Safe Havens

(A)  General Rule: Committed Within Five Years of Last Admission.  In order to trigger deportation, the conviction must be for an offense that was committed[1034] within five years after the noncitizen’s latest admission into the United States.  An adjustment of status to lawful permanent resident under INA § 245, 8 U. S. C. § 1255 is also considered an admission for this purpose.[1035]  If a Lawful Permanent Resident of the United States returns to the United States after a trip abroad, the entry is sometimes considered to be an “admission.”[1036]

            The conviction must have occurred “after admission” in order to trigger deportation.  Generally, “admission” means a lawful entry into the United States after inspection and authorization.[1037]  A lawful permanent resident who has left the United States and is returning is not considered to be seeking “admission” except under certain special circumstances.[1038]  A person who is granted lawful permanent resident status is considered as having been “admitted” on the date the adjustment of status is effective.  The conviction will usually have occurred “after admission,” and will usually trigger deportation.  If the noncitizen entered the United States without inspection (which is not considered an admission), however, and then suffered the conviction, and was admitted into the United States as a lawful permanent resident, the conviction did not occur “after admission,” and the noncitizen would not be deportable under this ground.

[1034] This statute means what it says: the date the offense was committed governs, rather than the date on which the conviction occurred.  Matter of Yanez-Jaquez, 13 I. & N. Dec. 449, 451 (BIA 1970).  See Yanez-Garcia v. Ashcroft, 388 F.3d 280 (7th Cir. Nov. 2, 2004) (dismissing for lack of jurisdiction a petition for review seeking to reverse Board of Immigration Appeals’ decision that single possession offense can qualify as aggravated felony drug trafficking crime).

[1035] Matter of Rosas-Ramirez, 22 I. & N. Dec. 616 (BIA 1999) (adjustment constitutes admission, at least for purposes of the aggravated felony deportation ground).

[1036] INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C).

[1037] INA § 101(a)(13)(A), 8 U.S.C. § 1101(a)(13)(A).

[1038] Ibid.