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US Immigration

Posted 11/13/2008

Alien Cant be Deported After 5 Years From Fraudulent Adjustment

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.
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.

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She had filed one in September 1993 which was approved in January 1994 but rescinded in August 1995. An earlier application was also rescinded in 1988.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.

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.

has been practicing law for over 30 years and is included in the Marquis Who’s Who in American Law. A former law editor and professor, he is also the author of a book on immigrant experiences. He has spoken in international and national conventions and has been interviewed on radio and television, including the ABC Nightly News. He has participated in meetings with White House staff and the Immigration Commissioner to discuss immigration reforms. For his community service and advocacy, he has received numerous awards in the U.S. and abroad. For more information, you may log on to his website at or call (212) 695-5281
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