trinath chigurupati, a095 576 649 (bia oct. 26, 2011)

CHIGURUPATI, TRINATH INMATE#: 61189-050 (A#095·576·649) INMATE HOUSING: MOS C/O CLINTON COUNTY PRISON MCELHATTAN, PA 17748

Name: CHIGURUPATI, TRINATH

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5107 Leesb11rg Pike, S11ite 2000 Falls C/111rc/1, Virginia 22041

OHS LIT./York Co. Prison/YOR 3400 Concord Road York, PA 17402

A095-576-649

Date of this notice: 10/26/2011

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Enclosure

Panel Members: Pauley, Roger

Sincerely,

Donna Carr Chief Clerk

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Cite as: Trinath Chigurupati, A095 576 649 (BIA Oct. 26, 2011)

U.S. Department of Justice Execu.tive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A095 576 649 - York, PA

In re: TRINATH CHIGURUPATI a.k.a. Trinath Chigurupatis

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Pro se

ON BEHALF OF DHS:

CHARGE:

Jeffrey F. Boyles Assistant Chief Counsel

Date:

Notice: Sec. 23 7(a)(2)(A)(i), I&N Act (8 U.S.C. § I 227(a)(2)(A)(i)] -Convicted of crime involving moral turpitude

APPLICATION: Termination

OCT 2 6 20\1

On June 17, 2011, the Immigration Judge certified this record to the Board for clarification of our decision in Matter of Alyazji, 25 l&N Dec. 397 (BIA 2011). We find it necessary to begin our analysis with a brief description of the relevant facts. The respondent, a native and citizen oflndia, was admitted to the United States in 2001 on an Hl-B visa. Prior to the expiration of that visa, the respondent filed an application for adjustment of status. While the application for adjustment of status application was pending, the respondent departed the United States on advance parole pursuant to section 212(d)(S) of the Act. In 2004. the respondent entered the United States on parole to pursue his pending adjustment of status application. The respondent subsequently adjusted his status to a lawful permanent resident on June 2, 2007. In early 2010, the respondent engaged in activities which later led to his November 30, 2010, conviction for Obstruction of Justice under 18 U.S.C. § 1505. The respondent was placed in removal proceedings and charged under section 23 7(a)(2)(A)(i) as an alien convicted of a crime involving moral turpitude committed within five years after admission for which a sentence of one year or longer may be imposed. These facts are not contested on appeal. Neither is it contested that the respondent's conviction amounts to a crime involving moral turpitude for which a sentence of one year or longer may be imposed.

The issue to be disposed on appeal is whether the respondent's crime was committed "within five years after the date of admission." The respondent argued before the Immigration Judge that his 2001 entry should be considered as the "date of admission" under Matter of Alyazji, supra. The DHS argued, and the Immigration Judge agreed, that the respondent's interpretation of Matter of Alyazji, supra, was erroneous and that the relevant date of admission was June 2, 2007, when the respondent adjusted his status. We agree with the DHS and the Immigration Judge.

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A095 576 649

Had the respondent not departed the United States on advanced parole and been subsequently paroled in 2004, this case would not be distinguishable from Maller of Alyazji, supra, and the respondent would not be removable as charged. However, that is not the case. When the respondent was paroled in 2004, his presence in the United States was no longer tethered to his 2001 Hl�B visa. Rather, the respondent was provided advance parole and later paroled to the United States because his adjustment of status application was pending.

We are in agreement with all parties that the respondent's 2004 parole does not equate to an admission (I .J. at 4 ). 8 U.S. C. § 212( d)( 5)(A). Furthermore, "when the purposes of such parole shall ... have been served the alien ... shall be dealt with in the same manner as that of any other applicant for admission to the United States. Id. Thus, when the respondent's adjustment of status application was adjudicated, the purpose of his parole was "served" and the respondent was at that time treated as an applicant for admission. This Board discussed in Matter of Alyazji, supra, that adjustment of status does not necessarily constitute an admission for 237(a)(2)(A)(i) purposes. This case demonstrates a circumstance where an alien's adjustment of status will constitute an admission. The respondent's 2010 conviction is tethered to his 2007 adjustment of status, i.e. the date of the admission by virtue of which the respondent was present in the United States when he committed his crime. See Maller of Alyazji, supra. Accordingly we agree with the Immigration Judge's conclusion that "[b]ecause the respondent's commission of illegal acts commenced on January 20, 2010, subsequent to adjusting his status, and because his conviction constitutes a morally turpitudinous offense, the . . . respondent was properly charged with a violation of INA § 23 7(a)(2)(A)(i), and that ground of removal is sustained." (l.J. at 7).

ORDER: The respondent is ordered removed to India.

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In the Matter of: CHIGURUPATI, TRINATH

IMMIGRATION COURT 3400 CONCORD ROAD, SUITE 2

YORK, PA 17402

Case No.: A095-576-649

In DEPORTATION Proceedings Respondent/Applicant

ORDER OF ADMINISTRATIVE RETURN/CERTIFICATION TO THE BOARD

This matter is hereby certified to the Board of Immigration Appeals for the following reason:

This case was remanded to the Immigration Court due to a problem with the hearing tapes, transcript, or oral decision. The problem has been resolved in the manner stated below. The case is hereby returned to the Board for adjudication of the

previously filed appeal(s).

This case was remandetl to the Immigration Court for consideration of new relief with instructions to certify or return the record to the Board if relief is denied.

Relief was denied for the reasons stated in the decision of the Immigration Judge dated �-/�-/�-·

The case is hereby returned to the Board for adjudication of the previously filed appeal(s).

The Board, not the Immigration Court, has jurisdiction over the motion to reopen/reconsider filed on �-/�_/�- by the

( Tapes Enclosed ( )( Written Decision of the Immigration Judge enclosed.

CERTIFICATE OF SERVICE THIS DOCUMENT WAS SERVED BY: MAIL (M) PERSONAL SERVICE TO: [ ) ALIEN 4'IJ ALIEN c/o Custodial O M ALIEN'S DATE: le>-.;JC.1 ll BY: COURT STAFF

Attachments: [ ] EOIR-33 [ ] EOIR-28

(P) ATT/REP [(\t\ DHS

[ ] Other

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT YORK, PENNSYLVANIA

IN THE MA TIER OF:

CHIGURUPATI, Trinath

Respondent

) IN REMOVAL PROCEEDINGS ) ) File# A 095-576-649 ) )

�� )

ON BEHALF OF RESPONDENT: ON BEHALF OF DBS Jeffrey Boyles, Esq. Wayne Sachs, Esq.

Notice to Parties of Certification to the Board of Immigration Appeals

I . In accordance with 8 C.F .R. § I 003 .I ( c ), this case is being forwarded to the Board for certification.

2. The alien in this matter, a married male alien, native and citizen oflndia, is presently detained under the mandatory custody provisions of the INA due to the classification as an "arriving alien." He last appeared in court on June 13, 2011, at which time he presented a motion to terminate proceedings based on his assertion that the government had failed to establish the 5-year time frame pursuant to INA§ 237(a)(2)(A)(i).

3. The court, now having taken the evidence and legal arguments under advisement, concludes that his "admission" to the United States occurred on June 2, 2010, when he adjusted status based on an approved Form 1-140, rejecting respondent's contention that his prior admission on an HIB visa in 200 I constitutes the "admission" date.

4. The facts presented herein offer an important adjunct to the Board's decision in Matter of Alyazii, 25 I&N Dec. 397 (BIA 2011 ), and appear to be a logical extension of that ruling. Because a great many aliens, after having been properly admitted to the United States, subsequently depart on advance parole and return seeking adjustment of status and thereafter suffer a conviction, this court deems it sufficiently important for the Board to address this issue expeditiously, given its national import.

5. Per 8 C.F.R. § 1003.7, the parties are duly notified of this request for certification.

June 17, 2011

(-- . ··(\ I

� � -W.A. Durling

-� .

Immigration Judge

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SACHS, WAYNE


IMMIGRATION COURT 3400 CONCORD ROAD, SUITE 2

YORK, PA 17402

1518 WALNUT ST, STE 702 PHILADELPHIA, PA 19102

IN THE MATTER OF CHIGURUPATI, TRINATH 61189-050

FILE A 095-576-649

UNABLE TO FORWARD - NO ADDRESS PROVIDED

DATE: Jun 20, 2011

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION. SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL. YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS

OFFICE OF THE CLERK P.O. BOX 8530 FALLS CHURCH, VA 22041

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING. THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE WITH SECTION 242B(c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6), 8 U.S.C. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:

IMMIGRATION COURT 3400 CONCORD ROAD, SUITE 2 YORK, PA 17402

X OTHER: IJ DECISION AND ORDER

JKW

CC: DISTRICT COUNSEL, C/O YORK PRISON 3400 CONCORD ROAD YORK, PA, 174020000

COURT CLERK IMMIGRATION COURT FF

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WJA ,


UNITED STATES IMMIGRATION COURT YORK, PENNSYLVANIA

IN THE MATTER OF:

CIDGURUPATI, Trinath

Respondent

) IN REMOVAL PROCEEDINGS ) ) File # A 095-576-649

) )

�� )

ON BEHALF OF RESPONDENT: Wayne Sachs, Esq.

Ground of Removal: INA §237(a)(2)(A)(i)

Motion by Respondent: Termination

ON BEHALF OF THE DHS Jeffrey Boyles, Esq.

Decision and Order

This respondent is a 37 year-old native and citizen oflndia. He was initially admitted to the United States on an H 1-B visa in 1998. See Tab E. That visa expired in 2000. Id He apparently departed the United States in compliance with that visa and was re-admitted to the United States in September 2001 on another Hl-B visa. See Tab F. In July 2002, and prior to the expiration of his Hl-B visa, respondent filed an application for adjustment of status. See Tab G. Respondent subsequently departed the United States on advance parole pursuant to INA § 212(d)(5) and was paroled upon his return sometime after mid-2004 to pursue his adjustment of status application. See Tab D. Respondent subsequently adjusted status as a lawful permanent resident on June 2, 2007. See Tab G.

On November 30, 2010, respondent was convicted of the offense of Obstruction of Justice under 18 U.S.C. § 1505.1 The actions leading to his arrest took place between January 20 and

1 § 1505. Obstruction of proceedings before departments, agencies, and committees

Whoever, with intent to avoid, evade, prevent, or obstruct compliance, in whole or in part, with any civil investigative demand duly and properly made under the Antitrust Civil Process Act, willfully withholds, misrepresents, removes from any place, conceals, covers up, destroys, mutilates, alters, or by other means falsifies any documentary material, answers to written interrogatories, or oral testimony, which is the subject of such demand; or attempts to do so or solicits another to do so; or

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper

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February 4, 2010. Respondent was sentenced to a term of imprisonment of 5 months. See Tab B. As a resuJt of his conviction, the government charged respondent with removability pursuant to INA

§ 237(a)(2)(A)(i) in that he had been convicted of a crime involving moral turpitude committed within five years after admission for which a sentence of one year or longer may be imposed. See 18 U .S.C. § 1505 (indicating a sentence of up to 5 years for a violation of the statute).

Analysis of 18 U.S. C. § 1505 as a crime involving moral turpitude 2

Respondent argues that 18 U.S.C. § 1505 is divisible because it is possible to violate the statute by using a "threatening letter or communication" to "influence, obstruct, or impede the due and proper administration of the law," which lacks the requisite evil intent required for crimes involving moral turpitude. See respondent's motion, April 21, 2001, at 7. That is, he maintains that the record of conviction does not establish that he was convicted under a section of the statute requiring evil intent and, therefore, under the least culpable conduct approach, his conviction does not qualify as a crime involving moral turpitude.

Government counsel counters that the "language of the statute itself makes it a crime to act with the intent to avoid, evade, prevent or obstruct justice or corruptly, or by threats of force ... obstruct[], or impede[] ... the proper administration of law." While government counsel is correct in stating that these selective portions of 18 U.S.C. § 1505 categorically constitute a crime involving moral turpitude, he fails to address the portion of 18 U.S.C. § 1505 which may be violated by using a "threatening letter or communication" to "influence, obstruct, or impede the due and proper administration of the law."

Discussion ofCIMT

While neither the Board nor the Third Circuit has specifically dealt with 18 U.S.C. § 1505, the latter has held that a violation of 18 U.S.C. § 1503 (dealing with influencing or injuring officer or juror in the context of obstruction of justice) is a specific intent crime. See U.S. v. Davis, 183 F.3d 221, 253 (3d Cir. 1999) (holding that 18 U.S.C. § 1503 is a specific intent crime and the defendant was entitled to new trial due to trial court's refusal to provide an intoxication instruction concerning defendant's specific intent).

It is noted that 18 U.S.C. § 1503 and 18 U.S.C. § 1505 have identical wording in that they both state, in pertinent part:

exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress--

Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.

2 Respondent's argument was set forth in his motion for bond redetermination, which has been considered.

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Whoever ... corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due ... administration of justice ...

Based on the Third Circuit's reasoning in U.S. v. Davis, 18 U .S.C. § 1505 would also be considered a specific intent crime.

Having concluded that 18 U.S.C. § I 505 is a crime involving specific intent, it is necessary to analyze whether 18 U.S.C. § I 505 involves activity "contrary to justice, honesty, principle, or good morals; an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow man, or to society in general contrary to the accepted and customary rule of right and duty between man and man." Matter of Semi!, 20 I&N Dec. 579, 582 (BIA 1992).

In Matter of Flores, the Board found that "impair[ing] or obstruct[ing] an important function of a department of the government by defeating its efficiency or destroying the value of its lawful operations by deceit, graft, trickery, or dishonest means" involved moral turpitude. 17 I&N Dec. 225, 229 (BIA I 980). Later, in Matter of Jurado, 24 l&N Dec. 29 (BIA 2006), the Board held that a violation of I 8 Pa. C.S. § 4904(a), which requires that the perpetrator intentionally make misleading statements to disrupt the performance of a public servant's official duties, also involved moral turpitude. The statutes analyzed for moral turpitude in Matter of Flores and Matter of Jurado are analogous to 18 U .S.C. § I 505 in that they both involve the deliberate impairment of the administration of law.

While the two cited Board decisions are only distinguishable from 18 U .S.C. § 1505 where they focus more narrowly on obstructive activity that specifically involves deception or fraud, 18 U.S.C. § 1505 casts a wider net by additionally prohibiting the obstruction of a justice "by threats or force, or by any threatening letter or communication.'' The fact that 18 U.S.C. § 1505 is not limited to obstruction by fraud or deceit does not undermine the turpitudinous nature of the offense. The controlling factor rendering a violation of 18 U .S.C. § 1505 a crime involving moral turpitude is inherent in the intent to obstruct the administration of law or other governmental function, not on the specific manner in which the perpetrator carries out his crime to obstruct. Knowingly obstructing justice is "contrary to justice, honesty, principle, or good morals," such that it amounts to a crime involving moral turpitude. Matter of Serna, 20 l&N at 582. We now turn to the remaining issue of whether the commission of the federal offense occurred within five years of his admission to the United States. INA § 237(a)(2)(A)(i).

Date of Admission for purposes of INA § 237(a)(2)(A)(i)

Respondent contests the singular ground of removability, disputing the government's contention that his date of adjustment of status, June 2, 2007, counts as the date of "admission" from which to calculate the five-year period under INA§ 237(a)(2)(A)(i). That is, the government avers that respondent's date of admission must be the initiation date of his presence in the United States at the time he committed his crime, citing to the Board's recent decision in Matter of Alyazii, 25

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I&N Dec. 397 (BIA 20 1 1 ). Government counsel argues that date is the date he adjusted status, not the date of his last admission in 200 I on an H 1 B visa. In Alyazii, the alien was admitted on a nonimmigrant visa in 200 I, adjusted status to lawful permanent resident in April 2006, and then was convicted of a CIMT in January 2008. The Board held, inter alia, "that the statutory phrase 'the date of admission' necessarily refers to a single date in relation to the pertinent offense; thus not every 'date of admission' triggers the 5-year clock." (Emphasis in original). Id at 405. The Board went on to hold that the phrase "'the date of admission' refers to the date of the admission by virtue of which the alien was present in the United States when he committed his crime." Id. at 406. It thus held that Alyazji's "date of admission" was the date of his original admission in 2001, and terminated proceedings since the commission date of the offense was more than five years since that admission.

Here, as the parties agree, there is an additional fact, and that is that respondent departed the United States pursuant to advance parole and was subsequently paroled to permit him to adjust his status pursuant to his approved Form I- 140. Respondent argues, essentially, that his parole was not interruptive of his H 1 B admission in September 2001. It is thus that respondent urges the court to, in effect, ignore completely his departure on advance parole following the expiration of his HlB visa. In other words, respondent assures the court that it may ignore the fact of his departure on advance parole since that singular offense had no legal impact on his earlier status created by his HlB admission in September 2001.

Government counsel, as noted, disagrees. He correctly observes that the Board did not foreclose the possibility that an adjustment of status can equate to an admission. Alyazii at 402. According to government counsel, respondent departed the United States at the expiration of his visa and was then paroled in 2004. Since INA§ 10l(a)(13)(B) states that a parole under INA§ 2 12(d)(5) is not an "admission" (in the generic sense), the only "admission" was his subsequent adjustment of status in June 2007.

Discussion

Respondent is correct that he did not depart the United States at the expiration of his HIB visa (which had already expired) and indeed was not required to depart since he was in the "adjustment stream" because he filed his adjustment application before his HIB expired. Respt's Br. at 2. Notwithstanding, the court is constrained to agree with the government that respondent's "admission" occurred on June 2, 2007, when he adjusted status. Respondent misapprehends the Board's ruling in Matter of Alyazji, supra, when he argues that his second HlB admission in 2001 is the only admission which counts. Had respondent never departed the United States on advance parole, he would be correct.

Requesting permission to depart the United States under advance parole is a formality which permitted respondent to depart and then return under parole to complete his application for adjustment of status. To the extent that respondent argues that parole does not equate to an admission, the court agrees. See INA § 2 12(d)(5)(A)(such parole 'shall not be regarded as an admission of the alien"). But respondent's argument following this point falters.

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In Matter of G-A-C-, 22 I&N Dec. 83 (BIA 1998), the Board undertook an examination of

the extent of advance parole. In that case, an alien was first admitted on a student visa in 1983 and

departed several times in compliance with the visa, last being admitted in August 1988. In 1989 he filed an affirmative asylum application and in May 199 1 was awarded a master's degree. In 1993, while his asylum application was still pending, the alien received advanced parole to return to his country to visit his ill father; he departed and returned that year, being paroled pursuant to INA § 2 12(d)(5). In 1994 his asylum application was denied by an Asylum Officer, who also notified the alien that his parole status was simultaneously revoked. He was then placed into former exclusion proceedings before an Immigration Judge.

The alien argued that he was improperly placed into exclusion proceedings rather than deportation proceedings, which would have permitted him to apply for affirmative relief from deportation and which was not available in exclusion proceedings. In essence, the alien argued that his departure on advance parole had no intervening effect on his prior status, i.e. F- 1 student status. In upholding the validity of the alien's exclusion proceedings, the Board stressed that the concept of "advance parole" is a mechanism by which the government, as a humanitarian measure, permits an alien who may be otherwise inadmissible if he departs the United States, to be assured that "he will be paroled back into the United States upon return, under prescribed conditions, if he cannot establish that he is admissible at that time." Id at 88. Pointing out that neither the Attorney General nor the district director had the authority to admit the applicant unless the law authorized his admission, the Board concluded, parroting the words of the statute, INA§ 2 12(d)(5), that "when the purposes of the parole shall have been served, the alien shall ... be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States." 3 Id at 89.

While the Board in Matter of G-A-C-, supra, was not called upon to specifically deal with the issue of "admission" per se, this court finds the case particularly instructive in dealing with the present issue. This respondent was admitted on an H 1 B non-immigrant visa in 200 1. While still lawfully present under the visa he applied for adjustment of status pursuant to an approved Form I-140. As such, he was permitted to remain in the United States while he pursued adjustment of status after his Hl B non-immigrant visa had expired. But respondent then applied for and received advance parole and departed the United States in conformity therewith, returning on parole on August 29, 2004. While on parole his adjustment of status application was granted on June 2, 2007. Regrettably, by virtue of actions he undertook beginning on January 20, 2010, he was eventually convicted in federal court, as noted above, on November 10, 2010.

While the mechanism of advance parole is primarily used for humanitarian reasons, such fact does not thereby render the process any less formal. And as importantly, there are specific limitations of which an alien is fully apprised in writing when he applies for advance parole. See

3 It is thus that the applicant, by virtue of completing his college degree, had no right to seek readmission to the United States because his non-immigrant student visa had expired. Consequently, the applicant, had he departed without advance parole while his asylum application was pending, would have been inadmissible upon his arrival back at our border and his asylum application would have been deemed abandoned.

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c

G-A-C-, supra, at 88-9. Whether or not this respondent, or any other alien, understands the

restrictions of advance parole is neither here nor there.

Respondent advances the proposition that the fact of his departure and parole upon arrival has no bearing on his prior admission, which is incorrect. The reason respondent sought and received advance parole was because his H 1 B visa had expired and he would have been inadmissible to the United States had he left and then attempted to be admitted on said visa. Only by virtue of his pending application for adjustment of status was respondent permitted to physically remain in the United States until the finality of its adjudication. While his physical presence in the United States during this time was permitted, such presence did not accord him any "legal" status. Thus, had respondent up and left on his own accord without notice to the government, he would necessarily have been inadmissible upon his return.

On the other hand, and crucially, merely returning on parole did not have the effect of placing him back in a lawful status once he was paroled back into the United States. The language of INA § 2 12(d)(5)(A) makes it clear that, once the purpose of advance parole has been served, "the alien shall be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.,, (Emphasis added). This respondent received the benefit of his bargain when he in fact adjusted status to lawful permanent resident while under parole. For respondent to argue that his departure and parole seeking adjustment of status had no meaningful intervening effect on his prior admission is simply wrong.

Conclusion

Respondent simply misapprehends the holding in Matter of Alyazii. supra, when he states that the decision bolsters his position that his conviction is "tethered" to his last legal admission before his parole under INA§ 2 12(d)(5). Respt's Br. at 3. The Board made it clear that while there may only be a single admission for purposes of determining removability pursuant to INA § 237(a)(2)(A)(i), there may be more than one admission, depending on the facts of each case, and those facts will determine which admission will be triggered. Id at 405 ("Not every 'date of admission

, triggers the 5-year clock)". The Board emphasized that the 'date of admission' refers

to the date of admission by virtue of which the alien is present in the United States when he commits his crime. Alyazii at 406. Respondent requested and was granted advance parole, departed the United States and was paroled thereafter to complete adjudication of his adjustment of status. The choice of respondent to depart under advance parole "untethered" him, in effect, from his previous HlB admission in 2001 because it rendered him an "arriving alien" as defined in INA§ l. l(q) upon his parole in August 2004.

In fact, at no point has respondent been able to reasonably articulate that he was not an "arriving alien" upon his parole at that time. Indeed, the language of INA§ 2 12(d)(5)(A) makes it clear that when his reason for parole ends, he is considered as any other alien seeking admission to the United States. No other reasonable conclusion can be reached other than that respondent, having been paroled in 2004 and thereby seeking admission pursuant to his pending application for

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adjustment of status, has no basis to rely on his last H 1 B admission in 2001.

Accordingly, because INA § 245(b) designates "the date of the order approving the application for adjustment of status" as the date of admission, as an "arriving alien," respondent's date of admission must necessarily be the date of his adjustment of status, June 2, 2007. Because respondent's commission of illegal acts commenced on January, 20, 2010, subsequent to adjusting his status, and because his conviction constitutes a morally turpitudinous offense, the court concurs with the government that respondent was properly charged with a violation of INA§ 237(a)(2)(A)(I), and that ground of removal is sustained.

As respondent is ineligible to seek Cancellation of Removal as a Permanent Resident pursuant to INA§ 240A(a), and because he has no other relief available to him, the following order is hereby entered.

Order: Respondent is hereby ordered removed to India.

June 17, 201 1

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trinath chigurupati, a095 576 649 (bia oct. 26, 2011)

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