\ afm \ Adjudicator's Field Manual - Redacted Public Version \ Chapter 26 Rescission of Adjustment to Lawful Permanent Resident Status. \ 26.1 Adjudication Issues.
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26.1 Adjudication Issues.
Rescission is a cumbersome process once required as a prelude to initiating proceedings against certain lawful permanent residents.
Matter of Saunders
, 16 I&N Dec. 326 (BIA 1977) (lawful permanent resident who (1) obtained his or her status through adjustment of status and (2) was subject to the rescission provisions of section 246 of the Act could not be placed into deportation proceedings prior to rescission of his or her status by
). Rescission is now an option that
should use only in limited instances. In most cases,
, based on the change in the law brought about by Section 378 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (effective April 1, 1997), can and should place the alien into removal proceedings under Section 240 of the Act with a Notice to Appear. Any subsequent order of removal issued by an immigration judge is now sufficient to rescind the LPR’s status. Because most cases that used to require rescission (e.g., adjustment obtained by fraud) now may be resolved in the context of pr
oceedings under Section 240 of the Act, rescission should be an infrequent process.
Rescission proceedings serve only the goal of eliminating an improperly granted benefit. It places the alien in the status that he or she would have if adjustment had never been granted. In certain limited circumstances this can result in the alien having some form of lawful immigration status even after rescission. In most instances, however, it will result in the alien having no lawful status and being liable for removal proceedings. A contested rescission proceeding requires a hearing before an immigrati
on judge, so, as stated above, most cases subject to possible rescission should be treated with removal proceedings.
The following procedures should be followed in those less-frequent situations where
to initiate rescission proceedings.
A person who has adjusted status to that of an alien lawfully admitted for permanent residence under sections 210, 240A, (the former) 244, 245, 245A or 249 of the Act, or under any other provision of law may be placed into rescission proceedings at any time during the first five years after the granting of permanent residence, if:
determines that the alien was not eligible for adjustment of status at the time that permanent residence was granted; and
The alien would have not been eligible for adjustment under any other provision of law.
In order to rescind an alien’s adjustment, he or she must be served with a Notice of Intent to Rescind within five years of the date of his or her adjustment. Once the Notice has been served, rescission action may proceed even beyond the five year time limit (in other words, the serving of the Notice “stops the clock”). In the case of an alien whose adjustment contained a “rollback” provision (e.g., a Cuban who adjusted under the Cuban Adjustment Act), the five year time period is figured from the actual da
te on which the adjustment was granted, not on the date to which the adjustment was rolled back. (See
Matter of Carrillo-Gutierrez
, 16 I&N Dec.429 (BIA 1977)
A determination that an alien is not subject to rescission proceedings does not necessarily mean that no further action may be taken. An adjudicator should be aware that an individual who is not subject to rescission may still be subject to removal proceedings. Accordingly, consideration must be given to issuing a Notice to Appear or to referring the case to investigations for possible initiation of removal proceedings based on your district policy (see
of this field manual).
The district office which has jurisdiction over the alien's place of residence institutes the rescission proceedings. The sole exception is that if an asylum office granted an alien’s adjustment of status under
of the Act and
8 CFR 240.70
, the director of that asylum office has jurisdiction. In all other cases, including adjustments granted by another district director, by a service center director, by an immigration judge, or in any other manner, the district director having jurisdiction over the person’s residence has jurisdiction over the initiating of rescission proceedings.
Effective Date of Rescission
A rescission is effective retroactive to the date of the approval of the adjustment application. In the case of an alien who received a “roll back”, the residence period acquired by the roll back is likewise rescinded.
Effect of Rescission on Other Benefits Derived from LPR Status
Because the lawful permanent resident status is voided
, any rights acquired by third parties are also cancelled (see
Matter of Valiyee
, 14 I&N Dec. 710 (BIA 1974)).
Rescission of Adjustment of a Conditional Permanent Resident
With regards to marriage-based or entrepreneur-based conditional permanent residents, the two year period that an alien may spend as a conditional resident counts as part of the five year limitation under section 246 of the Act. But, the rescission authority of Section 246 of the Act is not used for those aliens who are conditional residents pursuant to Section 216 of the Act to terminate conditional resident status
if the reason for termination is among those set forth in that section
of the Act,
8 CFR 216
of this field manual describe the procedures used for termination of conditional residence for such reasons.) For example, if the alien’s qualifying marriage was entered into for the purpose of procuring his/her adjustment of status, section 216 (termination) would apply; if the alien concealed a criminal record, section 246 (rescission) would be used, even during the first two years.
Deportability Based on Events Arising after Adjustment
If an alien became deportable as a result of an event which occurred
adjustment of status to lawful permanent residence, he or she is not subject to rescission as a result thereof. Accordingly, the case should be referred to the Investigations Branch for the possible institution of removal proceedings.
Discretionary Authority to Not Pursue Rescission
The fact that an alien was not eligible for adjustment of status does not automatically mean that you
rescind the alien's lawful permanent resident status. If the alien was not aware of the ineligibility and intended no fraud or deception in obtaining lawful permanent resident status, you may decide not to institute rescission proceedings, particularly if the alien has accrued other equities during his or her residence. If the decision is made not to rescind lawful permanent resident status, prepare a memorandum for the signature of the District Director stating the background and facts of the case explain
ing why it was decided not to rescind. Place the signed memorandum in the alien’s file. Once the decision not to rescind is made, the matter may not be reconsidered unless new facts are uncovered that were not known at the time of the original decision.
Rescission of Adjustment After Alien Has Naturalized
Section 246(b) of the Act states:
(b) Any person who has become a naturalized citizen of the United States upon the basis of a record of a lawful admission for permanent residence, created as a result of an adjustment of status for which such person was not in fact eligible, and which is subsequently rescinded under subsection (a) of this section, shall be subject to the provisions of section 340 of this Act as a person whose naturalization was procured by concealment of a material fact or by willful misrepresentation.
While this section may provide a legal basis for initiating rescission proceedings against a naturalized citizen without first going through denaturalization proceedings, INS and USCIS have never used this subsection against a naturalized citizen and USCIS is unlikely to do so in the future. Where appropriate, the preferred approach is to initiate denaturalization proceedings under
of the Act, not proceedings under section 246(b) of the Act. (See
of this manual and
Special Agent’s Field Manual
.) Accordingly, any office contemplating using this provision must obtain the concurrence of the Office of Chief Counsel and the Office of Field Operations before initiating
action under section 246 against a naturalized citizen.