Criminal Defense of Immigrants


§ 17.8 (B)

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(B)  Re-Starting the Clock.  A noncitizen may be lawfully “admitted” to the United States more than once.  For example, a noncitizen may first be admitted to the United States on a visitor’s visa, leave and be admitted a second time on a fiancé visa, and then be admitted a third time upon adjustment of status. A person who is granted lawful permanent resident status is generally considered as having been “admitted” on the date the adjustment of status is effective.[61]  Whether each new admission re-starts the clock for purposes of removal and relief has been the subject of litigation.


In Matter of Shanu, [62] the BIA held that the five-year admission requirement under INA § 237(a)(2)(A)(i)[63] (deportation for single crime of moral turpitude within five years of admission) starts fresh with each admission.[64]  This decision could also mean, for example, that the continuous physical presence period required for noncitizens seeking cancellation of removal[65] also restarts upon each admission.


A number of courts disagree with this decision.  In a case that preceded Shanu, the Ninth Circuit found that it was a noncitizen’s initial admission that counts for purposes of the CMT ground of deportation.  Therefore, a noncitizen who was admitted on a fiancé or employment visa and then adjusted status would only be deportable if the CMT was committed within five years of the first admission, not the later adjustment of status.  As the BIA pointed out in Shanu, however, the Ninth Circuit rule might only apply in the case of a noncitizen who was in lawful status (i.e., did not overstay a visa) for the entire period of time.[66]


After Shanu, the Seventh Circuit agreed with the Ninth Circuit, and made no effort to distinguish between those who had maintained lawful status between “admissions” and those who did not.[67]  Recently the Fourth Circuit reversed Matter of Shanu, even though the noncitizen in that case had overstayed his initial visa.[68]  The court found that there was no basis under the immigration laws to treat adjustment of status as an “admission.”  The court reserved the issue, however, of whether an adjustment of status counts as an admission where the noncitizen had never previously been admitted, suggesting that this rule may be acceptable in order to avoid absurd results.[69]  Although Matter of Shanu has been reversed within the Fourth Circuit, it remains the law in all circuits that have not specifically held to the contrary.[70] 

[61] Some exceptions apply.  See § 17.8(C), infra.

[62] 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), 8 U.S.C. § 1227(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).

[63] 8 U.S.C. § 1227(a)(2)(A)(i).  See § 20.32, infra.

[64] Matter of Shanu, 23 I. & N. Dec. 754 (BIA 2005).  Note that prior to IIRAIRA, the BIA looked to the noncitizen’s most recent entry to determine whether s/he was deportable for having a single CMT within five years of entry.  See, e.g., Matter of Lopez-Amaro, 20 I. & N. Dec. 668, n.1 (BIA 1993); Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992).

[65] See § § 24.3-24.6, infra.

[66] See Matter of Shanu, 23 I. & N. Dec. 754, 760 n.4 (BIA 2005), citing Shivaraman v. Ashcroft, 360 F.3d 1142, 1146, 1149 (9th Cir. Mar. 12, 2004) (five-year period for INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i), runs from first admission, where noncitizen maintained lawful status).

[67] Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. Jul. 1, 2005) (CMT committed less than two years after adjustment of status, but more than six years after admission on visa, did not trigger deportation for single CMT committed within five years of admission).

[68] Aremu v. DHS, 450 F.3d 578, 583 n.6 (4th Cir. Jun. 19, 2006).  Although the case names are different, both Shanu and Aremu involved the same noncitizen, Shanu Musilu Aremu. Id. at n.1.

[69] Id. at 583. 

[70] Cf. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) (expunged first offense simple possession offenses do not trigger deportation), reversing Matter of Roldan-Santoyo, 22 I. N. Dec. 512 (BIA 1999) (expungements ineffective to erase first-time simple possession for removal purposes).




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).