                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-14-2009

Garcia v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 07-2164




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                                   PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                   No. 07-2164


            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)
                ____________

              Argued July 24, 2008
Before: McKEE, FUENTES, and WEIS, Circuit Judges.
            (Filed: January 14, 2009)
                 ____________

                    OPINION
                  ____________
WEIS, Circuit Judge.

               In this immigration case, the Department of
Homeland Security1 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


              1
               In 2003, the Immigration and Naturalization
Service was abolished and its functions were transferred to the
Department of Homeland Security. See Homeland Security Act,
Pub. L. 107-296, 116 Stat. 2135 (2002). We will refer to the
agency as the DHS.

                              2
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 judge ordered 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.


                               3
              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 further that, “[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

                                4
              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.”

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 § 246(a) as part of an
extensive revision of the immigration statute:2

              “Nothing in this subsection shall
              require the Attorney General to
              rescind the alien’s status prior to
              commencement of procedures to


              2
                Bamidele was decided on November 1, 1996.
The amendment to § 1256(a) was enacted before that date, on
Sept. 30, 1996, as § 378 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110
Stat. 3009-546, -649, which had an effective date of April 1,
1997.

                               5
               remove the alien under section 240
               [, 8 U.S.C. § 1229a], and an order
               o f rem o v a l issu e d by a n
               immigration judge shall be
               sufficient to rescind the alien’s
               status.”

Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 § 378(a), Pub. L. No. 104-208, 110 Stat. 3009-546, 649.

              The BIA held in the case before us that Bamidele
is not applicable because the amendment to § 246(a) separated
rescission and removal proceedings so that the five-year
limitation applies only to rescission. According to the BIA,
when an adjustment to permanent lawful resident status is
erroneously granted, the DHS has the choice of either instituting
rescission proceedings if it catches its mistake within five years
or commencing removal proceedings without being subject to
any time limitation. In this case, the DHS argues that we should
defer to the BIA’s interpretation of the amendment rather than
follow Bamidele.

               We decided the matter of deference in Bamidele,
explaining that § 246(a) is a statute of limitations, a subject that
is not “within the particular expertise of the INS.” Bamidele, 99
F.3d at 561. Therefore, we did not grant the agency’s
interpretation “any presumption of special expertise.” Id.
(quoting U.S. Dep’t of Navy v. Fed. Labor Relations Auth., 840
F.2d 1131, 1134 (3d Cir. 1988)).



                                 6
               We are bound by precedential opinions of our
Court unless they have been reversed by an en banc proceeding
or have been adversely affected by an opinion of the Supreme
Court. In re Cont’l Airlines, 134 F.3d 536, 542 (3d Cir. 1998).
Because the amendment to § 246(a) is part of the same statute
of limitations discussed in Bamidele, its holding applies and we
will not defer to the agency’s construction.

               The DHS, however, also maintains that the
amendment to § 246(a), has undermined Bamidele. In
Bamidele, after analyzing the statutory language, we decided
that the five-year limitation applied to both rescission and
deportation actions that were taken to invalidate an adjustment
of status that was erroneously granted to an ineligible alien.
Bamidele, 99 F.3d at 563. The issue before us now is whether
the statutory amendment that became effective post-Bamidele
altered the primary holding in that case.

           Our first step is to scrutinize the text of the
amendment. It has two clear provisions:

              (1) The Attorney General may remove an alien
without taking steps to rescind an adjustment of status; and

                (2) An order of removal by an immigration judge
is sufficient to rescind the alien’s status.

              It is significant that the amendment does not
invalidate nor modify nor refer in any respect to the statutory
language “within five years” after the adjustment. The five-year
text remains in the statute. Although the DHS would limit its

                               7
application to rescission only, removing any statute of
limitations to removal under § 1256, we find no justification for
such a restrictive application of the plain language of the statute.

              The DHS argument is a repetition of what we
rejected in Bamidele. We observed that the statute of limitations
bar on deportation is narrow and quoted approvingly the BIA
opinion In re Belenzo, 17 I. & N. Dec. 374 (1981), where the
Board said that § 246(a)’s prohibition is effective “only where
deportation is based on an attack on the adjustment itself.”
Bamidele, 99 F.3d at 564 (quoting Belenzo, 17 I. & N. Dec. at
380). Nothing in the amendment to § 246(a) undermines
Bamidele’s reasoning on that point.

              The amendment still contemplates relief from
deportation. If this result is anomalous, as the DHS appears to
believe, Congress created the anomaly and is free to eliminate
it.3

               We are aware of Asika v. Ashcroft, 362 F.3d 264,
267 (4th Cir. 2004), a post-amendment case that disagreed with
Bamidele and deferred to the DHS’s interpretation of § 246(a).



               3
                The five-year limitation in § 246(a) is not of
recent vintage. Decades ago, in Quintana v. Holland, 255 F.2d
161 (3d Cir. 1958), a case involving a predecessor statute, we
observed that rescission of status was “pretty harsh” and
Congress meant to require the Attorney General to take the
required action within five years. Id. at 164.

                                 8
Respectfully, we cannot agree with our esteemed colleagues on
the deference issue.4

              We conclude that Bamidele retains its precedential
authority and counsels us to grant the petition for review.5

                               II.

              The government also argues that pursuant to INA
§ 242(g), 8 U.S.C. § 1252(g), this Court lacks jurisdiction to
entertain this action. Section 242(g) provides, “Except as
provided in this section . . . no court shall have jurisdiction to
hear any cause or claim by or on behalf of any alien arising from
the decision or action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal orders against


              4
                In Bamidele, we also recognized our
disagreement with a line of cases in the Ninth Circuit. Bamidele
v. INS, 99 F.3d 557, 563, 563 n.8 (3d Cir. 1996). The
amendment to § 246(a) has not changed our view of those cases.
              5
               At oral argument, the government argued that its
position is supported by some language in one of our non-
precedential opinions. We are not bound by our non-
precedential opinions. See United States v. Corley, 500 F.3d
210, 226 (3d Cir. 2007); see also Third Circuit Internal
Operating Procedure 5.7 (indicating that non-precedential
“opinions are not regarded as precedents that bind the court
because they do not circulate to the full court before filing”).


                                9
any alien under this Act.” 8 U.S.C. § 1252(g). The government
argues that this section applies to bar jurisdiction here because
Garcia is raising the five-year limit to challenge the decision to
“commence” removal proceedings.

                In Reno v. American-Arab Anti-Discrimination
Committee, 525 U.S. 471 (1999), the Supreme Court rejected
“the unexamined assumption that § 1252(g) covers the universe
of deportation claims -- that it is a sort of ‘zipper’ clause that
says ‘no judicial review in deportation cases unless this section
provides judicial review.’” Id. at 482. The Court held that
section 1252(g) “applies only to three discrete actions that the
Attorney General may take: her ‘decision or action’ to
‘commence proceedings, adjudicate cases, or execute removal
orders.’” Id.; see also id. at 483 (Section 1252(g) “performs the
function of categorically excluding from non-final-order judicial
review . . . certain specified decisions and actions of the INS.”
(Emphasis added)).

                Despite its apparent broad reach, therefore, §
242(g) “is to be read narrowly and precisely” to prevent review
only of the three narrow discretionary decisions or actions
referred to in the statute. Sabhari v. Reno, 197 F.3d 938, 942
(8th Cir 1999); see also Fornalik v. Perryman, 223 F.3d 523, 531
(7th Cir. 2000). Thus, the section “has nothing to do with
petitions for review of final orders of deportation, or indeed with
any sort of review of such orders.” Shah v. Reno, 184 F.3d 719,
722 (8th Cir. 1999).

             Garcia is not challenging the discretionary
decision to commence proceedings, but is challenging the

                                10
government’s very authority to commence those proceedings
after the limitation period has expired. Thus, § 242(g) is not
implicated, and we have jurisdiction to review the BIA’s
decision as a final order pursuant to § 242(a)(1), 8 U.S.C. §
1252(a)(1).

             Accordingly, we will grant Garcia’s petition for
review, vacate the BIA’s decision, and remand for further
proceedings.




                             11
FUENTES, J., dissenting:

               In 1996 Rosalba Garcia was granted permanent
residency, based in part on a sworn statement falsely claiming
that Dinorah Landestoy, a U.S. citizen, was her mother.
Landestoy was, in fact, her aunt. Eight years later, DHS learned
of the deception and, determining Garcia was never lawfully
admitted, commenced removal proceedings. The majority
reasons that, despite her false statement, Garcia cannot be
removed because more than five years have passed since her
fraud occurred. However, I believe that under a plain reading of
§ 246(a), Garcia is removable because § 246(a)’s five-year
period applies only to rescissions and not to removal actions.
Notably, that was the opinion of the Fourth Circuit in Asika v.
Ashcroft, 362 F.3d 264 (4th Cir. 2004), the only other circuit
court case to address this provision since its amendment in 1996.
Moreover, I believe that Bamidele, upon which the majority
relies, does not apply to Garcia’s removal proceeding and is no
longer binding in light of the 1996 amendment. Therefore, I
respectfully disagree.

                                I.

               By its own terms, § 246(a) expressly applies its
five-year time limitation only to when the “Attorney General
shall rescind” the adjustment action. 8 U.S.C. § 1256(a)
(emphasis added). As the Fourth Circuit explained in
Asika,“Section 246(a) itself gives no indication that its five-year
limitation restrains the Attorney General’s deportation authority,
and the provisions of the Act that govern deportation refer
neither to section 246 nor the statute of limitations that it

                                12
purportedly creates, nor, for that matter, to any time limitation
on deportation at all.” 362 F.3d at 269.

               This, I believe, is the more appropriate plain
reading of § 246(a). Reinforcing this construction is the fact that
the public laws enacting and amending this provision
respectively describe its subject as “Rescission of adjustment of
status,” Pub. L. No. 82-414, 66 Stat. 164, 217 (1952) (emphasis
added), and “Rescission of lawful permanent resident status.”
Pub. L. No. 104-208, 110 Stat. 3009-619, 3009-649 (1996)
(emphasis added); see also H.R. Rep. No. 82-1365, at 63 (1952)
(describing section’s effects and making no mention of
removal).

                The 1996 amendment of § 246(a) confirms that
the five-year bar is meant to apply only to rescission
proceedings. The sentence added to the provision in 1996 reads,
“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 1229a of this title,
and an order of removal issued by an immigration judge shall be
sufficient to rescind the alien’s status.” 8 U.S.C. § 1256(a). This
amendment shows that rescission proceedings, to which the
five-year limitation period applies, have no bearing on the
Attorney General’s authority to commence a removal action.
Thus, when DHS learned that Garcia was never lawfully
admitted, based on her fraudulent statement, the government
could properly commence removal proceedings even though
more than five years had passed since she was granted
permanent residency.


                                13
                               II.

               The majority’s reliance on Bamidele in departing
from this plain language is misplaced because the circumstances
surrounding the removal here are quite different. In Bamidele,
the government became aware of the alien’s removability within
five years of his adjustment of status yet failed to act. In this
case, the government did not realize Garcia had made a
misrepresentation until that five year window had expired.6 To




              6
                It is true that Landestoy had filed three previous
petitions in 1985, 1993, and 1995 seeking to have Garcia
recognized as her daughter for immigration purposes, all of
which did not succeed because Landestoy could not prove she
was Garcia’s mother. (See App. 30 (1985 petition); App. 35
(1993 petition); App. 42 (1995 petition).) The government’s
contention that it did not discern Garcia’s fraud before she
applied for naturalization because the earlier applications were
filed under different names is not supported by the record.
However, there is no evidence that DHS was aware that these
petitions applied to the same person. This seems simply to have
been a case of the right hand not knowing what the left hand
was doing, as evidenced by the fact that DHS allowed
Landestoy to file the 1996 petition while the 1995 petition was
still pending, and approved the former on September 19, 1996
just a week before denying the latter on September 26, 1996.

                               14
deny removal in this case would reward Garcia for the
successful concealment of her fraud.7

               Furthermore, we have the authority to reevaluate
the otherwise controlling interpretation of a statute where its
language has subsequently been amended. See Reich v. D.M.
Sabia Co., 90 F.3d 854, 858 (3d Cir. 1996). The 1996
amendment had been enacted, but was not yet effective when
Bamidele was issued. Bamidele did not discuss the pending
amendment. But even before the 1996 amendment, other courts
applying § 246(a) were not tempted to expand its time limitation
beyond the arena of rescission. See Choe v. Immigration &
Naturalization Serv., 11 F.3d 925, 928 n.4 (9th Cir. 1993) (“The
bottom line is § 246 does not prevent the removal of adjusted
aliens.”); Ubiera v. Bell, 463 F. Supp. 181, 185 (S.D.N.Y. 1978)
(“[P]laintiff may be subject to deportation proceedings even if
the five-year limitation in Section 246(a) is applied to him.”).
Bamidele’s contrary holding rested on the rationale that, since
the BIA conducts rescission and removal proceedings in the
same way, it would be unreasonable for the statute to treat them
differently. 99 F.3d at 564-65. However, the 1996 amendment,
which was not discussed in Bamidele, indicates that Congress
does not view rescission and removal as equivalents. As the
Fourth Circuit noted in Asika v. Ashcroft, the Immigration and
Nationality Act (“INA”) guarantees certain procedural
safeguards for removal proceedings that are not put in place for


              7
               A non-precedential opinion of this court, De
Guzman v. Attorney General, 263 F. App’x 222 (3d Cir. 2008),
distinguished Bamidele on similar grounds.

                              15
rescissions. See 362 F.3d at 270 (comparing 8 U.S.C. §§ 1229a,
1256). Congress’s grant of permission to substitute a removal
proceeding for removal and rescission suggests that the more
extensive procedural protections associated with removal render
the less formal step of rescission unnecessary. Although
currently the two types of proceedings are conducted almost
identically, that approach is at the discretion of DHS, and
therefore would leave a role for § 246(a) should the agency
revert to the disparate procedures permitted by the INA. Id. at
270 & n.7; In re S—, 9 I. & N. Dec. 548, 555 n.8 (Att’y Gen.
1962).

                Our adherence to the interpretation in Bamidele
has placed us out of step with every other circuit to address §
246(a), both before and after the 1996 amendment. As noted
above, we are the only circuit to interpret § 246(a) to apply to
removal proceedings before the 1996 amendment. Since then,
the Fourth Circuit has rejected Bamidele outright in Asika. The
Eleventh Circuit has also implicitly endorsed removal actions
occurring outside the five-year window in Savoury v. Attorney
General, 449 F.3d 1307 (11th Cir. 2006), stating: “What §
246(a) does is establish a five-year statute of limitations for the
Attorney General to bring rescission proceedings and further
clarifies that an [immigration judge’s] order of removal may
also act as a rescission of status even if it is issued after that five
year period.” Id. at 1314 n.2 (emphasis added).

              The majority contends that if its interpretation of
§ 246(a) creates an anomaly in the application of the INA,
Congress is free to eliminate that anomaly. However, that
argument fails to consider the history of this statute. At the time

                                  16
that Congress amended the INA, those authorities that had
addressed the scope of § 246(a) had held it to govern only
rescissions, not removals. See, e.g., Oloteo v. Immigration &
Naturalization Serv., 643 F.2d 679 (9th Cir. 1981); Ubiera v.
Bell, 463 F. Supp. 181, 185 (S.D.N.Y. 1978); In re S—, 9 I. &
N. Dec. 548 (Att’y Gen. 1962). Under the majority’s logic, if
that opposing interpretation were anomalous, the legislature
would have addressed it in 1996. Compare Oloteo, 643 F.2d at
683 (“The argument that our interpretation of § 246(a) renders
it without practical effect would best be made before Congress
and the Attorney General.”). Instead, Congress enacted an
amendment that at the very least left the issue unclear, and that
I believe indicates an understanding that § 246(a) applies only
to rescission.

                                III.

                 I do not rest my dissent on the position that we
must grant Chevron deference to the BIA’s construction of §
246(a), as I believe Congress’s intent is clear on the face of the
statute and “that is the end of the matter.” Chevron, U.S.A., Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984).
However, it is in situations such as these that an agency’s view
of a statute it administers may be helpful to our interpretive task.
As is evident from this Court’s discussion in Bamidele, the
application of the statute of limitations contained in § 246(a)
requires consideration of matters well within the agency’s
expertise, including the correct value to place on the durability
of an alien’s permanent status, 99 F.3d at 564, and the difference
between rescission and removal proceedings. Id. at 564-65; see
also Asika, 362 F.3d at 271 n.8. The BIA’s input is particularly

                                17
persuasive in that it is consistent with the statute’s plain
language. Compare Lynch v. Lyng, 872 F.2d 718, 724 (6th Cir.
1989) (“Here, where we find that the language of the statute, the
broader purposes, and the legislative history argue against the
Secretary’s position, we are not compelled to defer to his
interpretation.”); Dion v. Sec’y of Health & Human Servs., 823
F.2d 669, 672-73 (1st Cir. 1987) (refusing to defer to agency
interpretation where it was inconsistent with Congress’s explicit
and implicit intent); In re Oliver M. Elam, Jr., Co., 771 F.2d
174, 181 (6th Cir. 1985) (rejecting agency interpretation that has
“no support in the plain language of” the relevant provision) (all
cited by Bamidele in support of decision not to defer to the
Attorney General’s construction of § 246(a)).

              Moreover, were we to view the BIA’s decision
through the lens of Chevron deference, Bamidele would clearly
no longer be binding. In Bamidele itself, we stated that “We
express no opinion as to whether . . . any other subsequent
amendments to the Act would make someone in Bamidele’s
position deportable.” 99 F.3d 557, 565 (3d Cir. 1996). Although
the 1996 modification was not a drastic one, it offered a
reasonable basis for the BIA to reject Bamidele as no longer
applicable, and we should defer to that decision.

                               IV.

              In short, I believe the majority’s decision strays
impermissibly far from the language of § 246(a). The plain
meaning of the statute is supported by logic, the view of other
circuits, and the BIA’s own reading. Further, I believe that
Bamidele has lost its precedential value in light of the 1996

                               18
amendment of § 246(a)’s language. For these reasons, I
respectfully dissent.




                         19
