SHANU

Cite as 

 (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, 

(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, 

(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,

 (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

                                            754
Cite as 

 (BIA 2005)                                Interim Decision #3513



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, 

 (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, 

 (1951).

                                           755
Cite as 

 (BIA 2005)                       Interim Decision #3513



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, 

(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, 

(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

                                     756
Cite as 

 (BIA 2005)                                Interim Decision #3513



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, 

(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, 

(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.

                                           757
Cite as 

 (BIA 2005)                               Interim Decision #3513



   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.” 

(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, 

 (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, 

 Stat. 1796, 2026 (effective Sept. 13,
1994).


                                          758
Cite as 

 (BIA 2005)                        Interim Decision #3513



   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., 

 (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 

(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



                                      759
Cite as 

 (BIA 2005)                                 Interim Decision #3513



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

(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

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. 

(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,

 (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. 

(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 

 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.

                                            760
Cite as 

 (BIA 2005)                           Interim Decision #3513



    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


                                        761
Cite as 

 (BIA 2005)                         Interim Decision #3513



of a long-standing statutory provision, extending back to section 19 of the
Immigration Act of February 5, 1917, 

, 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, 

 (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. 

.
   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, 

 (BIA 1980); Matter
of Medina, 

 (BIA 1976); Matter of M-S-, 

 (BIA 1962); Matter of A-, 

 (BIA 1955); Matter
of L-, 

 (BIA, A.G. 1940). The Federal courts of appeals have
upheld this view. Munoz-Casarez v. INS, 

 (9th Cir. 1975);
United States ex rel. Circella v. Sahli, 

 (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




                                       762
Cite as 

 (BIA 2005)                                   Interim Decision #3513



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 

 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, 

(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. 

. 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), 

 (codified at 

(a)(13) (1952));
Rosenberg v. Fleuti, 

 (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.”

                                             763
Cite as 

 (BIA 2005)                        Interim Decision #3513



   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.

(c) (2003); Matter of R-R-, 

 (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.

                                      764
Cite as 

 (BIA 2005)                                   Interim Decision #3513



   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 

(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

 (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.


                                             765