Smith, Laurence L.

2 South Orange Street, Suite 215

Media, PA 19063
Name: GERMAN, ANTONY ARIEL
U.S. Department of Justice
Executive Ofce fr Immigation Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leesb11rg Pike, S11ite 2000
Fals Cl11rcl, Vrginia 22041
OHS LIT.Nork Co. PrisonNOR
3400 Concord Road
York, PA 17402
A099-232-178
Date of this notice: 2/22/2011
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
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Anthony Ariel German, A099 232 178 (BIA Feb. 22, 2011)
For more unpublished BIA decisions, visit www.irac.net/unpublished
GERMAN, ANTONY ARIEL
(A099 232 178)
175 PIKE COUNTY BOULEVARD
LORDS VALLEY, PA 18428
Name: GERMAN, ANTONY ARIEL
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leesb11rg Pike, S11ile 2000
Fals C/111rc1, Vrinia 22041
OHS LIT./York Co. Prison/YOR
3400 Concord Road
York, PA 17402
A099-232178
Date of this notice: 2/22/2011
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been sered with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be removed
from the United States or afirms an Immigration Judge's decision ordering that you be
removed, any petition for review of the attached decision must be filed with and received by the
appropriate cour of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Pauley, Roger
Sincerelv.
DO C
Donna Car
Chief Clerk
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Anthony Ariel German, A099 232 178 (BIA Feb. 22, 2011)
'U.S. Depaent of Justice
Executive Ofce fr Imigation Review
Decision of the Board of Imigation Appeals
Falls Church, Virginia 22041
File: A099 232 178 - York, PA Date:
In re: ANTONY ARIEL GERMAN a.k.a. Anthony Genan
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Laurence L. Smith, Esquire
ON BEHALF OF DHS:
CHARGES:
Jefrey Bubier
Senior Attorey
FEB 2 2 2011
Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -
Convicted of aggavated flony (dismissed)
Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -
Convicted of aggavated flony (dismissed)
Sec. 237(a)(2)(A)(i), l&N Act [8 U.S.C. 1227(a)(2)(A)(i)] -
Convicted of crime involving moral turpitude
APPLICATION: Tenination
The Deparent of Homeland Security ("DHS") appeals the Immigration Judge' s November 2,
2010, decision to grant the respondent's motion to teninate proceedings. The appeal will be
dismissed.
The respondent is a native and citizen of the Dominican Republic. The record indicates that the
respondent was admitted to the United States as a nonimmigrant on August 5, 2001, and that he
adjusted his status to that of lawfl penaent resident on October 18, 2005. The record frther
indicates that the respondent was convicted of two thef ofenses on September 14, 2009. Based on
these convictions, the DHS charged the respondent as removable under section 237(a)(2)(A)(iii) of
the Act, 8 U.S.C. 1227(a)(2)(A)(iii), as having been convicted of an aggravated felony as defned
in sections IOI(a)(43)(G) and (U). 8 U.S.C. l IOI(a)(43)(G) and (. The Immigation Judge
dismissed these charges afer the respondent's sentence was vacated, and the tial court imposed a
new sentence of less than I year (DHS Br. at 2; Respondent's Br. at 1; Respondent's Motion to
Teninate, fled May 27, 2010, at 2, Tab C; Tr. at 10, 22, 24-25). The thef ofenses also fned the
basis fr the charge under section 237(a)(2)(A)(i) of the Act as an alien convicted of a crime
involving moral trpitude committed within 5 years afer admission fr which a sentence of 1 year
or longer may be imposed.
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Anthony Ariel German, A099 232 178 (BIA Feb. 22, 2011)
.
A099 232 l 7S
In granting the respondent's motion to terinate proceedings, the Immigration Judge considered
the applicability of Matter ofShanu, 23 l&N Dec. 754 (BIA 2005). In Matter ofShanu, supra, we
held frst, that the ter "admission" in section 237(a)(2)(A)(i) of the Act refered to adjustment of
status as well as admission at the border; and second, that an alien's conviction fr a crime involving
moral turpitude supported removal under that section as long as the crime was committed within
5 yeas afer the date of any admission made by the alien. The Immigation Judge determined that
Matter of Shanu, supra, was not precedential Board authority because the United States Cour of
Appeals fr the Fourh Circuit had overuled the holding in that case, notwithstanding that the
respondent's case arose under the jurisdiction of the United States Court of Appeals fr the Tird
Circuit (1.J. at 2). The Immigation Judge also noted that the DHS had requested the Board to
reconsider its holding in Matter of Shanu in another case then pending befre the Board (l.J. at 1,
2).
Afer the Immigration Judge's decision in the respondent's case, we issued Matter of Alyazji,
25 I&N Dec. 397 (BIA 2011), in which we overuled the second holding in Matter ofShanu, supra.
Specifcally, we held that an alien is deportable under section 237(a)(2)(A)(i) of the Act if he (1) is
convicted of a crime involving moral turpitude that was punishable by a ter of imprisonment of
at least I year; and (2) was, on the date of the commission of that crime, present in the United States
pursuant to an admission that occured not more than 5 years earlier. Matter of Alyazji, supra, at
408. We also explained that a new admission fom inside the United States, e.g., an adjustment of
status, does not reset the 5-year clock because such admission merely extends or reauthorizes an
alien's already existing presence. Matter of Alyaji, supra, at 406-407, 408.
Applying Matter of Alyaji, supra, to the respondent's case, we conclude that the respondent is
not removable under section 237(a)(2)(A)(i) of the Act. When the respondent committed his crime
involving moral turpitude in 2009, he was in the United States pursuant to his 2001 admission as a
nonimmigrant. Thus, because he committed his ofense more than 5 years afer that date of
admission, he is not deportable. See Matter of Alyazji, supra, at 408.
Accordingly, the fllowing order will be entered.
ORDER: The appeal is dismissed.
4 FOR TE BOARD
2
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Anthony Ariel German, A099 232 178 (BIA Feb. 22, 2011)
'
-
/ \,
UITED STATES DEPATMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRTION COURT
Laurence L. Smith, Esq.
2 South Orange Street, #215
Media, PA 19063
IN THE MTTER OF
,GER, ATONY AIEL
3400 CONCORD ROA, SUITE 2
YORK, PA 17402
FILE A 099-232-178
UALE TO FORWARD - NO ADRESS PROVIDED
DATE: Nov 2, 2010
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUGE. THIS DECISION
IS FINAL ULESS A APPEAL IS FILED WITH THE BOARD OF IMMIGRTION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AD INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS
'
OFFICE OF THE CLERK
P.O. BOX 8530
FALLS CHURCH, VA 22041
' .
.
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRTION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDACE
WITH SECTION 242B(c) (3) OF THE IMMIGRATION 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 REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
X OTHER: .r {fd er.
IMMIGRATION COURT
3400 CONCORD ROA, SUITE 2
YORK, PA 17402
COURT CLERK
IMMIGRATION COURT
CC: DISTRICT COSEL, C/0 YORK PRISON
3400 CONCORD ROA
YORK, PA, 174020000
FF
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
IMMIGRATION COURT
3400 CONCORD ROA, SUITE 2
YORK, PA 17402
In the Matter of
Case No.: A099-232-178
IN REMOVAL PROCEEDINGS
2O' OF THE
This is a summary .f thel decision ent
.C/ t
This memorandum is solely for the
proceedings should be appealed or reopened, the oral will become
the official opinion in the case.
( ) The respondent was ordered removed from the United States to
or in the alternative to .
Respondent's application for voluntary departure was denied and
respondent was ordered removed to or in the
alternative to .
Respondent's application for voluntary departure was granted until
upon posting a bond in the amount of $
with an alternate order of removal to .
Respondent's application for:
[ J Asylum was ( )granted )denied( )withdrawn.
[ ) Withholding of removal was )granted ( )denied )withdrawn.
[ J
A Waiver under Section was ( )granted ( )denied )withdrawn.
( ] Cancellation of removal under section 240A{a) was ( )granted )denied
( )withdrawn.
Respondent's application for:
(
[
[
(
Cancellation under section 240A(b) (1) was ( granted ) denied
( ) withdrawn. If granted, it is ordered that the respondent be issued
all appropriate documents necessary to give effect to this order.
Cancellation under section 240A(b) (2) was ( )granted ( )denied
( )withdrawn. If granted it is ordered that the respondent be issued
all appropriated documents necessary to give effect to this order.
Adjustment of Status under Section was ( )granted ( )denied
( )withdrawn. If granted it is ordered that the respondent be issued
all appropriated documents necessary to give effect to this order.
Respondent's application of ( ) withholding of removal ( ) deferral of
removal under Article III of the Convention Against Torture was
( ) granted ( ) denied ( ) withdrawn.
Respondent's status was rescinded under section 246.
Respondent is admitted to the United States as a until
As a condition of admission, respondent is to post a $ bond.
Respondent knowingly filed a frivolous asylum application after proper
notice.
Respondent was advised of the limitation on discretionary relief for
failure to appear as ordered in the Immigration Judge's oral decision.
Proceedings were terminated.
Other:
Date: Nov 2, 2010
Immigration Judge
Appeal: Waivppeal Due By:
/
- 0 / <
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
UNITED ST ATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRTION REVIEW
UNITED STATES IMMIGRTION COURT
YORK, PENNSYLVANIA
IN THE MATTER OF:
GERMAN, Anthony
Respondent
) IN REMOVAL PROCEEDINGS
)
l
File # A 099-232-178
)
)
l
ON BEHALF OF RESPONDENT:
Laurence Smith, Esq.
Motion: Terination of Proceedings
ON BEHALF OF THE OHS
Jefrey Bubier
Senior Attorey
Respondent, through counsel, seeks termination of proceedings. The motion will be gted.
On June 8, 20 I 0, this court issued a written interlocutor ruling denying respondent's motion
to terminate proceedings. Therein the court defred to the Board to resolve the issue of whether
an alien who was lawflly admitted in a non-immigrant status and who then adjusted status to lawfl
permanent residence was "admited" upon his adjustment of status.
Subsequently, the court was apprised that the goverent has asked the Boad to reconsider
its rling in Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), vacated, Aremu v. Deparment of
Homeland Securit, 450 F.3d 578 (41h Cir. 2006). Thereafer the court requested the goverent
to provide clarity of its position in this regard. A response was fled on June 22, 2010. At this
juncture, the court is lef to ponder how the Board will respond to the goverent's request in In re
Alla A. Alyazi, A 096-206-662, which has been pending since April 2010.
While the court would ordinarily await a Board's expected published decision that would
most likely have a direct impact on a case at hand, this respondent's case has been pending since
November 2009 when the Notice to Appear, Form 1-862, was sered on the court. Moreover,
respondent has been detained since that time. It is fr these reasons that a fnal rling in this matter
is warranted.
In his original motion, respondent argued that his September 14, 2009, conviction, while a
morally turitudinous ofense, occurred more than fve years subsequent to his admission on a V-2
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
non-immigrant visa in August 2001, 1 and as such, it cannot fr the basis fr a gound of removal,
necessitating terination of proceedings. The goverent responded that the court is bound by
Matter of Shanu, supra, until such time as the Board rules otherise.
The recent decision in Matter of Kolienovic, 25 I&N Dec. 219 (BIA 2010), is not contolling
in this mater. There, the Board held that an alien who entered the United States without inspection
and later obtained lawfl permanent residence through adjustment of status has '"previously been
admitted to the United States as an alien lawflly admitted fr peranent residence' and must
therefre satisf the 7-year continuous residence requirement of section 212(h) of the Immigation
and Nationality Act, 8 U.S.C. 1182(h) (2006), to be eligible fr a waiver of inadmissibility."
However, the Board recognized in Kolienovic that the Fifh Circuit in Martinez v. Mukasey,
519 F.3d 532 ('"Cir. 2008),2 viewed matters diferently, at least in relation to an alien who was
initially admitted as a visitor ad then later adjusted status to lawfl peraent resident. Id. at 223.
This respondent, too, was previously admitted in a lawfl status and remained in such lawfl status
until such time that he adjusted status to lawfl peranent resident. As the Fifh Circuit stesses,
Congess specifcally defned the ter admission under INA 101(a)(l 3)(A}, and it was not fr the
couts to resolve "lingering ambiguities" within other parts of the INA as to how such ter is to be
employed. id. At 44-4.
With respect, because the court does not view Matter of Shanu, supra, as precedential Boad
authority given that the 4'" Circuit Court of Appeals overtured the ruling, and because the
goverent is requesting the Board to align with the various federal circuits on the issue of
admission vs adustment, the court believes it prudent to conclude this case. The fllowing order
is hereby entered.

OKOLK: Respondent's motion to terinate proceedings is granted.
November 2, 2010
Walter A. Durling
Immigration Judge
1 Due to respondent receiving a sentence reduction fr this ofense, it was removed fom the aggravated
felony category.
2 See also Abdelgadar v. Gonzalez, 413 F.3d 668 (7'h Cir. 2005); Shivaraman v. Ashcrof, 360 F.3d 1142
(9'h Cir. 2004); Marinez v. Mukasey, supra.
2
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t