BELENZO

Interim Decision #2793

MATTER OF BELENZO

In Deportation Proceedings

A-20040248

Decided by Board May 6, 1980, December 2, 1980, and May 19, 1981

Decided by Attorney General April 28, 1981

(1) Under section 246(a) of the Immigration and Nationality Act, 8 U.S.C. 1256(a), the

Attorney General is directed to rescind the adjustment of status granted an alien if

within 5 years it appears to his satisfaction that the alien was not is fact eligible for

such adjustment.

(2) In Matter of 8—, 9 I&N Dec. (BIA 1961,1962; LG. 1962), the Attorney General ruled

that the 5-year limitation period for rescission of adjustment of status set forth in

section 246 of the Act did not preclude subsequent deportation proceedings against

adjusted aliens who, before the adjustment was made, committed acts justifying

deportation.

(3) For the same reasons set forth in Matter of S—, supra, the Attorney General now

holds that the 5-year rescission limitation does not bar subsequent deportation

proceedings even where the alleged grounds for the deportation are acts committed in

procuring the adjustment of status.

CHARGES:

Order: Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time of entry

Sec. 212(a)(14) [8 U.S.C. 1182(a)(14)]—No labor certification

Sec. 212(a)(19) [8 U.S.C. 1182(a)(19)1---Visa or other documenta-

tion procured by fraud or misrepresentation of a material

fact

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE

Pro so David Crosland

Acting Commissioner

Gerald S. Hurwitz

Appellate Trial Attorney

BEFORE THE BOARD

(May 6, 1980)

Br: Milhollan, Chairman; Maniatis, Maguire, and Farb, Board Members. Concurring

Opinion: Appleman, Board Member

374

Interim Decision #2793

This is an appeal by the Service from a decision of the immigration

judge ordering that these proceedings be terminated. The appeal will

be dismissed.

The respondent is a native and citizen of the Philippines who ini-

tially entered the United States as a visitor in August 1971. He last

entered the United States in May 1976 as a returning resident alien. He

obtained permanent resident status in March 1972, by virtue of his

marriage to a United States citizen 2 months after his arrival here. He

was therefore exempt from the requirement of an alien labor certifica-

tion. The respondent, however, concealed from the Service a prior

marriage to a native and citizen of the Philippines in 1964, which was

never terminated. The respondent stated at the hearing that he still

supported his first wife and their four children and wanted to bring

them to this country from the Philippines. He further stated that he

and his second spouse never lived together as husband and wife and

that their marriage was entered into so that he could adjust his

immigration status. The marriage ended in divorce in 1973.

Section 246(a) of the Immigration and Nationality Act, as amended,

provides in pertinent part

If, at any time within five years after the status of a person has been otherwise

adjusted under the provisions of Sections 2d5 or 219 of this Act 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 feet 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 Aet to the same extent as if the adjustment of status had not been

made.

The immigration judge found that inure than 5 years had elapsed

since the respondent's status was adjusted under section 245 of the

Act, 8 U.S.C. 1255, and that the time in which rescission proceedings

could have been brought under section 246 of the Act had expired. In

ordering these proceedings terminated, the immigration judge noted

that the respondent was last admitted to the United States upon

presentation of his alien registration receipt card (Form 1-151) and

that rescission proceedings under section 246 of the Act have never

been instituted against him. The immigration judge further noted that

deportation proceedings were not instituted within the 5 year period

during which rescission proceedings could have been brought and

found that the Service apparently comm.enced the instant proceedings

on the theory that such action is permissible under the Attorney

General's decision in Matter of S , 9 LAN Dec. 548 (BIA 1961; A.f4_

—

1962; BIA 1962).' The immigration judge concluded that none of the

' Matter of S — involved exclusion proceedings- The alien fraudulently obtained an

375

Interim Decision #2793

deportation charges in the instant case would have been "appropriate

prior to the grant of 245 relief' even if the permanent resident status

of the respondent could have been voided. A fortiori, he found that if

the grant of the respondent's permanent resident status cannot now be

rescinded, such charges would not lie.

On appeal, and at oral argument, the Service contended that the

mere fact that an alien has had his status adjusted within the United

States to that of a lawful permanent resident pursuant to section 245

of the Act does not preclude the subsequent deportation of the alien

although his status as a lawful permanent resident was not rescinded

nor an action begun within the statutory 5 year period pursuant to

section 246 of the Act- In support of its position, the Service cites

Matter of S—, supra.

Upon review of the record, we adopt the rationale of the immigration

judge. We conclude that since the Service cannot now rescind the

respondent's adjustment of status solely on eligibility grounds because

of the specified time limitation'in section 246 of the Act, the qualitative

charges stated in the Order to Show Cause, which did. not exist inde-

pendently of the procurement of adjustment, cannot be supported in

deportation proceedings. Accordingly, the appeal by the Service will be

dismissed.

ORDER, The appeal is dismissed.

CONCURRING OPINION: Irving A. Appleman, Board Member

This respondent obtained an adjustment of status in March 1972, by

claiming a fraudulent marriage to a United States citizen at a time

when he was already married to someone else. He last entered in 1976

as a returning resident. No rescission proceedings were ever brought

under section 246 of the Act to take away the lawful permanent

residence acquired in 1972. Instead, on October 31, 19/7, an Order to

Show Cause was issued, charging him with deportability (1) under

section 241(a)(1) of the Immigration and Nationality Act, in that at

time of entry in 1976 he did not have the required labor certification

(section 212(a)(14)) and (2) under section 241(a)(1) in that at time of

entry in 1976 he had obtained documentation by fraud (section

adjustment of status in April 1955, concealing the fact that he had obtained a visa by

fraud in 1949. No rescission occurred within 5 years. Instead, the facts came to light

when he attempted to reenter the United States in August 1960, as a lawful permanent

resident returning after a visit abroad. The Board held that the passing of the 5 years

operated as a statute of limitation barring exclusion on any ground which existed prior

Ix, the adjustment. Pointing to the legislative history, in remanding the case to the

Board, the Attorney General noted that adjustment under section! 245 was never in-

tended to confer greater rights than those enjoyed by a permanent resident who gained

his status through entry with an immigrant visa.

3'76

Interim Decision #2793

212(a)(19)). The immigration judge terminated since the respondent's

lawful permanent residence had never been revoked. The Service

appealed.

The Service appeal is predicated on language in Matter of S—, 9 I&N

Dec. 548 (BIA 1961; A.G. 1962; BIA 1962), which, it is argued, permits a

deportation action notwithstanding the fact that the 5 year rescission

period authorized in section 246 has run. As the immigration judge

correctly noted in his excellent decision below, we had addressed this

issue in Matter of Saunders,16 I&N Dec. 326 (BIA 1977). In that case I

took issue, in a separate opinion, with what I regarded as the aberrated

reasoning that rescission must take place if the 5 years have not yet

run, but is not required if the 5 years have run.

The present ruling comes much closer to the position I urged in

Saunders, and I have no difficulty in concurring_ In this case the

claimed deportable grounds stem entirely from the "fraud" perpe-

trated at the time of the adjustment. There are no deportable grounds

preceding the adjustment, that have independent existence outside of

that "fraudulent" adjustment. So long as the adjustment exists, and is

a fact, the alien cannot be deported. In this respect the case differs

factually from Matter of S—, supra, but is the same as Matter. of V—, 7

MN Der_ 262 (131A 1956).

Since the adjustment can no longer be rescinded, and there is no

deportable ground preceding the adjustment and independent of it, the

proceeding must be terminated.

This is the thrust of the decision, and, while the majority does not

labor the point, the majority position in Saunders now appears to be

overruled.

BEFORE THE BOARD

(December 2, 1980)

BY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members

The Service has moved for reconsideration of our decision of May 6,

1980, in which we affirmed a decision of the immigration judge

terminating the proceedings, and dismissed the Service appeal' Ex-

ecution of our order has been deferred pending disposition of the

instant motion. The motion to reconsider will be denied.

The respondent procured an adjustment of status by concealing a

prior undissolved marriage and entering into an immigration mar-

riage of convenience. While thus illegally adjusted, he entered the

' Matter of Belenzo, Interim Decision 2793 (BIA May 6, 1980).

377

Interim Decision #2793

United States as a returning resident. He is charged with deportability

for lack of a labor certification at time of entry, and obtaining entry by

fraud.

In our prior order, we concluded that since the Service cannot now

rescind the respondent's adjustment of status because of the 5 year

time limitation in section 246 of the Immigration and Nationality Act,

the qualitative charges stated in the Order to Show Cause cannot be

sustained in deportation proceedings since they have no existence

independently of the claimed illegal procurment of adjustment.

The Service contends that "both case law and legislative history

support the view that an adjustment can be successfully attacked in

deportation proceedings" and that section 246 was not meant to be a

statute of limitations; that "an adjustee was never intended to gain

additional benefits by virtue of his adjustment." The Service has cited

Matter of S—, 9 I&N Dec. 548 (BIA 1961; A.G. 1962; BIA 1962), as well

as Ubiera v. Bell, 463 F.Supp. 181 (S.D.N.Y. 1978), affd, without opinion

Ubiera v. Bell, 594 F.2d 853 (2 Cir. 1978), as support.

The motion further argues that rescission was originally intended as

a summary procedure to take away permanent residence "without all

the complex, due process requirements of the deportation proceed-

ings;" that the 5 years can be read as a "simple time limit" in which

this "summary" procedure could be used, but that after 5 years,

because of greater equities, the alien's status could only be taken away

by a deportation proceeding.

We find this reading of the statute unacceptable. The statute says

that after rescission, the alien may or may not be deported — i.e., he

shall be treated as any other alien' Deportation does not necessarily

follow after rescission, e.g. the case may receive nonpriority treat-

—

ment, the alien may again adjust, etc. If deportation is to occur,

another proceeding must be initiated after rescission i.e., there —

must be two proceedings instead of the one which the Service argues

can take place any time after 5 years. Rather than being "summary"

the procedure is more cumbersome. As an argument for the Service's

position it must be rejected.

In addition, we note that whatever the 5 year time limit on rescission

means for section 245 adjustment, it means the same thing for section

244 (suspension of deportation) and for section 249 (registry). If rescis-

sion of adjustment of status under section 245 can be bypassed after

the 5 years, then so too can rescission of adjustment under section 249

or section 244. Yet section 246 requires a concurrent resolution of the

Congress for withdrawal of a grant of suspension of deportation.

Literally, "the person shall thereupon be subject to all provisions of this Act to the

same extent as if the adjustment of status had not been made" (section 246 of the Act).

378

Interim Decision #2793

Obviously, this is a mandate not lightly to be ignored, nor is it consist-

ent with the "summary" vs. "expeditious" argument of the Service.

Such judicial expressions as exist also afford no comfort to the

Service position. The courts have been uniformly solicitous to preserve

lawful permanent residence, once acquired, from procedurally im-

proper encroachment; see generally Chew v. Colding, 344 U.S. 590

(1953); Waziri v. INS, 392 F.2d 55 (9 Cir. 1968); Fulgencio v. INS, 513

F.2d 596 (9 Gin 1978). Those courts which have dealt specifically with

the 5 year limitation, have tended to view it as an absolute statute of

-

limitations, to be ignored only upon a tolling of its running. See

Quintana v. Holland, 255 F.2d 161 (3 Cir. 1958); Singh v. INS, 456 F.2d

1092 (9 Cir. 1972); cert. denied, 409 U.S. 847 (1972); Zaoutis v. Kiley, 558

F.2d 1096 (2 Cir. 1977). Nowhere in these cases is there an intimation

the Service would have the choice of proceeding alternatively in

deportation.

In Fulgencio v. INS, supra, the government attempted to urge a

somewhat analogous position to that presented here. Fulgencio had

been granted adjustment of status "conditioned upon the absence of

any derogatory information" upon later record checks. The Service

subsequently sought to reopen the deportation proceedings when de-

rogatory information developed_ Pointing to fundamental unfairness

in reopening the deportation case, the court pointed out that rescission

was preferable because of its procedural safeguards. The conditional

grant in deportation proceedings, according to the court, "undermined

the security which ought to attend permanent resident status," where-

as "a rescission proceeding is governed by a 5 year statute of limita-

tions." Id. at 598. Citing Quintanav. Holland, supra, with approval, the

court held the conditional grant improper.

It is true that in Matter of 2—, supra, the Attorney General ruled

that an adjusted alien was not intended to be favored over other

permanent resident aliens with respect to deportability. In that ease

the ground of deportation, a fraud at time of original entry, existed

dehors the adjustment and independently of it. Rescission was not

necessary to reach the deportable ground. Both Matter of 3— and

Ubiera v. Bell, supra, are consistent with our holding in this case.

This "deportation" proceeding is in effect a rescission proceeding

under a different name. The alleged fraud and labor certification

violation occurred at the time of adjustment. When perceived as to

what it really is, the necessity for compliance with the 5 year limit

becomes apparent. The accident of reentry after adjustment, which the

motion for reconsideration notes as establishing the deportation

charge, does not affect the rule of law involved. It is doubtful that the

Service is advocating that the respondent is deportable only because he

effected a reentry, and that if he had not done so, he would not be

379

Interim Decision #2793

deportable. Rather, the motion is addressed to all aliens in the re-

spondent's category, and would presumably hold true whether the

alien had departed or not, cf. Francis v. INS, 532 F.2d 268 (2 Cir. 1976).

In any case, we take the same position whether or not reentry is

involved. The grounds of deportability arising from the reentry all

relate to the claimed illegal procurement of adjustment. This is to

mask a rescission proceeding under the guise of a deportation proceed-

ing, and if it is a rescission proceeding it must be initiated within the 5

years.

The motion erroneously states (Tr. p. 5) that the Board has set up an

absolute bar to deportation. The bar 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.

The respondent is presently a lawful permanent resident of the

United States and until his lawful permanent residence is revoked or

rescinded, he is not deportable. In this respect he differs from the alien

in Matter of S—, supra, who was deportable, whether or not rescission

took place, because of a fraud which was not related to the adjustment.

See also Matter of V , 7 I&N Dee. 363 (BIA 1956). We know of no

—

deportation charge in this case which can exist independently of the

alleged impropriety in achieving adjustment, nor does the Service

allege any. Since the adjustment can no longer be revoked, the motion

must be denied.

ORDER: The motion for reconsideration is denied.

BEFORE THE ATTORNEY GENERAL

April 28, 1981

Under 8 U.S.C. § 1255, the Attorney General may adjust the status of

an alien admitted or paroled into the United States to that of a

permanent resident if the alien is eligible to receive a permanent visa

and is admissible to the United States for permanent residence.

Within 5 years, the Attorney General is authorized to rescind the

action granting permanent resident status if the person was not in fact

eligible for adjustment to that status. 8 U.S.C. § 1256. In Matter of S—,

9 I&N Dec. 548 (1962), the Attorney General ruled that the 5-year

limitation period for rescission did not apply to deportation proceed-

ings initiated against adjusted aliens who, before the adjustment was

made, committed acts justifying deportation.

In this case, the Board of Immigration Appeals (BIA) ruled that the

5 year limitation nonetheless bars the initiation of deportation

-

380

Interim Decision #2793

proceedings against an adjusted alien when the alleged grounds for the

deportation are acts committed in procuring the adjustment. The BIA

certified this case to me for review under 8 C.F.R. 3.1(h)(1)(iii). After

review of the record, I disapprove the BIA's decision.

I.

Respondent, a native and citizen of the Philippines, initially entered

the United States as a visitor in. August 1971. On March 22, 1972, his

status was adjusted to that of a permanent resident by virtue of his

marriage on October 29, 1971, to> a United States citizen. In obtaining

the adjustment, respondent concealed from the Immigration and

Naturalization Service (INS) his marriage on July 16, 1964, to a native

and citizen of the Philippines. Testimony during the proceedings below

revealed that respondent's prior marriage was never terminated'

Respondent and his second spouse never lived together as husband and

wife and their marriage was entered into solely in order for him to

obtain permanent status. Respondent's second marriage ended in

divorce in 1973.

Respondent last reentered the United States as a returning resident

on May 9, 1976, and was admitted upon presenting his alien registra-

tion receipt card. On October 31, 1977, the INS issued an Order to Show

Cause in deportation against respondent, charging him with de-

portability on the grounds that, at the time of his entry in 1976,

respondent did not have an alien labor certification and had obtained

his visa or other documentation by fraud. Rescission proceedings have

never been instituted against him.

The immigration judge terminated the proceedings on the ground

that the exclusive route for challenging the respondent's conduct in

obtaining permanent resident status was a rescission proceeding

under 8 § 1256. Since the 5-year limitation period in that provi-

sion had elapsed, the judge ruled that the deportation proceedings

must be terminated. The BIA dismissed the INS's appeal, adopting the

reasoning of the immigration judge. On the INS's motion for reconsid-

eration, the BIA explained that Matter of S—, supra, involved a fraud

committed at the time of original entry, not in obtaining permanent

resident status. That fraud was entirely independent of the adjust-

ment. As the BIA interpreted the relevant statutes, the 5-year limita-

tions period was a bar on an attack on an alien's conduct in procuring

the adjustment, even if the proceedings were brought for deportation

rather than rescission. According to the BIA, nothing in Matter of S—

foreclosed this conclusion. The 131A concluded that the current

' Respondent continues to support his first wife and their four children and wants to

bring them from the Philippines to the United States.

381

Interim Decision #2793

proceeding was in effect a rescission proceeding "under a different

name" and was thus barred by the 5-year limitations period.

II.

Analysis of the issue presented in this case must begin with the

Attorney General's opinion in Matter of S—. In that case the INS

sought in 1960 to exclude applicant on the ground that he procured his

initial entry into .the United States, in 1949, by fraud or wilful mis-

representation of a material fact. In April 1955 the applicant's status

had been adjusted to that of a permanent resident. The immigration

judge and BIA concluded that exclusion or deportation proceedings

based on grounds that would also have supported rescission were

indirect attacks on the adjustment of status, and that Congress, in

barring rescission of adjustment status after 5 years, also intended to

bar indirect attacks on that adjustment.

The Attorney General disagreed. He noted that the exclusion and

deportation provisions of the Immigration and Nationality Act, unlike

the rescission provisions, contain no statutes of limitations. Congress

did not, in his view, intend to give special immunity from deportation

to those who acquired permanent resident status. The Attorney

General found no "basis for believing that the 5 year limitation ... on

-

the Attorney General's rescission authority has the effect of broaden-

ing the benefits conferred by [an] ... adjustment so as to place nonim-

migrants who -thereby acquire the status of aliens lawfully admitted

for permanent residence in a better position than those who have

initially entered as permanent residents." Id. at 552. Accord Ubiera v.

Bell, 463 F.Supp. 181, 1862 (S.D.N.Y. 1978), oed without opinion, Ubiera

v. Bell, 594 F.2d 853 (2d Cir. 1978). On the contrary, he concluded that

"the effect of the 5-year limitation on rescission is simply to bar the

Attorney General from returning an alien with adjusted status to the

category of nonixnmigrant." Id. at 554. So "narrow" a provision was not

"intended to be read as qualifying the express authority provided by

the Act to deport or exclude aliens without time limitation." Id. at 555.

In a passage of particular relevance to the present matter, the

Attorney General recognized that, under his construction, "the time

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

alien." But as he understood it, the purpose of the limitation was

merely to "cut off the availability of a procedure which, although to all

intents and purposes would establish deportability, permitted the At-

'In Vbiora, the court state& "The Service _ _ considers that all alions, I-word/Rag of

how they obtained status or the length of residence here, are subject to deportation at any

time, Matter of S—, supra, and the Attorney General's interpretation of Section 246(a) in

that proceeding is consistent with the legislative history...." (Emphasis added).

382

Interim Decision #2793

torney General to act more informally and expeditiously than he could

in a deportation proceeding."' In the Attorney General's view, the

rescission procedures might provide a more informal and expeditious

means of correcting mistakes made in granting permanent residence

status through adjustment. The Attorney General concluded:

Congress must have been aware that rescission by returning the alien to nonim-

migrant status, in fact, established his deportability on the ground that he had

overstayed the period of his admission. The 5-year limitation would thus seem to be a

recognition that it would be unfair to permit indefinitely such serious consequences to

be effected through a somewhat informal procedure. After 5 years, the Attorney

General is, therefore, required to correct mistakes in granting permanent resident

status to those initially admitted as noitimmigrants in the same manner as in the case

of other aliens, i.e., through deportation.

Id. at 555-56 n.8. Under this view of the purpose underlying the 5-year

limitations period for rescission, the Attorney General concluded that

the limitations period was inapplicable to deportation proceedings,

which were governed by different statutory provisions and which, by

statute, furnished generous procedural safeguards.'

In my view, Matter of 8— was correctly decided, and the Attorney

General's reasoning in that case leads to rejection of the BIA's position

here. Under the plain terms of the Act, there is no statute of limita-

tions for deportation and the 5 year period of § 1256 is, by its own

-

terms, applicable only to rescission. The BIA's approach would have

the anomolous consequence of favoring those who gained permanent

resident status through adjustment over those who initially entered as

permanent residents. For these reasons, I believe that the deportation

proceeding at issue here is not barred.

I acknowledge that this conclusion, based on the text of the Act,

might be avoided if it were plainly inconsistent with the intent under-

lying the 5-year limitations period. The BIA purported to find such an

inconsistency, contending that the period would have no function if it

did not insulate the alien from all claims arising from improprieties in

the alien's conduct in obtaining permanent resident status. This posi-

tion, however, was squarely rejected in Matter of S—. As the Attorney

General there explained, the limitations period is designed to assure

that, if no action to obtain rescission is taken within 5 years, the

Attorney General may not use the procedural mechanism for rescis-

' 9 I&N Dec. at 555 n. 8 (emphasis in original). Under INS regulations, the procedures

for rescission are generally formal. See 8 C.F.R. 246.12(a) and (b). The deportation

procedures are, however, imposed by statute, see 8r U.S.C. 1252(b), while the rescission

procedures lie within the Attorney General's discretion.

The BIA ignored this reasoning here in emphasizing that an alien whose adjustment

had been rescinded was nonetheJese entitled to deportation procedures before being

deported. Rescission automatically establishes grounds for deportation, as the Attorney

General explained.

383

Interim Decision #2793

sion, but must instead seek deportation, a route that offers special

statutory safeguards to the alien. The underlying purpose of the lim-

itation period for rescission does not, therefore, justify its application

to deportation proceedings.

The BIA suggested in this case that Matter of S— might be distin-

guished because the grounds for deportation in that case were entirely

separate from the procurement of permanent resident status. Here, by

contrast, alleged misconduct in the adjustment is the asserted grounds

for deportation. I see no basis, however, for the conclusion that the 5-

year limitations period for rescission becomes applicable to deporta-

tion proceedings simply because those proceedings are based on con-

duct in obtaining the adjustment. There is no ground for such a

conclusion in the language, history, or structure of the Act, and the

proposition advanced by the BIA is certainly not self-evident. I believe

that the BIA's distinction is unpersuasive.

The BIA also takes the position that the limitations period is appli-

cable because, in substance, the current proceeding is one for rescis-

sion. I disagree. The INS seeks deportation, not rescission. The re-

spondent is entitled to the safeguards accompanying deportation, not

those applicable to rescission. To be sure, the allegations on which

deportation was sought could also have formed the basis for an action

for rescission if the 5-year limitations provision were satisfied. That

fact does not, however, alter the fundamental nature of the proceeding.

Since this proceeding is one for deportation, the limitations period

applicable to rescission is not applicable here.

I conclude that under the terms of the Act, the 5-year limitations

period in § 1256 is not applicable to a deportation proceeding, and that

nothing in the underlying purposes of the relevant statutes requires a

contrary result. Accordingly, I disapprove the BIA's decision, and the

case is remanded for further proceedings consistent with this opinion.

BEFORE THE BOARD

May 19, 1981

Bv: Milhollan, Chairman; Maniatia, and Maguire, Board Members

Following the Board's denial on. December 2, 1980, of a Service

motion for reconsideration of our decision of May 6, 1980, 1 in which we

affirmed a decision of the immigration judge terminating the proceed-

, ings, the Service requested the Attorney General to review and reverse

our initial decision. The Attorney General, by order dated April 28,

1981, noted that this proceeding is one for deportation and that the

5-year limitations period applicable to rescission proceedings is not

' Interim Decision 2793 (BIA 1980).

384

Interim Decision #2793

applicable in this instance. The Attorney General expressed his disap-

proval of the Board's decision and ordered this case remanded for

further proceedings consistent with his opinion. Accordingly, this case

will be remanded to the immigration judge for further proceedings

consistent with the Attorney General's decision.

ORDER, The case is remanded to the immigration judge for

further proceedings consistent with the Attorney General's decision.

385