Matter of Alyazji (BIA 2/3/2011)

The BIA rarely reverses itself (but is reversed on many occasions by the circuit appellate courts), but it does happen from time to time.  In this case, the BIA conceded that an issue that it considered in an earlier case was decided wrong.  The issue is:  What is the meaning of the phrase “after the date of admission” with regard to § 237(a)(2)(A)(i) of the INA?  This section of the INA authorizes the removal of any alien who “is convicted of a crime involving moral turpitude committed five years…after the date of admission,” provided the crime is punishable by a sentence of imprisonment of one year or longer.  Congress designed this section to deal with recent immigrants who are admitted to the U.S. and then soon after commit serious crimes.  The section makes it easier to have such persons removed from the country.

The confusion comes into the picture with regard to what constitutes the date of admission.  The BIA has taken the position that an “admission” occurs when a person enters the country as a non-immigrant (for instance, as a student or visitor).  The BIA has also determined that that an “admission” occurs when a person’s status is adjusted (from non-immigrant to lawful permanent resident status or from a person who entered without inspection with no status to lawful permanent resident).  Thus, according to the BIA’s logic, a person who entered the country in non-immigrant status and who later adjusts can have two dates of admission (the first date being when he first entered the country, the second date being when he adjusted status).  This would normally be an academic question because it doesn’t really affect an immigrant’s life in any way unless he has a run-in with the law.  If this occurs, however, then INA § 237(a)(2)(A)(i) comes into play, and the date of admission becomes extremely important.  If a person is removable for committing a crime involving moral turpitude within five years after the date of admission, which date should be used to start the five-year clock?  The BIA previously took the position that either date of admission may be used to determine the start of the five year clock.  Meaning, in situations where a person who was admitted as a non-immigrant and who later adjusted status, such a person’s five year clock would start on the date when he adjusted status (the second admission), regardless of how long he had been previously admitted into the country in non-immigrant status.  The BIA’s interpretation has resulted in troubling results, to the point where DHS has turned against it.

For the petitioner in this case, the BIA’s previous position would have ended his case.  The petitioner was a citizen and native of Palestine who was first admitted to the U.S. as a non-immigrant in 2001.  He remained in the country until he adjusted status to lawful permanent resident in 2006.  In 2007, he committed offenses which led to an indecent assault conviction in 2008.  The government thereafter placed him in removal proceedings as an alien who committed a crime involving moral turpitude within five years of his date of admission. Here, the date of admission is critical because if his first date of admission is applied, he would not be removable because he committed the offense more than five years “after the date of admission.”  On the other hand, if the second date (the adjustment of status) is applied, he would be removable because he committed the offense in 2007, only one year after his “date of admission” in 2006.

Luckily for the petitioner, the BIA reversed itself on this issue.  It held that the earlier date should be considered the petitioner’s “date of admission” because that was the date when he gained lawful entry into the U.S.  He remained in the country until he adjusted status, so the second date of admission had no affect on his presence in the country.  The BIA made clear that if the second admission took place within the U.S., such as the case here, the first admission is the “date of admission” for purposes of INA § 237(a)(2)(A)(i).  The date of admission is connected to the petitioner’s presence in the U.S.  In other words, the date in which the petitioner first came to lawfully enter the country, if he remained in the country from that date forward, should be considered the date of admission.  The BIA’s new interpretation was helpful to the petitioner because his initial admission was in 2001, more than five years prior to when he committed the offenses which led to this conviction.  Therefore, he was not removable pursuant to INA § 237(a)(2)(A)(i), because it did not apply to him, according to the BIA’s new interpretation.