Asika v. Ashcroft

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FELIX ILKECHUKWU ASIKA, 

Petitioner,

v.  No. 03-1352

JOHN ASHCROFT, Attorney General,

Respondent.



On Petition for Review of an Order of

the Board of Immigration Appeals.

(A90-278-797)

Argued: January 20, 2004

Decided: March 29, 2004

Before WILKINS, Chief Judge, and LUTTIG

and TRAXLER, Circuit Judges.

Affirmed by published per curiam opinion.

COUNSEL

ARGUED: Herbert Bradford Glassman, BAACH, ROBINSON &

LEWIS, Washington, D.C., for Petitioner. Linda Sue Wernery, Office

of Immigration Litigation, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Peter D.

Keisler, Assistant Attorney General, Douglas E. Ginsburg, Senior Lit-

igation Counsel, Civil Division, Office of Immigration Litigation,

UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Respondent.

2 ASIKA v. ASHCROFT

OPINION

PER CURIAM:

The petitioner, Felix Ilkechukwu Asika, was held to be deportable

on July 23, 1998, in an order affirmed by the Board of Immigration

Appeals ("the Board") on February 26, 2003. He appeals this deci-

sion, arguing that the Attorney General was barred from bringing a

deportation action against him by the five-year statute of limitations

on the rescission of wrongfully granted adjustments. See 8 U.S.C.

§ 1256(a). Because we conclude that the Immigration and Naturaliza-

tion Act is ambiguous on this point, we defer to the interpretation of

this provision adopted by the Attorney General. Accordingly, we

affirm the Board’s judgment.

I.

Felix Asika entered the United States on a nonimmigrant student

visa on April 14, 1979, almost twenty-five years ago. On May 27,

1981, at approximately the same time this visa expired, he married

Paula Aliniece, an American citizen. That same year, Ms. Aliniece

filed a visa petition on his behalf with the Immigration and Natural-

ization Service (INS), and Asika filed an accompanying application

to adjust his status to lawful permanent residence.

The INS had not yet acted on these filings when, six years later,

on June 16, 1987, Asika applied for temporary resident status under

the 1986 Legalization or Amnesty program. See 8 U.S.C. § 1255a.

The INS denied this application for lack of supporting documentation

on January 21, 1988. And, on February 17, 1988, Asika timely filed

an administrative appeal of this denial. Yet, on June 22, 1989, while

this administrative appeal was still pending, Asika filed another appli-

cation with the INS to "adjust" his status of a temporary resident —

the status that the INS had recently denied to him — to that of a per-

manent resident. Despite the fact that Asika was not, in fact, a tempo-

rary resident at the time he filed this application, the INS granted this

adjustment in error and issued a green card to Asika, allowing him to

remain permanently in the United States.1

1

The INS finally considered and rejected Asika’s appeal of its denial

of temporary resident status in May 1993. In the course of considering

ASIKA v. ASHCROFT 3

After the passage of six more years, on September 21, 1995, Asika

applied for naturalization. As the INS processed Asika’s application,

it determined that it had erroneously granted Asika’s 1989 application

for an adjustment to permanent residence status. J.A. 150-51. It also

discovered that both the 1981 visa petition filed by Paula Aliniece,

Asika’s now-estranged wife, and Asika’s accompanying application

for an adjustment of status, filed fifteen years earlier, were "techni-

cally still pending." The INS then attempted to contact Ms. Aliniece

in two letters (sent to the address that Aliniece supplied in her 1981

visa petition) to request that she provide evidence in support of a bona

fide marriage to Asika. When Aliniece did not respond to these let-

ters, the INS denied both her petition and Asika’s accompanying

application for an adjustment of status. On May 13, 1997, based, in

part, on these denials and, in part, on its determination that Asika had

attained permanent residence status in error, the INS concluded that

Asika had failed to establish that he had been "lawfully admitted for

permanent residence," see 8 U.S.C. § 1427(a) (emphasis added), and

denied his application for naturalization.

The INS instituted removal proceedings against Asika, pursuant to

8 U.S.C. § 1229a(a)(1), on August 19, 1997. It asserted that Asika

was deportable because, at the time of the erroneous 1989 adjustment,

he was "within" two "classes of aliens inadmissible by the law." J.A.

346; 8 U.S.C. § 1227(a)(1)(A).2 Asika did not deny that he was within

either class of inadmissible aliens at the time of his adjustment; rather,

Asika’s appeal, the Eastern Service Center of the INS determined that the

agency had improperly granted permanent resident status to Asika in

1989 and recommended that this adjustment be rescinded. J.A. 120, 150.

However, the Washington District office of the INS declined to accept

this invitation based on its conclusion, once again in error, that Asika had

been granted permanent resident status as an immediate relative of a

United States citizen. J.A. 122, 124, 150.

2

In particular, the INS asserted that Asika was inadmissible — and

therefore deportable — because he filed for an adjustment of status in

1989 (1) for the purpose of performing "skilled or unskilled labor" with-

out a certification from the Secretary of Labor, 8 U.S.C. § 1182(a)(5)(A),

and (2) without "a valid, unexpired immigrant visa," 8 U.S.C. § 1181(a).

J.A. 324.

4 ASIKA v. ASHCROFT

he objected that section 246(a) of the Immigration & Naturalization

Act ("the Act"), 8 U.S.C. § 1256(a), which he believed to provide a

five-year statute of limitations on the rescission of adjustments, also

foreclosed the INS from removing him based on an erroneous adjust-

ment after five years had passed. In an order entered July 23, 1998,

an immigration judge ("IJ") rejected Asika’s argument and affirmed

the Attorney General’s longstanding interpretation that section

246(a)’s temporal limitation on the power to rescind does not serve

to abridge the distinct power to deport. See J.A. 200 (relying upon

Matter of Belenzo, 17 I. & N. Dec. 374 (Att’y Gen. 1981)). The IJ

also held that Asika did not possess a valid, unexpired immigrant visa

when he applied for an adjustment of status in 1989, and, for that rea-

son, was deportable under 8 U.S.C. § 1227(a)(1). J.A. 200; see also

8 U.S.C. § 1181(a). The Board of Immigration Appeals affirmed this

order without opinion on February 26, 2003, and Asika now petitions

the court for review.

II.

Asika’s sole, viable challenge to the Board’s affirmance of the

order of deportation is that the INS was barred by section 246(a) of

the Act from charging him with deportation, eight years after it had

adjusted his status to that of a permanent resident.3 Although, on its

own terms, section 246(a) discusses only the rescission of status

adjustments and does not purport to limit the Attorney General’s

power of deportation, Asika argues that its five-year statute of limita-

tions must be applied to deportation proceedings as well, where the

INS’s only ground for deportation is that the individual’s adjustment

3

Asika also argues that the IJ’s order of removal was in error because

the IJ relied for his determination that Asika was inadmissible at the time

of his adjustment on the fact that Asika lacked a valid entry document.

Asika contends that under 8 U.S.C. §§ 1255a(4)(A), (b)(1)(C), and

(d)(2), this ground for inadmissibility cannot be relied upon to deny

"legalization-related" adjustments. We have no jurisdiction to consider

this argument, however, because Asika failed to make it before the Board

and, therefore, failed to exhaust "all administrative remedies." See 8

U.S.C. § 1252(d); Gallanosa v. United States, 785 F.2d 116, 119 (4th

Cir. 1986) (holding that the predecessor statute to section 1252(d) is

jurisdictional).

ASIKA v. ASHCROFT 5

was improperly granted. Following the Third Circuit, Asika contends

that the "practical effect" of reading section 246(a) not to apply to

deportation in this set of cases would be to "constru[e] it out of exis-

tence." See Bamidele v. INS, 99 F.3d 557, 562-65 (3d Cir. 1996). He

also argues the Attorney General’s contrary interpretation is not due

deference under Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, 467 U.S. 837 (1984), both because the statute is clear and

because "a statute of limitations is not a matter within the particular

expertise of the INS," see Bamidele, 99 F.3d at 561.

We disagree. Even accepting that section 246(a) does, in fact,

create a five-year statute of limitations on rescission actions, we must

defer, under Chevron, to the INS’s longstanding interpretation of its

removal power as being unrestricted by such a statute of limitations,

so long as that interpretation is permissible in light of the statutory

text and reasonable. We believe that it is and reject Asika’s petition.

A.

Section 246(a) provides,

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 a person and cancel-

ling removal 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. Nothing in this subsection shall require the

Attorney General to rescind the alien’s status prior to the

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) (emphasis added).

6 ASIKA v. ASHCROFT

Both Asika and the Attorney General agree, with uniform support

from the case law, that section 246(a) establishes a five-year statute

of limitation on the Attorney General’s power to rescind erroneously

granted adjustments of status. See, e.g., Morales v. Yeutter, 952 F.2d

954, 956 (7th Cir. 1991); Fulgencio v. INS, 573 F.2d 596, 598 (9th

Cir. 1978); Quintana v. Holland, 255 F.2d 161, 164 (3d Cir. 1958);

see also Matter of S-, 9 I. & N. 548, 554 (A.G. 1962). Although the

plain language of the statute does not lend itself easily to such a reading,4

the Attorney General understands section 246(a)’s directive that, "the

Attorney General shall rescind the action taken granting an adjust-

ment of status," not to compel action by the government, but rather,

as a term of art, used to provide him and his designees with the "pro-

secutorial discretion" to rescind an adjustment of status whenever

they see fit within the five-year window provided by the statute. See

Matter of Quan, 12 I. & N. Dec. 487 (BIA 1967) (providing that "the

Service may exercise discretion in determining whether rescission

proceedings should be instituted in any individual case"). Having

interpreted the statute to permit, but not require, him to act within this

five-year window, the Attorney General necessarily treats this time

limitation as a statute of limitations to forbid rescission actions after

its passing. See Matter of Belenzo, 17 I. & N. Dec. 374, 380 (Att’y

Gen. 1981).

We need not — and do not — consider today, in the absence of any

4

The text of section 246(a) appears to require the Attorney General to

rescind an adjustment of status if he determines that such an adjustment

was erroneous within five years of the agency’s decision to grant it. It

states, "the Attorney General shall rescind the action taken granting an

adjustment of status," "if, at any time within five years after" that adjust-

ment, "it shall appear to [his] satisfaction [ ] that the person [who

received the adjustment] was not in fact eligible for" it. See 8 U.S.C.

§ 1256(a) (emphasis added). At least on its face, the statutory text does

not even address the question of whether the Attorney General has the

discretionary power to act to rescind an adjustment after the passage of

five years.

Were section 246(a) so interpreted, Asika’s claim would necessarily

fail. If section 246(a) does not create a statute of limitation for even

rescission proceedings, there can be no claim that deportation proceed-

ings are so limited by that section.

ASIKA v. ASHCROFT 7

briefing by the parties, whether the interpretation of section 246(a)

adopted by the Attorney General is permissible in the face of the stat-

utory text. We do observe, however, that the Attorney General’s per-

missive interpretation of "shall," on which this interpretation rests,

finds parallels in both the immigration and criminal contexts.5

B.

Even assuming that section 246(a) establishes a five-year limitation

on the Attorney General’s power to rescind an adjustment, Asika’s

claim that such a limitation must also extend to the Attorney Gener-

al’s authority to deport must still fail.

The Attorney General has held, since 1962, that section 246(a)’s

five-year limitation on the rescission of adjustment of status does not

apply to deportation proceedings, even when the deportation occurs

"on grounds which existed prior to the adjustment and which would

also have supported rescission." See Matter of S—, 9 I. & N. Dec.

548, 548 (Att’y Gen. 1962). Asika’s claim obviously implicates this

construction of the Act, which the Attorney General is charged with

enforcing. Therefore, we are bound to review the Attorney General’s

construction under "the principles of deference described in Chevron

U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,

842-44 (1984)." See INS v. Aguirre-Aguirre, 526 U.S. 415, 424

(1999).

5

The INS commonly interprets the term, "shall," in the same permis-

sive manner as the Attorney General has in this case, see Memorandum

from INS Commissioner Doris Meissner to Regional Directors, et al.,

Exercising Prosecutorial Discretion, at 3 (Nov. 17, 2000) (explaining

that, "a statute directing that the INS ‘shall’ remove removable aliens

would not be construed by itself to limit prosecutorial discretion"), a

practice that has been sanctioned by courts in both the immigration and

criminal context. See, e.g., Reno v. American-Arab Anti-Discrimination

Cmme., 525 U.S. 471, 483-84 (1999); Costa v. INS, 233 F.3d 31, 37 (1st

Cir. 2000); see also Heckler v. Chaney, 470 U.S. 821, 835 (1985) (inter-

preting the directive in section 334 of the FDCA that violators "shall be

imprisoned . . . or fined," to "commit complete discretion to the Secretary

to decide how and when" to prosecute under the Act).

8 ASIKA v. ASHCROFT

i.

Our first task under Chevron is to determine whether "Congress has

[ ] directly addressed the precise question at issue." See Chevron, 467

U.S. at 842-43. We agree with the Third Circuit that it has not. See

Bamidele, 99 F.3d at 561 (holding that "Congress has given us little

guidance" on this question); but see Oloteo v. INS, 643 F.2d 679, 682-

83 (9th Cir. 1981) (holding that the intent of Congress was "plainly,

unequivocally and unambiguously" expressed in the Act and that the

five-year limitation on the rescission of adjustments did not apply to

deportation proceedings). The Act does not speak directly to the inter-

play between the Attorney General’s authority to rescind an adjust-

ment of status and his authority to deport, and provides no express

guidance whatsoever on the more narrow question of whether the

five-year limitation on rescission actions must also apply to deporta-

tion actions, in those cases where the same grounds that justify depor-

tation would also support rescission of status. Moreover, to the extent

that the language of the Act provides any direction at all, it implicitly

supports the Attorney General’s position that Congress intended for

section 246(a)’s five-year limitation to apply only to the rescission of

adjustments. See id. 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 purportedly

creates, nor, for that matter, to any time limitation on deportation at

all.

In support of his argument that the statute forecloses the position

taken by the Attorney General, Asika points to the final sentence of

section 246(a), added to the Act as part of a 1996 amendment, which

provides,

Nothing in this subsection shall require the Attorney Gen-

eral 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) (emphasis added). If an order of removal "shall be

sufficient to rescind" an adjustment of status, Asika reasons, then the

five-year limitation on rescission must also be applied to the Attorney

ASIKA v. ASHCROFT 9

General’s authority to deport, or else the Attorney General would be

able to rescind an alien’s status through the deportation process, not-

withstanding the passage of the five-year statute of limitations on

rescission actions. To adopt such a construction, Asika argues, would

be, in effect, to "construe [section 246(a)] out of existence." See

Bamidele, 99 F.3d at 564.

We recognize, as does the Attorney General (at least implicitly),6

that this inferential argument has some force; however, it is not the

only way in which the Act may be interpreted to give independent

effect to section 246(a). In fact, contrary to Asika’s argument — and

the Third Circuit’s statement in Bamidele — section 246(a)’s five-

year limitation on rescission actions plays an important, if limited,

role, even in the Attorney General’s construction of Act. Under the

Act, rescission proceedings are subject to few, if any, procedural pro-

tections, see 8 U.S.C. § 1256; deportation proceedings, in contrast, are

subject to extensive procedural regulations set forth in 8 U.S.C.

§ 1229a. In light of this difference in the two procedures, section

246(a)’s five-year limitation on rescission — even if interpreted to

apply only to rescission proceedings — provides an important safe-

guard to aliens like Asika, who have been in the country for more

than five years after their status has been erroneously adjusted, by

forcing the Attorney General to establish their deportability through

the more rigorous procedures of removal, see 8 U.S.C. § 1229a, rather

than the less procedurally-onerous process of rescission.7 See Matter

of S—, 9 I. & N. at 555 n. 8. Asika is, therefore, wrong to argue that

the Attorney General’s construction of the statute is not tenable in

light of the statutory scheme.

6

In Matter of S—, the Attorney General conceded that his construction

"of the time limitation in section 246 may be of little practical value to

the alien." See Matter of S—, 9 I. & N. at 555.

7

Asika argues that this statutory difference in procedural protections

should not figure in our analysis because, in practice, the INS conducts

rescission and deportation proceedings in an almost identical fashion.

This argument is meritless. The touchstone of the first step under Chev-

ron is congressional intent. See Chevron, 467 U.S. at 842-43. That the

INS has chosen in its discretion to provide additional procedural protec-

tions to aliens in rescission proceedings reveals nothing about whether

Congress relied on the statutory disparity in procedures for rescission

and removal in enacting section 246(a).

10 ASIKA v. ASHCROFT

When the statute does not speak unambiguously to the precise

question at issue, our inquiry under Chevron is simply to ask whether

the Attorney General’s position "is based on a permissible construc-

tion of the statute." See Chevron, 467 U.S. at 863; Akindemowo v.

INS, 61 F.3d 282, 284 (4th Cir. 1995). Because the Act itself provides

little textual guidance as to the interplay between deportation and

rescission, and the construction adopted by the Attorney General

gives meaning to each of the Act’s terms, we hold that it is. See Chev-

ron, 467 U.S. at 863 n.11.

ii.

Having so concluded, we are bound by Chevron to defer to the

Attorney General’s construction of the Act so long as it is reasonable.8

We believe it is. First, as the Attorney General explained in Matter

of S—, the extension of section 246(a)’s five-year limitation to depor-

tation proceedings would create an apparent anomaly in the Act, lim-

iting to five years the Attorney General’s authority to deport those

aliens who received lawful permanent residence status through adjust-

8

The Third Circuit agreed that Congress had not spoken clearly to the

question at issue in this case, but nevertheless refused to defer to the

Attorney General’s interpretation of the Act because it believed that the

interpretation concerned only a statute of limitations, and "a statute of

limitations is not a matter within the particular expertise of the INS."

Bamidele, 99 F.3d at 561. We disagree. The Attorney General’s answer

to the question presented in this case — whether section 246(a)’s five-

year statute of limitations should also serve to limit the Attorney Gener-

al’s power to deport in those instances where deportation would have the

effect of rescinding a previous adjustment of status — does not depend

on a straightforward interpretation and application of a statute of limita-

tions; rather, it requires the Attorney General to consider whether a five-

year statute of limitations would be consistent with the statutory and reg-

ulatory framework for deportation, when applied to a few, but not all, of

the cases within that framework. Unlike the Third Circuit, we believe

that such a judgment calls upon precisely the sort of agency expertise to

which Chevron requires the courts to defer. See Akindemowo, 61 F.3d at

285 (holding that, "deference to an agency’s interpretation is particularly

apropos here because the immigration laws ‘have produced a complex

and highly regulatory program’ entailing policy determinations that fall

within the ambit of agency expertise.’").

ASIKA v. ASHCROFT 11

ment, but not those who gained such status upon entering the country.

See Matter of S—, 9 I. & N. at 554. It is not unreasonable for the

Attorney General to read the Act to avoid such disparate treatment of

aliens, based solely on the means by which they received permanent

resident status.

Second, as explained above, the Act requires the Attorney General

to provide aliens charged with deportability greater procedural protec-

tions than those faced with the rescission of their status adjustment,

even though the rescission of an adjustment serves to establish the

alien’s deportability by returning him to nonimmigrant status. The

Attorney General reasoned from this difference in procedural protec-

tions that,

the five-year limitation [on rescission] would thus seem to

be recognition that it would be unfair to permit indefinitely

such serious consequences to be effected through a some-

what informal process. After five years, the Attorney Gen-

eral is, therefore, required to correct mistakes in granting

permanent resident status to those initially admitted as non-

immigrants in the same manner as in the case of other

aliens, i.e., through deportation.

Matter of S—, 9 I. & N. at 555 n. 8. As above, we find this explana-

tion to be reasonable. The removal of an alien — even one that is in

the United States due to a mistake by the INS — is a serious and dis-

ruptive event in that individual’s life; the difficulties that such an

action cause for the alien are likely to be increasingly severe the lon-

ger he has remained in the country. In view of these difficulties, we

believe it is entirely reasonable for the Attorney General to interpret

the statute to have limited his ability to utilize the less formal rescis-

sion process to the five-year period after an alien has received an

adjustment, but not to have placed such a limitation on his ability to

effect removal proceedings.

III.

The judgment of the Board of Immigration Appeals, affirming the

IJ’s order of removal is, accordingly, affirmed.

AFFIRMED