Matter of Raul CARRILLO, Respondent
File A077 002 996 - Miami, Florida
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided October 21, 2009
25 I&N Dec. 99 (BIA 2009)
Interim Decision #3658
FOR RESPONDENT: Keith C. Williams, Esquire, Naples, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: Adam Weisholtz, Assistant Chief Counsel
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
GRANT, Board Member:
In a decision dated October 9, 2007, an Immigration Judge found the respondent removable under
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Cuba who was paroled into the United States on March 4, 1999. His status was adjusted to that of a lawful permanent resident on January 30, 2001, pursuant to the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161 (“Cuban Adjustment Act”). On June 6, 2005, the respondent was convicted of four counts of grand theft, third degree, in violation of section 812.014
At his removal hearing, the respondent admitted the allegations in the Notice to Appear (Form I-862) but denied that he was removable. He asserted that the effective date of his admission to the United States was March 4, 1999, the date of his parole, rather than January 30, 2001, the date on which his adjustment of status was granted, because of the “rollback” provision of the Cuban Adjustment Act. He therefore argued that his crimes involving moral turpitude had not been committed within 5 years after his date of admission. The DHS disagreed, citing Matter of Carrillo-Gutierrez, 16 I&N Dec. 429 (BIA 1977), in support of its assertion that the date of the respondent’s admission for purposes of establishing his removability was the actual date when he was accorded lawful permanent residence through adjustment of status. The Immigration Judge rejected the respondent’s contentions, relying on Matter of Carrillo-Gutierrez to find that the rollback provision of the Cuban Adjustment Act was for the limited purpose of making citizenship more obtainable and did not apply in this case. On appeal, the respondent does not dispute that his crimes involve moral turpitude but contends that they were not committed within 5 years of his admission.
II. ANALYSIS
We review the Immigration Judge’s findings of fact, including those relating to the credibility of testimony, only to determine whether they are “clearly erroneous,” while questions of law, discretion, and judgment may be reviewed de novo.
We disagree with the Immigration Judge’s decision and conclude that the date he applied regarding the respondent’s admission was incorrect. Section 1 of the Cuban Adjustment Act, 80 Stat. at 1161, provides, in pertinent part, as follows:
[T]he status of any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to January 1, 1959 and has been physically present in the United States for two years, may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if the alien makes an application for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence. Upon approval of such an application for adjustment of status, the Attorney General shall create a record of the alien’s admission for permanent residence as of a date thirty months prior to the filing of such an application or the date of his last arrival into the United States, which ever date is later.
The DHS relies on caselaw where we held that the term “date of admission” in
Contrary to the DHS’s argument on appeal, Matter of Shanu and Matter of Rosas are not controlling in this case, because the respondent adjusted his status pursuant to section 1 of the Cuban Adjustment Act, which instructs the Attorney General to record the alien’s “admission for permanent residence as of a date 30 months prior to the filing of such an application or the date of his last arrival into the United States, whichever is later.” See Matter of Rivera-Rioseco, 19 I&N Dec. 833 (BIA 1988); Matter of Diaz-Chambrot, 19 I&N Dec. 674 (BIA 1988). See generally
We also disagree with the DHS’s contention that the “rollback” provision of the Cuban Adjustment Act should not be applied in removal proceedings to restrict the enforcement provisions of the Act. The DHS relies on our decision in Matter of Carrillo-Gutierrez, 16 I&N Dec. 429, where we held that the 5-year period of statutory limitations for rescission proceedings under
We conclude that Matter of Carrillo-Gutierrez is inapposite to this case. Rescission proceedings, by their nature, are controlled by the date the application for adjustment of status was approved, because they challenge the alien’s statutory eligibility for adjustment of status on that date. Matter of Diaz-Chambrot, 19 I&N Dec. at 676. In contrast, removability under
We conclude that the respondent’s date of admission for lawful permanent residence is March 4, 1999, which is more than 5 years prior to the date he committed his crimes involving moral turpitude. Therefore, the respondent is not removable as charged under
ORDER: The appeal is sustained and the removal proceedings are terminated.