UN:
1. That is indeed interesting. Check out below what 8 CFR says on the same issue of rescission. Not sure between CFR and INA which takes precedence in terms of actual application. Seems like INA is the law while CFR is the code of regulations that "apply the law to daily situations".
Some differences:
* In the CFR, it seems like they would have to give you a chance (30 days) to appeal the rescission, which in the INA it does not seem necessary for the Attorney General to do so. In fact the INA 246 seems to state that you can be deported even before they actually rescind your LPR status.
* Also, interestingly, the 8 CFR 246 does not mention any time limit of 5 years, although it could have been mentioned in one of the cross-referenced sections. I have not yet managed to traverse the entire bowl of spaghetti laws.
* The CFR refers to the district director while the INA to the Attorney General. Perhaps its a question of jurisdiction - the Attorney General can deport you without serving notice, while the district director cannot? I would hope this isn't the case and the same laws protect us regardless of which "big brother" takes "offense".
What do you make of this?
-----------------------Clipping: USCIS.com (8 CFR Sec 246)----------------
INSERTS/SERVICE LAW BOOKS/SERVICE LAW BOOKS MENU /TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR)/8 CFR PART 246 -- RESCISSION OF ADJUSTMENT OF STATUS /Sec. 246.1 Notice.
Sec. 246.1 Notice.
If it appears to a district director that a person residing in his or her district was not in fact eligible for the adjustment of status made in his or her case, or it appears to an asylum office director that a person granted adjustment of status by an asylum officer pursuant to 8 CFR 240.70 was not in fact eligible for adjustment of status, a proceeding shall be commenced by the personal service upon such person of a notice of intent to rescind, which shall inform him or her of the allegations upon which it is intended to rescind the adjustment of his or her status. In such a proceeding the person shall be known as the respondent. The notice shall also inform the respondent that he or she may submit, within thirty days from the date of service of the notice, an answer in writing under oath setting forth reasons why such rescission shall not be made, and that he or she may, within such period, request a hearing before an immigration judge in support of, or in lieu of, his or her written answer. The respondent shall further be informed that he or she may have the assistance of or be represented by counsel or representative of his or her choice qualified under part 292 of this chapter, at no expense to the Government, in the preparation of his or her answer or in connection with his or her hearing, and that he or she may present such evidence in his or her behalf as may be relevant to the rescission. (Amended effective 6/21/99; 64 FR 27856)
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2. In one interpretation of the application of "Crimes Involving Moral Turpitude" with reference to deportment, it was stated that although the law says the person must be convicted within 5 years from the date of admission, it can be interpreted as date of LAST entry in the US rather than the date of approval of LPR status. Thus, each time you leave the country, your clock for getting deported from a CIMT gets reset.
I can't seem to locate where I had read this (it was some lawyer's website), but will post the reference if I come across it again.
Reason why I thought of this was that although the INA 246 states very clearly that the rescission must be within 5 years of AOS, can one be sure that in application that is going to be the case, or is there room for an interpretation that this clock gets reset too each time one leaves the country? It does seem like a stretch, but...
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On an aside, its a sad commentary on the immigration process and politics that we, legal immigrants, professionals, diligent tax payers with no intent to fraud think about all these pros and cons, when both Bush and Kerry talk about legalizing illegal immigrants and pass amnesties left and right just to get votes. I guess its the price one pays for higher standards of thought and integrity. It must be late, I'm getting philosophical.... sorry folks.