(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.

BIA

ADMISSION - CRIMES OF MORAL TURPITUDE
Matter of Carrillo-Arrillo, 25 I. & N. Dec. 99 (BIA Oct. 21 2009) (pursuant to the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, 1, the date at which a Cuban noncitizen was paroled in the United States counts as the date of "admission" as a lawful permanent resident; noncitizen who was paroled into the United States in 1999, but did not adjust status until 2001, was not deportable as a noncitizen who had committed a CMT within 5 years of admission based on offenses committed in 2004).

CRIME OF MORAL TURPITUDE - DEPORTABILITY - DATE OF ADMISSION INCLUDES DATE OF ADJUSTMENT OF STATUS
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) (phrase "date of admission" in INA 237(a)(2)(A)(i), 8 U.S.C. 1227(a)(2)(A)(i) (2000), refers to, among other things, the date on which a previously admitted alien is lawfully admitted for permanent residence by means of adjustment of status), overruled by Aremu v. DHS, 450 F.3d 578 (4th Cir. Jun. 19, 2006).
http://www.usdoj.gov/eoir/vll/intdec/vol23/3513.pdf

CRIME OF MORAL TURPITUDE " INADMISSIBILITY " FIVE-YEAR CLOCK
Practice Advisory on Matter of Alyazji, 23 I. & N. Dec. 754 (BIA 2005) (Adjustment of Status Following an Admission Does Not Re-Start the Five- Year Clock for Purposes of the Moral Turpitude Deportation Ground), overruling in part Matter of Shanu, 23 I&N Dec. 754 (BIA 2005) Kathy Brady, Immigrant Legal Resource Center, Feb. 28, 2011. http://lawprofessors.typepad.com/immigration/2011/02/practice-advisory-on-.html

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

CRIMES OF MORAL TURPITUDE - DEPORTATION FOR SINGLE CMT - NOLO PLEA NOT SUFFICIENT BY ITSELF TO SHOW OFFENSE "COMMITTED" WITHIN FIVE YEARS OF ADMISSION
United States v. Nguyen, 465 F.3d 1128 (9th Cir. Oct. 18, 2006) (federal conviction under 8 U.S.C. 1253(b) for willful failure to comply with a term of release under supervision -- which required that he not "commit any crimes" -- is reversed where misdemeanor nolo contendere convictions were legally insufficient to support his conviction, because a nolo contendere plea is not an admission of guilt to the underlying crime, a conviction based on such a plea does not prove that he "commit[ted] any crimes;" the convictions should not have been admitted under Federal Rules of Evidence 410, 803(22), or 803(8) for the purpose of proving that he actually committed the underlying crimes charged).
http://caselaw.lp.findlaw.com/data2/circs/9th/0630011p.pdf