Kim v. Holder - Opposition

No. 08-1356

In the Supreme Court of the United States

SUNGWOOK KIM, PETITIONER

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
DONALD E. KEENER
SAUL GREENSTEIN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether 8 U.S.C. 1256(a)'s five-year limitation on the government's authority to rescind the grant of an adjustment to permanent resident status also precludes the initiation of removal proceedings under 8 U.S.C. 1229a based on the unlawfulness of that adjustment.

In the Supreme Court of the United States

No. 08-1356

SUNGWOOK KIM, PETITIONER

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-13a) is reported at 560 F.3d 833. The opinion of the Board of Immigration Appeals (Pet. App. 14a-20a) is unreported. The opinion of the immigration judge (Pet. App. 21a- 27a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on March 26, 2009. The petition for a writ of certiorari was filed on May 4, 2009. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Section 1256(a) of Title 8 states:

If, at any time within five years after the status of a person has been otherwise adjusted under the pro visions of [S]ection 1255 or 1259 of this title or any other provision of law to that of an alien lawfully ad mitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the per son 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 per son and cancelling 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 commencement of procedures to remove the alien under [S]ection 1229a of this title, and an order of removal issued by an immigration judge shall be suf ficient to rescind the alien's status.

8 U.S.C. 1256(a).

Although Section 1256(a) was originally enacted in 1952, its last sentence was added by a 1996 amendment. See Immigration and Nationality Act (INA), Pub. L. No. 82-414, _ 246(a), 66 Stat. 217, amended by Illegal Immi gration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, _ 378(a), 110 Stat. 3009-649.1

2. Petitioner, a native and citizen of South Korea, was admitted into the United States as a non-immigrant student in 1988. Pet. App. 2a. In 1992, petitioner ap plied to adjust his status to that of a lawful permanent resident, based on his purported employer's immigrant visa sponsorship. Ibid. Petitioner, although residing in St. Louis, Missouri, traveled to San Jose, California, to apply for permanent residence at the San Jose district office of the Immigration and Naturalization Service (INS). Ibid. Petitioner's application to adjust his status was approved that same year. Ibid.

At that time, Leland Sustaire was employed as a Su pervisory District Adjudications Officer with the INS office in San Jose. Pet. App. 3a. Sustaire was responsi ble for approving applications for adjustment of status. Ibid. In 1998, Sustaire was convicted for having "accep t[ed] bribes in exchange for issuing green cards." Ibid. During the course of his criminal proceeding, Sustaire testified that he had accepted bribes to approve the ap plications of aliens who were not qualified to become permanent residents and that many of the granted ap plications were incomplete in that they were missing the requisite labor certifications and other necessary docu ments. Administrative Record (A.R.) 399-400, 409-410.

In March 2003, believing that petitioner was one of those aliens whose application for permanent residence was fraudulently approved by Sustaire, the Department of Homeland Security (DHS) served petitioner with a Notice to Appear. The notice charged petitioner with removability as an alien present in the United States without being lawfully admitted or paroled, 8 U.S.C. 1182(a)(6)(A)(i), and as an alien not in possession of a valid entry document, 8 U.S.C. 1182(a)(7)(A)(i)(I). A.R. 619-622. DHS subsequently lodged an additional charge of removability under 8 U.S.C. 1182(a)(6)(C)(i) for at tempting to acquire an immigration benefit through fraud. A.R. 617-618.

During petitioner's removal proceeding, DHS prof fered, inter alia, the following evidence in support of the charges of removability: (1) a Form I-213 (Record of Deportable/Inadmissible Alien); (2) "a list of alien num bers, prepared by Sustaire, representing those persons from whom Sustaire received bribes"; (3) "from the brib ery trials, the government's Motion for Downward De parture, a transcript of Sustaire's testimony, and a copy of the judgments"; and (4) the testimony of DHS Agent Lesley Brown on "the bribery scheme," petitioner's con nection to that scheme, and why petitioner "was ineligi ble for a status adjustment at the time it was issued to him in 1992." Pet. App. 3a; see A.R. 122-149, 293-517.

3. The immigration judge (IJ) rendered an oral deci sion in which he sustained the charges of removability under 8 U.S.C. 1182(a)(6)(A)(i) and (7)(A)(i)(I). Pet. App. 21a-27a.2

The IJ found "unusual" several facts relating to peti tioner's adjustment to lawful permanent resident status, including that petitioner had obtained his green card in San Jose despite living in St. Louis at the time; that he had received the green card just one or two months after applying; and that he had paid an "excessive" fee of $10,000 for the adjustment. Pet. App. 23a-24a. The IJ further observed that petitioner had not during the course of his removal proceeding provided "any of the supporting documentation or copies of * * * anything that * * * would corroborate [his] position that he ob tained lawfully" his employment-based permanent resi dent status (e.g., labor certification or bachelor's de gree). Id. at 22a-23a. The IJ also credited the govern ment's corroborating evidence, including Agent Brown's testimony linking Sustaire's bribery scheme to peti tioner's case and that petitioner appeared on the list (sorted by alien number), prepared by Sustaire, of fraudulently issued green cards. Id. at 22a-25a.

Based on those factual findings, the IJ found "by clear and convincing evidence" that a "legally and factu ally baseless immigration record was fraudulent[ly] cre ated as a direct result of a monetary bribe paid by [peti tioner] or an agent" acting on his behalf. Pet. App. 25a. The IJ further concluded that because petitioner had not lawfully acquired his permanent resident status, he was statutorily ineligible for cancellation of removal un der 8 U.S.C. 1229b(a). Pet. App. 26a. Accordingly, the IJ ordered petitioner removed to South Korea. Id. at 27a.

4. The Board of Immigration Appeals (Board) dis missed petitioner's appeal of the IJ's decision. Pet. App. 14a-20a.

The Board rejected petitioner's hearsay objections to the admission of certain evidence, upheld the IJ's factual findings, and affirmed that petitioner was inadmissible under 8 U.S.C. 1182(a)(7)(A)(i)(I) as an immigrant lack ing a valid entry document. Pet. App. 15a-18a.3

The Board then addressed petitioner's argument that DHS was not permitted to place petitioner in re moval proceedings because the five-year statutory pe riod for rescission of his permanent resident status un der 8 U.S.C. 1256(a) had expired. Pet. App. 18a-19a. The Board ruled that although DHS must initiate rescis sion proceedings within five years of an alien's unlawful adjustment, "there is no statute of limitations applicable to the initiation of removal proceedings * * * despite an improper grant of adjustment of status by * * * DHS." Id. at 19a. The Board relied in part on the 1996 amendment to Section 1256(a) that added the following language: "Nothing in this subsection shall require [DHS] to rescind the alien's status prior to commence ment of procedures to remove the alien under section 240, and an order of removal issued by an immigration judge shall be sufficient to rescind the alien's status." Ibid. The Board also cited the Fourth Circuit's decision in Asika v. Ashcroft, 362 F.3d 264, 269-271 (2004), cert. denied, 543 U.S. 1049 (2005), which held that Section 1256(a) restricts DHS's power to rescind an adjustment of status after five years, but does not curtail its ability to initiate removal proceedings based on the same erro neous adjustment. Pet. App. 19a.

Finally, the Board upheld the IJ's denial of cancella tion of removal on the ground that petitioner was not a "lawful" permanent resident. Pet. App. 20a.

5. The court of appeals denied the petition for re view. Pet. App. 1a-13a.

After noting that petitioner had not "challeng[ed] the sufficiency of the government's evidence establishing that [petitioner's] green card was illegally issued," the court of appeals upheld the IJ's admission of hearsay evidence. Pet. App. 5a-6a.

The court then rejected petitioner's argument that 8 U.S.C. 1256(a) barred the institution of his removal proceeding (because he had adjusted his status more than five years prior to its institution), declining to adopt the Third Circuit's conclusion in Garcia v. Attor ney General, 553 F.3d 724 (2009), "that th[e] limitations period [of Section 1256(a)] applies to removal proceed ings, not just rescission of status adjustments." Pet. App. 7a. The court relied on Section 1256(a)'s plain text, which "applie[s] the five-year limitations period to re scission only." Id. at 8a. The court viewed the 1996 amendment to Section 1256(a) as bolstering that conclu sion because it "makes clear that the legislature viewed rescission and removal as separate." Ibid. The court also noted that, since 1962, the Attorney General has "interpreted [8 U.S.C. 1256(a)] to only apply to the re scission of status adjustments, not removal proceed ings." Pet. App. 8a. (citing Asika, 362 F.3d at 269, and In re S-, 9 I. & N. Dec. 548 (Att'y Gen. 1962)). The court concluded that "[t]o the extent there [was] any doubt as to the plain meaning of the statute," it would defer to the Attorney General's interpretation under Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 843-844 (1984). Pet. App. 8a-9a.4

ARGUMENT

The court of appeals' decision is correct, and it only makes the limited disagreement among the courts of appeals more lopsided in the government's favor. This Court could benefit from further percolation of the issue in the courts of appeals in the aftermath of the 1996 amendment to 8 U.S.C. 1256(a), and there is no counter vailing need for the Court to review this relatively infre quently arising issue now. Accordingly, further review is not warranted.

1. a. Rather than create a new circuit conflict, the court of appeals' decision in this case reinforces the ma jority view against the Third Circuit's outlying interpre tation of 8 U.S.C. 1256(a). The Eighth Circuit joined the Fourth and Ninth Circuits in holding that although Sec tion 1256(a) precludes the government from rescinding an alien's permanent resident status more than five years after the date of the alien's adjustment, it does not bar the government from thereafter initiating removal proceedings based on the same unlawful adjustment. See Pet. App. 7a-8a; Asika v. Ashcroft, 362 F.3d 264, 267-271 (4th Cir. 2004); Biggs v. INS, 55 F.3d 1398, 1401 & n.3 (9th Cir. 1995). And, most recently, the Sixth Cir cuit reached the same conclusion. See Stolaj v. Holder, No. 08-3858, 2009 WL 2513608, at *4-5 (Aug. 19, 2009). Only the Third Circuit has held that Section 1256(a)'s five-year limitation on rescission actions applies to re moval proceedings. See Garcia v. Attorney Gen., 553 F.3d 724, 727-728 (2009); Bamidele v. INS, 99 F.3d 557, 562-564 (1996); but see De Guzman v. Attorney Gen., 263 Fed. Appx. 222, 225-226 (2008) (allowing removal proceedings and distinguishing Bamidele on ground that, unlike in that case, the government in De Guzman did not become aware of the alien's ineligibility to adjust status until after the five-year period had lapsed).5

To date, only those five circuits have issued pub lished decisions on the question presented. Given that the Third Circuit stands alone, both the importance and the intractability of the circuit conflict may depend on whether any other courts of appeals align themselves with the Third Circuit and whether the Third Circuit revisits the issue in response. This Court's intervention would thus be premature. That is especially true in light of the 1996 amendment to Section 1256(a), on which the court below relied. Further percolation is appropriate to allow other courts of appeals to adjudicate the issue under the current version of the statute.

b. Petitioner's secondary contention (Pet. 16-17) that the courts of appeals are divided on whether "the government's view of Section 1256(a) [is] entitled to Chevron deference" is not independently worthy of this Court's review-both because the issue is subsumed in the interpretation of 8 U.S.C. 1256(a) and because it is not essential to the court of appeals' decision in this case.

Petitioner claims (Pet. 16) that a conflict exists inas much as "the Eighth and Fourth Circuits [have] con cluded that Chevron deference should be afforded to the Attorney General's interpretation of Section 1256(a)," while the Third Circuit in Garcia has concluded that the Attorney General's "view of Section 1256(a) [is] not enti tled to Chevron deference." But the court of appeals in this case relied primarily on the plain meaning of Sec tion 1256(a), noting only as an alternative basis that, to the extent any doubt remained, it would defer to the Attorney General's interpretation under Chevron. Pet. App. 8a-9a. Accordingly, not only is the alleged conflict subsidiary to the question presented, it also is not essen tial to the court of appeals' holding below.6

2. Petitioner has failed to establish that the issue at hand arises frequently enough or is important enough to justify the Court's intervention in this case.

Aside from the published circuit decisions that have given rise to the conflict, petitioner cites (Pet. 18 & n.7) ten other cases in which the issue purportedly "has arisen directly or was implicated." But several of those decisions either refer to the issue only to point out that it did not actually arise in the case at all7 or did not reach the issue due to a failure to exhaust administrative remedies on the issue.8 Petitioner's reliance on a hand ful of cases since Section 1256(a)'s enactment 57 years ago does not make the issue sufficiently recurring to warrant this Court's review.

Petitioner also claims (Pet. 18) that the issue is "im portant" because of the consequences of removal for a person in his situation. An alien who has obtained his permanent resident status unlawfully or fraudulently, however, has no reasonable basis to rely on that status. See, e.g., In re Koloamatangi, 23 I. & N. Dec. 548, 550 (B.I.A. 2003) ("It is illogical that Congress could have intended that an alien who committed fraud in order to obtain such status, and whose fraud was not discovered until more than 5 years had passed, could rely on having obtained such status 'lawfully' to claim eligibility for re lief."). Petitioner, or others in his situation, therefore do not have a "legitimate expectation" of reliance (Pet. 19) on a fraudulent grant of permanent residence.

3. a. In any event, the court of appeals' decision is correct. The court properly relied on the plain text of 8 U.S.C. 1256(a) to conclude that the five-year time limit on rescission of adjustment of status does not apply to removal proceedings brought on the basis of the unlaw fulness of that adjustment. As the court observed, "[o]n its face, _ 1256(a) only discusses the five-year statute of limitations in terms of rescinding a status adjust ment," and not in relation to removal proceedings under 8 U.S.C. 1229a. Pet. App. 8a; see, e.g., Asika, 362 F.3d at 269. As the court further noted, the 1996 amendment to Section 1256(a)-adding in part that "[n]othing in this subsection shall require the Attorney General to rescind the alien's status prior to commencement of procedures to remove the alien"-"makes clear that the legislature viewed rescission and removal as separate, and applied the five-year limitations period to rescission only." Pet. App. 8a; see Garcia, 553 F.3d at 729-731 (Fuentes, J., dissenting).

The textual distinction between rescission and re moval proceedings for purposes of Section 1256(a)'s limi tations period is consistent with the evolution of the broader statutory scheme. Before 1952, the relevant statutes prescribed a five-year limitations period within which the Government could initiate deportation pro ceedings from the time that an alien became deportable. See Oloteo v. INS, 643 F.2d 679, 682-683 & n.7 (9th Cir. 1981). When Congress enacted the Immigration and Nationality Act (INA) in 1952, Congress eliminated any limitations period from the provisions governing depor tation proceedings. Ibid. (citations omitted); see INA _ 242, 66 Stat. 208 (8 U.S.C. 1229a). Congress also, how ever, separately provided for the first time in Section 1256(a) for action by the Attorney General to rescind an erroneous grant of adjustment of status to an alien, sub ject to the five-year limitations period. Oloteo, 643 F.2d at 683; see INA _ 246(a), 66 Stat. 217. Congress's cate gorical elimination of a limitations period for deporta tion proceedings in the INA, while engrafting one on the newly created rescission procedure, supports the court of appeals' reading.

The court of appeals' interpretation avoids strange policy consequences as well. Petitioner's reading would create the anomalous result that aliens who initially en tered the country as nonimmigrants and subsequently adjusted their status while in the United States would be immune from deportation after the lapse of the five- year period, whereas aliens who initially entered the country as lawful permanent residents would be subject to deportation based on a defect in the initial grant with out any time limitation. See Asika, 362 F.3d at 271; In re S-, 9 I. & N. Dec. 548, 553-554 (Att'y Gen. 1962).

In construing Section 1256(a) in 1962, the Attorney General acknowledged that the five-year limitations pe riod for rescission actions "may be of little practical value" to many aliens because, even if an alien was insu lated from rescission of status after the five-year period, "the same conduct nevertheless [could] be utilized inde pendently as a ground for his deportation or exclusion." In re S-, 9 I. & N. Dec. at 555. At the same time, how ever, the Attorney General recognized the distinction between rescission and removal proceedings and the reason why Congress would have applied the limitations period to the former but the not latter. As the Attorney General explained, the "rescission procedure apparently resulted from congressional recognition that a means more informal and expeditious than deportation was needed to correct mistakes made in granting permanent residence to nonimmigrants through adjustment of sta tus." Id. at 555 n.8; see Asika, 362 F.2d at 270 ("Under the Act, rescission proceedings are subject to few, if any, procedural protections, see 8 U.S.C. 1256; deportation proceedings, in contrast, are subject to extensive proce dural regulations set forth in 8 U.S.C. 1229a."). Accord ingly, the Attorney General correctly concluded that "the significance which Congress attached to the five- year limitation was that it 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." In re S-, 9 I. & N. Dec. at 555 n.8; see Asika, 362 F.2d at 270 ("[S]ection [1256(a)]'s five-year limitation on rescission-even if interpreted to apply only to rescission proceedings- provides an important safeguard to aliens * * * 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 rather than the less procedurally-onerous process of rescis sion.") (citation omitted).

In sum, Congress's decision to place a five-year limi tation on the less formal rescission procedure but not on more protective removal proceedings is a reasonable accommodation between protecting an adjusted alien's expectations and preventing circumvention of the immi gration laws (which may not be discovered, as here, until much later).9

b. The court of appeals (Pet. App. 8a-9a) was also correct in concluding that, to the extent that there is any ambiguity as to the meaning of 8 U.S.C. 1256(a), the At torney General's interpretation is entitled to Chevron deference. In 1962, as discussed above (pp. 13-14, su pra), the Attorney General determined that the five- year limitations period for rescission actions did not ap ply to exclusion or deportation proceedings. See In re S-, 9 I. & N. Dec. at 551-557. Since In re S-, the Attor ney General and Board have adhered to the same con sidered view. See, e.g., In re Belenzo, 17 I. & N. Dec. 374 (Att'y Gen. 1981); Pet. App. 19a. The 1996 amend ment, by making clear that rescission is not a prerequi site to removal, confirms and strengthens the Attorney General's interpretation. Indeed, if Congress had meant to overturn that longstanding interpretation, it surely would have done so expressly.

Petitioner contends (Pet. 24) that Chevron deference is inapplicable because the question presented involves interpretation of a limitations provision and resolution of such questions does not require agency expertise. But Section 1256(a) does not pertain to the time period within which an alien aggrieved by agency action can seek judicial review; it instead relates to the time pe riod within which the agency itself can carry out its re sponsibilities under the INA by conducting removal pro ceedings. See Asika, 362 F.2d at 271 n.8 ("The Attorney General's answer to the question presented * * * does not depend on a straightforward interpretation and ap plication of a statute of limitations; rather, it requires the Attorney General to consider whether a five-year statute of limitations would be consistent with the statu tory and regulatory framework for deportation, when applied to a few, but not all, of the cases within that framework."). The interpretation of the limitations pe riod in Section 1256(a) thus directly affects the Attorney General's execution of the INA-an issue well within his administrative responsibility and expertise.

Congress committed the adjudication of such matters under the INA to the Attorney General (authority that has been transferred in part to the Secretary of DHS), and Chevron deference therefore applies. See 8 U.S.C. 1103(a)(1) (2000) ("The Attorney General shall be charged with administration and enforcement" of the INA and "determination and ruling by the Attorney General with respect to all questions of law shall be con trolling."), amended by Homeland Security Act, Pub. L. No. 107-296, § 1102, 116 Stat. 2273 (substituting "Sec retary of Homeland Security" for Attorney General in first clause); INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999) ("It is clear that principles of Chevron deference are applicable to [the INA]."). The Attorney General's reasonable and longstanding interpretation of 8 U.S.C. 1256(a) falls well within the bounds of Chevron and thus controls here. That conclusion is reinforced by the gen eral rule that any ambiguities in the application of a statute of limitations are to be resolved in favor of the government. See BP America Prod. Co. v. Burton, 549 U.S. 84, 95-96 (2006) ("[W]hen the sovereign elects to subject itself to a statute of limitations, the sovereign is given the benefit of the doubt if the scope of the statute is ambiguous.").

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
TONY WEST
Assistant Attorney General
DONALD E. KEENER
SAUL GREENSTEIN
Attorneys

AUGUST 2009

1 In 2003, the Immigration and Naturalization Service was abolished and its functions were transferred to the Department of Homeland Security (DHS). Pet. App. 2a n.3; see Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135 (2002). The text of 8 U.S.C. 1256(a), however, has not yet been amended to reflect that rescission authority now lies with the Secretary of DHS and not the Attorney General.

2 The IJ determined that the additional charge under 8 U.S.C. 1182(a)(6)(C)(i) had not been proven. Pet. App. 27a.

3 The Board declined to consider whether petitioner was also inad missible under 8 U.S.C. 1182(a)(6)(A)(i) as an alien present in the Uni ted States without being lawfully admitted or paroled. Pet. App. 18a n.5.

4 Although not at issue in the certiorari petition before this Court, the court of appeals also rejected petitioner's argument that he should have been charged with removability rather than inadmissibility (Pet. App. 9a-11a); agreed with the IJ that petitioner was inadmissible under 8 U.S.C. 1182(a)(6)(A)(i) and (7)(A)(i)(I) (Pet. App. 10a-11a); and upheld the Board's ruling that petitioner was statutorily ineligible for cancella tion of removal (id. at 11a-12a).

5 As in De Guzman, the government in this case did not become aware of petitioner's ineligibility until more than five years after the adjustment of status-thereby similarly distinguishing this case from Bamidele. Pet. App. 3a. The facts underlying the unlawful adjustment of status in this case also arguably distinguish it from both Garcia and Bamidele. In the Third Circuit cases, the government erroneously had granted adjustments based on fraudulent representations by the appli cants that went undetected at the time of the adjustments. See Garcia, 553 F.3d at 726; Bamidele, 99 F.3d at 558. But this case does not in volve such a mistaken grant; rather, petitioner's adjustment was pro cured through bribery of a rogue officer. Pet. App. 2a-4a. Petitioner therefore seeks an extension of the Third Circuit's rule to this distinct context.

6 Petitioner contends (Pet. 17 n.6) that the Second Circuit's decision in Iavorski v. INS, 232 F.3d 124 (2000), compounds the conflict on whe ther Chevron deference applies here. That is incorrect. Iavorski does not address 8 U.S.C. 1256(a); it addresses whether a limitations period is subject to equitable tolling in the very different context of motions to reopen. The interplay between rescission and removal proceedings un der the INA in the context of adjustments of status concern matters uniquely within the agency's expertise.

7 See, e.g., Savoury v. Attorney Gen., 449 F.3d 1307, 1314 (11th Cir. 2006); Arellano-Garcia v. Gonzales, 429 F.3d 1183, 1186 (8th Cir. 2005); Kim v. Ashcroft, 95 Fed. Appx. 418, 422 (3d Cir. 2004).

8 See, e.g., Omar v. INS, 266 Fed. Appx. 37, 38 (2d Cir. 2008); San chez v. Winfrey, 134 Fed. Appx. 720, 722 (5th Cir. 2005).

9 As the Attorney General noted, "while Congress may have per mitted the Attorney General to make use of more informal procedures in rescission, in practice under the governing regulation there is little difference between the safeguards afforded an alien in deportation and that afforded him in rescission." In re S-, 9 I. & N. Dec. at 556 n.8 (citing 8 C.F.R. 246.12(a) and (b)); see generally 8 C.F.R. Pt. 246. "That the INS has chosen in its discretion to provide additional procedural protections 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)." Asika, 362 F.3d at 270 n.7.