In re Musiliu Aremu SHANU, Respondent
File A74 932 039 - Baltimore
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided June 6, 2005
23 I&N Dec. 754 (BIA 2005)
Interim Decision #3513
(2) An alien convicted of a single crime involving moral turpitude that is punishable by a term of imprisonment of at least 1 year is removable from the United States under section 237(a)(2)(A)(i) of the Act if the crime was committed within 5 years after the date of any admission made by the alien, whether it be the first or any subsequent admission.
FOR RESPONDENT: Theresa I. Obot, Esquire, Baltimore, Maryland
FOR THE DEPARTMENT OF HOMELAND SECURITY: Christopher R. Coxe, Jr., Assistant District Counsel
BEFORE: Board Panel: FILPPU, COLE, and HESS, Board Members.
FILPPU, Board Member:
The respondent appeals from an Immigration Judge‘s January 22, 2003, decision finding him removable from the United States pursuant to section 237(a)(2)(A)(i) of the Immigration and Nationality Act,
I. FACTUAL AND PROCEDURAL BACKGROUND
The respondent, a 36-year-old, native and citizen of Nigeria, was first admitted to the United States on June 8, 1989, as a nonimmigrant visitor for pleasure. On December 20, 1996, his status was adjusted to that of a lawful permanent resident of the United States pursuant to section 245 of the Act,
On the basis of these convictions, the Department of Homeland Security (“DHS,” formerly the Immigration and Naturalization Service) charged the respondent with deportability from the United States under section 237(a)(2)(A)(i) of the Act, which provides:
Any alien who —
(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 245(j) of this title) after the date of admission, and
(II) is convicted of a crime for which a sentence of one year or longer may be imposed,
is deportable.
During removal proceedings before the Immigration Judge, the respondent moved to dismiss this charge, arguing that none of his crimes were committed within 5 years after the date of his admission to the United States as a nonimmigrant in June 1989. The Immigration Judge denied the respondent‘s motion to dismiss the charge, concluding that under Matter of Rosas, 22 I&N Dec. 616 (BIA 1999), the relevant “date of admission” under section 237(a)(2)(A)(i) was December 20, 1996, the date when the respondent‘s status was adjusted to that of a lawful permanent resident. Because the respondent committed his crimes less than 5 years after December 20, 1996, the Immigration Judge found him deportable as charged. Moreover, although the respondent expressed an intention to apply for cancellation of removal under section 240A(a) of the Act, the Immigration Judge ultimately refused to entertain the application, deeming it to have been abandoned as a result of the respondent‘s failure to file it in a timely manner.
II. ISSUES
Although the respondent does not dispute that some or all of his crimes involved moral turpitude,1 he does contend that the Immigration Judge erred by identifying the date of his adjustment of status as the relevant “date of admission” that began the 5-year period during which his commission of a single crime involving moral turpitude could render him deportable under section 237(a)(2)(A)(i) of the Act. Furthermore, the respondent challenges the fundamental fairness of the Immigration Judge‘s decision to pretermit his cancellation of removal application. Thus, we are confronted with three appellate issues.
At the outset, we must determine whether December 20, 1996—the date when the respondent adjusted his status—qualifies as a “date of admission”
III. ANALYSIS
A. Respondent‘s Removability Under Section 237(a)(2)(A)(i)
Whether December 20, 1996, qualifies as a “date of admission” under section 237(a)(2)(A)(i) of the Act depends on whether adjustment of status under section 245 of the Act qualifies as “an admission” to the United States within the meaning of the immigration law. At the outset, it must be acknowledged that adjustment of status does not conform to the statutory definition of the term “admission” set forth at section 101(a)(13)(A) of the Act,
In Matter of Rosas, supra, at 618-19, we held that an alien who had entered the United States without inspection and then adjusted her status pursuant to section 245A(b) of the Act,
This interpretation was also supported by other statutory language manifesting Congress‘s understanding that the term “admission” encompasses adjustment of status, and not just entry at the border with an immigrant or nonimmigrant visa. Particularly relevant to an alien, such as the respondent, whose status has been adjusted under section 245 of the Act, are section
We recognize that Matter of Rosas, supra, is factually distinguishable from the instant case because, unlike this respondent, the alien in that case had never been “admitted” within the meaning of section 101(a)(13)(A) prior to her adjustment of status, but had instead entered the United States without inspection (necessitating her adjustment under section 245A of the Act rather than section 245). Indeed, the unlawful nature of the alien‘s initial entry was significant in Matter of Rosas, because it served to underscore how strict reliance on the “admission” definition of section 101(a)(13)(A) could lead to peculiar results in some cases.2
The respondent suggests that such peculiar results are less likely to occur with respect to aliens who have been admitted under section 101(a)(13)(A) prior to having adjusted status, but we are by no means certain that this is true. We observe, for example, that waivers of inadmissibility under sections 212(h)(1)(B) and (i)(1) of the Act,
Furthermore, the rationale set forth in Matter of Rosas, supra, which we continue to espouse, is not the only basis for our conclusion that an adjustment of status must be deemed an “admission” in the present context. There are also reasons, peculiar to the language of section 237(a)(2)(A)(i) itself, for drawing such a conclusion. Specifically, we refer to the parenthetical phrase in section 237(a)(2)(A)(i) stating that “an alien provided lawful permanent resident status under section 245(j)” can be rendered deportable if convicted of a crime involving moral turpitude committed within 10 years after the date of admission (rather than within the otherwise-applicable 5-year period).3 We believe that by making an alien‘s acquisition of lawful permanent resident status the event that extends his period of vulnerability to removal under section 237(a)(2)(A)(i), Congress manifested its understanding that the relevant 10-year period may be measured from the date when that status was acquired.
This interpretation of section 237(a)(2)(A)(i) finds explicit support in the regulations governing aliens who adjust status under section 245(j), which clearly state that “[n]othing in this section shall prevent an alien adjusted pursuant to the terms of these provisions from being removed for conviction of a crime of moral turpitude committed within 10 years after being provided lawful permanent residence under this section.”
With this responsibility firmly in mind, we conclude that Congress intended—with respect to aliens who have been admitted to the United States more than once—that each and every date of admission qualifies as a potentially “relevant” date of admission under section 237(a)(2)(A)(i). Thus, an alien convicted of a single crime involving moral turpitude (punishable by a term of imprisonment of at least 1 year) is removable from the United States under section 237(a)(2)(A)(i) if the crime was committed within 5 years after the date of any admission made by that alien, whether it be the first, last, or any other admission.
The respondent maintains that as applied to him, the term “date of admission” refers to June 8, 1989, the date of his first admission as a nonimmigrant, and not to the date of any subsequent admission he may have made. A rule of decision that focuses exclusively on an alien‘s first admission date would certainly have the advantage of simplicity. However, such a rule is not reconcilable with the language and underlying purpose of section 237(a)(2)(A)(i) and would represent a dramatic departure from the historical practice of this Board and the federal courts in like cases under prior law. The respondent has provided no affirmative evidence that Congress intended such a change in law, and we do not believe that Congress understood such a change to have been effected when it enacted section 237(a)(2)(A)(i).
As previously discussed, an alien who has acquired lawful permanent resident status pursuant to section 245(j) of the Act may be found removable under section 237(a)(2)(A)(i) on the basis of a conviction for a crime involving moral turpitude committed within 10 years after the date when he adjusted his status. See
Under the respondent‘s approach to section 237(a)(2)(A)(i), which focuses on an alien‘s first admission only, the statutory 10-year period would have to be measured from the date of this initial nonimmigrant admission. Yet the language and purpose of the statute and its implementing regulations simply cannot be reconciled with that interpretation. We find no indication in the legislative history of section 237(a)(2)(A)(i), or the regulatory history of
On the contrary, we believe that the treatment of aliens who adjusted status under section 245(j) is reflective of Congress‘s broader understanding of the scope of section 237(a)(2)(A)(i) and its statutory predecessors, and our analysis of the respondent‘s case is guided by that understanding. We therefore hold that the 5-year period specified in section 237(a)(2)(A)(i) may be measured from the date of an alien‘s admission to lawful permanent residence, notwithstanding the fact that the alien was previously admitted as a nonimmigrant.4
Under the “first admission” approach, the alien described above would not be removable under section 237(a)(2)(A)(i), despite the fact that he committed his crimes immediately after his admission to the United States as an immigrant, because more than 5 years had elapsed since his first admission as a nonimmigrant in 1966. In the absence of clear congressional intent, we do not believe that section 237(a)(2)(A)(i) should be interpreted in a manner that would attach such disproportionate significance to long-past nonimmigrant admissions and that would so seriously undermine the deterrent effect of section 237(a)(2)(A)(i) as it relates to aliens with multiple admissions.
Furthermore, focusing exclusively on an alien‘s first admission would give rise to gratuitous distinctions among lawful permanent residents with respect to the applicability of section 237(a)(2)(A)(i). Lawful admission to permanent residence in the United States is an important event, signifying this country‘s acceptance of the alien, and possibly his family, into our national community, potentially for the rest of his life, with all the rights, privileges, and responsibilities that it entails. It is no less significant that this event arises by means of adjustment of status than by arrival from abroad on an immigrant visa. Indeed, an alien who commits a crime involving moral turpitude within 5 years after adjusting status has betrayed the trust of his national community and violated the immigration laws no less severely than an alien who committed the same crime less than 5 years after being admitted as a lawful permanent resident at the border. It is reasonable to believe that Congress intended section 237(a)(2)(A)(i) to be interpreted in a manner that would accord both aliens equal treatment under the law. Yet under the “first admission” approach espoused by the respondent, aliens who acquire lawful permanent residence by means of adjustment after a prior nonimmigrant admission would be significantly less likely than aliens admitted for the first time as immigrants to face removal due to crimes committed within 5 years after they acquired lawful permanent resident status.
Finally, the approach espoused by the respondent is not consistent with the historical practice of this Board and the Federal courts under prior law. Current section 237(a)(2)(A)(i) of the Act is merely the most recent iteration
In United States ex rel. Volpe v. Smith, 289 U.S. 422 (1933), a case involving interpretation of former section 19(a) of the 1917 Act, the United States Supreme Court was called upon to review a deportation order of the Department of Labor (“DOL“) that was issued against a native and citizen of Italy who was charged with having been convicted, “prior to entry,” of “a felony or other crime or misdemeanor involving moral turpitude.” The alien in Volpe had entered the United States for the first time in 1906 and had remained within the country continuously for several decades thereafter. In 1925, he sustained a Federal conviction for counterfeiting United States obligations, a crime involving moral turpitude. Because the crime had been committed more than 5 years after what was then his only “entry” in 1906, the offense did not render him deportable. In 1928, however, the alien traveled abroad briefly and was readmitted to the United States. The DOL then sought to deport him as an alien convicted of a crime involving moral turpitude “prior to entry,” i.e., prior to his 1928 “entry.” The Supreme Court held that the alien was deportable as charged and that the term “entry,” as employed in former section 19(a), referred to any entry of the alien into the United States, whether it be the first or any subsequent one. Id. at 425-26.
In light of the Supreme Court‘s decision in Volpe, from our earliest days we have consistently held that the term “entry,” as employed in the various predecessor versions of current section 237(a)(2)(A)(i) of the Act, refers to any entry and is not restricted to either the first entry made by the alien, or to the last. See, e.g., Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980); Matter of Medina, 15 I&N Dec. 611, 614-15 (BIA 1976); Matter of M-S-, 9 I&N Dec. 643, 644 (BIA 1962); Matter of A-, 6 I&N Dec. 684 (BIA 1955); Matter of L-, 1 I&N Dec. 1 (BIA, A.G. 1940). The Federal courts of appeals have upheld this view. Munoz-Casarez v. INS, 511 F.2d 947 (9th Cir. 1975); United States ex rel. Circella v. Sahli, 216 F.2d 33 (7th Cir. 1954). Thus, although the meaning of the term “entry” has been modified throughout the years by various judicial decisions and statutory amendments, the basic premise of the Volpe decision, i.e., that a crime involving moral turpitude
We recognize that the concept of “entry” has been superseded by the concept of “admission” pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Div. C of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA“). This change—one of both substance and nomenclature—is reflected in the language of current section 237(a)(2)(A)(i) of the Act, which now refers to crimes involving moral turpitude committed within 5 years after “the date of admission,” rather than within 5 years after “entry.”6
While the concepts of “entry” and “admission” differ in important ways, many of which were discussed in Matter of Rosas, supra, none of these differences are germane to whether Congress intended to retain the substance of the “any entry” rule after the passage of the IIRIRA. This is so because the validity of the Volpe rule does not depend on the acceptance of any particular definition for the term “entry” or “admission.”7 Rather, it is merely a procedural device for identifying the “date” of entry or admission in doubtful cases, and, as such, it may be applied regardless of the particular form of words used and regardless of the substantive meaning given to its referent—be it “entry” or “admission“—at any given time.
In conclusion, the language and purpose of Congress and the historical treatment of similar cases under prior law lead us to conclude that an alien convicted of an otherwise-qualifying crime involving moral turpitude that was committed within 5 years after the date of any of the alien‘s admissions to the United States is removable under section 237(a)(2)(A)(i) of the Act. Applying this holding to the facts of the respondent‘s case, we observe that his crimes were committed less than 5 years after his admission to lawful permanent residence on December 20, 1996. Therefore, we agree with the Immigration Judge that the respondent is removable as charged.
B. Pretermission of the Respondent‘s Application for Cancellation of Removal
In addition to his challenge to the Immigration Judge‘s finding of removability, the respondent contends that the Immigration Judge deprived him of his right to a full and fair hearing by refusing to adjudicate his application for cancellation of removal on grounds of untimeliness. We disagree.
Applications for benefits under the Immigration and Nationality Act—including applications for cancellation of removal—are properly denied as abandoned when the applicant fails to file them in a timely manner.
IV. CONCLUSION
In conclusion, we agree with the Immigration Judge that the respondent is removable from the United States as an alien convicted of a crime involving moral turpitude committed within 5 years after the date of his admission to the United States. Moreover, we find no reversible error in the Immigration Judge‘s decision to pretermit the respondent‘s untimely application for cancellation of removal on grounds of abandonment. Accordingly, the respondent‘s appeal will be dismissed.
ORDER: The appeal is dismissed.
Notes
We note that adjustment of status pursuant to section 245(j) constitutes an admission under section 237(a)(2)(A)(i) regardless of whether the applicant sought such status during his period of authorized stay as a nonimmigrant. In other words, a nonimmigrant admitted under section 101(a)(15)(S)(i) of the Act need not “overstay” his 3-year visa or depart the United States in order for his subsequent adjustment under section 245(j) to be considered an “admission” within the meaning of section 237(a)(2)(A)(i). In fact, the regulations governing adjustment of status under section 245(j) appear to contemplate that the alien will be “in S nonimmigrant classification” when the adjustment application is filed.
The United States Court of Appeals for the Ninth Circuit has held, with respect to an alien who adjusted his status during the period of his authorized stay as a long-term nonimmigrant student, that the date of the alien‘s admission as a nonimmigrant was the relevant “date of admission” under section 237(a)(2)(A)(i). Shivaraman v. Ashcroft, 360 F.3d 1142 (9th Cir. 2004). While the holding in Shivaraman is in some tension with our present decision, it is distinguishable because the respondent‘s nonimmigrant admission in 1989 was on a short-term tourist visa, valid for no more than 1 year.