Can a Federal Immigration Court revoke Green Card status?
Cancellation of adjustment of status to Lawful Permanent Resident (LPR) status is called rescission.
The rescission of a green card (lawful permanent resident status) returns a foreign national to the visa status (e.g., nonimmigrant or temporary) held before the green card was obtained; if the foreign national is no longer eligible for that temporary status, he or she becomes subject to removal from the United States.
INA § 246(a) provides that “If, at any time within five years after the status of a person has been otherwise adjusted … to that of [a person] 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 person.
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 [person]’s status prior to commencement of procedures to remove the [person] under section 1229a [INA § 240] of this title, and an order of removal issued by an immigration judge shall be sufficient to rescind the [person]’s status.”
Rescission can be used by USCIS only in limited instances:
a) USCIS determines that the alien was not eligible for adjustment of status at the time that permanent residence was granted; and
b) the alien would have not been eligible for adjustment under any other provision of law.
In most cases, USCIS can place the alien into removal proceedings under Section 240 of the Act with a Notice to Appear. See Matter of Saunders.
Rescission proceedings are necessary to eliminate an improperly granted benefit. In most instances, it results in the alien having no lawful status and being subject to deportation proceedings. Rescission proceedings require a hearing before an immigration judge.
The district office which has jurisdiction and starts the rescission proceedings is the one where the alien has residence, except when an asylum office granted an alien’s adjustment of status under section 209(b) of the Act and 8 CFR 240 . In this case, the director of that asylum office will have jurisdiction. In all other cases, the district director having jurisdiction over the person’s residence has jurisdiction over the initiating of rescission proceedings.
With respect to marriage-based conditional permanent residents, the two year period that an alien spends as a conditional resident will be counted as part of the five year limitation under section 246 of the Act, except for those aliens who are conditional residents pursuant to Section 216 of the Act. Matter of Carrillo-Gutierrez, 16 I & N Dec. 429 (BIA 1977)
Under Carrilo-Gutierrez, the five-year limitation period for rescission runs from the date that application of adjustment of status is approved.
These are the procedures that should be followed in those cases where USCIS chooses to start rescission proceedings to revoke Green Card status.
These procedures must be consistent with Constitutional due process rights, like in the process of revocation of U.S. Citizenship.
The subject of a rescission proceeding has a right to respond to the Notice to Appear and contest the allegations contained therein.
In Matter of Saunders, the Board of Immigration Appeals stated that “the respondent was seriously prejudiced by the failure to have a hearing in the rescission proceedings.
The vigor with which the Service resists affording him that opportunity is somewhat startling, given the somewhat unusual facts of the case. It is a fact that the respondent did not receive the letter advising of an intention to rescind.”
Therefore the case must primarily be referred to the Office of the District Counsel. A USCIS attorney will review the case, and if it is found legally sufficient, he can try to revoke Green Card status by prosecuting the case in federal immigration court.
The USCIS attorney must present the case before the immigration judge based upon the evidence that you have provided.
The case must be well-prepared and based on clear, convincing, and unequivocal evidence, otherwise the judge will rule against USCIS.
There must be evidence of a fraudulent act of the subject in order to legitimate USCIS rescission proceedings after the 5-years period.
Moreover, 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.
Finally, the USCIS Adjudicators Field Manual that provides that “the fact that an LPR was not eligible for adjustment of status does not automatically mean that you must rescind the LPR’s lawful permanent resident status.
If the LPR 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 LPR has accrued other equities during his or her residence.
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.”
— xemasodixym2 (@xemasodixym2) 10 de enero de 2017
— US Visa Investors (@visa_investors) 5 de abril de 2016
— ImmigrationLawyerNJ (@Immigrationinnj) 24 de mayo de 2017