Cite as 25 I&N Dec. 99 (BIA 2009) Interim Decision #3658
99
Matter of Raul CARRILLO, Respondent
File A077 002 996 – Miami, Florida
Decided October 21, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
In determining whether an alien whose status was adjusted pursuant to section 1 of the
Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161,
is removable as an alien who has been convicted of a crime involving moral turpitude
committed within 5 years after the alien’s “date of admission,” the admission date
is calculated according to the rollback provision of section 1, rather than the date adjustment
of status was granted.
FOR RESPONDENT: Keith C. Williams, Esquire, Naples, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: Adam Weisholtz, Assistant
Chief Counsel
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
GRANT, Board Member:
In a decision dated October 9, 2007, an Immigration Judge found the
respondent removable under section 237(a)(2)(A)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2006), as an alien convicted
of a crime involving moral turpitude committed within 5 years after his date
of admission, and ordered him removed from the United States. The
respondent has appealed from that decision. The Department of Homeland
Security (“DHS”) has filed a brief in support of the Immigration Judge’s
decision. The appeal will be sustained and the proceedings will be terminated.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Cuba who was paroled into the
United States on March 4, 1999. His status was adjusted to that of a lawful
permanent resident on January 30, 2001, pursuant to the Cuban Refugee
Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161
(“Cuban Adjustment Act”). On June 6, 2005, the respondent was convicted
of four counts of grand theft, third degree, in violation of section 812.014Cite as 25 I&N Dec. 99 (BIA 2009) Interim Decision #3658
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of the Florida Statutes. The respondent committed these crimes between
August 26, 2004, and September 16, 2004.
At his removal hearing, the respondent admitted the allegations in the
Notice to Appear (Form I-862) but denied that he was removable. He asserted
that the effective date of his admission to the United States was March 4, 1999,
the date of his parole, rather than January 30, 2001, the date on which his
adjustment of status was granted, because of the “rollback” provision of the
Cuban Adjustment Act. He therefore argued that his crimes involving moral
turpitude had not been committed within 5 years after his date of admission.
The DHS disagreed, citing Matter of Carrillo-Gutierrez, 16 I&N Dec. 429
(BIA 1977), in support of its assertion that the date of the respondent’s
admission for purposes of establishing his removability was the actual date
when he was accorded lawful permanent residence through adjustment
of status. The Immigration Judge rejected the respondent’s contentions,
relying on Matter of Carrillo-Gutierrez to find that the rollback provision
of the Cuban Adjustment Act was for the limited purpose of making
citizenship more obtainable and did not apply in this case. On appeal, the
respondent does not dispute that his crimes involve moral turpitude but
contends that they were not committed within 5 years of his admission.
II. ANALYSIS
We review the Immigration Judge’s findings of fact, including those relating
to the credibility of testimony, only to determine whether they are “clearly
erroneous,” while questions of law, discretion, and judgment may be reviewed
de novo. 8 C.F.R. §§ 1003.1(d)(3)(i)-(ii) (2009); see also Matter of V-K-,
24 I&N Dec. 500 (BIA 2008); Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008).
We disagree with the Immigration Judge’s decision and conclude that
the date he applied regarding the respondent’s admission was incorrect.
Section 1 of the Cuban Adjustment Act, 80 Stat. at 1161, provides, in pertinent
part, as follows:
[T]he status of any alien who is a native or citizen of Cuba and who has
been inspected and admitted or paroled into the United States subsequent to January 1,
1959 and has been physically present in the United States for two years, may
be adjusted by the Attorney General, in his discretion and under such regulations
as he may prescribe, to that of an alien lawfully admitted for permanent residence
if the alien makes an application for such adjustment, and the alien is eligible
to receive an immigrant visa and is admissible to the United States for permanent
residence. Upon approval of such an application for adjustment of status, the
Attorney General shall create a record of the alien’s admission for permanent
residence as of a date thirty months prior to the filing of such an application or the
date of his last arrival into the United States, which ever date is later.Cite as 25 I&N Dec. 99 (BIA 2009) Interim Decision #3658
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In light of this statute, we hold that for purposes of determining whether the
respondent’s crimes involving moral turpitude were committed within 5 years
after his admission, the correct date of his admission is March 4, 1999, the
retroactive date on which he acquired lawful permanent residence pursuant
to section 1 of the Cuban Adjustment Act.
The DHS relies on caselaw where we held that the term “date of admission”
in section 237(a)(2)(A)(i) of the Act refers to, among other things, the date
on which an alien is lawfully admitted for permanent residence by means
of adjustment of status. Matter of Shanu, 23 I&N Dec. 754 (BIA 2005),
vacated sub nom. Aremu v. DHS, 450 F.3d 578, 583 (4th Cir. 2006) (stating,
however, that the date of adjustment of status might qualify as the date
of “admission” where the alien has never been admitted within the meaning
of section 101(a)(13)(A) of the Act, 8 U.S.C. § 1101(a)(13)(A) (2006)); Matter
of Rosas, 22 I&N Dec. 616 (BIA 1999). The alien in Matter of Shanu adjusted
his status to that of a lawful permanent resident pursuant to section 245 of the
Act, 8 U.S.C. § 1255 (1994). Section 245(b) of the Act instructs the Attorney
General to “record the alien’s lawful admission for permanent residence” upon
approval of his or her adjustment application. See Matter of Shanu, 23 I&N
Dec. at 757; Matter of Rosas, 22 I&N Dec. at 619.
Contrary to the DHS’s argument on appeal, Matter of Shanu and Matter
of Rosas are not controlling in this case, because the respondent adjusted
his status pursuant to section 1 of the Cuban Adjustment Act, which instructs
the Attorney General to record the alien’s “admission for permanent residence
as of a date 30 months prior to the filing of such an application or the date
of his last arrival into the United States, whichever is later.” See
Matter of Rivera-Rioseco, 19 I&N Dec. 833 (BIA 1988); Matter
of Diaz-Chambrot, 19 I&N Dec. 674 (BIA 1988). See generally 8 C.F.R.
§§ 245.2(a)(5)(iii), 1245.2(a)(5)(iii) (2009). Consequently, the date of his
“admission” is not the date on which his application for adjustment was
granted, but rather the retroactive date established by section 1 of the Cuban
Adjustment Act. See generally Matter of Rosas, 22 I&N Dec. at 619
(recognizing that various means of adjustment of status do not record or confer
lawful admission for permanent residence the same way, but nevertheless
considering them all an “admission”).
We also disagree with the DHS’s contention that the “rollback” provision
of the Cuban Adjustment Act should not be applied in removal proceedings
to restrict the enforcement provisions of the Act. The DHS relies on our
decision in Matter of Carrillo-Gutierrez, 16 I&N Dec. 429, where we held that
the 5-year period of statutory limitations for rescission proceedings under
section 246(a) of the Act, 8 U.S.C. § 1256(a) (1976), ran from the date the
alien’s application for adjustment was approved rather than the retroactive date
his lawful permanent residence was acquired pursuant to the CubanCite as 25 I&N Dec. 99 (BIA 2009) Interim Decision #3658
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Adjustment Act. We noted in that case that the rollback provision was
designed to aid aliens seeking to naturalize to meet their residence
requirements, and we declined to apply it in rescission proceedings.
According to the DHS, therefore, the application of the rollback provision
should be limited in cases involving enforcement provisions of the Act, such
as those in the rescission proceedings in Matter of Carrillo-Gutierrez and the
removal proceedings in this case.
We conclude that Matter of Carrillo-Gutierrez is inapposite to this case.
Rescission proceedings, by their nature, are controlled by the date the
application for adjustment of status was approved, because they challenge
the alien’s statutory eligibility for adjustment of status on that date.
Matter of Diaz-Chambrot, 19 I&N Dec. at 676. In contrast, removability
under section 237(a)(2)(A)(i) of the Act concerns the period of time after
which an alien has been admitted into the United States. The “rollback”
provision of the Cuban Adjustment Act defines the date of admission
to be one other than that on which the alien’s adjustment application was
granted. Moreover, we have held that the effect of the retroactivity provision
is not limited to the context of the residence requirements for naturalization.
Matter of Diaz-Chambrot, 19 I&N Dec. at 678, modifying Matter
of Carrillo-Gutierrez, 16 I&N Dec. 429; see also Matter of Rivera-Rioseco,
19 I&N Dec. 833 (holding that an alien whose status was adjusted pursuant
to section 1 of the Cuban Adjustment Act began acquiring lawful
unrelinquished domicile for purposes of a waiver under former 212(c) of the
Act, 8 U.S.C. § 1182 (1994), from the effective date of the alien’s acquisition
of lawful permanent resident status according to the rollback provision
of section 1). In light of the foregoing, we find no merit in the DHS’s
contention that “rolling back” the respondent’s date of admission would
improperly circumvent the enforcement provisions of the Act with respect
to removal proceedings.
We conclude that the respondent’s date of admission for lawful permanent
residence is March 4, 1999, which is more than 5 years prior to the date
he committed his crimes involving moral turpitude. Therefore, the respondent
is not removable as charged under section 237(a)(2)(A)(i) of the Act.
Accordingly, his appeal will be sustained and the removal proceedings will
be terminated.
ORDER: The appeal is sustained and the removal proceedings are
terminated.