Adams v. Holder
692 F.3d 91
| 2d Cir. | 2012Background
- Adams, a Jamaican citizen, fraudulently obtained an immigrant visa in 1997 and entered the United States as a lawful permanent resident.
- Adams was later found removable based on his fraudulently obtained visa, leading to a 2010 Board of Immigration Appeals decision ordering removal.
- Adams contends §1256(a) of the INA bars removal because he was the beneficiary of an adjustment of status in 1997 and because §1256(a) imposes a five-year limit on rescission that would apply to removal.
- The BIA and IJ concluded that §1256(a) limited rescission of status only and did not govern removal proceedings, especially where status was obtained via consular processing.
- The court analyzes whether adjustment of status under §1256(a) includes consular processing and why the five-year limit applies to rescission, not removal.
- The court ultimately holds that consular processing is distinct from adjustment of status, and §1256(a) does not bar removal after more than five years.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §1256(a) apply to removal based on consular-processed status? | Adams argues the five-year limit covers consular processing. | Government argues §1256(a) only covers rescission of status granted by adjustment, not consular processing. | No; §1256(a) does not apply to consular processing. |
| Does the five-year limit on rescission apply to removal proceedings as urged by Adams? | Adams contends removal is barred after five years because rescission is limited. | Government contends five-year limit applies only to rescission, not removal. | Five-year limit applies only to rescission, not removal. |
| Is the BIA's interpretation that §1256(a) applies to rescission only reasonable and entitled to Chevron deference? | Adams urges lenity and argues the statute is ambiguous; BIA interpretation should be rejected. | Government argues BIA interpretation is reasonable and entitled to deference. | BIA interpretation is reasonable and deferable; Adams's view rejected. |
Key Cases Cited
- Malik v. Attorney Gen., 659 F.3d 253 (3d Cir. 2011) (supporting five-year limit applies to rescission, not removal)
- Oloteo v. INS, 643 F.2d 679 (9th Cir. 1981) (distinguishes rescission from removal)
- Asika v. Holder, 362 F.3d 264 (4th Cir. 2004) (recognizes removal not limited by rescission period; deference to agency reasonable interpretation)
- Stolaj v. Holder, 577 F.3d 651 (6th Cir. 2009) (supports limited reach of §1256(a) to rescission only)
- Kim v. Holder, 560 F.3d 833 (8th Cir. 2009) (confirms section's separate removal authority and rescission limits)
- Matter of Cruz de Ortiz, 25 I. & N. Dec. 601 (BIA 2011) (BIA held §1256(a) applies to rescission only for adjustments, not consular processing)