In general, the conviction must have occurred “after the date of admission” in order to trigger deportation.  The statute defining grounds of deportation, INA § 237(a), 8 U.S.C. § 1227(a), provides that noncitizens who have been “admitted to the United States” shall be deportable if they fall within one or more specified classes of deportable noncitizens.  See § 4.34, supra.  Many specific statutory grounds of deportation, including the aggravated felony conviction ground of deportation, also expressly require a conviction after admission to the United States, [10] and this requirement applies to convictions before and after the 1952 Act.[11] 

 

[10] E.g., INA § 237(a)(2)(A)(i)(I), 8 U.S.C. § 1227(a)(2)(A)(i)(I) (conviction of crime of moral turpitude); INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii) (multiple convictions of crimes of moral turpitude “at any time after admission”); INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) (aggravated felony “at any time after admission”); INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) (controlled substances conviction “at any time after admission”); INA § 237(a)(2)(B)(ii), 8 U.S.C. § 1227(a)(2)(B)(ii) (drug abuser or addict who is or “at any time after admission has been”); INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C) (firearms conviction “at any time after admission”); INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i) (domestic violence conviction “at any time after admission”).

[11] Khan v. Barber, 253 F.2d 547 (9th Cir. 1958).  See the savings provision in the Immigration Act of 1990, Pub. L. No. 101-649, § 602(c), 104 Stat. 4978, 5081.

BIA

IMMIGRATION CONSEQUENCES - DEPORTATION - FIVE YEAR PERIOD AFTER ADMISSION APPLIES TO ANY ADMISSION INCLUDING ADJUSTMENT OF STATUS, NOT MERELY FIRST ADMISSION
Matter of Shanu, 23 I. & N. Dec. 754 (BIA 2005) (noncitizen convicted of a single crime involving moral turpitude punishable by at least one year is removable from the United States under INA 237(a)(2)(A)(i) if the crime was committed within five years after the date of any admission, whether the first or any later admission), overruled by Aremu v. DHS, 450 F.3d 578 (4th Cir. Jun. 19, 2006), vacating Matter of Shanu, 23 I. & N. Dec. 754 (BIA 2005).
http://www.usdoj.gov/eoir/vll/intdec/vol23/3513.pdf

DEPARTURE OF LPR DURING PROCEEDINGS
Matter of Brown, 18 I. & N. Dec. 324 (BIA 1988) (LPR respondent was convicted of poss. marijuana, proceedings commenced, LPR conceded deportability as charged and filed applied for 212(c) waiver; LPR then departed US for temporary visit abroad, and returned to the U.S.; IJ terminated proceeding and ruled that 212(c) was abandoned; BIA revered, holding LPR's departure did not interrupt proceeding, and it could continue, assuming LPR still was deportable on same grounds; INS did not need to start new proceeding , but could issue another OSC or amend if they chose; and LPR had not abandoned his application for 212(c).
1.      Check when NTA was actually FILED with the court; a client is not in proceedings unless/until it's filed; if the client leaves before then, proceedings are improvidently begun; 2.      If client left after NTA filed, but before finding of removability, not a self-deport; only self-deport if after IJ decision (i.e., appeals and MTRs deemed withdrawn). 3.      CBP should realized that a client, returning to the United States is in proceedings, and parole the client in, possibly detaining client if appropriate. 4.      ICE Counsel regularly confuses the self-deport provision AFTER decision with any departure.  5.      ICE will need to amend or issue a new NTA to accommodate the new facts. Thanks to Laura L. Lichter, Esq. for this analysis.

ADMISSION - NONCITIZEN IS INSPECTED AND ADMITTED EVEN IF THE ADMISSION IS BASED ON FRAUDULENT DOCUMENTS
Matter of KBN, 9 I. & N. Dec. 50 (BIA 1960) (decided shortly after Congress amended ina 245(a) to require "inspection and admission," rather than "admission as a bona fide nonimmigrant," the BIA held that entry by means of a fraudulently-acquired "certificate of identity" (comparable to a B-1 visa in the circumstances of the case) meets the "inspected and admitted" requirement - and then affirmed the decision to deny adjustment of status in the exercise of discretion). Note that currently a person in this situation is deemed deportable [not inadmissible] under INA 237(a)(1)(A) (inadmissible at time of entry or adjustment).

Fourth Circuit

RELIEF - ADJUSTMENT OF STATUS - ADMISSION
Aremu v. DHS, 450 F.3d 578 (4th Cir. 2006), vacating Matter of Shanu, 23 I. & N. Dec. 754 (BIA 2005), vacated by Aremu v. Dept. of Homeland Security, 450 F.3d 578 (4th Cir. 2006) (for noncitizen previously admitted to the United States, the date of adjustment of status does not constitute a new "admission" for purposes of determining whether the noncitizen is deportable for having committed a CMT within five years of admission, under INA 237(a)(2)(A)(i)), overruling Matter of Shanu, 23 I. & N. Dec. 754 (BIA 2005). Note: The court cited Abdelqadar v. Gonzalez, 413 F.3d F.3d 668 (7th Cir. 2005), and Shivaraman v. Ashcroft, 360 F.3d 1142 (9th Cir. 2004) as making the same holding, although Shivaraman concerned a noncitizen who (unlike Shanu), had never fallen out of status, and Abdelqadar was arguably dica. The Fourth Circuit explicitly stated that the decision did not reach the issue of whether adjustment of status qualified as an "admission" for a noncitizen who entered the United States illegally, and was therefore never previously admitted. See, e.g., Ocampo-Duran v. Ashcroft, 254 F.3d 1133 (9th Cir. 2001); Rosas-Ramirez, 22 I. & N. Dec. 616 (BIA 1999).

Ninth Circuit

RELIEF - ADJUSTMENT OF STATUS - SPECIAL AGRICULTURAL WORKERS RELIEF - CANCELLATION OF REMOVAL - STOP TIME RULE
Perez-Enriquez v. Gonzalez, __ F.3d __, 2005 WL 1389114 (9th Cir. Jun 14, 2005) (although applicant for adjustment of status through the Special Agricultural Workers Program need only make representations of admissibility at the time they apply for adjustment, and receive temporary resident status, any grounds of inadmissibility that arise before automatic adjustment of status under those provisions may become the basis for removal as a noncitizen inadmissible at adjustment, under INA 237(a)(1)(A); the automatic adjustment of status is not a new determination of admission, and therefore does not waive prior conviction).