26.2 Adjudication Procedures.

(a) Procedure for Rescission .

There are many stages in the rescission process. Care must be taken to ensure that none of these stages is omitted.

(1) Sources .

The rescission process begins when the matter comes to the attention of an adjudicator. There are a number of circumstances under which cases might come to you for rescission proceedings. Examples of such circumstances and sources include, but are not limited to:

· You may receive a file from the Investigations Section after they have completed an investigation;

· You may receive a file from the Naturalization Section after an alien applies for citizenship and the Adjudicator suspects that the alien may not have been entitled to lawful permanent residence;

· The director of a Service Center may refer a Legalization case that contains fraudulent evidence of eligibility to your local office;

· You may receive correspondence from other agencies or individuals outside USCIS indicating that fraud has occurred in a adjustment case.

(2) Review .

Regardless of the source or the circumstance, when a possible rescission case comes to your attention, you must review the file carefully to determine if the file contains sufficient evidence to support a rescission. Keep in mind that the central issue of rescission proceedings is the alien's ineligibility for lawful permanent resident status at the time that it was granted. In any case where the evidence demonstrates that the alien obtained status through fraud, you should prepare the case for removal proc eedings. In other cases where INS or USCIS improperly conferred benefits, even though no fraud or deception was involved, you must exercise considerable judgment and discretion to determine whether either removal proceedings or rescission is appropriate.

If the case does not contain sufficient evidence to support a rescission, and it appears that a rescission is warranted, a field investigation (or, if your local office procedure allows, field examination) should be initiated to further develop the facts. Write a memorandum to the file describing the additional evidence or verification of material which would be necessary to complete the rescission, and submit the case to your supervisor for approval. Be sure to mention the date that would be the end of the five year period for that case after which rescission proceedings could not be initiated.

(3) Preparation of a Notice of Intent to Rescind .

Once a determination has been made that rescission appears to be in order, you, as the adjudicator, must prepare a Notice of Intent to Rescind and any other letters relating to the case, for the signature of the district director. Your Notice of Intent to Rescind must completely cover two topics: (1) the basis for the rescission (i.e., explain exactly why the alien was not eligible at the time lawful permanent residence was granted); and (2) all of the alien's rights and options during rescission proceeding s. Your notice must set forth:

· The background of the case, including the basic facts pertaining to the alien’s adjustment (date and place of adjustment, section of law under which adjusted, the alien’s file number, etc.). ( Note: Since rescission proceedings are instituted against lawful permanent resident aliens, there should always be an existing "A" file on the subject, so there is no need to create a new file).

· The information which has arisen indicating that the alien was not in fact eligible for adjustment of status. If the file does not establish that the alien is already aware of this information, the notice must also inform the alien of his/her right to review the information.

· You should itemize the various steps of the alien’s immigration history that led to his or her ineligibility for lawful permanent resident status in a numbered format similar to that on a Notice to Appear. You must be sure to include any and all pertinent information in order to give the alien the opportunity to respond or rebut the allegations. Include all the grounds of inadmissibility applicable to the alien and the reasons for that liability as well as ineligibility for any other preference classificati on.

Example :

If the alien had already obtained a permanent labor certification, and a visa number was available to the alien, but the alien then married a U. S. citizen and adjusted status on the basis of that marriage, rescission proceedings would be appropriate only if you could show that the alien would also have been ineligible for adjustment under an employment based preference classification.

· If fraud of any kind was involved, and you are nonetheless opting for rescission, you must define the fraud specifically in your Notice of Intent to Rescind. The alien must be informed and permitted to rebut all allegations contained in the Notice of Intent to Rescind. In Matter of Boromand , 17 I & N 450 (BIA 1980) , the Board ruled that in order to deny a 245 adjustment or to subsequently rescind lawful permanent residence based on a marriage, the evidence must establish that the marriage was a sham or fraudulent or that it was legally dissolved at the time of the adjustment. A marriage which is non-viable (e.g., where the couple has terminated the marriage or has separated without chance of reconciling), but not necessarily fraudulent, may not support a rescission. (But see Chapter 25.1 of this field manual for information regarding termination of status pursuant to the Immigration Marriage Fraud Amendments of 1986.)

· USCIS's statutory and regulatory authority to rescind the adjustment and intent to do so.

· The alien’s options should he/she decide to contest the Notice of Intent. A rescission proceeding will be invalidated if you do not advise the alien of: (1) the right to rebut the allegations; (2) the right to counsel (at no expense to the Government); and (3) the right to request a hearing before an Immigration Judge. Advise the alien that the response must be in writing, under oath, and submitted to USCIS within 30 days of the receipt of the Notice of Intent to Rescind. You must give the alien this opportunity to respond to the Notice before proceeding to the next stage.

(4) Service of the Notice of Intent .

Since you are proposing to take away an alien's lawful permanent resident status, you must either send your notice by certified mail, with return receipt requested, or deliver the notice to the alien in person and certify personal service in the "A" file. Be sure to write the "A" file number on the return receipt. Evidence of service of the Notice of Intent to Rescind is very important. If service of the notice can not be proven in the record, then the immigration judge will terminate the rescission hearing . At that point you must initiate service of the Notice of Intent all over again. And if the five year limit should pass before the Notice of Intent to Rescind can be properly served, you and the Service have lost a rescission case.

(5) Alien’s Response to Notice of Intent to Rescind .

Upon receipt of the Notice of Intent, the alien may:

(A) Fail to respond to the notice;

(B) Admit the allegations, surrender the Permanent Resident Card (Form I-551) which was issued to him/her, and depart the United States;

(C) Submit a written answer to the allegations contained in the Notice of Intent to Rescind, under oath, to contest those allegations; or,

(D) Request a hearing before the Immigration Judge.

Note:

(There is no appeal from a Notice of Intent to Rescind.)

(6) Action after Alien Responds (or Fails to Respond) to Notice .

The next stage of the process is dependent on which option the alien chose upon receipt of the Notice of Intent.

(A) Alien Admits Allegations or Fails to Respond to the Notice .

If the alien responds to the Notice of Intent to Rescind by admitting the allegations, or fails to respond after receiving the Notice, the rescission should be completed. Send the alien a letter by certified mail, return receipt requested , advising that status as a lawful permanent resident has been rescinded pursuant to Section 246 of the Act, and instructing him or her to surrender the Permanent Resident Card (formerly known as the Alien Registration Receipt Card), Form I-551, to the nearest office. Refer the case to the ICE for verification of the alien’s departure, or if the departure cannot be verified, initiation of removal proceedings.

(B) Alien Responds to the Notice and either Contests the Allegations or Requests a Hearing Before an Immigration Judge .

The regulations mandate that if an alien contests any of the allegations in the Notice of Intent to Rescind or specifically requests a hearing before an immigration judge that the case must be referred to a hearing before an immigration judge. See 8 CFR 246.3 (2002). You must therefore refer the case to the Office of the District Counsel. The district counsel will calendar the case for a hearing. You should advise the alien that you have received his or her response, and have referred the case to the immigration court for further action. A USCIS attorney will review the case, and if it is found legally sufficient, he or she will prosecute the case before the immigration judge. The USCIS attorney must present the case before the immigration judge based upon the evidence that you have provided. If the case is not well-prepared and grounded in fact, based on clear, convincing, and unequivocal evidence, the judge will not rule in favor of USCIS . A rescission of lawful permanent residence is a very serious matter, and an immigration judge will not order a rescission unless you have developed a complete and convincing case.

Note:

(It is possible that the alien, in contesting the Notice of Intent to Rescind, will convincingly rebut the allegations contained in the Notice. If appropriate, the referral to the district counsel may contain a memorandum from the district director explaining that, in view of the new information, the district director requests that the district counsel terminate the rescission proceedings before the judge.)

(7) Final Action After Adjustment Has Been Rescinded .

Upon actual rescission, the alien reverts to the status held at the time of adjustment, and your subsequent action will be determined by that status. If the alien is still maintaining a valid nonimmigrant status, and this can happen as in the case of an F-1 student maintaining a full course of study, issue a Form I-94 for the appropriate status and with the proper expiration date (if not duration of status) for that nonimmigrant classification. It may be necessary to interview the alien or request additiona l evidence in order to determine whether or not the alien is maintaining a valid nonimmigrant status. You will rarely find a circumstance where the alien is still maintaining the status he or she held at the time of adjustment, but it does occur. In the case where the alien has maintained a valid nonimmigrant status, you may not consider the fact that he or she was employed during the period of lawful permanent residence to be a violation of nonimmigrant status.

· If you refer the case to the Office of the District Counsel, you will be finished with the case at that point, unless you are later required to establish the valid nonimmigrant status of the alien for the issuance of an I-94.

· If you rescind the alien's status as a lawful permanent resident, you must advise the alien of that action, and you must attempt to obtain the Permanent Resident Card (Alien Registration Receipt Card) that was issued to the alien. Your final action will be determined by the severity of the offense that required the rescission and your estimate of whether or not the alien will depart the U.S. voluntarily. You may grant the alien voluntary departure (if he or she is eligible therefor), place him or her under docket control, and transfer the file to the ICE for further supervision of the alien. You may submit the case to your supervisor for consideration of the issuance of the Notice to Appear in accordance with local procedures. The goal of USCIS is the ultimate removal of the alien from the United States.

(b) Precedent Decisions .

Over the years a number of key precedent decisions have been published which provide guidance in rescission proceedings. The following is a list of some of the decisions you should be familiar with before initiating rescission proceedings.

· Matter of Argyros , 11 I & N Dec. 585 (BIA 1966) . Statement of alien where she stated she was willing to make statement and was giving it freely and voluntarily is admissible in Section 246 proceedings.

· Matter of Vilanova-Gonzale z , 11 I & N Dec. 610 (BIA 1966) . Where rescission is based on sham marriage, Section 204(c) is applicable.

· Matter of Yaldo , 12 I & N Dec. 830 (BIA 1968) . Confidential communications between spouses is admissible evidence in Section 246 proceedings involving a sham marriage.

· Matter of Valiyee , 14 I&N Dec. 710 (BIA 1974) . Since the lawful permanent resident status is voided ab initio , any rights acquired by third parties are also cancelled.

· Matter of Carrillo-Gutierrez , 16 I & N Dec. 429 (BIA 1977) . The five years for rescission runs from the date that application is approved for Cubans with rollback dates, not from the retroactive date.

· Matter of DeVera , 16 I & N Dec. 266 (BIA 1977) . Affidavit from unavailable declarant is admissible and entitled to full weight as evidence where statements are sufficiently reliable that they would be admissible under the Federal Rules of Evidence.

· Matter of Saunders , 16 I & N Dec. 326 (BIA 1977) . Proceedings terminated where the Notice of Intent to Rescind was inadequate, and did not give the alien opportunity to respond.

Note:

This decision also held that an alien’s adjustment had to be rescinded (if possible) before he/she could be placed in deportation proceedings, but that finding was superseded by section 378 of IIRIRA.

· Matter of Giannoutsos , 17 I & N Dec. 172 (BIA 1979) . Where the basis for rescission was that the alien was not entitled to the numerical classification accorded to him, it is not necessary that the Notice of Intent to Rescind allege ineligibility for the numerical classifications since this is a matter of affirmative defense.

· Matter of Boromand , 17 I & N 450 (BIA 1980) . In order to deny a 245 adjustment or to subsequently rescind lawful permanent residence based on a marriage, the evidence must establish that the marriage was a sham or fraudulent, or that it was legally dissolved at the time of the adjustment.

· Matter of Awwal , 19 I & N Dec. 617 (BIA 1988) . Even where there is an ongoing actual family-style relationship between an alleged stepparent and a stepchild, that relationship cannot be recognized under section 101(b)(1)(B) of the Act where the marriage creating the alleged step-relationship was a sham.

· Matter of Pereira , 19 I & N Dec. 169 (BIA 1984) . The statute of limitations described in Section 246(a) of the INA, 8 USC § 1256(a), is tolled by the issuance of a Notice of Intent to Rescind within 5 years of the respondent's adjustment of status.

· Matter of Rodriguez-Esteban , 20 I&N Dec. 88 (BIA 1989) . Where the District Director rescinded status because the alien failed to respond to the Notice of Intent to Rescind, the immigration judge and the Board of Immigration Appeals lack jurisdiction in deportation proceedings to reconsider the order of the district director.

· Matter of Hernandez-Puente , 20 I&N Dec 335 (BIA 1991) . The Board of Immigration Appeals and the immigration judges are without authority to apply the doctrine of equitable estoppel against the Immigration and Naturalization Service so as to preclude it from undertaking a lawful course of action that it is empowered to pursue by statute and regulation.