Criminal Defense of Immigrants


§ 17.8 (E)

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(E)  What Law Applies.  Admissibility is normally evaluated under the law at the time of the application to enter or adjust status, but if the law has changed between the date of application, and the date of decision, the decisionmaker will apply the law as it exists at the time of the decision.[94]  This can work either for or against the applicant.  An applicant who was ineligible for a benefit when s/he applied for it may become eligible under new law at the time the fact finder makes her or his decision.  On the other hand, if a foreign legislature increases the punishment for an offense, the Board will determine whether the applicant qualifies for the petty offense exception by examining the maximum criminal penalty at the time of the application for entry, not the maximum penalty at the time the offense was committed.

[94] See, e.g., Matter of Alarcon, 20 I. & N. Dec. 557 (BIA 1992) (BIA assesses application for INA § 212(h) waiver of inadmissibility under law at time of decision, not the statute as it existed when the application for the waiver was made); Matter of Alarcon, 20 I. & N. 557 (BIA 1991) (amended statute governs waiver application first filed under earlier version of INA § 212(h)); Matter of Kazemi, 19 I. & N. Dec. 49 (BIA 1984) (intervening regulatory change regarding jurisdiction to review INA § 212(d)(4) waiver application overrides prior BIA precedent to the contrary); Squires v. INS, 689 F.2d 1276, 1280 (6th Cir. 1982) (noncitizen no longer eligible for petty offense exception to inadmissibility, since Canadian Parliament increased maximum punishment for the offense to more than one year); Matter of Farias, 21 I. & N. Dec. 269 (BIA 1996) (evaluating eligibility for INA § 212(d)(11) smuggling waiver at time of adjudication).




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).