Matter of ALYAZJI: 5-year clock for 237(a)(2)(A)(i) removability is not reset each time a foreign national is admitted (within the United States).

Matter of ALYAZJI, 25 I&N Dec. 397 (BIA 2011), identifies when the date of admission begins to run for purposes of section 237(a)(2)(A)(i) of the Immigration and Nationality Act (INA), which in a pertinent part, authorizes the removal of any alien who “is convicted of a crime involving moral turpitude committed within five years . . . after the date of admission,” provided the crime is punishable by a sentence of imprisonment of 1 year or longer.

In Matter of ALYAZJI the Board of Immigration Appeals (BIA) held that  a conviction for a crime involving moral turpitude triggers removability under section 237(a)(2)(A)(i) only if the crime was committed within 5 years after the date of the admission by virtue of which the alien was then in the United States.  The BIA concluded that the class of aliens “in and admitted to the United States” referred to in the opening sentence of 237(a) of the INA consisted of:

• Those who entered the United States with the permission of an immigration officer after being inspected at a port of entry; and

• Those who entered the United States without permission or were paroled, but who subsequently became lawful permanent residents.

Under the BIA's new 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). To ascertain an alien’s deportability under section 237(a)(2)(A)(i), one must first look to the date when the 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.

Matter of ALYAZJI overrules Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), where the BIA held that the term “admission” used in section 237(a)(2)(A)(i) referred to adjustment of status as well as admission at the border; and second, that an alien’s conviction for a crime involving moral turpitude supported removal under that section so long as the crime was committed within 5 years after the date of any admission made by the foreign national.

This case involved Alla Adel Alyazji, a Palestinian citizen who entered the United States on a temporary visa in 2001 and became a lawful permanent resident in 2006.  In January 2008, the respondent was convicted of indecent assault in violation of Pennsylvania law, based on a 2007 offense. As a result of that conviction, the Department of Homeland Security (“DHS”) initiated removal proceedings. Shortly after removal proceedings commenced, the respondent sought termination on the ground that his indecent assault conviction resulted from an offense committed more than 5 years after his “admission” as a nonimmigrant in August 2001. The Immigration Judge denied the motion based on Matter of Shanu, holding that the respondent is removable because he committed his offense less than 5 years after his “admission” to lawful permanent resident status in April 2006.

The BIA terminated removal proceedings against Mr. Alyazji concluding that when he committed his crime involving moral turpitude in 2007, he was in the United States pursuant to his 2001 admission as a nonimmigrant. Because he committed his offense more than 5 years after that “date of admission,” he was not deportable, even though he was “readmitted” by means of adjustment of status in April 2006.

The United States as a Country of Refuge: A Short Introduction

From the early settlers, to modern-day immigrants, the United States continues to be a country of refuge. Although I heartily acknowledge, as an immigration attorney, that our system has many flaws that need to be addressed through advocacy, legislation, and litigation - the strengths and benefits of our immigration system are many times ignored in the heated debate over immigration.  In the next series of posts we'll touch upon several of the positive factors of our immigration law and policy.  

On the eve of the vote on the Development, Relief and Education for Alien Minors Act ("DREAM Act"), it is important to keep things in perspective.  I for one, am a very strong supporter of this measure for many reasons that are outside the scope of this entry. A good place to start would be to acknowledge that the United States admits more legal immigrants as permanent residents than all other countries in the world combined.  In 2008 for example, a total of 1.1 million individuals became LPRs in the United States as noted in a 2010 Report by the Congressional Research Service on U.S. Immigration Policy on Permanent Admissions. According to a recent report by the U.S. Department of Homeland Security, estimates of the Legal Permanent Resident Population in 2009 are in the 12.5 million range. 

Stay tuned for future posts discussing what specific elements of our immigration law and policy make the United States a country of refuge.