Wednesday, October 29, 2008

Garcia: DHS Must Rescind LPR Status Within 5 Years For Fraud

Garcia v. Mukasey
No. 07-2164
[originally October 28, 2008 in]
Reissued on January 14, 2009 at
Judges McKee, Fuentes, and Weis
Decision by Judge Weis. Dissent by Fuentes.

If the immigration authorities know the facts that seem to demonstrate someone does not qualify for legal permanent residence status (LPR status), then the government must try to revoke LPR status within 5 years of when the person obtains LPR status. DHS is not allowed to start a removal proceeding and skip the step of bringing a timely revocation proceeding. If it's too late to bring a revocation proceeding, then DHS cannot try to deport the person based only on the facts they had known about all along.

Here, the immigration authorities knew for a long time about facts suggesting someone did not qualify for LPR status. The immigration authorities had already rejected a prior application and twice revoked initial approvals, so it was clear they already knew the facts that tended to show the person did not qualify. For some odd reason, though, they did not act within 5 years of the last approval of LPR status and tried to get the job done by starting removal proceedings and ignoring the step of a belated revocation proceeding.

The Third Circuit read the statute that imposes a statute of limitations of five years and stuck to its decision in Bamidele v. INS, 99 F.3d 557 (3d Cir. 1996) that letting DHS ignore the five-year limit in INA 246(a) by commencing removal proceedings to achieve the same result would write out of existence any purpose of the five-year limitation.

Because DHS does not have particular expertise on interpreting a statute of limitation, the Third Circuit gives no deference to the BIA's interpretation. Even though a post-1996 change permits deportation through removal proceedings as opposed to revoking LPR status, that did not attempt to change the five-year limit so in order to respect that phrase in the law, the Third Circuit imposes the five-year limit.

The Third Circuit points out there is a circuit split because its view differs from the Fourth Circuit and Ninth Circuit in various ways. It closed by granting the petition for review and sending the case down for further proceedings. The Third Circuit concluded that the unnamed Immigration Judge and the BIA were wrong on the law.


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