Matter of Singh
| Decision Date | 19 December 1969 |
| Docket Number | Interim Decision Number 2017,A-11400285 |
| Citation | 13 I&N Dec. 439 |
| Parties | MATTER OF SINGH In Section 246 Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
The above-captioned case concerns an interpretation of the five-year limitation provision of section 246(a) of the Immigration and Nationality Act (8 U.S.C. 1256(a))1 insofar as it relates to the rescission of an adjustment of a nonimmigrant alien's immigration status to that of a permanent resident alien. The special inquiry officer, on December 6, 1968, concluded that it is impossible to enter an order of rescission "at any time within five years after the status of [the respondent] has been adjusted" under section 245 and terminated the proceeding. He relies upon Quintana v. Holland, 255 F.2d 161 (3 Cir., 1958). The trial attorney appeals on the ground that service of a "Notice of Intention to Rescind" within the five-year period is sufficient to toll the running of the statute.
The respondent is a native and citizen of India who was admitted to the United States at the port of New York on January 10, 1959 as a nonimmigrant student. He married a United States citizen at Reno, Nevada on July 24, 1963. An application for permanent residence status was granted on October 18, 1963. The notice of intention to rescind charges that the respondent's marriage to a United States citizen was entered into solely for the purpose of enabling him to acquire the status of a permanent resident of the United States because he never cohabited in a husband and wife relationship with his citizen wife.
The notice of intention to rescind was mailed to the respondent on September 12, 1968 by "certified mail—return receipt requested" (ex. 1). The return receipt shows that it was received by the respondent on September 19, 1968. Counsel by letter dated October 11, 1968 requested a hearing before a special inquiry officer. The hearing was held on December 6, 1968, during the course of which, counsel moved for termination of the proceeding on the ground that the proceeding is not in accord with "precedent decisions of the Board of Immigration Appeals and the Service" since "more than five years elapsed from the granting of permanent resident status on October 18, 1963, and the date of any entry of any decision in connection with the rescission proceeding" (p. 3).
Counsel in his brief on appeal relies upon Quintana v. Holland, 255 F.2d 161 (3 Cir., 1958), the Assistant Commissioner's decision in Matter of T----, 8 I. & N. Dec. 96 (1958), and an unreported decision by this Board in Matter of Ettlinger, A-12548706 (1966 and 1968). One of the issues presented in Matter of T---- was whether appellate rights preserved for the alien under 8 CFR 246 prevented final disposition of the case within the five-year period of limitation provided by the statute. The Assistant Commissioner ruled that since the alien's application for adjustment of status was granted on June 11, 1953, the entry of an order by rescission by the District Director on June 3, 1958 tolled the five-year-period of limitation provided by the statute notwithstanding that the appellate rights to which the alien was entitled have prevented final disposition of the case within the five years.2
A similar issue was before us in Matter of Ettlinger (supra). Ettlinger's status was adjusted on October 6, 1961 and the special inquiry officer's order of rescission was entered on August 17, 1966, within the five-year period of limitation. We noted in our opinion of December 1, 1966 that the case of Quintana v. Holland is distinguishable. The case was again before us in deportation proceedings on February 7, 1968. We remanded in order to have the special inquiry officer reconsider the evidence in light of the burden of proof of clear, unequivocal and convincing evidence pursuant to the Waziri decision of the Ninth Circuit (392 F.2d 55, 1968) and the Rodriques decision of the Third Circuit (389 F.2d 129, 1968). We said in our opinion, "Reconsideration for the purpose of applying this burden of proof does not affect our prior holding that the rescission order of the special inquiry officer on August 17, 1966 was timely, and that thereafter the statute of limitations in section 246 was tolled."
We find little support for either counsel's position or that of the special inquiry officer in Matter of T----, or Ettlinger, because in those cases the issue was whether appellate rights when exercised granted the alien an immunity if the appellate proceeding was not completed within the five-year period of limitation. In this case we are concerned with whether the service of a notice to rescind or the date of the decision of the special inquiry officer tolls the running of the statute.
The Court of Appeals in Quintana v. Holland (supra) had before it a case involving the rescission of suspension of deportation on the ground that the alien's membership in the Communist Party made him ineligible therefor. Quintana's deportation was suspended by the Immigration Service on December 3, 1947, and reported to the Congress on December 15, 1947. He paid the fee on July 22, 1948, and on July 6, 1949 a congressional resolution approved suspension of deportation. The District Director notified Quintana on July 9, 1953 of his intention to rescind the grant of suspension of deportation. Following hearings in 1954 and 1955, the District Director on March 30, 1955 approved a recommendation for rescission of suspension of deportation. The Acting Regional Commissioner approved on April 11, 1955. Congress on April 9, 1956 passed a concurrent resolution withdrawing suspension of deportation.
The Government took the position that the rescission proceedings were timely because Quintana was notified of the intention to rescind within five years of the date he paid his fee for suspension of deportation on July 22, 1948. The Government also argued that suspension of deportation is a "matter of legislative grace within a field of congressional supremacy the disposition of which Congress had reserved for itself," and the courts cannot either review or overrule an action taken by Congress.
The court stated in effect that the Government's argument was not based on a sound or valid premise. It stated, "We think ... that Congress meant to require the Attorney General to take the described action within five years and to be bound by that limitation itself ... The giving of notice within the five-year period is not enough ..." Referring to the phrase used in the statute "it shall appear to the satisfaction of the Attorney General," the court interpreted this as meaning that the Attorney General must make a "reasonable determination ... in good faith after such investigation and hearing as is required." The court stated that "the Attorney General could have made no such determination by the end of the five-year period from the latest possible date that can be considered" (255 F.2d 164).
We do not agree with the court's interpretation of the limitation provision of section 246. The ruling of a reviewing court in one circuit is not necessarily dispositive of the issue; a conflicting view may be expressed by a court in another circuit. See e.g. Errico v. INS, 349 F.2d 541 (9 Cir., 1965), and Scott v. INS, 350 F.2d 894 (2 Cir., 1965). Similarly the Government's failure to appeal from a court's adverse decision does not of itself indicate acquiescence. The determination not to appeal may be based on other considerations, such as the inadequacy of the record as a vehicle for appeal or factors outside of the record which render an appeal undesireable. Cf. Matter of Lim, Interim Decision No. 1947 (BIA, 1969).
There was conflict between the circuits with regard to the limitation provisions found in section 19(a) of the 1917 Act.3 The Third Circuit in the case of Hughes v. Tropello, 296 F. 306 (1924), and McCandless v. U.S. ex rel. Swystun, 33 F.2d 882 (1929), construed the phrase "at any time within [[five or three] years after entry" as "words of limitation." The court said that in order to give effect to them "the warrant of deportation and not merely the warrant of arrest" must be issued within the statutory period and if not "the power of deportation is exhausted" (33 F.2d 883).
The majority of the Circuit Courts of Appeal did not adhere to the interpretation of the "words of limitation" enunciated by the Third Circuit. The most recent case is that of Miller v. U.S. ex rel. Hunt, 181 F.2d 363 (5 Cir., 1950). The question before the court was whether a timely-issued warrant of arrest, as distinguished from a warrant of deportation, served to toll the running of the limitation provision as set forth in section 19(a) of the 1917 Act. The court referred to the fact that there was a diversity of opinion prevailing between several of the circuits and the Third Circuit. The court ruled that a timely issuance of the warrant of arrest suffices and in support of its position said:
This position is warranted by the express phraseology of the statute and is rendered persuasive by consideration of the universal rule prevailing in the various states and federal courts,4 that the filing of charges, whether by information or by indictment, tolls the running of the statute of limitations against a criminal prosecution and is effective even though the warrant be not served upon the accused...
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