ALYAZJI
25 I. & N. Dec. 397
| BIA | 2011Background
- Respondent admitted to the U.S. in Aug 2001 as a nonimmigrant and later adjusted to LPR in Apr 2006.
- In Jan 2008 Respondent was convicted of indecent assault (offense 2007), triggering potential removability under 237(a)(2)(A)(i).
- Board precedent Matter of Shanu held adjustment of status could reset the 5-year clock via multiple admissions.
- Respondent and amicus urged abandoning Shanu or treating adjustment as admission broadly; DHS urged flexible interpretation to unify contexts.
- Board overruled the second holding of Shanu (resetting clock with each admission) and held the 5-year period runs from a single relevant admission, not reset by new admissions via adjustment, and measured relative to the offense date.
- Because the offense occurred in 2007 and the relevant admission occurred in 2001, Respondent is not removable under 237(a)(2)(A)(i) and removal proceedings are terminated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What date of admission governs the 5-year clock under 237(a)(2)(A)(i)? | DHS advocates the 'any admission' rule from Shanu. | Alyazji argues for a single, pertinent admission relating to the offense. | The statute uses a single relevant date of admission, not every admission. |
| Does adjustment of status reset the 5-year clock for purposes of 237(a)(2)(A)(i)? | DHS contends adjustments can reset the clock. | Alyazji contends adjustments should not reset the clock. | No; adjustment of status does not reset the 5-year clock. |
Key Cases Cited
- Matter of Shanu, 23 I&N Dec. 754 (BIA 2005) (held the 5-year clock is reset with each admission (broad rule))
- Aremu v. Dep’t of Homeland Sec., 450 F.3d 578 (4th Cir. 2006) (criticized/overruled aspects of Shanu but discussed admissions)
- Zhang v. Mukasey, 509 F.3d 313 (6th Cir. 2007) (addressed the scope of 'admission' in 237(a)(2)(A)(i))
- Shivaraman v. Ashcroft, 360 F.3d 1142 (9th Cir. 2004) (held adjustment of status cannot always be considered admission depending on context)
- Lemus-Losa v. Holder, 576 F.3d 752 (7th Cir. 2009) (approved contextual application of adjustment as admission in some contexts)
- Ocampo-Duran v. Ashcroft, 254 F.3d 1133 (9th Cir. 2001) (adjustment of status as admission in some sections)
- Matter of Rosas, 22 I&N Dec. 616 (BIA 1999) (adjustment of status treated as admission in certain contexts)