can permanent residency be rescinded?

[wurzbach]

Read this post, find the answer for yourself!

(by the way, if you think this post is helpful, please give a reply and keep this post on top for others' benefit)

8 USCS § 1256 (2005)

§ 1256. Rescission of adjustment of status; report to Congress; effect upon naturalized citizen

(a) 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 [8 USCS §§ 1255 or 1259] 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 cancelling removal in the case of such person if that occurred and the person shall thereupon be subject to all provisions of this Act to the same extent as if the adjustment of status had not been made. 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 [8 USCS § 1229a], and an order of removal issued by an immigration judge shall be sufficient to rescind the alien's status.

(b) Any person who has become a naturalized citizen of the United States upon the basis of a record of a lawful admission for permanent residence, created as a result of an adjustment of status for which such person was not in fact eligible, and which is subsequently rescinded under subsection (a) of this section, shall be subject to the provisions of section 340 of this Act [8 USCS § 1451] as a person whose naturalization was procured by concealment of a material fact or by willful misrepresentation.


History:

(June 27, 1952, ch 477, Title II, Ch 5, § 246, 66 Stat. 217; Oct. 25, 1994, P.L. 103-416, Title II, § 219(m), 108 Stat. 4317; Sept. 30, 1996, P.L. 104-208, Div C, Title III, Subtitle A, § 308(e)(1)(H), Subtitle F, § 378(a), 110 Stat. 3009-619, 3009-649.)


History; Ancillary Laws and Directives:

1. References in text
2. Effective date of section
3. Amendments
4. Other provisions


1. References in text:
"This Act", referred to in this section, is Act June 27, 1952, ch 477, 66 Stat. 163, popularly known as the "Immigration and Nationality Act", which appears generally as 8 USCS §§ 1101 et seq. For full classification of such Act, consult USCS Tables volumes.
"Section 19(c) of the Immigration Act of February 5, 1917," referred to in this section, is Act Feb. 5, 1917, ch 29, § 19(c) 39 Stat. 889, which formerly appeared as 8 U.S.C. § 155(c) and was repealed by Act June 27, 1952, ch 477, Title IV, § 403(a)(13), 66 Stat. 279. Similar provisions are contained in 8 USCS §§ 1254(a) (1), (2), and 1351.

2. Effective date of section:
Act June 27, 1952, ch 477, Title IV, § 407, 66 Stat. 281, which appears as 8 USCS § 1101 note, provided that this section is effective at 12:01 ante meridian United States Eastern Standard Time on the 180th day immediately following enactment on June 27, 1952.

3. Amendments:
1994. Act Oct. 25, 1994 (effective on enactment as provided by § 219(m) of such Act), in subsec. (a), deleted "If, at any time within five years after the status of a person has been adjusted under the provisions of section 244 of this Act or under section 19(c) of the Immigration Act of February 5, 1917, 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 submit to the Congress a complete and detailed statement of the facts and pertinent provisions of law in the case. Such reports shall be submitted on the first and fifteenth day of each calendar month in which Congress is in session. If during the session of the Congress at which a case is reported, or prior to the close of the session of the Congress next following the session at which a case is reported, the Congress passes a concurrent resolution withdrawing suspension of deportation, the person shall thereupon be subject to all provisions of this Act to the same extent as if the adjustment of status had not been made." after "(a)".
1996. Act Sept. 30, 1996 (effective as provided by § 309(a) of such Act, which appears as 8 USCS § 1101 note), in subsec. (a), substituted "removal" for "deportation".
Such Act further (effective as provided by § 378(b) of such Act, which appears as a note to this section), in subsec. (a), added the sentence beginning "Nothing in this subsection shall require the Attorney General to . . .".

4. Other provisions:
Effective date of Oct. 25, 1994 amendment. Act Oct. 25, 1994, P.L. 103-416, Title II, § 219(m), 108 Stat. 4317, provides that the amendment made by such § 219(m) to subsec. (a) of this section is effective "as of the date of the enactment of this Act".
Effective date of amendment made by § 378(a) of Act Sept. 30, 1996. Act Sept. 30, 1996, P.L. 104-208, Div C, Title III, Subtitle F, § 378(b), 110 Stat. 3009-649, provides: "The amendment made by subsection (a) [amending subsec. (a) of this section] shall take effect on the title III-A effective date (as defined in section 309(a) of this division [8 USCS § 1101 note]).


Notes:

Code of Federal Regulations:

Department of Homeland Security (Immigration and Naturalization)--Rescission of adjustment of status, 8 CFR Part 246.
Executive Office for Immigration Review, Department of Justice--Rescission of adjustment of status, 8 CFR Part 1246.


Related Statutes & Rules:

Alien defined, 8 USCS § 1101(a)(3).
Attorney General defined, 8 USCS § 1101(a)(5).
Lawfully admitted for permanent residence defined, 8 USCS § 1101(a)(20).


Research Guide:


Federal Procedure:
18B Fed Proc L Ed, Immigration, Naturalization, and Nationality §§ 45:1972, 1975, 1976, 1997.

Am Jur:
3A Am Jur 2d, Aliens and Citizens §§ 19, 514.
3B Am Jur 2d, Aliens and Citizens §§ 1813, 1814, 1816, 1817.
3C Am Jur 2d, Aliens and Citizens § 2495.

Forms:
10D Fed Procedural Forms L Ed, Immigration, Naturalization, and Nationality (2000) § 40:605.

Immigration:
1 Immigration Law and Procedure (rev. ed.), ch 2, The Development of the Immigration Laws §§ 2.02, 2.04.
3 Immigration Law and Procedure (rev. ed.), ch 34, Procedure in Admitting Refugees, Applying for Asylum and Withholding of Deportation § 34.04.
4 Immigration Law and Procedure (rev. ed.), ch 42, Conditional Residence for Certain Spouses and Children, and Other Limitations Imposed by 1986 Marriage Fraud Amendments § 42.07.
4 Immigration Law and Procedure (rev. ed.), ch 50, Overview § 50.02.
4 Immigration Law and Procedure (rev. ed.), ch 51, Adjustment of Status to Permanent Residence § 51.06.
4 Immigration Law and Procedure (rev. ed.), ch 52, Legalization § 52.06.
4 Immigration Law and Procedure (rev. ed.), ch 54, Registry of Lawful Entry for Aliens With Long Residence in the United States § 54.05.
6 Immigration Law and Procedure (rev. ed.), ch 74, Relief From Deportation § 74.07.

Annotations:
Validity and construction of Federal Statute (18 USCS § 1546) making fraud and misuse of visas, permits, and other entry documents a criminal offense. 3 ALR Fed 623.
Construction and application of § 245 of the Immigration and Nationality Act of 1952 (8 USCS § 1255) authorizing adjustment of status of alien to that of permanent resident. 4 ALR Fed 557.

Law Review Articles:
A survey of judicial review of INS regulation of the Immigration Reform and Control Act of 1986. 3 Admin L J 683.


Interpretive Notes and Decisions:


1. Applicability
2. Five-year limitation
3. --Notice of intent to rescind
4. Burden of proof
5. Evidence
6. Rescission in particular cases
7. Administrative review
8. Judicial review




1. Applicability

Proper method of challenging status of alien who was not eligible for adjustment of status which she obtained under 8 USCS § 1259 and who subsequently entered United States with border-crossing card, issued to her pursuant to such adjustment, was to institute rescission proceedings under 8 USCS § 1256, and not to attack adjustment in deportation proceeding on charge that she was not in possession of valid entry document. In re V---- (1956, BIA) 7 I & N Dec 363.

Provisions of 8 USCS § 1256 are retroactive, notwithstanding rights of third party beneficiary not privy to original action, are involved. In re Valiyee (1974, BIA) 14 I & N Dec 710.

In proceedings to rescind permanent resident status granted to J-1 exchange visitor, a preliminary revocation of approved INA § 212(e) [8 USCS § 1182(e)] waiver of 2 year foreign residence requirement is not prerequisite to commencement of INA § 246 [8 USCS § 1256] rescission proceedings. In re Tayabji (1985, BIA) 19 I & N Dec 264.


(to be continued)

 

[wurzbach]

2. Five-year limitation

When adjustment of status to permanent resident is revoked by rescission proceeding, 5-year statute of limitations is applicable (8 USCS § 1256(a)), and after 5 years, alien's status is unasailable, but when adjustment is conditional, alien is in continual jeopardy because deportation proceedings may be reopened at any time. Fulgencio v INS (1978, CA9) 573 F2d 596.

5 year statute of limitation in 8 USCS § 1256 does not apply to deportation proceedings under 8 USCS § 1251. Oloteo v Immigration & Naturalization Service (1981, CA9) 643 F2d 679.

Alien convicted of possession of marijuana for sale in Denmark prior to successfully adjusting status to permanent resident of U.S., which conviction if known would have precluded alien from obtaining permanent resident status, does not have benefit of INA § 212(c) [8 USCS § 1182(c)] relief as eligibility under § 1182(e) requires lawful admission; alien is not entitled to § 1182(c) relief until such time as formal adjudication of unlawful procurement of status is made; 5-year statute of limitations found in INA § 246 [8 USCS § 1256] does not apply to bar deportation proceedings against alien regardless of method of alien's admission. Monet v Immigration & Naturalization Service (1986, CA9) 791 F2d 752.

INS did not violate 5-year statute of limitations within which it must move for rescission of adjustment of status when it sought in 1988 to deport alien who had in 1980 entered into fraudulent marriage and became permanent resident, since INS, through deportation, did not seek to adjust or rescind alien's status. Biggs v INS (1995, CA9) 55 F3d 1398, 95 CDOS 3847, 95 Daily Journal DAR 6626.

Limitations period in 8 USCS § 1256(a) is expressly applicable only to aliens who have obtained their permanent residence under 8 USCS § 1255 by adjustment of status, and limitations period of 5 years would not apply to alien who had obtained his status as permanent resident by immigrating from abroad where alien was, at that time, native of Western Hemisphere country and was not eligible for adjustment of status pursuant to restriction of 8 USCS § 1255(c) which was then in force. Ubiera v Bell (1978, SD NY) 463 F Supp 181.

Five-year limitation contained in 8 USCS § 1256 applies to Attorney General's authority to rescind adjustment of status and does not bar exclusion or deportation thereafter on grounds which existed prior to adjustment and which would also have supported rescission, if timely known. In re S-- (1961, BIA) 9 I & N Dec 548.

Delay of approximately three and one-half years between time of Government's first knowledge of respondent's fraudulent marriage and initiation of rescission proceedings did not constitute denial of due process of law since rescission proceedings are civil in nature and pursuant to 8 USCS § 1256(a) may be instituted at any time within five years after adjustment of status of person under 8 USCS § 1255. In re Athanasopoulos (1971, BIA) 13 I & N Dec 827.

Five year period of statutory limitations in 8 USCS § 1256(a) (dealing with rescission of adjustment of status) as it applies to Cuban aliens with retroactive date of permanent residence granted pursuant to Act of November 2, 1966 ( P.L. 89-732, 80 Stat. 1161) starts to run from date application for adjustment was approved and not from retroactive date of permanent residence. In re Carrillo-Gutierrez (1977, BIA) 16 I & N Dec 429 (modified in In re Diaz-Chambrot (1988, BIA) 19 I & N Dec 674).

Alien who has had his status adjusted to that of permanent resident by virtue of his marriage to United States citizen may have deportation proceedings brought 6 years later terminated, where status has not been rescinded within 5 years as provided under 8 USCS § 1256(a), grounds of deportation did not precede adjustment and would require rescission of status before they could be sustained, and grounds have existence independent of adjustment of status. In re Belenzo (1980, BIA) 17 I & N Dec 374.

Where rescission proceedings are commenced well within statutorily prescribed 5 year period following adjustment of status to permanent resident, subsequent delay of some 3 years in holding rescission hearing is not type of delay which estoppel by laches will protect; estoppel can arise in immigration cases, if at all, only from affirmative misconduct by government. In re Onal (1981, BIA) 18 I & N Dec 147.


3. --Notice of intent to rescind

8 USCS § 1256(a) requires Attorney General to take described action within five years from adjustment of status, and mere giving of notice to alien within such period is not sufficient. Quintana v Holland (1958, CA3 Pa) 255 F2d 161 (superseded by statute as stated in In re Pereira (1984, BIA) 19 I & N Dec 169).

Service of notice of intent to rescind, pursuant to 8 USCS § 1256 tolls running of five year statute of limitations to extent final decision may be made after five years have elapsed. Singh v Immigration & Naturalization Service (1972, CA9 Cal) 456 F2d 1092, cert den (1972) 409 US 847, 34 L Ed 2d 89, 93 S Ct 53.

Where District Director of INS, acting in good faith within 5 years after adjustment of alien's status, issues notice of intention to rescind adjustment on basis of evidence that is prima facie sufficient to warrant issuance of rescission order, 5-year time limit prescribed by 8 USCS § 1256(a) is tolled. Zaoutis v Kiley (1977, CA2 NY) 558 F2d 1096.

Statute of limitations is tolled by issuance of notice of intent to rescind within 5 years of adjustment of status. In re Pereira (1984, BIA) 19 I & N Dec 169.


4. Burden of proof

While nothing in language of 8 USCS § 1256 defines standard of proof required for rescission hearing, clear, unequivocal, and convincing evidence standard must apply in rescission proceedings as well as deportation proceedings. Waziri v United States Immigration & Naturalization Service (1968, CA9) 392 F2d 55.

When Immigration & Naturalization Service seeks to rescind grant of permanent resident status, it has burden of proof and must establish its ground for rescission by clear, unequivocal and convincing evidence, but when conditional grant is followed by motion to reopen deportation proceeding, burden remains on alien to prove that he should not be deported even though it is government which seeks to alter his status (8 USCS § 1256). Fulgencio v INS (1978, CA9) 573 F2d 596.

In determining whether to rescind alien's permanent resident status because alien is not in fact eligible for adjustment of status, INS need only address grounds for eligibility asserted by alien in adjustment of status application and interview; adjustment of status cannot be based on ground not cited by alien because requisite exercise of agency discretion on that issue is absent and INS should not bear burden of disproving assertions which it was never on notice it would have to investigate, which alien failed to meet burden of proving, and on which INS has never been afforded opportunity to exercise its discretion. Kim v Meese (1987, CA9 Cal) 810 F2d 1494.

There must be evaluation of all evidence and finding made with regard to its credibility before clear, unequivocal and convincing burden of proof test comes into play where there is conflict of testimony in rescission proceedings under 8 USCS § 1256. In re Vilanova-Gonzalez (1969, BIA) 13 I & N Dec 399.

Burden of proof in rescission proceedings is clear, convincing and unequivocal evidence. In re Suleiman (1974, BIA) 15 I & N Dec 784 (ovrld in part by In re Giannoutsos (1979, BIA) 17 I & N Dec 172).

 

[wurzbach]

5. Evidence

Admission into evidence at rescission hearing of bill of indictment and judgment of conviction thereon was not erroneous, even though criminal conviction of petitioner was pending on appeal. Rodriques v Immigration & Naturalization Service (1968, CA3) 389 F2d 129.

Special Inquiry Officer did not commit abuse of discretion by permitting, in rescission proceedings held under 8 USCS § 1256, petitioner's ex-wife to testify to statements made during course of marriage. Yaldo v Immigration & Naturalization Service (1970, CA6) 424 F2d 501.

Where the lawful permanent residence status of an Egyptian cleric who had been granted an adjustment to such status as a "minister of religion" was rescinded on the basis of the alien's terrorist activities in Egypt, the fact that the IJ read, but did not consider, classified information in making his decision regarding exclusion of the alien, despite his assurance to the alien that he would not open or consider such evidence, did not deprive the alien of a fair hearing; the IJ was authorized to consider classified information under 8 CFR §§ 208.11(c), 236.3(c)(4), but stated that he did not do so. Ali v Reno (1993, SD NY) 829 F Supp 1415, affd (1994, CA2 NY) 22 F3d 442.

Where the lawful permanent residence status of an Egyptian cleric who had been granted an adjustment to such status as a "minister of religion" was rescinded on the basis of the alien's terrorist activities in Egypt, the IJ (at the exclusion hearing) did not err in denying the alien's application to serve interrogatories and a request for production of documents on the State Department to determine how it came to the conclusion that the alien continued to be involved in terrorism; 8 CFR § 208.12(b) provides that nothing in Part 208 of the regulations may be construed to entitle the alien to conduct discovery directed towards State Department records or employees. Ali v Reno (1993, SD NY) 829 F Supp 1415, affd (1994, CA2 NY) 22 F3d 442.

Preliminary sworn statement by alien made when asked by officer of Service whether she was willing to make sworn statement and whether she understood that any statement was to be made freely and voluntarily and might be used by Government as evidence in any proceeding was made voluntarily and not under duress and was admissible in evidence in rescission proceedings under 8 USCS § 1256. In re Argyros (1966, BIA) 11 I & N Dec 585.(to be continued)

 

[wurzbach]

6. Rescission in particular cases

Where the loss of permanent residence status of an Egyptian cleric who had been granted adjustment to such status as a "minister of religion" was rescinded by the District Director following the alien's failure to respond to a Notice of Intent to Rescind, the IJ and the BIA properly concluded that they lacked jurisdiction to review the District Director's order because 8 CFR § 246.2 provides that if no answer is filed and no hearing requested within 30 days of service of the notice, the District Director must rescind the adjustment of status, and no appeal lies from the District Director's decision; a letter from the alien's first attorney requesting 60 days to respond to the notice and a copy of the documents supporting the allegations against the alien did not constitute an answer where it did not set forth the reasons why rescission should not be made. Ali v Reno (1993, SD NY) 829 F Supp 1415, affd (1994, CA2 NY) 22 F3d 442.

There is no statutory or regulatory bar to the institution of rescission proceedings while the alien is in deferred inspection status; under INA § 246 [8 USCS § 1256], the District Director may rescind an adjustment of status at any time within 5 years of the adjustment, and 8 CFR § 235.7, regarding referral of a case to the District Director where the Examining Officer believes that the cause of the alien's excludability can be readily removed, does not divest the District Director of authority to act under § 246 [§ 1256] during the deferred inspection period. Ali v Reno (1993, SD NY) 829 F Supp 1415, affd (1994, CA2 NY) 22 F3d 442.

Where the lawful permanent residence status of an Egyptian cleric who had been granted an adjustment to such status as a "minister of religion" was rescinded on the basis of the alien's terrorist activities in Egypt, the District Director did not violate 8 CFR § 246.1 or § 246.3, regarding the right to assistance of counsel and the right to a hearing before an IJ, because § 246.1 does not require that more than one notice of intend to rescind be sent to the alien, and thus the District Director was not obligated to inform the alien again of his right to counsel when his first attorney withdrew, and § 246.3 is triggered only if the alien files an answer or a request for a hearing, and here the alien filed neither; where no answer is filed pursuant to § 246.1, the District Director has jurisdiction to rescind the alien's status without a hearing pursuant to § 246.2, and § 246.3 is inapplicable. Ali v Reno (1993, SD NY) 829 F Supp 1415, affd (1994, CA2 NY) 22 F3d 442.

In determining whether marriage was entered into for purpose of avoiding otherwise applicable immigration laws, issue to be decided is whether couple intended to establish life together at time marriage was entered into. Baria v Reno (1994, DC Hawaii) 849 F Supp 750, revd on other grounds, remanded (1996, CA9 Hawaii) 94 F3d 1335, 96 CDOS 6640.

To determine whether marriage was entered into for purpose of avoiding otherwise applicable immigration laws, finder of fact must evaluate credibility of parties, examine their conduct around time of marriage, and examine circumstances surrounding marriage. Baria v Reno (1994, DC Hawaii) 849 F Supp 750, revd on other grounds, remanded (1996, CA9 Hawaii) 94 F3d 1335, 96 CDOS 6640.

Since dismissal of pertinent counts of indictment for income tax violation after commencement of criminal proceedings, on agreement of counsel, did not estop Service from examining facts in rescission proceedings, to determine if respondent was person of good moral character at time of adjustment of his status under 8 USCS § 1259, such adjustment of status was rescinded because respondent, who had fraudulently understated his income during 1958 and 1959 for purpose of avoiding payment of substantial sum in U.S. income taxes, was not person of good moral character at time he secured adjustment of status, and therefore, was not statutorily eligible for such relief. In re Locicero (1966, BIA) 11 I & N Dec 805.

Adjustment of status was rescinded under 8 USCS § 1256 where respondent's marriage to U.S. citizen, which served as basis for visa availability for adjustment of status under 8 USCS § 1255, was subsequently annulled in California, notwithstanding fraud for which marriage was annulled was unrelated to immigration laws, since, under California law, annulment decree rendered marriage void ad initio, irrespective of ground of annulment. In re Samedi (1974, BIA) 14 I & N Dec 625.

Permanent resident status of respondent was rescinded where, as result of proceedings under 8 USCS § 1256, permanent resident status of respondent's wife was rescinded ad initio, thereby rendering respondent ineligible for preference classification as spouse of permanent resident alien, and likewise ineligible for adjustment of status under 8 USCS § 1255 on basis of that classification. In re Valiyee (1974, BIA) 14 I & N Dec 710.

If, within five years of alien's adjustment of status under 8 USCS § 1255, it appears that alien was ineligible for that adjustment, his permanent resident status must be rescinded pursuant to 8 USCS § 1256 before deportation proceedings can be instituted against him. In re Saunders (1977, BIA) 16 I & N Dec 326.

In proceedings to rescind alien's adjustment of status from J-1 exchange visitor to permanent resident, district director's action approving waiver of 2 year foreign residence requirement in excess of his authority cannot operate to estop government from enforcing congressionally imposed residency requirements of INA §§ 212(e) and 245 [8 USCS §§ 1182(e) and 1255]. In re Tayabji (1985, BIA) 19 I & N Dec 264.

INS has no authority to grant adjustment of status on retroactive or nunc pro tunc basis, and since nonimmigrant alien is assimilated to position of applicant for entry when applying for adjustment of status and thus must be eligible, at time application is acted on, for preference category relied on when application was filed, alien who was unmarried and under 21 years of age when he and brothers filed application for derivative immigrant status based on approval of fifth preference petition on behalf of alien's mother, but who was both married and over 21 and thus not "child" at time application for derivative status was finally acted on by INS over 7 years later, was ineligible for adjustment of status at time it was erroneously granted nunc pro tunc, and INS had authority to rescind adjustment under 8 USCS § 1256(a); BIA and IJs were without authority to apply doctrine of equitable estoppel against INS so as to preclude INS from undertaking lawful course of action that it was empowered to pursue by statute and regulation. In re Hernandez-Puente (1991, BIA) 20 I & N Dec 335.


7. Administrative review

BIA did not abuse its discretion in denying motion made in 1993 to reopen 1989 rescission proceeding since alien could provide no reason for four-year delay in bringing motion and where motion appeared to have been filed for dilatory purposes. Gottesman v United States INS (1994, CA4) 33 F3d 383, 30 FR Serv 3d 187.

Board of Immigration Appeals (BIA) did not have authority to order removal of habeas corpus petitioner, legal permanent resident who was convicted of selling heroin; rather, BIA should have remanded matter to immigration judge for issuance of order. Noriega-Lopez v Ashcroft (2003, CA9 Cal) 335 F3d 874, 2003 CDOS 5989, 2003 Daily Journal DAR 7546.


8. Judicial review

Rescission of permanent resident status of petitioner as authorized by INA § 246 [8 USCS § 1256] is not final order of deportation subject to review under INA § 106 [8 USCS § 1105a] and Court of Appeals is without jurisdiction to review such petition. Kuh v Immigration & Naturalization Service (1985, CA9) 758 F2d 370.

Court of appeals affirmed decision of Board of Immigration Appeals that Attorney General properly instituted deportation proceeding against alien who had erroneously been granted adjustment of status, as it was not time-barred by five-year period of 8 USCS § 1256(a); only rescission of adjustment proceedings were subject to limitations period under Attorney General's reasonable interpretation of statute. Asika v Ashcroft (2004, CA4) 362 F3d 264.

District Court has jurisdiction to review order of rescission of adjustment of status under 8 USCS § 1329 so long as order is not part of final order of deportation. Baria v Reno (1994, DC Hawaii) 849 F Supp 750, revd on other grounds, remanded (1996, CA9 Hawaii) 94 F3d 1335, 96 CDOS 6640.

Standard used by District Court in review of order of rescission of adjustment of status by BIA is whether BIA applied correct standard of proof and whether its findings are supported by reasonable, substantial, and probative evidence. Baria v Reno (1994, DC Hawaii) 849 F Supp 750, revd on other grounds, remanded (1996, CA9 Hawaii) 94 F3d 1335, 96 CDOS 6640.

 

[wurzbach]

Rescinding the GC is one thing.
However, if the GC was aquired by fraud, there is no statute of limitations, and it can be revoked even decades later.

Oh, and just quoting the law is not overly helpful. Anybody can do that. It is available publically on the USCIS website, as well as on the Cornell Law School website, for example: http://www4.law.cornell.edu/uscode/
And any other "information" is useless if you don't provide a link for it. Given your history of selective quoting and distorting things, nobody should believe anything you post without the ability of verification. I have asked you before to provide links...

the link you give is useless for not only lay persons, but useless for lawyers becasue it only provides the cold code words and it does not tell you how to use the law, including the interpretation of the law by the government and courts. (Actually, that site is not fresh to me, I abandoned that site years ago, so curious that you still rely heavily on it). Here I gave the exact interpretation of the law, anyone who can read English will find it helpful (execpt some "gurus").

 

[wurzbach]

Interpretation by whom?.

Interpreted by Judges of The United States of American!!!

Anyone knows why I did not provide the link if he pays attention of my past posts.

Take a rest, man!

 

[wurzbach]

Says who???
If these are interpretations by US judges, it would be publically available. So provide links.
Unless you do that, you can shout in big fonts as much as you want, it doesn't make your claims any more credible.

Besides, you haven't answered my question what you try to show by quoting this.
It obviously has nothing to do with GC revocation in cases of fraud.

If I do not answer your curiosity, I would be very regretful by closing eyes on your diligence and ignorance.

In most court opinions, when the judges decides a case on the "approval of immigration petition (such as approved I-140)", they use "revoke". But when they decide cases where parties had been granted LPRs, they usually use "rescind". You can find "revoke" and "rescind" in relevant codes and the court uses the words in accordance to the codes. For lay persons, "revoke" and "rescind" have the same meaning: your chance of being LPR is stopped.

By the way, legally, the meaning of "fraud" is not what you understand. If I get time, I will give another post on "fraud".

 

[wurzbach]

Ad hominem.
The word "rescind" in the context of the GC has a very specific meaning, very different from "revocation."
Thanks for confirming that you indeed don't know the difference, just as you didn't know the meaning of "material fact."
You hide behind your subscriptions to Westlaw and Lexis-Nexis without understanding anything you read there. And you stepped nicely in my setup to expose that...

Hahahahaha....... You are really funny.......

 

[wurzbach]

One point from JoeF is right: all my answers are based on Westlaw and Lexisnexis. If you can access these two sites, please ignore my words and find the law by yourself. If you do not have the accounts, it is useless for me to give you the link (this is last response on this point)


what are westlaw and Lexisnexis?, I think you can get some clues from one of Mr. Rajiv S. Khanna's posts.

 

[wurzbach]

You disappoint me. You apparently don't have any arguments anymore...

because I do not want to argue with you on some useless points and waste my time, understand?

 

[wurzbach]

At least you claim so. People without a high-priced subcription to these services do not have the ability to verify what you post. And that is what I criticize. I don't trust what some anonymous person posts. I ask to read it myself. If you can not provide links that are accessible to the general public, your posts are useless to the general public.

OK, I just hold my temper and give you another answer: all the comments in my first 4 posts have the citation of cases, if you can, use those case names and citations to get the whole opinions of the cases.

By the way, you can easily get to westlaw and lexisnexis home pages, why not pay and get inside or crack down the pages? Dude, you are really in "bad faith intent" (hahahaha......) to argue on this point.

 

[pralay]

Rescinding the GC is one thing.
However, if the GC was aquired by fraud, there is no statute of limitations, and it can be revoked even decades later.

Good examples are nazi criminals. Their GC or citizenship were revoked years/decades after they obtained them without disclosing their nazi past while applying for GC or citizenship.

 

[TheEnquirer]

pralay are u comparing a person who changed company after getting GC and a nazi criminal ??

oh well ... what else to say. I am speechless !!!!!

 

[pralay]

pralay are u comparing a person who changed company after getting GC and a nazi criminal ??

oh well ... what else to say. I am speechless !!!!!

Is this thread about "changing employment"? What does make you so speechless? Is it just that pre-occupied thought in your head?

 

[wurzbach]

pralay are u comparing a person who changed company after getting GC and a nazi criminal ??

oh well ... what else to say. I am speechless !!!!!

Do not be frustrated, man

As the law said: to rescind your green card, there must be "clear, unequivocal and convincing evidence" to undermine your eligibility to become LPR. It is a very high standard and it is very hard for the government to carry this burden. As I argued in those old posts, mere "changing employment after GC" or "failure to notify INS of change of address" is not enough to meet the requirement and make your LPR in risk.

 

[TheEnquirer]

look at this guy answer
get some help man. good luck
and if ur that type of guy who thinks his arguement holds if he just answers to a thread - and the last one to do that- go ahead and be my guest

Is this thread about "changing employment"? What does make you so speechless? Is it just that pre-occupied thought in your head?

 

[pralay]

"failure to notify INS of change of address" is not enough to meet the requirement and make your LPR in risk.

Are you talking about AR-11 (INA 265) or just change of address for pending cases at USCIS service center? Please be clear.

Here the basic flaws in your argument:

If you are talking about AR-11: INA 265 well established and well-defined law. I don't think you provided any link to prove your point.

If you are talking about notifying address change of address to USCIS as LPR: you don't need to do it unless there is an application pending at USCIS - like N-400 or I-90. There is no mandatory requirement to change this address. But it's a common-sense (just like you notify your credit card company or bank when you move) to do it because otherwise USCIS won't be able to contact you for any notification regarding pending application. And if USCIS is not able to contact you, in the worst case your application will be denied (or you won't receive your new plastic card or interview notice). But that won't put your GC or LPR status in risk.

 

[pralay]

look at this guy answer
get some help man. good luck
and if ur that type of guy who thinks his arguement holds if he just answers to a thread - and the last one to do that- go ahead and be my guest

Actually I did not raise the topic of nazi issue by comparing employemt change. The answer is on the very basic argument that whether GC can be revoked after five years. As I said, it's all in your mind. It's amazing that you started comparing it yourself and then accusing other for comparing.
No need to be "speechless". Just read your own mind.

Now, you decide who needs help.