Rescission of Adjustment of Status and Removal Proceedings

 

            Pursuant to INA Section 246(a), lawful permanent resident status may be rescinded within five years of adjustment if it appears that the alien was ineligible at the time his status was adjusted. Matter of Masri, 22 I&N Dec. 1145, 1149 (BIA 1999) (holding that the Attorney General's authority under section 246 of the Act clearly extends to rescission proceedings involving an alien who has been granted adjustment of status pursuant to INA Section 210).

            To rescind an alien’s lawful permanent resident status, DHS bears the burden of proving by clear, unequivocal, and convincing evidence that the alien was ineligible for adjustment of status. Matter of Masri, supra; Matter of Hernandez-Puente, 20 I&N Dec. 335, 337 (BIA 1991); Matter of Pereira, 19 I&N Dec. 169, 171 (BIA 1984). The Board of Immigration Appeals (BIA) has held that DHS is not required to complete rescission proceedings within five years, as the statutory period will be tolled by the issuance of a Notice of Intent to Deny. Matter of Pereira, 19 I&N Dec. at 171; Matter of Onal, 18 I&N Dec. 147, 149-150 (BIA 1981; 1983). DHS is also not required to rescind an alien’s status before the commencement of removal proceedings, because an order of removal from an immigration judge is sufficient to rescind resident status. INA Section 246(a).

            Jurisdiction over rescission proceedings vests with the Immigration Judge if rescission is not complete before removal proceedings commence. See Matter of Masri, supra. The Immigration Judge shall order that the adjustment of status be rescinded or, if rescission is unwarranted, that the proceeding be terminated. See 8 C.F.R. Section 1246.6 (2005). Finally, the failure of DHS to rescind permanent resident status within the five-year statutory period does not preclude removal proceedings from being instituted if grounds of removal exist. See Matter of Belenzo, 17 I&N Dec 374 (BIA 1980, 1981; A.G. 1981) (holding that the five-year rescission limitation does not bar subsequent deportation proceedings even where the alleged grounds for deportation were acts committed in the procurement of adjustment of status); see also Matter of S-, 9 I&N Dec. 548 (BIA 1961, 1962; A.G. 1962) (finding that the five-year rescission limitation does not preclude subsequent deportation proceedings against adjusted aliens who, before adjustment was made, committed acts justifying deportation).

            

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