On February 3, 2011 the Board of Immigration Appeals (BIA) issued a precedent decision in Matter of Alyazji,25 I&N Dec. 397 (BIA 2011). The BIA held that for purposes of the deportation/removal statute of Section 237(a)(2)(A)(i) of the Immigration and Nationality Act (herein “INA”), the date of “admission” is the date immediately preceding the conviction where the foreign national has been admitted to the U.S. from foreign travel or has adjusted their status. This places a date certain from which the DHS can charge their removal cases. This case also overturns prior precedent in Matter of Shanu, 23 I&N Dec. 754 (BIA 2005) in part.
Some issues are created by this case but more are resolved. There is now a bright line test to determine admission. Simply take the date of commission of the crime and ascertain whether or not the foreign national was in the U.S. pursuant to a lawful admission. For example, if a person commits a theft offense on January 1, 2011 and had entered (and not departed or adjusted status) on or after January 2, 2006, then he or she is now deportable. Conversely, if this same person committed that same crime on January 1, 2011 and had entered on a tourist visa any time prior to December 31, 2005, he or she is not deportable pursuant to INA 237(a)(2)(A)(i). They obviously are deportable for failure to maintain status but that’s a separate issue.
The BIA specifically held that a person who adjusts status does not provide DHS with a second opportunity. For example a person who entered the U.S. on January 2, 2004 as a tourist and adjusted status on December 31, 2009 and committed a theft offense on January 1, 2010 is not deportable so long as they had not departed the country subsequent to that initial entrance. The adjustment of status does not provide a new time clock for deportation (so that DHS could charge the admission date as December 31, 2009 in this example).
What is left untouched is whether or not this case has a retroactive application. As well, another issue that arises is whether or not a departure and reentry using an advanced parole would alter the equation. Regardless, now that this case is in play, prior to proceeding with any filing with CIS (adjustment or naturalization) anyone with any hint of a crime involving moral turpitude conviction should engage an experienced immigration/deportation/removal lawyer immediately.
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