable if he or she committed his or her offense more than five years after the date of the admission pursuant to which he or she was then in the U.S. Moreover, the Board said, under this understanding of the phrase “the date of admission,” the five-year clock is not reset by a new admission from within the U.S. (through adjustment of status). Rather, the Board explained, such an admission merely extends an existing period of presence that was sufficient in and of itself to support the alien's susceptibility to the grounds of deportability.

Applying this ruling to the respondent's case, the Board concluded that, inasmuch as the respondent committed his offense more than five years after his “date of admission (August 2001),” he is not deportable even though the Board would treat him as having been “readmitted” by means of adjustment of status in April 2006. That readmission did not reset the five-year clock because it added nothing to the deportability inquiry. Accordingly, the appeal was sustained and the removal proceedings terminated.

Board Member Lauri S. Filppu wrote the opinion for the three-member panel, which included Board Members Roger Pauley and Linda S. Wendtland. Wayne Sachs, Philadelphia, Pennsylvania, represented the petitioner. James A. Lazarus, Appellate Counsel, appeared for the government. Emily Creighton, American Immigration Council, Washington, D.C., filed an amicus curiae brief.

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