Matter of Alyazji, can we stretch it beyond adjustment of status?

For a lawful permanent resident to be deportable for having committed a single crime involving moral turpitude (CIMT), the CIMT must be committed within 5 years of admission.  In a recent decision, Matter of Alyazji, 25 I&N Dec. 397 (BIA Feb. 2, 2011), the Board overruled Matter of Shanu, 23 I&N Dec. 754 (BIA 2005) and decided that when an alien has an admission pursuant to which he or she resided in the United States and a subsequent admission to LPR status, it is the earlier admission that serves as the reference point for purposes of INA 237(a)(2)(A)(i).  The most typical example is when someone enters as a non-immigrant visitor and remains in the United States for many years and at some point adjusts status. 

So the issue of someone entering with a visitor visa and adjusting status later on is settled.  What about those relatively rare cases where someone obtained admission through an immigrant visa and not adjustment of status?  My take is that Alyazji still applies since an immigrant visa and adjustment of status are both considered “admissions” by the Board.

The Board decided that when an alien has multiple admissions, only one of them can be considered for calculating the 5 year clock.  Alyazji, at 405.  It further stated, “given that section 237(a) is focused on admission plus presence, we find that the most natural reading of section 237(a)(2)(A)(i) is that the phrase ‘the date of admission’ refers to the date of the admission by virtue of which the alien was present in the United States when he committed his crime.”  In Alyazji, the Board unequivocally held that adjustment of status is an admission, however if the alien was residing in the United States pursuant to a prior admission, the latter admission to LPR status does not serve as a new reference point from which to calculate the 5 years.  Instead, the Board held, the new admission to LPR status serves a mere extension of an existing period of presence that was “sufficient in and of itself to support the alien’s susceptibility to the ground of deportability.” Alyazji, at 406-07.  The Board made no distinction between an immigrant visa admission and an adjustment of status.  If anything, the Board’s unequivocal holding that an adjustment of status qualifies as an admission is support for the fact that the two are essentially equally valid for this rule of law.

Since the Board considered the adjustment of status admission as merely extending the presence which was established by the prior non immigrant admission, it found that the earlier admission was the reference point. 
The Board’s main concern with this new rule was that not any prior admission would qualify as a reference point.  Using the Board’s example, a two week visit to Disneyland 20 years prior would not be sufficient.  Therefore, the Board’s concern was a temporal one, not a procedural one.  The Board would consider an earlier admission as the reference point only if by virtue of it the alien established a residence in the United States that was merely extended by admission to LPR status. 


There is further support for the proposition that the Board treats an immigration visa admission and an adjustment of status equally.  The Board made a reference to Martinez v.Mukasey, 519 F.3d 532 (5th Cir. 2008) in footnote 4 and distinguished it.  By distinguishing this case, it is evident that the Board makes no legal distinction between an immigrant visa and adjustment of status for purposes of the “mere extension” of the residence already established through the prior admission.  Martinez is generally read narrowly to apply only to the 212(h) context. 


The inspiration for this blog came from a recent case I had where I filed a motion to terminate based on the above argument and it was granted.  Hopefully ICE won't appeal so my client can be released and return home to his family after almost a year of detention.  If you have had any cases in this context, please discuss results in the comments section.