Asika v. Ashcroft

• Decision Date: 29 March 2004
• Docket Number: No. 03-1352.,03-1352.
• Citation: 362 F.3d 264
• Parties: Felix Ilkechukwu ASIKA, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

362 F.3d 264

Felix Ilkechukwu ASIKA, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 03-1352.

United States Court of Appeals, Fourth Circuit.

Argued: January 20, 2004.

Decided: March 29, 2004.

ARGUED: Herbert Bradford Glassman, Baach, Robinson & Lewis, Washington, D.C., for Petitioner. Linda Sue Wernery, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Peter D. Keisler, Assistant Attorney General, Douglas E. Ginsburg, Senior Litigation, Civil Division, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before WILKINS, Chief Judge, and LUTTIG and TRAXLER, Circuit Judges.

Affirmed by published per curiam opinion.

OPINION

PER CURIAM:

The petitioner, Felix Ilkechukwu Asika, was held to be deportable on July 23, 1998, in an order affirmed by the Board of Immigration Appeals ("the Board") on February 26, 2003. He appeals this decision, arguing that the Attorney General was barred from bringing a deportation action against him by the five-year statute of limitations on the rescission of wrongfully granted adjustments. See 8 U.S.C. § 1256(a). Because we conclude that the Immigration and Naturalization Act is ambiguous on this point, we defer to the interpretation of this provision adopted by the Attorney General. Accordingly, we affirm the Board's judgment.

I.

Felix Asika entered the United States on a nonimmigrant student visa on April 14, 1979, almost twenty-five years ago. On May 27, 1981, at approximately the same time this visa expired, he married Paula Aliniece, an American citizen. That same year, Ms. Aliniece filed a visa petition on his behalf with the Immigration and Naturalization Service (INS), and Asika filed an accompanying application to adjust his status to lawful permanent residence.

The INS had not yet acted on these filings when, six years later, on June 16 1987, Asika applied for temporary resident status under the 1986 Legalization or Amnesty program. See 8 U.S.C. § 1255a. The INS denied this application for lack of supporting documentation on January 21, 1988. And, on February 17, 1988, Asika timely filed an administrative appeal of this denial. Yet, on June 22, 1989, while this administrative appeal was still pending, Asika filed another application with the INS to "adjust" his status of a temporary resident — the status that the INS had recently denied to him — to that of a permanent resident. Despite the fact that Asika was not, in fact, a tempo-rary resident at the time he filed this application, the INS granted this adjustment in error and issued a green card to Asika, allowing him to remain permanently in the United States.¹

After the passage of six more years, on September 21, 1995, Asika applied for naturalization. As the INS processed Asika's application, it determined that it had erroneously granted Asika's 1989 application for an adjustment to permanent residence status. J.A. 150-51. It also discovered that both the 1981 visa petition filed by Paula Aliniece, Asika's now-estranged wife, and Asika's accompanying application for an adjustment of status, filed fifteen years earlier, were "technically still pending." The INS then attempted to contact Ms. Aliniece in two letters (sent to the address that Aliniece supplied in her 1981 visa petition) to request that she provide evidence in support of a bona fide marriage to Asika. When Aliniece did not respond to these letters, the INS denied both her petition and Asika's accompanying application for an adjustment of status. On May 13, 1997, based, in part, on these denials and, in part, on its determination that Asika had attained permanent residence status in error, the INS concluded that Asika had failed to establish that he had been " lawfully admitted for permanent residence," see 8 U.S.C. § 1427(a) (emphasis added), and denied his application for naturalization.

The INS instituted removal proceedings against Asika, pursuant to 8 U.S.C. § 1229a(a)(1), on August 19, 1997. It asserted that Asika was deportable because, at the time of the erroneous 1989 adjustment, he was "within" two "classes of aliens inadmissible by the law." J.A. 346; 8 U.S.C. § 1227(a)(1)(A).² Asika did not deny that he was within either class of inadmissible aliens at the time of his adjustment; rather, he objected that section 246(a) of the Immigration & Naturalization Act ("the Act"), 8 U.S.C. § 1256(a), which he believed to provide a five-year statute of limitations on the rescission of adjustments, also foreclosed the INS from removing him based on an erroneous adjustment after five years had passed. In an order entered July 23, 1998, an immigration judge ("IJ") rejected Asika's argument and affirmed the Attorney General's longstanding interpretation that section 246(a)'s temporal limitation on the power to rescind does not serve to abridge the distinct power to deport. See J.A. 200 (relying upon Matter of Belenzo, 17 I. & N. Dec. 374, 1980 WL 121894 (Att'y Gen. 1981)). The IJ also held that Asika did not possess a valid, unexpired immigrant visa when he applied for an adjustment of status in 1989, and, for that reason, was deportable under 8 U.S.C. § 1227(a)(1). J.A. 200; see also 8 U.S.C. § 1181(a). The Board of Immigration Appeals affirmed this order without opinion on February 26, 2003, and Asika now petitions the court for review.

II.

Asika's sole, viable challenge to the Board's affirmance of the order of deportation is that the INS was barred by section 246(a) of the Act from charging him with deportation, eight years after it had adjusted his status to that of a permanent resident.³ Although, on its own terms, section 246(a) discusses only the rescission of status adjustments and does not purport to limit the Attorney General's power of deportation, Asika argues that its five-year statute of limitations must be applied to deportation proceedings as well, where the INS's only ground for deportation is that the individual's adjustment was improperly granted. Following the Third Circuit, Asika contends that the "practical effect" of reading section 246(a) not to apply to deportation in this set of cases would be to "constru[e] it out of existence." See Bamidele v. INS, 99 F.3d 557, 562-65 (3d Cir. 1996). He also argues the Attorney General's contrary interpretation is not due deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), both because the statute is clear and because "a statute of limitations is not a matter within the particular expertise of the INS," see Bamidele, 99 F.3d at 561.

We disagree. Even accepting that section 246(a) does, in fact, create a five-year statute of limitations on rescission actions, we must defer, under Chevron, to the INS's longstanding interpretation of its removal power as being unrestricted by such a statute of limitations, so long as that interpretation is permissible in light of the statutory text and reasonable. We believe that it is and reject Asika's petition.

A.

Section 246(a) provides,

If, at any time within five years after the status of a person has been otherwise adjusted under the provisions of section 1255 or 1259 of this title 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 fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such a person 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 the commencement of procedures to remove the alien under section 1229a of this title, and an order of removal issued by an immigration judge shall be sufficient to rescind the alien's status.

8 U.S.C. § 1256(a) (emphasis added).

Both Asika and the Attorney General agree, with uniform support from the case law, that section 246(a) establishes a five-year statute of limitation on the Attorney General's power to rescind erroneously granted adjustments of status. See, e.g., Morales v. Yeutter, 952 F.2d 954, 956 (7th Cir.1991); Fulgencio v. INS, 573 F.2d 596, 598 (9th Cir.1978); Quintana v. Holland, 255 F.2d 161, 164 (3d Cir.1958); see also Matter of S-, 9 I. & N. 548, 554, 1857 WL 3663 (A.G.1962). Although the plain language of the statute does not lend itself easily to such a reading,⁴ the Attorney General understands section 246(a)'s directive that, "the Attorney General shall rescind the action taken granting an adjustment of status," not to compel action by the government, but rather, as a term of art, used to provide him and his designees with the "prosecutorial discretion" to rescind an adjustment of status whenever they see fit within the five-year window provided by the statute. See Matter of Quan, 12 I. & N. Dec. 487 (BIA 1967) (providing that "the Service may exercise discretion in determining whether rescission proceedings should be instituted in any individual case"). Having interpreted the statute to permit, but not require, him to act within this five-year window, the Attorney General necessarily treats this time limitation as a statute of limitations to forbid rescission actions after its passing. See Matter of Belenzo, 17 I. & N. Dec. 374, 380, 1980 WL 121894 (Att'y Gen.1981).

We need not — and do not — consider today, in the absence of any briefing by the parties, whether the interpretation of section 246(a) adopted by the Attorney General is permissible in the face of the statutory text. We do observe, however, that the Attorney General's permissive interpretation of "shall," on which this interpretation rests,...