CHIGURUPATI, TRINATH

INMATE#: 61189-050 (A095576649)

INMATE HOUSING: MOS
C/O CLINTON COUNTY PRISON
MCELHATAN, PA 17748
Name: CHIGURUPATI, TRINATH
U.S. Department of Justice
Executive Ofce fr Imigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesb11rg Pike, S11ite 2000
Fals C/111rc/1, Vrginia 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-refrenced case.
Enclosure
Panel Members:
Pauley, Roger
Sincerely,
Donna Car
Chief Clerk
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Cite as: Trinath Chigurupati, A095 576 649 (BIA Oct. 26, 2011)
U.S. Department of Justice
Executive Ofce fr 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
I REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Pro se
ON BEHALF OF DHS:
CHARGE:
Jefrey 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 certifed this record to the Board fr clarifcation of
our decision in Matter of Alyazji, 25 l&N Dec. 397 (BIA 2011). We fnd it necessar to begin our
analysis with a brief description of the relevant fcts. 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 fled an application fr adjustment of status. While the application fr 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 lawfl permanent resident on June 2, 2007. In early 2010, the respondent engaged in
activities which later led to his November 30, 2010, conviction fr 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 fve
years afer admission fr which a sentence of one year or longer may be imposed. These fcts are
not contested on appeal. Neither is it contested that the respondent's conviction amounts to a crime
involving moral turpitude fr 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 fve
years afer the date of admission." The respondent argued befre 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 te
respondent adjusted his status. We agree with the DHS and the Immigration Judge.
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Cite as: Trinath Chigurupati, A095 576 649 (BIA Oct. 26, 2011)
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 fom 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 HlB 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 fr 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 fr admission. This Board discussed in Mater of Alyazji, supra, that
adjustment of status does not necessarily constitute an admission fr 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 commited
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 Januar 20,
2010, subsequent to adjusting his status, and because his conviction constitutes a morally
turpitudinous ofense, 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.
2
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Cite as: Trinath Chigurupati, A095 576 649 (BIA Oct. 26, 2011)
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 AMINISTRTIVE 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 DOCUEN WAS SERVED BY: MAIL (M) PERSONAL SERVICE
TO: [ ) ALIEN 4 ALIEN c/o Custodial O
M AIEN'S
DATE: l-.C1 ll BY: COUT STAFF
Attachments:
[ ] EOIR-33 [ ] EOIR-28
(P)
ATT/REP
[(
DHS
[ ]
Other
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UNITED STATES DEPARTMENT OF JSTICE
EXECUTIVE OFFICE FOR IMMIGRTION 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
Jefey Boyles, Esq. Wayne Sachs, Esq.
Notice to Parties of Certifcation to the Board of Immigration Appeals
I . I accordance with 8 C.F .R. I 003 .I ( c ), this case is being frwarded to the Board fr
certifcation.
2. The alien in this matter, a married male alien, native and citizen oflndia, is presently detained
under the mandator custody provisions of the INA due to the classifcation 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 goverent had filed to establish the 5-year time fame
pursuant to IA 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 For 1-140, rejecting respondent's contention that his prior admission on an HIB visa in
200 I constitutes the "admission" date.
4. The fcts presented herein ofer 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, afer having been properly admitted to the United States, subsequently depart on
advance parole and retur seeking adjustment of status and thereafer sufer a conviction, this court
deems it sufciently important fr the Board to address tis issue expeditiously, given its national
import.
5. Per 8 C.F.R. 1003.7, the parties are duly notifed of this request fr certifcation.
June 17, 2011
(-- . ( I
-
W.A. Durling
-

.
Immigration Judge
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SACHS, WAYNE
UNITED STATES DEPARTMET OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRTION COURT
3400 CONCORD ROAD, SUITE 2
YORK, PA 17402
1518 WALNUT ST, STE 702
PHILELPHIA, PA 19102
IN THE MTTER OF
CHIGUUPATI, TRINATH
61189-050
FILE A 095-576-649
UABLE TO FORWARD - NO ADRESS PROVIDED
DATE: Jun 20, 2011
ATTACHED IS A COPY OF THE DECISION OF THE IMIGRTION JUGE. THIS DECISION
IS FINAL ULESS A APPEAL IS FILED WITH THE BOARD OF IMMIGRTION APPEALS
WITHIN 30 CAENDA DAYS OF THE DATE OF THE MILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AD INSTRUCTIONS FOR PROPERLY PREPAING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUENTS, AD FEE OR FEE WAIVER REQUEST
MUST BE MILED TO: BOARD OF IMMIGRTION APPEALS
OFFICE OF THE CLERK
P.O. BOX 8530
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRTION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEA AT YOUR SCHEULED DEPORTATION OR REMOVAL HEAING.
THIS DECISION IS FINA ULESS A MOTION TO REOPEN IS FILED IN ACCORDACE
WITH SECTION 242B(c) (3) OF THE IMIGRTION AD 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 REMOVA PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
3400 CONCORD ROA, SUITE 2
YORK, PA 17402
X OTHER: IJ DECISION AD ORDER
JK
CC: DISTRICT COUSEL, C/O YORK PRISON
3400 CONCORD ROA
YORK, PA, 174020000
COURT CLERK
IMIGRATION COUT FF
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W.
UNITED STATES DEPARTMENT OF JSTICE
EXECUTIV OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
YORK, PENNSYLVANIA
IN THE MATTER OF:
CIGURUPATI, Trinath
Respondent
) IN RMOVAL 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
Jeffey Boyles, Esq.
Decision and Order
This respondent is a 37 year-old native and citizen oflndia. He was initially admited to the
United States on a H 1-B visa in 1998. See Tab E. That visa expired in 2000. Id He apparently
depared the United States in compliance with that visa and was re-admited 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 fled an application fr 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 retur sometime afer mid-2004 to pursue his adjustment of status application. See
Tab D. Respondent subsequently adjusted status as a lawfl permanent resident on June 2, 2007.
See Tab G.
On November 30, 2010, respondent was convicted of the ofense of Obstruction of Justice
under 18 U.S.C. 1505.1 The actions leading to his arrest took place between Januar 20 and
1 1505. Obstrction of proceedings befre departments, agencies, and committees
Whoever, with intent to avoid, evade, prevent, or obstruct compliance, in whole or in par, with any civil
investigative demand duly and properly made under the Antitrust Civil Process Act, willflly withholds,
misrepresents, removes fom any place, conceals, covers up, destroys, mutilates, alters, or by other means falsifes
any documentary material, answers to writen interrogatories, or oral testimony, which is the subject of such demand;
or atempts to do so or solicits anoter to do so; or
Whoever corruptly, or by threats or frce, or by any threatening letter or communication infuences, obstructs, or
impees or endeavors to infuence, obstruct, or impede the due and proper administration of the law under which any
pending proceeding is being had befre any deparment or agency of the United States, or the due and proper
:.
1
@......N.. . ....l . . .v. %"' lY. . W . ...V.-vW--~ M -.v M I -
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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 goverent charged respondent with removability pursuant to IA
237(a)(2)(A)(i) in that he had been convicted of a crime involving moral turitude commited
within fve years afer admission fr 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 fr a violation of the statute).
Analysis of 18 US 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 "infuence, obstruct, or impede the due
and proper administration of the law," which lacks the requisite evil intent required fr crimes
involving moral turpitude. See respondent's motion, April 21, 2001, at 7. That is, he maintains tat
the record of conviction does not establish that he was convicted under a section of the statute
requiring evil intent and, therefre, under the least culpable conduct approach, his conviction does
not qualif as a crime involving moral turpitude.
Goverent counsel counters that the "language of the statute itself makes it a crime to act
with the intent to avoid, evade, prevent or obstuct justice or corptly, or by threats of
frce ... obstruct[], or impede[] ... the proper administration of law." While goverent counsel is
correct in stating that tese selective portions of 18 U.S.C. 1505 categorically constitute a crime
involving moral turpitude, he fils to address the portion of 18 U.S.C. 1505 which may be violated
by using a "theatening letter or communication" to "infuence, obstruct, or impede the due and
proper administration of the law."
Discusion ofCIM
While neither te Board nor the Third Circuit has specifcally dealt with 18 U.S.C. 1505,
the latter has held that a violation of 18 U.S.C. 1503 (dealing with infuencing or injuring ofcer
or juror i the context of obstruction of justice) is a specifc intent crime. See U.S. v. Davis, 183
F.3d 221, 253 (3d Cir. 1999) (holding that 18 U.S.C. 1503 is a specifc intent crime and the
defndant was entitled to new trial due to trial court's refsal to provide an intoxication instruction
concering defndant's specifc 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 pat:
exercise of the power of inquir 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 fned under this title, imprisoned not more than 5 years or, if the ofense involves interational or domestic
terorism (as defned in section 2331), imprisoned not more than 8 years, or both.
2 Respondent's argument was set frth in his motion fr bond redeterination, which has been considered.
2
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Woever ... corptly or by threats or frce, or by any threatening letter or
communication, infuences, obstructs, or impedes, or endeavors to infuence,
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 considerd
a specifc intent crime.
Having concluded that 18 U.S.C. I 505 is a crime involving specifc 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 contrar to the accepted and customay rule of right
and dut between man ad man." Matter of Semi, 20 I&N Dec. 579, 582 (BIA 1992).
I Matter of Flores, the Board fund that "impair[ing] or obstuct[ing] an important fction
of a deparent of the goverent by defating its efciency or destroying the value of its lawfl
operations by deceit, graf, tricker, 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 ofcial duties, also involved
moral turpitude. The statutes analyzed fr moral turpitude in Matter of Flores and Matter of Jurado
ae analogous to 18 U .S.C. I 505 in that they both involve the deliberate impairent of the
administration of law.
While the two cited Board decisions are only distinguishable fom 18 U .S.C. 1505 where
they fcus more narowly on obstructive activity that specifcally involves deception or faud, 18
U.S.C. 1505 casts a wider net by additionally prohibiting the obstruction of a justice "by theats
or frce, or by any threatening letter or communication.'' The fct that 18 U.S.C. 1505 is not
limited to obstruction by faud or deceit does not underine the turpitudinous nature of the ofense.
The contolling fctor 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 goverental fnction, not on
the specifc manner in which the perpetrator caries out his crime to obstruct. Knowingly obstructing
justice is "contar to justice, honesty, principle, or good morals," such that it amounts to a crime
involving moral turpitude. Matter of Sera, 20 l&N at 582. We now tu to the remaining issue of
whether the commission of the fderal ofense occured within fve 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 goverent's
contention that his date of adjustment of status, June 2, 2007, counts as the date of"admission" fom
which to calculate the fve-year period under INA 237(a)(2)(A)(i). That is, the goverent 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
3
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I&N Dec. 397 (BIA 2011 ). Goverent 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 non
immigant visa in 200 I, adjusted status to lawfl permanent resident in April 2006, and then was
convicted of a CIT in Januar 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 ofense; thus not every
'date of admission' tiggers the 5-year clock." (Emphasis in original). Id at 405. The Board went
on to hold that the phrase "'the date of admission' refrs 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
terinated proceedings since the commission date of the ofense was more than fve years since that
admission.
Here, a the paies agee, there is an additional fct, ad that is that respondent depated the
United States pursuant to advance parole and was subsequently paroled to perit him to adjust his
status pursuant to his approved Form I-140. Respondent argues, essentially, that his paole was not
interptive of his H 1 B admission in September 2001. It is thus that respondent urges the court to,
i efect, igore completely his departure on advance parole fllowing the expiration of his HlB
visa. I other words, respondent assures the court that it may igore the fact of his deparure on
advance parole since that singular ofense had no legal impact on his earlier stats created by his
HlB admission in September 2001.
Goverent counsel, as noted, disagees. He corectly observes that the Board did not
freclose the possibility that an adjustment of status can equate to an admission. Alyazii at 402.
According to goverent 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 212(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 fled his adjustment application befre his HIB expired. Respt's
Br. at 2. Notwithstanding, the court is constained to agree with the goverent that respondent's
"admission" occured on June 2, 2007, when he adjusted status. Respondent misapprehends the
Board's rling in Matter of Alyaji, supra, when he argues tat 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 frality which
permitted respondent to depart and then retu under parole to complete his application fr
adjustment of status. To the extent that respondent argues that parole does not equate to an
admission, the cou agrees. See INA 212(d)(5)(A)(such parole 'shall not be regarded as an
admission of the alien"). But respondent's argument fllowing this point flters.
4
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I 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 frst admitted on a student visa in 1983 ad
departed several times in compliance with the visa, last being admitted in August 1988. In 1989 he
fled an afrative asylum application and in May 1991 was awarded a master's degee. In 1993,
while his asylum application was still pending, the alien received advanced paole to retu to his
country to visit his ill fther; he departed and retued that year, being paroled pursuant to IA
212(d)(5). In 1994 his asylum application was denied by an Asylum Ofcer, who also notifed the
alien that his parole status was simultaneously revoked. He was then placed into frer exclusion
proceedings befre an Immigration Judge.
The alien argued that he was improperly placed into exclusion proceedings rather tan
deportation proceedings, which would have permitted him to apply fr affrative relief fom
deportation and which was not available in exclusion proceedings. In essence, te alien argued tat
his departure on advance parole had no interening efect 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 goverent, as a humanitarian measure, perits
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 ret, under prescribed conditions, if he cannot
establish that he is admissible at that time." Id at 88. Pointing out that neither the Attorey General
nor the distict director had the authorit to admit the applicant unless the law authorized his
admission, the Board concluded, paroting the words of the statute, INA 212(d)(5), that "when the
purposes of the parole shall have been sered, the alien shall ... be reted to the custody fom which
he was paroled and thereafer his case shall continue to be dealt with in the same manner as that of
any other applicant fr admission to the United States." 3 Id at 89.
While the Board in Matter of G-A-C-, supra, was not called upon to specifcally deal with
the issue of "admission" per se, this cour fnds the case paricularly instrctive in dealing with the
present issue. This respondent was admitted on an H 1 B non-immigrant visa in 2001. While still
lawflly present under the visa he applied fr adjustment of status pursuant to an approved For I-
140. As such, he was peritted to remain in the United States while he pursued adjustment of status
afer his Hl B non-immigrant visa had expired. But respondent then applied fr and received
advance paole ad depared the United States in confrmity therewith, retuing on paole on
August 29, 2004. While on parole his adjustment of status application was ganted on June 2, 2007.
Regrettably, by virtue of actions he undertook beginning on Januar 20, 2010, he was eventually
convicted in fderal court, as noted above, on November 10, 2010.
While the mechanism of advance parole is prmarly used fr humanitarian reasons, such fct
does not thereby render the process any less frmal. And as importantly, there are specifc
limitations of which an alien is flly apprised in writing when he applies fr 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-immigant student visa had expired. Consequently, the applicant, had he depared
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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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 fct of his departure and parole upon arival
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 lef and then attempted to be admitted on said visa. Only by virtue of his
pending application fr adjustent of status was respondent peritted to physically remain in the
United States until the fnality 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 lef on his ow accord without notice to te goverent, he would necessarily
have been inadmissible upon his retur.
On the other hand, and crucially, merely retuing on parole did not have the efect of placing
him back in a lawfl status once he was paroled back into the United States. The language of INA
212(d)(5)(A) makes it clear that, once the purpose of advance parole has been served, "the alien
shall be reted to the custody fom which he was paroled and thereafer 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). Tis respondent received the benefit of his bargain when he in fct adjusted
status to lawfl permanent resident while under parole. For respondent to argue that his deparure
and parole seeking adjustment of status had no meaningfl intervening efect on his prior admission
is simply wrong.
Conclusion
Respondent simply misapprehends the holding in Mater of Alyazii. supra, when he states
that the decision bolsters his position that his conviction is "tethered" to his last legal admission
befre his parole under IA 212(d)(5). Respt's Br. at 3. The Board made it clear that while there
may only be a single admission fr purposes of deterining removability pursuant to INA
237(a)(2)(A)(i), there may be more than one admission, depending on the fcts of each case, and
those fcts 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' refrs
to the date of admission by virue of which the alien is present in the United States when he commits
his crime. Alyaii at 406. Respondent requested and was ganted advance parole, depared the
United States and was paroled thereafer to complete adjudication of his adjustment of status. The
choice of respondent to depart under advance parole "untethered" him, in efect, fom his previous
HlB admission in 2001 because it rendered him an "ariving alien" as defned in INA l. l(q) upon
his parole in August 2004.
In fct, at no point has respondent been able to reasonably articulate that he was not an
"ariving alien" upon his parole at that time. Indeed, the language of INA 212(d)(5)(A) makes it
clear that when his reason fr 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 fr
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adjustent 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 fr adjustent 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 ofense, the court concurs
with the goverent that respondent was properly charged with a violation of INA 237(a)(2)(A)(I),
and that gound of removal is sustained.
As respondent is ineligible to seek Cancellation of Removal as a Peranent Resident
pursuant to INA 240A(a), and because he has no other relief available to him, the fllowing order
is hereby entered.
Order: Respondent is hereby ordered removed to India.
June 17, 2011
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