Bamidele v. INS

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Precedential or Non-Precedential: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that Bamidele's permanent resident status cannot presently be rescinded.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.