                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-1-1996

Bamidele v. INS
Precedential or Non-Precedential:

Docket 96-3075




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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT



                              No. 96-3075



                     ALADETOHUN O. BAMIDELE,

                                Petitioner

                                  v.

              IMMIGRATION & NATURALIZATION SERVICE,

                                Respondent.




       Petition for Review of Board of Immigration Appeals
                  Order dated November 13, 1995
                ( Action No. 0313-2: A26 387 101)



                    Argued September 18, 1996

     Before: NYGAARD, ROTH and ROSENN, Circuit Judges

                (Opinion Filed November 1, l996)




John J. Hykel, Esq. (Argued)
34th Floor
1735 Market Street
Mellon Bank Center
Philadelphia, PA 19103

          Attorney for Petitioner


Frank W. Hunger
Assistant Attorney General
Karen Fletcher Torstenson
Assistant Director
Linda S. Wendtland (Argued)
Senior Litigation Counsel
Michael P. Lindemann
Vernon B. Miles
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

              Attorneys for respondent




                       OPINION OF THE COURT




ROTH, Circuit Judge:
         This appeal comes to us from a final order of deportation issued
by the Board of
Immigration Appeals. Petitioner Aladetohun Olaniyi Bamidele, a thirty-
eight year old native and
citizen of Nigeria, asks us to review the decision of the Board ordering
him deported because he
obtained an adjustment of status pursuant to § 245(a) of the Immigration
and Nationality Act
("the Act"), 8 U.S.C. § 1255(a), through a sham marriage. Bamidele claims
that the Board erred
as a matter of law in ordering him deported because the grounds for
deportation relate only to his
fraudulent adjustment of status. He contends that Immigration and
Naturalization Service
("INS") action to rescind that adjustment is barred by the five year
statute of limitation contained
in § 246(a) of the Act, 8 U.S.C. § 1256(a). Because there is no reason to
adjust Bamidele's
permanent resident status other than the sham marriage which enabled him
to obtain permanent
resident status under § 246(a) and because adjustment under § 246(a) is
now barred, we conclude
that Bamidele's permanent resident status cannot presently be rescinded.
As a result, we find
that he is not now deportable on the sole grounds of his misconduct in
obtaining his adjustment
of status.
                           I. Facts
         Bamidele has lived and worked in this country for over fourteen
years since entering
the United States as a non-immigrant visitor on February 19, 1982.
Shortly after arriving in
America, Bamidele took up residence in Philadelphia with his brother
Larry, who had previously
emigrated to this country. Bamidele then began his college education,
eventually earning a Bachelor
of Science degree in Management, and supported himself by driving a cab on
nights and weekends.
Following his graduation in 1986, Bamidele held a variety of jobs until
establishing himself with his
current employer in 1990. In this position of construction inspector and
field technician, Bamidele
has earned the praise and respect of his employer who has described him as
a "very intelligent,
dedicated and self-motivated person" and a "very valuable employee."
         Bamidele's current troubles with the INS, arise out of his May
19, 1983, marriage to
Kim Bonita Griffin, a U.S. citizen. A year later, on April 10, 1984, on
the basis of this marriage,
Bamidele applied for and was granted an adjustment of status to that of
lawful permanent resident
pursuant to § 245(a) of the Act, 8 U.S.C. § 1255(a).   In 1985, however,
while participating in a joint
FBI/INS investigation of student loan fraud, the FBI inquired into the
validity of Bamidele's
marriage to Ms. Griffin. Ms. Griffin told an FBI agent in an interview
that her marriage to
Bamidele had been a sham and the two had never lived together. Despite
having this information
in 1985, the INS took no action for five years. Bamidele and Griffin were
subsequently divorced
on June 17, 1988.
         On January 31, 1990, the INS finally acted, serving Bamidele with
an Order to Show
Cause why he should not be deported. This Order alleged that Bamidele had
obtained his
"permanent resident status through fraud," thus rendering his "permanent
resident status nul [sic]
and void." Cert. Admin. Rec. at 39. The Order further charged Bamidele
with violating § 241(a)(2)
of the Act in two counts. The first count charged Bamidele with being in
the United States in
violation of law under § 241(a)(2) of the Act, while the second count
charged Bamidele, also under
§ 241(a)(2), with committing fraud within the meaning of § 241(c)(2). A
hearing followed at which
Bamidele through counsel presented testimony and other evidence that he
and Griffin had been in
love and intended to make a life together. Bamidele also argued that he
was not deportable under
a proper reading of §§ 241(a)(2) and 241(c)(2). The immigration judge,
stating that he found
Bamidele's version of events incredible, ordered him deported on both
counts as of October 10,
1991.
         Bamidele then embarked on a lengthy appeals process. Appearing
pro se, he first
filed a notice of appeal to the Board of Immigration Appeals in which he
reiterated his contentions
that his marriage to Griffin was genuine and argued that the immigration
judge had erred as a matter
of law in his reading of §§ 241(a)(2) and 241(c)(2). When Bamidele failed
to file a brief with the
Board, it affirmed the immigration judge on all bases in a per curiam
opinion dated December 4,
1992. The only arguments on which the Board reached the merits were
Bamidele's contention that
the second charge was invalid because he did not "reenter" the United
States within two years of
marriage and his assertion that the Board should not have credited
Griffin's testimony. The Board
summarily rejected both positions in its two page dismissal of Bamidele's
appeal. On March 15,
1993, the Board in a second opinion rejected Bamidele's "Motion to
Reconsider" which the Board
styled as a "Motion to Reopen" the deportation hearings.
         Again represented by counsel, Bamidele filed two petitions for
review in this Court
which were consolidated for purposes of appeal. In an unreported opinion,
we ruled that Bamidele
was not deportable under § 241(c)(2) because any fraud by Bamidele, who at
all times relevant to
this litigation resided in the United States, was committed solely for the
purpose of obtaining an
adjustment of status and not for the purpose of gaining "entry" to this
country. Bamidele v.
Immigration and Naturalization Serv., Nos. 93-3098 & 93-3282, 31 F.3d.
1170 (3rd Cir. 1994)
(Table). We also remanded for the Board to determine whether Bamidele
could be deported solely
on the basis of § 241(a)(2) as stated in the first count of the Order.
Additionally, although Bamidele
raised before us the question of the effect of the statute of limitations
applicable to rescission actions
under § 246(a) of the Act, 8 U.S.C. § 1256(a), we refused to consider it
because we determined that
it and several additional issues had not be fully briefed and considered
by the Board.
         Upon remand, the Board again affirmed the immigration judge's
order of deportation
pursuant to § 241(a)(2) of the Act. Bamidele v. Immigration and
Naturalization Serv., No. A26 387
101 - Philadelphia (B.I.A. Nov. 13, 1995). The Board first took up the
question of whether the
running of the five year statute of limitations for rescission of
adjustment of status in § 246(a) of the
Act also precluded the initiation of deportation proceedings. Relying on
agency adjudications as
precedent, the Board held that the five year limitation in no way impeded
deportation proceedings
after the lapse of the period for rescission. The Board then addressed
the question of Bamidele's
deportability under § 241(a)(2) as an alien who is "not presently in
possession of a valid immigrant
or valid non-immigrant visa or other valid document" by virtue of having
obtained his
documentation through a sham marriage. On this charge the Board found
that Bamidele never
qualified for adjustment of status because he was not an "alien lawfully
admitted for permanent
residence." § 245(a) of the Act, 8 U.S.C. 1255(a).
                       II. Jurisdiction
         Bamidele has filed a timely appeal for review of a final order of
deportation
issued by the Board of Immigration Appeals. The Board held appellate
jurisdiction over this
matter pursuant to 8 C.F.R. § 3.1(b)(2). Our jurisdiction to review the
Board's order is exclusive
and arises under § 106(a) of the Act, 8 U.S.C. § 1105(a).
                     III. Standard of Review As a preliminary matter we
must determine the appropriate standard of review to
apply in examining the Board's interpretation of its governing statute.
The INS asserts that this case
is controlled by Chevron U.S.A. v. Natural Resources Defense Council, 467
U.S. 837 (1984), and
its progeny which require us to accord "considerable weight . . . to an
executive department's
construction of a statutory scheme it is entrusted to administer . . . ."
Id. at 844 (footnote omitted).
Bamidele does not quarrel with the general applicability of Chevron's
analysis and concedes as
much in his brief. (See Appellant's Reply Br. at 7-8).
         We, of course, also acknowledge the general applicability of
Chevron's analysis to
our review of an agency's interpretations of its governing statutes. As
the Supreme Court has stated,
Chevron divides our analysis into two steps:
         First, always, is the question whether Congress has directly
spoken
         to the precise question at issue. If the intent of Congress is
clear, that
         is the end of the matter; for the court, as well as the agency,
must give
         effect to the unambiguously expressed intent of Congress. If,
         however, the court determines Congress has not directly addressed
         the precise question at issue, the court does not simply impose
its
         own construction on the statute, as would be necessary in the
absence
         of an administrative interpretation. Rather, if the statute is
silent or
         ambiguous with respect to the specific issue, the question for
the
         court is whether the agency's answer is based on a permissible
         construction of the statute.

Chevron, 467 U.S. at 842-43 (footnotes omitted). When, as in this case,
Congress has given us little
guidance, thereby implicitly delegating the matter, we must yield to an
agency interpretation which
is a reasonable construction of the statutory provision. Id. at 844.
Furthermore, we are especially
aware that the INS's interpretations of the statutes it is charged with
administering have typically
been afforded a great deal of deference. See, e.g., Immigration and
Naturalization Service v.
Cardoza-Fonseca, 480 U.S. 421, 448 (1987) ("the courts must respect the
interpretation of the
agency to which Congress has delegated the responsibility for
administering the statutory program");
Yang v. Maugans, 68 F.3d. 1540, 1546-47 (3rd Cir. 1995) ("The BIA's
interpretation of the burden
of proof provisions of the INA is entitled to deference under the
standards set forth in Chevron.");
Fatin v. Immigration and Naturalization Serv., 12 F.3rd 1233, 1239 (3d.
Cir. 1993) ("the Board of
Immigration Appeals' interpretation of a provision of the Refugee Act is
entitled to deference
pursuant to the standards set out in Chevron . . . ").
         We do not, however, believe this to be the typical case requiring
agency deference.
Bamidele challenges the Attorney General's construction of the statute of
limitations contained in
§ 246(a) of the Act, which limits actions by the INS to rescind an alien's
adjustment of status. A
statute of limitations is not a matter within the particular expertise of
the INS. Rather, we consider
this "a clearly legal issue that courts are better equipped to handle."
Dion v. Secretary of Health and
Human Serv., 823 F.2d 669, 673 (1st Cir. 1987); see also Lynch v. Lying,
872 F.2d 718, 724 (6th
Cir. 1989) ("the amount of weight accorded an agency interpretation
diminishes further when the
interpretation does not require special knowledge within the agency's
field of technical expertise");
In re Oliver M. Elam, Jr., Co., Inc., 771 F.2d 174, 181(6th Cir. 1985)
("When interpretation of the
statute does not require special knowledge within the agency's field of
technical expertise, reviewing
courts sometimes accord little deference to the agency's construction.").
         Although the INS cites several cases from this Circuit for the
proposition that
deference to its views is required, a closer reading reveals that each is
inapposite to the question now
before the Court.   In Yang, 68 F.3rd at 1546-50, we addressed complicated
matters such as the
allocation of the burden of proof and the elements of the entry test for
determining whether an alien
is subject to exclusion proceedings or is entitled to the additional
process available in deportation
proceedings. Similarly, in Fatin, 12 F.3d. at 1238-1243, we took up the
equally daunting question
of the meaning of the term "particular social group" for the purpose of
determining whether the alien
was entitled to withholding of deportation or asylum. Finally, in Katsis
v. Immigration and
Naturalization Serv., 997 F.2d 1067, 1070-1075 (3rd Cir. 1993), cert.
denied, 510 U.S. 1081 (1994),
we considered the definition of the phrase "lawfully admitted for
permanent residence" as used in
the context of § 212(c) of the Act, 8 U.S.C. § 1182(c). Each of these
cases concerned matters
labyrinthine in their complexity in which our analysis would be bolstered
by our reliance on the
expertise of the INS. Moreover, the latter two cases addressed
terminology which took on unique
import and meaning informed by the INS's interpretation of its governing
statute.
         The instant question, in contrast, evokes none of these
considerations. While we
recognize § 246(a) as a part of the Act that the INS is charged with
administering, a statute of
limitations is a general legal concept with which the judiciary can deal
at least as competently as can
an executive agency. Cf., Love v. Thomas, 858 F.2d 1347, 1352 n.9 (9th
Cir. 1988), cert. denied,
sub nom., American Fed'n of Labor and Congress of Indus. Orgs., 490 U.S.
1035 (1989) ("While
we ordinarily give great weight to the interpretation of the agency
charged with enforcement of the
statute we are construing, . . . that deference does not extend to the
question of judicial review, a
matter within the peculiar expertise of the courts."). Thus, in reviewing
the INS's interpretation of
the statute of limitations applicable to rescission actions we "will not
grant it any presumption of
special expertise . . . ." United States Dep't of Navy v. Federal Labor
Relations Auth., 840 F.2d
1131, 1134 (3rd Cir. 1988).
                        IV. Discussion
         We need only address one of the points Bamidele raises on this
appeal. He contends
first that the five year statute of limitations in § 246(a) of the Act has
run and prevents the INS from
initiating rescission proceedings. He further maintains that, in these
circumstances, proceedings to
rescind the adjustment of status granted him by the INS are a prerequisite
to initiating deportation
proceedings. Thus, Bamidele concludes the INS erred as a matter of law in
ordering him deported
under § 241(a)(2) when it was time barred from first rescinding his
adjustment of status.
Notwithstanding its concession that the limitations period for a
rescission action has run, the INS
insists that it properly ordered Bamidele deported under § 241(a)(2). We
reject the INS's invitation
to effectively read § 246(a) out of existence. Instead we hold, given the
novel facts of this case, that
rescission proceedings, and by extension the proceedings to deport
Bamidele, are time barred.
         The Immigration and Nationality Act enacted by Congress in 1952
created a statutory
scheme nearly devoid of limitation periods on enforcement actions by the
INS. See Lehmann v.
United States ex rel Carson, 353 U.S. 685 (1957) (discussing elimination
of five year limitation
period previously contained in the Immigration Act of February 5, 1917,
Pub. L. No. 301, 39 Stat.
874, 889 (1917)); see also Charles Gordon, et al., Immigration Law and
Procedure § 71.01[2][c]
(1996). One exception, however, appeared in § 246(a), which provided 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
         cancelling 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.

§ 246(a), 8 U.S.C. 1256(a) (1970), amended by 8 U.S.C. § 1256(a) (Supp.
1996). The question of
what force this provision possesses lies at the heart of this case.
         The INS construes the statute of limitations based on "its belief
that ‘the five-year
limitation in § 246(a) is a historical anomaly or the result of an
accident in the legislative process.'"
Oloteo v. Immigration and Naturalization Serv., 643 F.2d 679, 683 n.8 (9th
Cir. 1981). Thus, the
INS argues that, although § 246(a) proscribes an untimely rescission of an
alien's status adjustment,
it has no effect on the INS's ability to deport that same immigrant on the
very same grounds the INS
claims render the original adjustment of status improper.
     While we are aware of the substantial body of case law which has
accumulated at the agency
level and in the Ninth Circuit addressing the scope and effect of the §
246(a) limitation period, we
nevertheless conclude that 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.
     The INS relies heavily on the reasoning expressed in the Attorney
General's opinions issued
in In re Belenzo, 17 I. & N. Dec. 374, (A.G. 1981), and In re S--, 9 I & N
Dec. 548 (A.G. 1962).
In In re S--, the Attorney General took the following narrow view of §§
245 and 246(a):
      [R]escission places an alien in the same position "as if the
adjustment of status had
     not been made"; that is, one whose status was adjusted under section
245 to that of
     an alien "lawfully admitted for permanent residence" is, through
rescission, returned
     to nonimmigrant status. Consequently the effect of the five-year
limitation on
     rescission is simply to bar the Attorney General from returning an
alien with adjusted
     status to the category of nonimmigrant. . . .
          I recognize that as I construe the time limitation in section
246 it may be of
     little practical value to the alien. While the limitation obviously
prevents the
     Attorney General from returning the alien to the category of a
nonimmigrant it could
     be argued that this entails no real benefit to the alien since the
same conduct
     nevertheless can be utilized independently as a ground for his
deportation or
     exclusion. This makes it difficult to ascertain precisely why
Congress enacted the
     time limitation. But whatever purpose Congress may have intended the
time
     limitation to serve, it is clear that it could not, consistently with
the policies
     underlying the provisions of the adjusted status laws here involved,
have intended to
     confer upon an alien of adjusted status the benefit of immunity from
exclusion or
     deportation for prior conduct.

In re S--, 9 I. & N. Dec. at 553-555.
     Even were we to accept the reasoning expressed in the Attorney
General's interpretation of
the statute, however, we would be compelled to a different result by
existing Third Circuit precedent.
In Quintana v. Holland, 255 F.2d 161, 164 (3rd Cir. 1958), we opined:
     That which is accomplished by a rescission of status is pretty harsh.
It is comparable
     to the revocation of citizenship about which the courts have been
very keen to make
     sure that the individual received careful protection. The rescission
blocks the man
     on the road to citizenship, and results in banishment from a country
where he may
     have lived a long time, as in this case. We think, therefore, that
Congress meant to
     require the Attorney General to take the described action within five
years and to be
     bound by that limitation itself.

Id. (footnotes omitted). Perhaps we are placing a greater premium on the
durability of an alien's
adjustment of status than our counterparts in the executive branch, but to
do less would "undermine
the security which ought to attend permanent resident status." Fulgencio
v. Immigration and
Naturalization Serv., 573 F.2d 596, 598 (9th Cir. 1978); see also Choe v.
Immigration and
Naturalization Serv., 11 F.3d at 930 ("Aliens who obtain adjusted status
have a legitimate
expectation that their immigration will be permanent."). The severity of
the delayed onset of
deportation proceedings is amply demonstrated here. If the INS were able
to push the matter
through, Bamidele would have to relinquish his home, contacts with his
brother and his friends in
the United States, and leave his job to return to Nigeria, a country with
which he has had little
contact for nearly fifteen years.
     In any event, we believe the authorities relied on by the INS are
inapposite to the instant case.
With the exception of In re Belenzo, 17 I. & N. Dec. 374 (1981), not one
of these decisions precisely
addresses the question we confront here. That is, none are responsive to
the distinction that the sole
grounds on which the INS has founded its deportation order are the same as
those which the INS
claims rendered Bamidele's adjustment of status invalid. It 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.
We find the opinion expressed by the Board in In re Belenzo more
persuasive and consistent with
the aim of the statute than was the reasoning of the Attorney General.
The Board stated, "The bar
[to deportation] exists only where deportation is based on an attack on
the adjustment itself, as here.
If the adjustment is thus attacked, it must be attacked directly, and
within the 5 years. If deportation
is predicated on something outside the adjustment, there is no bar." Id.
at 380.
     Were we not to enforce the statute of limitations in this narrowly
defined situation, we, in
practical effect, would be construing it out of existence. Our acceptance
of the Attorney General's
position, would force us to conclude that the only purpose served by the §
246(a) limitation period
is to "merely to ‘cut off the availability of a procedure which, although
to all intents and purposes
would establish deportability, permitted the Attorney General to act more
informally and
expeditiously than he could in a deportation proceeding'." Id. at 382-83
(quoting In re S--, 9 I. & N.
Dec. At 555 n.8.) The Attorney General concludes that this reading of the
statute flows naturally
from the observation that procedural safeguards in deportation actions are
established by statute,
while in rescission actions Congress implicitly left it to the agency to
develop such protections. SeeIn re S--, 9 I. & N. Dec. at 555 n.8. We
note, however, that essentially the same procedural
measures, including notice and a hearing, are available in both rescission
and deportation actions.
Compare 8 C.F.R. §§ 246.1 to 246.9, with 8 U.S.C. § 1252(b). To us, the
agency's choice to provide
this additional process evidences its awareness that the consequences of
rescission are comparable
in severity to those associated with deportation. Hence, we cannot agree
that Congress, presumably
knowing that rescission usually places an alien at immediate risk of
deportation, would go to the
trouble of enacting a statute of limitations on rescission actions, and
then intend it to be construed
so narrowly that it offered virtually no protection from untimely action
by the INS.
                          V. Conclusion
     We hold that the running of the limitation period contained in §
246(a) of the Immigration
and Nationality Act, 8 U.S.C. Sec. 1256(a), prohibits the INS from
initiating deportation proceedings
based exclusively on fraud in obtaining the adjustment of status. We
express no opinion as to
whether the Immigration Marriage Fraud Amendment Act of 1986 (IMFA), Pub.
L. 99-639, 100
Stat. 3537 (1986), the Immigration Act of 1990, Pub. L. 101-649, 104 Stat.
4978 (1990), or any other
subsequent amendments to the Act would make someone in Bamidele's position
deportable.
Furthermore, in light of our disposition of the case, we need not reach
the issue of whether Bamidele
is deportable exclusively under § 241(a)(2).
     Thus, we will grant the petition for review, we will vacate the order
of the Board of
Immigration Appeals dated November 13, 1995, and we will remand this case
to the Board of
Immigration Appeals with instructions to terminate the deportation
proceedings. Each party to bear
its own costs.
