CRUZ DE ORTIZ, 25 I&N Dec. 601 (BIA 2011)

Cite as 25 I&N Dec. 601 (BIA 2011) Interim Decision #3728
Matter of Paula CRUZ DE ORTIZ, Respondent
Decided September 20, 2011
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Because section 246(a) of the Immigration and Nationality Act, 8 U.S.C. § 1256(a) (2006),
relates only to proceedings to rescind lawful permanent resident status acquired through
adjustment of status, the 5-year statute of limitations in that section is not applicable to bar
the removal of an alien who was admitted to the United States with an immigrant visa.
Garcia v. Attorney General of the United States, 553 F.3d 724 (3d Cir. 2009), distinguished.
FOR RESPONDENT: Cecilia Rodriguez, Esquire, New York, New York
Chief Counsel
BEFORE: Board Panel: COLE, PAULEY, and WENDTLAND, Board Members.
PAULEY, Board Member:
In a decision dated June 4, 2010, an Immigration Judge terminated the
removal proceedings against the respondent, finding that she was not
removable because her lawful permanent resident status had not been
rescinded pursuant to section 246(a) of the Immigration and Nationality Act,
8 U.S.C. § 1256(a) (2006), within 5 years of her admission. The Department
of Homeland Security (“DHS”) has appealed from that decision. The appeal
will be sustained and the record will be remanded to the Immigration Judge.
The respondent is a native and citizen of the Dominican Republic.
On November 9, 1989, she was convicted in the United States District Court
for the District of Puerto Rico of using an altered passport to gain entry into
the United States in violation of 18 U.S.C. § 1543 (1988). In a decision dated
November 14, 1989, an Immigration Judge ordered the respondent excluded
from the United States, and she was deported the same day.
Subsequently, the respondent was admitted to the United States
as a conditional lawful permanent resident when she arrived in Newark,
New Jersey, on February 9, 1995. The conditional basis of her residence wasCite as 25 I&N Dec. 601 (BIA 2011) Interim Decision #3728
removed on December 30, 1996, upon the approval of her Petition to Remove
Conditions on Residence (Form I-751).
On June 27, 2009, the DHS issued a Notice to Appear (Form I-862)
charging that the respondent was removable under section 237(a)(1)(A) of the
Act, 8 U.S.C. § 1227(a)(1)(A) (2006), as an alien who was inadmissible at the
time of entry under sections 212(a)(2)(A)(i)(I), (6)(C)(i), and (7)(A)(i)(I)
of the Act, 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), (6)(C)(i), and (7)(A)(i)(I) (2006).
According to the Notice to Appear, the respondent was inadmissible when she
was admitted in 1995 because she had been convicted of a crime involving
moral turpitude, she procured her admission as a conditional lawful permanent
resident by fraud or willful misrepresentation by failing to disclose her
attempted unlawful entry with an altered document and her subsequent
conviction, and she therefore had no valid entry document.
At a hearing before the Immigration Judge, the respondent admitted the
factual allegations and conceded the charges in the Notice to Appear.
However, she filed a motion to terminate the proceedings based on the
decision of the United States Court of Appeals for the Third Circuit in Garcia
v. Attorney General of the United States, 553 F.3d 724 (3d Cir. 2009). The
DHS opposed the motion, arguing that the provisions for rescission of lawful
permanent resident status in section 246(a) of the Act are only applicable
to aliens who acquired that status through the process of adjustment. The
Immigration Judge disagreed and terminated the proceedings.
Section 246(a) of the Act, which is entitled “Rescission of Adjustment
of Status,” currently provides, in pertinent part, as follows:
If, at any time within five years after the status of a person has been otherwise
adjusted under the provisions of section 245 or 249 of this Act or any other
provision of law to that of an alien lawfully admitted for permanent residence,
it shall appear to the satisfaction of the Attorney General that the person was not
in fact eligible for such adjustment of status, the Attorney General shall rescind the
action taken granting an adjustment of status. . . . Nothing in this subsection shall
require the Attorney General to rescind the alien’s status prior to commencement
of procedures to remove the alien under section 240, and an order of removal
issued by an immigration judge shall be sufficient to rescind the alien’s status.
(Emphasis added.) The DHS argues on appeal that these provisions for
rescission of adjustment of status are inapplicable in the respondent’s case
because she was admitted to the United States from abroad as a conditional
lawful permanent resident, rather than acquiring that status through
adjustment. For the same reason, the DHS contends that the Third Circuit’sCite as 25 I&N Dec. 601 (BIA 2011) Interim Decision #3728
1 The dissenting opinion concluded that under a plain reading of the statute, the 5-year bar
was “meant to apply only to rescission proceedings,” which “have no bearing on the
Attorney General’s authority to commence a removal action.” Garcia v. Att’y Gen. of the
U.S., 553 F.3d at 730 (Fuentes, J., dissenting). Regarding the amendment to section 246(a),
the dissent stated that “Congress’s grant of permission to substitute a removal proceeding
for removal and rescission suggests that the more extensive procedural protections associated
with removal render the less formal step of rescission unnecessary.” Id. at 731. It further
noted that the court’s adherence to Bamidele placed it “out of step with every other circuit
to address § 246(a), both before and after the 1996 amendment.” Id. (citing Savoury v. Att’y
Gen., 449 F.3d 1307 (11th Cir. 2006); Asika v. Ashcroft, 362 F.3d 264 (4th Cir. 2004); Choe
v. INS, 11 F.3d 925 (9th Cir. 1993)); see also Matter of Belenzo, 17 I&N Dec. 374, 383 (BIA
1980; BIA, A.G. 1981) (“Under the plain terms of the Act, there is no statute of limitations
for deportation and the 5-year period of [section 246] is, by its own terms, applicable only
to rescission.”); Matter of S-, 9 I&N Dec. 548 (BIA 1961, 1962; A.G. 1962) (finding
no indication that Congress intended to afford the advantage of a statute of limitations
on exclusion or deportation forthose who wrongly acquired lawful permanentresidentstatus
through adjustment). Since Garcia was issued, two more circuits have disagreed with the
Third Circuit’s position regarding the applicability of the statute of limitations in removal
proceedings. Stolaj v. Holder, 577 F.3d 651 (6th Cir. 2009); Kim v. Holder, 560 F.3d 833
(8th Cir. 2009); see also Matter of D-R-, 25 I&N Dec. 445, 463 (BIA 2011) (noting the
longstanding view that removal and rescission proceedings are distinct and finding that
Congress’ amendment to section 246(a) of the Act clarified that it is not necessary to rescind
the status of a lawful permanent resident prior to the commencement of removal
proceedings). While we are bound in the Third Circuit by its holding in Garcia, we note our
decision in Garcia is not controlling. We review this question of law de novo
and agree with the DHS.
In Garcia, the Third Circuit found that it was bound by its precedential
opinion in Bamidele v. INS, 99 F.3d 557 (3d Cir. 1996), which held that the
5-year statute of limitations on initiating proceedings to rescind adjustment
ofstatusin section 246(a) of the Act extendsto deportation proceedings where
the grounds of deportability are based on the alien’sfraud or misrepresentation
in obtaining adjustment of status. The Garcia court noted our finding in that
case that Bamidele was inapplicable because the 1996 amendment to section
246(a), which added the final sentence of the current provision, separated
rescission and removal proceedings and thereby clarified that the 5-year
limitation only applies to rescission, thus giving the DHS the option to choose
which type of proceeding to initiate if the fraud in adjustment was discovered
within 5 years. Garcia v. Att’y Gen. of the U.S., 553 F.3d at 727; see also
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Div.
C of Pub. L. No. 104-208, § 378(a), 110 Stat. 3009-546, 3009-649. Over
a dissent, the court found that the amendment did not alter its holding
in Bamidele because the language regarding the 5-year statute of limitations
remained in the statute.1
However, both Garcia and Bamidele involved aliensCite as 25 I&N Dec. 601 (BIA 2011) Interim Decision #3728
agreement with the dissenting opinion that the 5-year bar is only relevant in rescission
proceedings and has no applicability to removal proceedings.
who adjusted their status, and the court gave no indication that section 246(a)
of the Act applies to an alien, such as the respondent, who was admitted
as a lawful permanent resident from abroad and whose status was therefore
never adjusted.
We disagree with the respondent’s contention that section 246(a) of the Act
encompasses aliens who were admitted to the United States as permanent
residents, and we therefore find the Third Circuit’s decision in Garcia
inapplicable to her situation. The respondent conceded that she was admitted
as a conditional lawful permanent resident when she arrived in Newark,
New Jersey, on February 9, 1995. The plain language of section 246(a) of the
Act makes that section applicable only to cases that involve “adjustment
of status,” a subset of the concept of “admission.” Matter of Briones, 24 I&N
Dec. 355, 361 (BIA 2007) (stating that in questions ofstatutory interpretation,
the “touchstone of our analysisisthe plain language of the statute”). We have
held that adjustment of status can be treated as an “admission” and that aliens
who have adjusted their status are assimilated to the same status as those who
have been admitted at the border with an immigrant visa. See Matter
of Alyazji, 25 I&N Dec. 397, 399-404 (BIA 2011). However, contrary to the
respondent’s assertion, the converse is not true. Therefore, section 246(a) of
the Act—which addresses adjustment but not admission—is not applicable in
this case, because the respondent was admitted in, but not adjusted to, lawful
permanent resident status.
We are also not persuaded by the respondent’s assertion that the phrase
“otherwise adjusted under . . . any other provision of law” in section 246(a)
of the Act indicates that its provisions are applicable to aliens, such as the
respondent, who acquired lawful permanent resident status through consular
processing and admission from abroad. That language clearly refers to other
sections of law that address adjustment of status, such as sections 209(b) and
240A(b)(1) and (2)(A) of the Act, 8 U.S.C. §§ 1159(b) and 1229b(b)(1) and
(2)(A) (2006), which also provide procedures for certain aliens to “adjust
to the status of an alien lawfully admitted for permanent residence.”
Moreover, sections 221 and 222 of the Act, 8 U.S.C. §§ 1201 and 1202 (2006),
which, as noted by the respondent, relate to the process for obtaining
an immigrant visa to acquire lawful permanent residence, do not mention
adjustment of status. See section 221(a)(1) of the Act (providing that
“a consular officer may issue . . . to an immigrant who has made properCite as 25 I&N Dec. 601 (BIA 2011) Interim Decision #3728
2 We recognize that section 249 of the Act, 8 U.S.C. § 1259 (2006), which is expressly
referenced in section 246(a), likewise does not use the terminology of “adjustment.” But
section 249 requires a prior entry into the United States, followed by a lengthy period
of continuous residence, such that the “record of lawful admission for permanent residence”
made pursuant to that section is analogous to an adjustment of status and not like
an immigrant visa with which an alien enters the United States as a permanent resident from
application therefor, an immigrant visa”).2
Moreover, because issuance
of an immigrant visa through consular processing is not a form of adjustment,
sections 221 and 222 are not provisions under which an alien may be
“otherwise adjusted.”
Finally, unlike the Immigration Judge, we do not consider whether,
on equal protection grounds, section 246(a) must be applied to aliens admitted
to the United States in lawful permanent resident status, an issue arising only
because of the Third Circuit’s interpretation in Garcia and Bamidele.
It is clear that neither we nor the Immigration Judges have authority to rule on
the constitutionality of the statutes we administer. See Matter of D-R-, 25 I&N
Dec. 445, 456 (BIA 2011); Matter of Gonzalez-Camarillo, 21 I&N Dec. 937,
940-42 (BIA 1997) (holding that we would not addressthe respondent’s equal
protection argument because we lack jurisdiction to consider the
constitutionality of the Act); Matter of Cenatice, 16 I&N Dec. 162, 166 (BIA
The respondent was admitted to the United States with an immigrant visa
from abroad and therefore did not adjust her status. Under the plain language
of the statute, section 246(a) of the Act does not apply in her case.
Accordingly, the DHS’s appeal will be sustained. However, the record will
be remanded to give the respondent an opportunity to apply for any relief for
which she may be eligible.
ORDER: The appeal of the Department of Homeland Security is
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.