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US Immigration
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Posted 11/13/2008 |
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LEGAL NOTES /
By REUBEN SEGURITAN |
Alien Cant be Deported After 5 Years From Fraudulent Adjustment
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The U.S. Court of Appeals for the Third Circuit ruled on October
28, 2008 that an alien who was erroneously granted adjustment of
status cannot be deported because the government took more than
five years to start deportation proceedings against her.
The court noted that the five-year statute of limitations on
rescission as provided for under the Immigration and Nationality
Act was also applicable to removal proceedings even after the
specific provision of that law was subsequently amended.
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In this case the alien, Rosalba Garcia, filed an adjustment of
status application in 1996 claiming that she was the unmarried
child of a U.S. citizen. Garcia knew that the petitioner was not
her biological or legal mother but she filed her application
anyway.
In September 1996 the then Immigration and Naturalization
Service (INS) approved the application and granted her a green
card.
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It turned out that her mother had previously filed multiple
I-130 relative petitions but were either rejected or denied as
she was unable to prove that Garcia was her child.
She had filed one in September 1993 which was approved in
January 1994 but rescinded in August 1995. An earlier
application was also rescinded in 1988. Another petition was
filed in 1995 but was denied in September 1996.
The Department of Homeland Security (DHS) which took
over the functions of the INS did not realize its mistake until
2004 when Garcia applied to become a U.S. citizen. It started
removal proceedings in 2005 alleging that Garcia was ineligible
for adjustment of status in 1996 because of her
misrepresentation.
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An immigration judge ordered her removed from the U.S.
and the Board of Immigration Appeals (BIA) affirmed the
judge’s order. Garcia petitioned the Court of Appeals to
review the BIA decision.
In her petition, Garcia argued that the DHS was barred
from initiating removal proceedings based on the
fraudulent application because five years had already
elapsed since her adjustment.
She cited the case of Bamidele in support of her
petition for review. Bamidele had obtained an adjustment
of status through a sham marriage but the same Court of
Appeals vacated the deportation order because the DHS
waited five years before commencing to deport him.
The court in that case said that the INS was barred from
rescinding his adjustment by the five-year statute of
limitations.
The DHS argued that the Bamidele case was not applicable
because the law was amended by the Illegal Immigration
Reform and Immigrant Responsibility Act (IIRAIRA) which
took effect in April 1997 after the Bamidele case was
decided. The DHS said that the five (5) year limitation
no longer applied to removal proceedings.
The BIA in its decision stated that when an adjustment
of status is granted by mistake, the DHS may either file
rescission proceedings if it becomes aware of such
mistake within five years or start deportation
proceedings anytime, even after five years.
The Court, however, disagreed with the DHS and the BIA
and ruled that the statutory revision did not undercut
its holding in Bamidele. The five-year limitation
applied both to rescission and deportation, the court
concluded.
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REUBEN S. SEGURITAN
has been practicing law for
over 30 years. He was former immigration editor and is author of a
book on immigrant experiences. He frequently speaks on immigrant
issues and for his advocacy efforts he was the recipient of two
presidential awards by President Ramos and an award by the
Commission on Filipinos Overseas. He previously taught business law
and international politics. For further information, you may call
him at 212 695 5281 or log on to his website at www.seguritan.com |
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