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Garcia v. Attorney General of the United States

January 14, 2009

ROSALBA ROA GARCIA, PETITIONER
v.
ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT



ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS (BIA No. A74-872-805).

The opinion of the court was delivered by: Weis, Circuit Judge.

PRECEDENTIAL

Argued July 24, 2008

Before: McKEE, FUENTES, and WEIS, Circuit Judges.

OPINION

In this immigration case, the Department of Homeland Security*fn1 seeks to deport an alien based on misrepresentations she made in applying for an adjustment of status more than five years previously. We conclude that a subsequent amendment to the statute did not negate our earlier precedent that the government was required to rescind and begin deportation within five years. Accordingly, we will grant the petition for review.

Appellant Rosalba Roa Garcia is a native and citizen of the Dominican Republic. In 1996, when she was almost twenty-three years old, Garcia filed a Form I-485 application for adjustment to permanent resident status, asserting she was an unmarried adult child of Dinora Altagracia Landestoy, a United States citizen. At the time she filed the application, Garcia knew that Landestoy was not her biological or legal mother. In September 1996, immigration authorities approved the application and granted Garcia lawful permanent residence status.

Landestoy had filed multiple prior unsuccessful petitions on Garcia's behalf, including one in September 1993 that was approved in January 1994, but then rescinded in August 1995 after an investigation determined that Landestoy was not her mother. The notice of intent to revoke that petition referred to an earlier application that was rescinded in 1988 on the same basis. Landestoy filed another petition in 1995 that was denied in September 1996 because she did not prove that Garcia was her child.

Despite the multiple rejected applications, the DHS did not realize until 2004, when Garcia filed an application for naturalization, that she was ineligible for the adjustment of status she received in 1996. In 2005, the DHS began removal proceedings charging Garcia with being removable under INA § 237(a)(1)(A), 8 U.S.C. §1227(a)(1)(A), because she was inadmissible at time of entry or adjustment of status under INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182 212(a)(7)(A)(i)(I), as an alien not in possession of a valid immigrant visa or entry document, and under INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), as an alien who attempted to procure a visa, other documentation, or admission into the United States through fraud or willful misrepresentation of a material fact.

An immigration judgeordered Garcia removed on the charged grounds, and the BIA affirmed. She has now petitioned this Court for review. Garcia contends that the five-year limitation in INA §246(a), 8 U.S.C. § 1256(a), barred the DHS from commencing removal proceedings against her based on her fraudulent 1996 application. She argues that Bamidele v. Immigration & Naturalization Service, 99 F.3d 557 (3d Cir. 1996), supports her position.

In Bamidele, this Court vacated a final order of deportation where an alien had obtained an adjustment of status through a sham marriage. Id. at 558. Although it discovered that Bamidele's marriage was a fraud, the DHS waited five years to begin deportation proceedings. Id. at 559.

We concluded, "the running of the limitation period bars the rescission of Bamidele's permanent resident status and, in the absence of the commission of any other offense, thereby bars initiation of deportation proceedings in this case." Id. at 563. We reasoned furtherthat, "[i]t defies logic to say that facts known to the INS within five years of Bamidele's adjustment of status and which would form the basis of a rescission action (had the INS taken timely action) should also empower the INS to deport Bamidele." Id. at 564. Allowing deportation in such circumstances would "effectively read § 246(a) out of existence." Id. at 562.

When we decided Bamidele, § 246(a) read in pertinent part:

"If, at any time within five years after the status of a person has been otherwise adjusted under the provisions of section 1255 or 1259 of this title 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 to such person and canceling deportation in the case of such person if that occurred and the person shall thereupon be subject to all provisions of this chapter to the same extent as if the adjustment of status had not been made."

8 U.S.C. § 1256(a) (1996), amended by 8 U.S.C. § 1256(a) (Supp. 1996).

After this Court decided Bamidele, Congress added the following language to the end of ยง 246(a) as part of an extensive ...


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