CARRILLO

Cite as 25 I&N Dec. 99 (BIA 2009) Interim Decision #3658

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 812.014

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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.

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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 Cuban

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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.

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