Adjustment of Status Following an Admission Does Not "Re-Start" the Five-Year Clock for Purposes of the Moral Turpitude Deportation Ground
by Kathy Brady
Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011), overruling in part
A noncitizen is deportable based upon conviction of a single crime involving moral turpitude that carries a potential sentence of a year or more, if the person committed the offense within five years "after the date of admission." For some years the Board of Immigration Appeals (BIA) has disagreed with federal courts on the definition of "date of admission." Now the BIA has changed its rule to one that is similar to the federal cases and that benefits immigrants. Consider the following example:
Under Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), the BIA held that a person in Stella's position would be deportable. In Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011) the BIA partially overturned Matter of Shanu, and held that a person in this position is not deportable under the moral turpitude ground. The BIA held that the "date of admission" for this purpose is the admission pursuant to which the person is in the United States. The Board stated:
Thus, to ascertain an alien's deportability under section 237(a)(2)(A)(i) of the Act, we look first to the date when his crime was committed. If, on that date, the alien was in the United States pursuant to an admission that occurred within the prior 5-year period, then he is deportable. Conversely, the alien is not deportable if he committed his offense more than 5 years after the date of the admission pursuant to which he was then in the United States. Moreover, under this understanding of the phrase "the date of admission," the 5-year clock is not reset by a new admission from within the United States (through adjustment of status). Rather, such a new 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. Id. at pp. 406-407.
In Alyazji the Board described how it will apply this rule in different scenarios:
1INA § 237(a)(2)(A)(i), 8 USC § 1227(a)(2)(A)(i).
2Compare Matter of Shanu, 23 I&N Dec. 754, 759 (BIA 2005) (adjustment following an admission and overstay re-starts the five-year clock) with Aremu v. Department of Homeland Security, 450 F.3d 578 (4th Cir. 2006) (overruling Shanu to hold that adjustment did not re-start the five year clock); Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. 2005)(same outcome); Shivaraman v. Ashcroft, 360 F.3d 1142 (9th Cir. 2004) (adjustment did not re-start the five-year clock where the person remained in lawful status until adjustment); Zhang v. Mukasey, 509 F.3d 315 (6th Cir. 2007) (similar).
3A lawful permanent resident who travels outside the United States is not considered to be seeking a new admission upon her return, unless she comes within one or more enumerated categories set out in INA § 101(a)(13)(C), 8 USC § 1101(a)(13)(C), such as being inadmissible under the crimes ground, or remaining outside the United States for more than six months.
© Immigrant Legal Resource Center, www.ilrc.org
Kathy Brady is a Senior Staff Attorney at the Immigrant Legal Resource Center, where one of her areas of expertise is the immigration consequences of criminal convictions. She is the primary author of Defending Immigrants in the Ninth Circuit (formerly California Criminal Law and Immigration), available at www.ilrc.org. She is a co-author of the ILRC's Special Immigrant Juvenile manual and the Immigration Benchbook for Juvenile and Family Courts. In 2007, she received the Carol King award for advocacy from the National Immigration Project of the National Lawyers Guild. Currently she is a Commissioner to the ABA Commission on Immigration.
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