Cite as 23 I&N Dec. 754 (BIA 2005) Interim Decision #3513 

In re Musiliu Aremu SHANU, Respondent 

File A74 932 039 - Baltimore 

Decided June 6, 2005 

U.S. Department of Justice

Executive Office for Immigration Review 

Board of Immigration Appeals 

(1) The phrase “date of admission” in section 237(a)(2)(A)(i) of the Immigration and 

Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2000), refers to, among other things, the 

date on which a previously admitted alien is lawfully admitted for permanent residence 

by means of adjustment of status. 

(2) An alien convicted of a single crime involving moral turpitude that is punishable by a 

term of imprisonment of at least 1 year is removable from the United States under section 

237(a)(2)(A)(i) of the Act if the crime was committed within 5 years after the date of any 

admission made by the alien, whether it be the first or any subsequent admission. 

FOR RESPONDENT: Theresa I. Obot, Esquire, Baltimore, Maryland 

FOR THE DEPARTMENT OF HOMELAND SECURITY: Christopher R. Coxe, Jr., 

Assistant District Counsel 

BEFORE: Board Panel: FILPPU, COLE, and HESS, Board Members. 

FILPPU, Board Member: 

The respondent appeals from an Immigration Judge’s January 22, 2003, 

decision finding him removable from the United States pursuant to section 

237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1227(a)(2)(A)(i) (2000), and pretermitting his application for cancellation 

of removal under section 240A(a) of the Act, 8 U.S.C. § 1229b(a) (2000). 

The appeal will be dismissed. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

The respondent, a 36-year-old, native and citizen of Nigeria, was first 

admitted to the United States on June 8, 1989, as a nonimmigrant visitor for 

pleasure. On December 20, 1996, his status was adjusted to that of a lawful 

permanent resident of the United States pursuant to section 245 of the Act, 

8 U.S.C. § 1255 (1994). On July 16, 1998, he was convicted in the United 

States District Court for the Western District of Tennessee of various federal 

fraud crimes, all of which were punishable by terms of imprisonment of one 

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year or more. According to the criminal judgment, the respondent committed 

his offenses on or about June 13, 1997. 

On the basis of these convictions, the Department of Homeland Security 

(“DHS,” formerly the Immigration and Naturalization Service) charged the 

respondent with deportability from the United States under section 

237(a)(2)(A)(i) of the Act, which provides: 

Any alien who — 

(I) is convicted of a crime involving moral turpitude committed within five years

(or 10 years in the case of an alien provided lawful permanent resident status under 

section 245(j) of this title) after the date of admission, and 

(II) is convicted of a crime for which a sentence of one year or longer may be

imposed, 

is deportable. 

During removal proceedings before the Immigration Judge, the respondent 

moved to dismiss this charge, arguing that none of his crimes were committed 

within 5 years after the date of his admission to the United States as a 

nonimmigrant in June 1989. The Immigration Judge denied the respondent’s 

motion to dismiss the charge, concluding that under Matter of Rosas, 22 I&N 

Dec. 616 (BIA 1999), the relevant “date of admission” under section 

237(a)(2)(A)(i) was December 20, 1996, the date when the respondent’s status 

was adjusted to that of a lawful permanent resident. Because the respondent 

committed his crimes less than 5 years after December 20, 1996, the 

Immigration Judge found him deportable as charged. Moreover, although the 

respondent expressed an intention to apply for cancellation of removal under 

section 240A(a) of the Act, the Immigration Judge ultimately refused to 

entertain the application, deeming it to have been abandoned as a result of the 

respondent’s failure to file it in a timely manner. 

II. ISSUES 

Although the respondent does not dispute that some or all of his crimes 

involved moral turpitude,1

 he does contend that the Immigration Judge erred 

by identifying the date of his adjustment of status as the relevant “date of 

admission” that began the 5-year period during which his commission of a 

single crime involving moral turpitude could render him deportable under 

section 237(a)(2)(A)(i) of the Act. Furthermore, the respondent challenges the 

fundamental fairness of the Immigration Judge’s decision to pretermit his 

cancellation of removal application. Thus, we are confronted with three 

appellate issues. 

At the outset, we must determine whether December 20, 1996—the date 

when the respondent adjusted his status—qualifies as a “date of admission” 

1 It is well settled that fraud crimes involve moral turpitude. Jordan v. DeGeorge, 341 U.S. 

223, 227-29 (1951). 

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within the meaning of section 237(a)(2)(A)(i) of the Act. If we conclude that 

it does so qualify, we must then determine whether it qualifies as a date of 

admission that begins the statutory 5-year period in this instance. Finally, if 

we are satisfied as to the respondent’s deportability, we must determine 

whether the Immigration Judge deprived the respondent of his right to a full 

and fair hearing by pretermitting his application for cancellation of removal. 

III. ANALYSIS 

A. Respondent’s Removability Under Section 237(a)(2)(A)(i) 

Whether December 20, 1996, qualifies as a “date of admission” under 

section 237(a)(2)(A)(i) of the Act depends on whether adjustment of status 

under section 245 of the Act qualifies as “an admission” to the United States 

within the meaning of the immigration law. At the outset, it must be 

acknowledged that adjustment of status does not conform to the statutory 

definition of the term “admission” set forth at section 101(a)(13)(A) of the 

Act, 8 U.S.C. § 1101(a)(13)(A) (2000), which states that “[t]he terms 

‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of 

the alien into the United States after inspection and authorization by an 

immigration officer.” As the Immigration Judge correctly observed, however, 

we have determined that section 101(a)(13)(A) does not provide an exhaustive 

definition of the term “admission,” and that an alien present in the United 

States who has been accorded the privilege of lawful permanent residence is 

also deemed to have been “admitted” as of the date of adjustment, even if the 

alien has never been “admitted” within the meaning of section 101(a)(13)(A). 

See Matter of Rosas, supra. 

In Matter of Rosas, supra, at 618-19, we held that an alien who had entered 

the United States without inspection and then adjusted her status pursuant to 

section 245A(b) of the Act, 8 U.S.C. § 1255a(b) (1988), had, by virtue of that 

adjustment, effected an “admission” to the United States within the meaning 

of section 237(a)(2)(A)(iii) of the Act, such that her conviction for an 

aggravated felony after the date of adjustment qualified as a conviction “after 

admission.” Our determination that adjustment of status qualified as an 

“admission” found explicit support in the language of section 101(a)(20) of 

the Act, 8 U.S.C. § 1101(a)(20) (1994), which states that an alien who has 

been “lawfully accorded the privilege of residing permanently in the United 

States as an immigrant” has been “lawfully admitted for permanent 

residence.” (Emphasis added.) 

This interpretation was also supported by other statutory language 

manifesting Congress’s understanding that the term “admission” encompasses 

adjustment of status, and not just entry at the border with an immigrant or 

nonimmigrant visa. Particularly relevant to an alien, such as the respondent, 

whose status has been adjusted under section 245 of the Act, are section 

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245(a)(2) of the Act, which requires that an alien be “admissible” as a 

condition for adjusting status, and section 245(b), which directs the Attorney 

General to “record the alien’s lawful admission for permanent residence” 

upon approval of his or her adjustment application. Similar language appears 

in other sections of the Act that touch upon adjustment of status. See, e.g., 

sections 101(a)(13)(C), 209(b), 210(a)(2), 216(a)(1), 240A(b)(1), 245A(b)(1) 

of the Act, 8 U.S.C. §§ 1101(a)(13)(C), 1159(b), 1160(a)(2), 1186a(a)(1), 

1229b(b)(1), 1255a(b)(1) (2000). This choice of language persuades us that 

when Congress enacted section 237(a)(2) of the Act, it intended that the term 

“admission” should be interpreted to include adjustment of status. 

Accordingly, we conclude that the term “date of admission” in 

section 237(a)(2)(A)(i) refers to, among other things, the date on which an 

alien is lawfully admitted for permanent residence by means of adjustment of 

status. 

We recognize that Matter of Rosas, supra, is factually distinguishable from 

the instant case because, unlike this respondent, the alien in that case had 

never been “admitted” within the meaning of section 101(a)(13)(A) prior to 

her adjustment of status, but had instead entered the United States without 

inspection (necessitating her adjustment under section 245A of the Act rather 

than section 245). Indeed, the unlawful nature of the alien’s initial entry was 

significant in Matter of Rosas, because it served to underscore how strict 

reliance on the “admission” definition of section 101(a)(13)(A) could lead to 

peculiar results in some cases.2 

The respondent suggests that such peculiar results are less likely to occur 

with respect to aliens who have been admitted under section 101(a)(13)(A) 

prior to having adjusted status, but we are by no means certain that this is true. 

We observe, for example, that waivers of inadmissibility under sections 

212(h)(1)(B) and (i)(1) of the Act, 8 U.S.C. §§ 1182(h)(1)(B) and (i)(1) 

(2000), are available only to those aliens who can demonstrate that a “denial 

of admission” or “refusal of admission” would result in extreme hardship to 

a qualifying relative. (Emphasis added.) Because the denial of an application 

for adjustment of status is tantamount to a denial or refusal of “admission” 

under the immigration laws, we permit aliens—including aliens previously 

admitted within the meaning of section 101(a)(13)(A)—to seek a waiver 

under section 212(h)(1)(B) or section 212(i)(1) in conjunction with an 

application for adjustment of status. 

2 We noted that unless the term “admitted” were deemed to include adjustment of status, 

an alien who adjusted status after entering the United States without inspection would 

remain susceptible to removal under section 212(a)(6)(A)(i) of the Act as an alien present 

in the United States without having been admitted or paroled. Matter of Rosas, supra, at 

621. Likewise, such an alien would also be ineligible for forms of relief from removal, such 

as cancellation of removal under section 240A(a), that require an alien to have been 

admitted to the United States. Matter of Rosas, supra, at 623. 

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In any event, Matter of Rosas, supra, does not stand for the proposition that 

adjustment of status should be considered an “admission” only when failure 

to do so would lead to an absurd or unreasonable result in a particular case. 

On the contrary, the potential for unreasonable results was merely a fact 

marshaled to support our interpretation of the aforementioned statutory 

language. It is that language, and not the possibility of unreasonable results, 

that drove our analysis in Matter of Rosas and continues to drive it today. 

Furthermore, the rationale set forth in Matter of Rosas, supra, which we 

continue to espouse, is not the only basis for our conclusion that an adjustment 

of status must be deemed an “admission” in the present context. There are 

also reasons, peculiar to the language of section 237(a)(2)(A)(i) itself, for 

drawing such a conclusion. Specifically, we refer to the parenthetical phrase 

in section 237(a)(2)(A)(i) stating that “an alien provided lawful permanent 

resident status under section 245(j)” can be rendered deportable if convicted 

of a crime involving moral turpitude committed within 10 years after the date 

of admission (rather than within the otherwise-applicable 5-year period).3 We 

believe that by making an alien’s acquisition of lawful permanent resident 

status the event that extends his period of vulnerability to removal under 

section 237(a)(2)(A)(i), Congress manifested its understanding that the 

relevant 10-year period may be measured from the date when that status was 

acquired. 

This interpretation of section 237(a)(2)(A)(i) finds explicit support in the 

regulations governing aliens who adjust status under section 245(j), which 

clearly state that “[n]othing in this section shall prevent an alien adjusted 

pursuant to the terms of these provisions from being removed for conviction 

of a crime of moral turpitude committed within 10 years after being provided 

lawful permanent residence under this section.” 8 C.F.R. §§ 245.11(h), 

1245.11(h) (2004) (emphasis added). These regulations have the force and 

effect of law as to this Board and the Immigration Judges. See Matter of 

Fede, 20 I&N Dec. 35, 36 (BIA 1989). Thus, in light of the fact that 

adjustment of status under section 245(j) indisputably qualifies as an 

“admission” for purposes of section 237(a)(2)(A)(i), it would be anomalous 

to conclude that adjustment under other subsections of section 245 does not. 

We therefore conclude that the respondent’s adjustment of status constitutes 

an “admission” to the United States, and that December 20, 1996—the date 

of his adjustment of status—is a “date of admission” for purposes of section 

237(a)(2)(A)(i) of the Act. 

3 This parenthetical phrase was inserted into the statutory predecessor to current section 

237(a)(2)(A)(i) by operation of section 130003(d) of the Violent Crime Control and Law 

Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, 2026 (effective Sept. 13, 

1994). 

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The fact that December 20, 1996 qualifies as a “date of admission” under 

section 237(a)(2)(A)(i) of the Act is not dispositive of the respondent’s 

appeal, however, because he was also “admitted” to the United States—within 

the meaning of section 101(a)(13)(A) of the Act—when he entered the 

country as a nonimmigrant in June 1989. There is no serious doubt that 

Congress intended the phrase “date of admission” to apply to the date when 

an alien makes a section 101(a)(13)(A) admission. However, section 

237(a)(2)(A)(i) of the Act does not, by its terms, specify which of an alien’s 

multiple “admission” dates can be considered where some, but not all, of those 

dates are less than 5 years prior to the date of the alien’s commission of a 

crime involving moral turpitude. Accordingly, as the tribunal vested with the 

Attorney General’s authority to administer the Immigration and Nationality 

Act, we must arrive at a reasonable interpretation of Congress’s language. 

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 

837, 843-44 (1984). 

With this responsibility firmly in mind, we conclude that Congress 

intended—with respect to aliens who have been admitted to the United States 

more than once—that each and every date of admission qualifies as a 

potentially “relevant” date of admission under section 237(a)(2)(A)(i). Thus, 

an alien convicted of a single crime involving moral turpitude (punishable by 

a term of imprisonment of at least 1 year) is removable from the United States 

under section 237(a)(2)(A)(i) if the crime was committed within 5 years after 

the date of any admission made by that alien, whether it be the first, last, or 

any other admission. 

The respondent maintains that as applied to him, the term “date of 

admission” refers to June 8, 1989, the date of his first admission as a 

nonimmigrant, and not to the date of any subsequent admission he may have 

made. A rule of decision that focuses exclusively on an alien’s first admission 

date would certainly have the advantage of simplicity. However, such a rule 

is not reconcilable with the language and underlying purpose of section 

237(a)(2)(A)(i) and would represent a dramatic departure from the historical 

practice of this Board and the federal courts in like cases under prior law. The 

respondent has provided no affirmative evidence that Congress intended such 

a change in law, and we do not believe that Congress understood such a 

change to have been effected when it enacted section 237(a)(2)(A)(i). 

As previously discussed, an alien who has acquired lawful permanent 

resident status pursuant to section 245(j) of the Act may be found removable 

under section 237(a)(2)(A)(i) on the basis of a conviction for a crime 

involving moral turpitude committed within 10 years after the date when he 

adjusted his status. See 8 C.F.R. §§ 245.11(h), 1245.11(h). In light of this 

fact, we deem it significant that the only aliens who qualify for adjustment of 

status under section 245(j) are those who were previously admitted to the 

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United States as nonimmigrants pursuant to section 101(a)(15)(S)(i) of the 

Act. See sections 245(j)(1)(A), (2)(A) of the Act. 

Under the respondent’s approach to section 237(a)(2)(A)(i), which focuses 

on an alien’s first admission only, the statutory 10-year period would have to 

be measured from the date of this initial nonimmigrant admission. Yet the 

language and purpose of the statute and its implementing regulations simply 

cannot be reconciled with that interpretation. We find no indication in the 

legislative history of section 237(a)(2)(A)(i), or the regulatory history of 

8 C.F.R. §§ 245.11(h) and 1245.11(h), that Congress or the Attorney General 

intended that the phrase “date of admission” should have one meaning for 

aliens granted lawful permanent resident status under section 245(j) and a 

different, narrower meaning for all other aliens. 

On the contrary, we believe that the treatment of aliens who adjusted status 

under section 245(j) is reflective of Congress’s broader understanding of the 

scope of section 237(a)(2)(A)(i) and its statutory predecessors, and our 

analysis of the respondent’s case is guided by that understanding. We 

therefore hold that the 5-year period specified in section 237(a)(2)(A)(i) may 

be measured from the date of an alien’s admission to lawful permanent 

residence, notwithstanding the fact that the alien was previously admitted as 

a nonimmigrant.4 

We note that adjustment of status pursuant to section 245(j) constitutes an admission 

under section 237(a)(2)(A)(i) regardless of whether the applicant sought such status during 

his period of authorized stay as a nonimmigrant. In other words, a nonimmigrant admitted 

under section 101(a)(15)(S)(i) of the Act need not “overstay” his 3-year visa or depart the 

United States in order for his subsequent adjustment under section 245(j) to be considered 

an “admission” within the meaning of section 237(a)(2)(A)(i). In fact, the regulations 

governing adjustment of status under section 245(j) appear to contemplate that the alien will 

be “in S nonimmigrant classification” when the adjustment application is filed. 8 C.F.R. 

§§ 245.11(a), 1245.11(a). 

The United States Court of Appeals for the Ninth Circuit has held, with respect to an 

alien who adjusted his status during the period of his authorized stay as a long-term 

nonimmigrant student, that the date of the alien’s admission as a nonimmigrant was the 

relevant “date of admission” under section 237(a)(2)(A)(i). Shivaraman v. Ashcroft, 

360 F.3d 1142 (9th Cir. 2004). While the holding in Shivaraman is in some tension with 

our present decision, it is distinguishable because the respondent’s nonimmigrant admission 

in 1989 was on a short-term tourist visa, valid for no more than 1 year. 8 C.F.R. 

§ 214.2(b)(1) (1989). The record does not reflect that the respondent ever sought or 

acquired extensions of his nonimmigrant status between June 1989 and December 1996, a 

period of approximately 90 months. Moreover, any extension the respondent may have 

received would have expired within 6 months. See id. To have maintained his 

nonimmigrant status up to the date of his adjustment in December 1996, the respondent 

would therefore have required 15 separate extensions. Although the Immigration Judge 

made no specific factual finding as to the respondent’s status at the time of his adjustment 

in 1996, we deem it highly unlikely that he was, at that time, still within the period of his 

authorized stay as a nonimmigrant. 

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The policy implications of the “first admission” approach, and the peculiar 

consequences that would often flow from embracing it, also persuade us that 

it is not in accord with congressional intent. We consider, for example, the 

hypothetical case of an alien admitted to the United States as a nonimmigrant 

student in 1966. After completing his course of study in 1970, the alien 

returned to his home country, residing there continuously until his marriage 

to a United States citizen in 2001. In 2002 the alien returned to the United 

States as an immigrant and immediately proceeded to engage in a scheme of 

mail fraud, resulting in a 2004 Federal conviction and a sentence to an 

8-month term of imprisonment and the payment of $7,500 in restitution to his 

victims. 

Under the “first admission” approach, the alien described above would not 

be removable under section 237(a)(2)(A)(i), despite the fact that he committed 

his crimes immediately after his admission to the United States as an 

immigrant, because more than 5 years had elapsed since his first admission as 

a nonimmigrant in 1966. In the absence of clear congressional intent, we do 

not believe that section 237(a)(2)(A)(i) should be interpreted in a manner that 

would attach such disproportionate significance to long-past nonimmigrant 

admissions and that would so seriously undermine the deterrent effect of 

section 237(a)(2)(A)(i) as it relates to aliens with multiple admissions. 

Furthermore, focusing exclusively on an alien’s first admission would give 

rise to gratuitous distinctions among lawful permanent residents with respect 

to the applicability of section 237(a)(2)(A)(i). Lawful admission to permanent 

residence in the United States is an important event, signifying this country’s 

acceptance of the alien, and possibly his family, into our national community, 

potentially for the rest of his life, with all the rights, privileges, and 

responsibilities that it entails. It is no less significant that this event arises by 

means of adjustment of status than by arrival from abroad on an immigrant 

visa. Indeed, an alien who commits a crime involving moral turpitude within 

5 years after adjusting status has betrayed the trust of his national community 

and violated the immigration laws no less severely than an alien who 

committed the same crime less than 5 years after being admitted as a lawful 

permanent resident at the border. It is reasonable to believe that Congress 

intended section 237(a)(2)(A)(i) to be interpreted in a manner that would 

accord both aliens equal treatment under the law. Yet under the “first 

admission” approach espoused by the respondent, aliens who acquire lawful 

permanent residence by means of adjustment after a prior nonimmigrant 

admission would be significantly less likely than aliens admitted for the first 

time as immigrants to face removal due to crimes committed within 5 years 

after they acquired lawful permanent resident status. 

Finally, the approach espoused by the respondent is not consistent with the 

historical practice of this Board and the Federal courts under prior law. 

Current section 237(a)(2)(A)(i) of the Act is merely the most recent iteration 

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of a long-standing statutory provision, extending back to section 19 of the 

Immigration Act of February 5, 1917, 39 Stat. 874, which provides for the 

removal from the United States of aliens who have committed a single crime 

involving moral turpitude. The various statutory predecessors to section 

237(a)(2)(A)(i) have often been the subject of judicial and administrative 

interpretation, and a question raised and resolved relatively early in the 

provision’s history is essentially the same as that now before us, i.e., how to 

determine whether an alien, convicted of a single crime involving moral 

turpitude, committed his crime “prior to” or “within 5 years after” his entry 

where the alien in question “entered” on multiple occasions. 

In United States ex rel. Volpe v. Smith, 289 U.S. 422 (1933), a case 

involving interpretation of former section 19(a) of the 1917 Act, the United 

States Supreme Court was called upon to review a deportation order of the 

Department of Labor (“DOL”) that was issued against a native and citizen of 

Italy who was charged with having been convicted, “prior to entry,” of “a 

felony or other crime or misdemeanor involving moral turpitude.” The alien 

in Volpe had entered the United States for the first time in 1906 and had 

remained within the country continuously for several decades thereafter. In 

1925, he sustained a Federal conviction for counterfeiting United States 

obligations, a crime involving moral turpitude. Because the crime had been 

committed more than 5 years after what was then his only “entry” in 1906, the 

offense did not render him deportable. In 1928, however, the alien traveled 

abroad briefly and was readmitted to the United States. The DOL then sought 

to deport him as an alien convicted of a crime involving moral turpitude “prior 

to entry,” i.e., prior to his 1928 “entry.” The Supreme Court held that the 

alien was deportable as charged and that the term “entry,” as employed in 

former section 19(a), referred to any entry of the alien into the United States, 

whether it be the first or any subsequent one. Id. at 425-26. 

In light of the Supreme Court’s decision in Volpe, from our earliest days we 

have consistently held that the term “entry,” as employed in the various 

predecessor versions of current section 237(a)(2)(A)(i) of the Act, refers to 

any entry and is not restricted to either the first entry made by the alien, or to 

the last. See, e.g., Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980); Matter 

of Medina, 15 I&N Dec. 611, 614-15 (BIA 1976); Matter of M-S-, 9 I&N 

Dec. 643, 644 (BIA 1962); Matter of A-, 6 I&N Dec. 684 (BIA 1955); Matter 

of L-, 1 I&N Dec. 1 (BIA, A.G. 1940). The Federal courts of appeals have 

upheld this view. Munoz-Casarez v. INS, 511 F.2d 947 (9th Cir. 1975); 

United States ex rel. Circella v. Sahli, 216 F.2d 33 (7th Cir. 1954). Thus, 

although the meaning of the term “entry” has been modified throughout the 

years by various judicial decisions and statutory amendments, the basic 

premise of the Volpe decision, i.e., that a crime involving moral turpitude 

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committed either “prior to” or “within 5 years after” any entry would provide 

a basis for exclusion or deportation, has remained intact.5 

We recognize that the concept of “entry” has been superseded by the 

concept of “admission” pursuant to the Illegal Immigration Reform and 

Immigrant Responsibility Act of 1996, Div. C of Pub. L. No. 104-208, 

110 Stat. 3009-546 (“IIRIRA”). This change—one of both substance and 

nomenclature—is reflected in the language of current section 237(a)(2)(A)(i) 

of the Act, which now refers to crimes involving moral turpitude committed 

within 5 years after “the date of admission,” rather than within 5 years after 

“entry.”6 

While the concepts of “entry” and “admission” differ in important ways, 

many of which were discussed in Matter of Rosas, supra, none of these 

differences are germane to whether Congress intended to retain the substance 

of the “any entry” rule after the passage of the IIRIRA. This is so because the 

validity of the Volpe rule does not depend on the acceptance of any particular 

definition for the term “entry” or “admission.”7

 Rather, it is merely a 

procedural device for identifying the “date” of entry or admission in doubtful 

cases, and, as such, it may be applied regardless of the particular form of 

words used and regardless of the substantive meaning given to its 

referent—be it “entry” or “admission”—at any given time. 

5 We do not understand Congress’s occasional incorporation of the “any entry” concept in 

certain individual grounds of deportability to represent a disavowal of Volpe’s “any entry” 

rule in the crime involving moral turpitude context. See sections 237(a)(1)(E)(i), (G)(i) of 

the Act. For example, this Board and the Federal courts continued to follow Volpe long 

after the enactment of former section 241(c) of the Act, 8 U.S.C. § 1251(c) (1952), the 

statutory predecessor of current section 237(a)(1)(G)(i). 

6 Congress did not simply replace the term “entry” with the term “admission.” It chose 

instead to use the phrase “the date of admission.” Yet we find little significance in 

Congress’s addition of the words “the date of” preceding “admission.” It was no less 

important under prior law for an adjudicator to identify a particular date when seeking to 

ascertain, in retrospect, when the 5-year clock began to run under the predecessor versions 

of section 237(a)(2)(A)(i), since it is only by identifying such a specific date that one can 

determine with reliability whether the relevant event, i.e., the alien’s “entry” or “admission,” 

preceded the date of his commission of the crime by more or less than 5 years. 

7 Under the Volpe decision, for example, the term “entry” was interpreted very broadly to 

encompass any coming into the United States from abroad, voluntary or otherwise. See 

United States ex rel. Volpe, supra, at 425. Congress and the Supreme Court subsequently 

concluded that the term “entry” had a narrower meaning as applied to lawful permanent 

residents, who were not to be deemed to be seeking an entry if they were coming into the 

United States after a brief, casual, and innocent departure. See Immigration and Nationality 

Act of 1952, ch. 477, § 101(a)(13), 66 Stat. 163 (codified at 8 U.S.C. § 1101(a)(13) (1952)); 

Rosenberg v. Fleuti, 374 U.S. 449 (1963). Yet this rather fundamental change to the 

substantive meaning of the term “entry” had no effect on the validity of the “any entry” rule, 

because the applicability of that rule did not turn upon the meaning of the term “entry.” 

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Because there is nothing in the differences between “entry” and 

“admission” that would make application of the Volpe rule inappropriate to 

the latter, we conclude, in the absence of evidence that Congress intended a 

contrary result, that the “any entry” rule survived the amendments made by the 

IIRIRA. Thus, an alien may be rendered removable under section 

237(a)(2)(A)(i) based on a crime involving moral turpitude committed within 

5 years after any admission to the United States, whether it be the first or any 

subsequent admission. 

In conclusion, the language and purpose of Congress and the historical 

treatment of similar cases under prior law lead us to conclude that an alien 

convicted of an otherwise-qualifying crime involving moral turpitude that was 

committed within 5 years after the date of any of the alien’s admissions to the 

United States is removable under section 237(a)(2)(A)(i) of the Act. Applying 

this holding to the facts of the respondent’s case, we observe that his crimes 

were committed less than 5 years after his admission to lawful permanent 

residence on December 20, 1996. Therefore, we agree with the Immigration 

Judge that the respondent is removable as charged. 

B. Pretermission of the Respondent’s Application for 

Cancellation of Removal 

In addition to his challenge to the Immigration Judge’s finding of 

removability, the respondent contends that the Immigration Judge deprived 

him of his right to a full and fair hearing by refusing to adjudicate his 

application for cancellation of removal on grounds of untimeliness. We 

disagree. 

Applications for benefits under the Immigration and Nationality 

Act—including applications for cancellation of removal—are properly denied 

as abandoned when the applicant fails to file them in a timely manner. 

8 C.F.R. § 1003.31(c) (2003); Matter of R-R-, 20 I&N Dec. 547, 549 (BIA 

1992). In addition to the oral notices provided directly to the respondent by 

the court, the record contains a copy of a notice, dated June 24, 2002, issued 

by the Baltimore Immigration Court and directed to the respondent’s attorney, 

ordering the respondent to appear on January 22, 2003, for an “Individual 

Calendar” hearing on the merits of his case, rather than a preliminary “Master 

Calendar” hearing. This notice adequately informed the respondent and his 

counsel that the January 22, 2003, hearing would be for the purpose of 

receiving testimony on the merits of the respondent’s cancellation of removal 

application and for entry of appropriate orders by the Immigration Judge. The 

fact that the respondent appeared in court on January 22, 2003, with several 

potential witnesses strongly suggests that the respondent and counsel fully 

understood that the purpose of the hearing was to address the merits of his 

cancellation of removal application, rather than simply to accomplish the 

administrative act of submitting the application into the record. 

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The respondent did not submit his application for cancellation of removal 

in advance of his Individual Calendar hearing, as required by the Immigration 

Judge and the Local Operating Procedures of the Baltimore Immigration 

Court.8 Instead, he appeared on the date scheduled for the hearing and sought 

to have the application placed into the record for the first time. The 

Immigration Judge and counsel for the DHS could not have reviewed the 

application and all its attachments in sufficient detail on such short notice. 

Moreover, considering that approximately 6 months had passed since the 

respondent’s final Master Calendar hearing, it would not have been reasonable 

to expect the Immigration Judge to grant an adjournment. Under the 

circumstances, therefore, we agree that the respondent’s cancellation of 

removal application was not filed in a timely manner and that the Immigration 

Judge acted within the scope of her discretion when she deemed that 

application abandoned pursuant to 8 C.F.R. § 1003.31(c). 

IV. CONCLUSION 

In conclusion, we agree with the Immigration Judge that the respondent is 

removable from the United States as an alien convicted of a crime involving 

moral turpitude committed within 5 years after the date of his admission to the 

United States. Moreover, we find no reversible error in the Immigration 

Judge’s decision to pretermit the respondent’s untimely application for 

cancellation of removal on grounds of abandonment. Accordingly, the 

respondent’s appeal will be dismissed. 

ORDER: The appeal is dismissed. 

8 The recollection of both the Immigration Judge and trial counsel for the DHS was that the 

respondent’s cancellation of removal application was to be filed with the court by July 24, 

2002, many months before the date on which the application was actually submitted. 

Moreover, Procedure 5.B. of the Baltimore Local Operating Procedures, issued pursuant to 

8 C.F.R. § 3.40 (2002), makes clear that once an Individual Calendar hearing date has been 

set, “all proposed exhibits . . . must be filed with the Immigration Court no later than ten 

(10) calendar days prior to the scheduled Individual Calendar hearing.” Obviously, where 

the purpose of an Individual Calendar hearing is to adjudicate the merits of an application 

for cancellation of removal, the application itself is an important “exhibit” in support of the 

claim. 

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