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BIA overrules Shanu to clarify concept of "admission"

Headnote:   "In general, an alien's conviction for a crime involving moral turpitude triggers removability under section 237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. ยง 1227(a)(2)(A)(i) (2006), only if the alien committed the crime within 5 years after the date of the admission by virtue of which he or she was then present in the United States. Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), overruled in part."  Matter of ALYAZJI , 25 I&N Dec. 397 (BIA 2011).

In trying to guide us on what constitutes an admission, the Board of Immigration Appeals in its decision stated:

"Specifically, we now hold that the statutory phrase "the date of admission" necessarily refers to a single date in relation to the pertinent offense; thus, not every "date of admission" triggers the 5-year clock."

"The phrase "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.  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).7 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."

Ricky Malik, Esq.
Immigration Lawyer


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