Admission Case Study


This week I wanted to talk about admission and what it actually means.  It sounds simple enough, as most would assume that it is when a person enters the United States.  This is true on some levels, but as a recent case revealed, the date of admission can make a world of difference.  Here is an example:

 

Fact Pattern

  • 2000: Client entered the United States.
  • 2002: Client was convicted of an OUI and received probation.
  • 2003: Client was convicted of another OUI and was required to enter a program.
  • 2005: Client received green card through marriage to a U.S. citizen.
  • 2008: Client pled guilty to identity fraud, was placed on probation for 364 days, and was required to pay restitution.

 

Question: Is the client eligible to apply for naturalization?

 

Potential Issues

  • 2 OUIs
    • This could speak to good moral character, as well as potentially brining up issues related to habitual drunkardness.  However, since these were two isolated incidents and they each happened 12 and 13 years ago respectively, with no other issues related to alcohol, it is unlikely to be enough to prevent the client’s naturalization.
      • Practice Tip: OUIs are treated very differently in different jurisdictions.  The analysis and result may be different in another circuit.
    • ID fraud
      • Client pled guilty and was sentenced to probation, so this is certainly a conviction for immigration purposes.
        • Practice Tip/Reminder: A conviction for immigration is defined as: A formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (a) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendre or has admitted sufficient facts to warrant a finding of guilt, and (b) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. 8 U.S.C. § 1101(a)(48)(A).
      • The statute under which the client pled guilty to and was subsequently convicted under requires an intent to defraud, which has been held to be a crime involving moral turpitude (CIMT).
      • The conviction occurred in 2008, which is within the 5 years after the client received the green card.

 

At this point, you may be thinking to yourself, “Well, this client is out of luck,” which is what I initially thought too.  I immediately thought the client was deportable under INA § 237(a)(2)(A)(i), which says: Any alien who is convicted of a crime involving moral turpitude committed within five years . . . after the date of admission, and is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.

 

I double-checked the state statute to see the possible punishment for the conviction.  Sure enough, a person convicted under this statute could be punished to imprisonment for up to two and a half years.

 

It seemed simple enough but I wanted to send everything over to CLINIC to take another look just in case, and the answer was the source of this Wiggio.

 

Admission

CLINIC agreed that the client did have a conviction, and that the statute under which the client was convicted was likely considered a CIMT since there is an intent to use fraudulent documentation to obtain something of value.  However, the attorney’s analysis turned on how the client entered the United States in 2000.

 

If you go back and re-read the ground of deportability in INA § 237, it specifically says, “within five years . . . after the date of admission.”  It is easy to think that the admission date is the date the client became an LPR, i.e. the date on the green card.  For this client, it was 2005, so the 2008 conviction would have been within the 5 year window.  However, CLINIC noted that if the client was admitted in 2000, then the conviction was beyond the 5 year window and he was no longer subject to that particular grounds of deportability.

 

What is admission?

  • Admission is the “lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” INA § 101(a)(13)(A).

 

Was the client admitted in 2000?

  • Yes!  As it turns out, the client was admitted to the U.S. in 2000 with a student visa, which remained valid until the client’s marriage and subsequent adjustment of status in 2005.  People who apply for and are granted visas are inspected and admitted to the United States.

 

Who is not considered admitted when he/she enters the U.S.?

  • People who came to the U.S. EWI (entry without inspection) are not considered to be admitted.  These people are still subject to the grounds of inadmissibility (INA § 212), and are treated as though he/she were detained at the border or port of entry, even if they are arrested years later.  Another group of people that are not considered to be “admitted” to the U.S. are those who were paroled into the U.S.
    • Practice Tip: “An alien present in the U.S. who has not been admitted or paroled, or an alien who seeks entry at other than an open, designated port of entry . . . is subject to [grounds of inadmissibility].” 8 C.F.R. § 235.1(f)(2).
      • There are other rules related to admission, but this is where our inquiry ends.

 

Moral of the Story

Since the client’s date of admission was in 2000, which is when the client received a student visa in the United States, the 5 year time window ended in 2005, even before the client received LPR status.  Thus, the client was not deportable solely on the ground of having been convicted of a CIMT within 5 years of admission.  This is not to say that the client may still need to show that he is a person of good moral character (since USCIS can look beyond the 5 years), but the case was certainly worth a second look.