Asika v. Ashcroft ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FELIX ILKECHUKWU ASIKA, 
Petitioner,
v.  No. 03-1352
JOHN ASHCROFT, Attorney General,
Respondent.

On Petition for Review of an Order of
the Board of Immigration Appeals.
(A90-278-797)
Argued: January 20, 2004
Decided: March 29, 2004
Before WILKINS, Chief Judge, and LUTTIG
and TRAXLER, Circuit Judges.
Affirmed by published per curiam opinion.
COUNSEL
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 Lit-
igation Counsel, Civil Division, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
2 ASIKA v. ASHCROFT
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 deci-
sion, 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 Naturaliza-
tion 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 Natural-
ization 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 appli-
cation 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 per-
manent 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
1
The INS finally considered and rejected Asika’s appeal of its denial
of temporary resident status in May 1993. In the course of considering
ASIKA v. ASHCROFT 3
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 "techni-
cally 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 let-
ters, 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,
Asika’s appeal, the Eastern Service Center of the INS determined that the
agency had improperly granted permanent resident status to Asika in
1989 and recommended that this adjustment be rescinded. J.A. 120, 150.
However, the Washington District office of the INS declined to accept
this invitation based on its conclusion, once again in error, that Asika had
been granted permanent resident status as an immediate relative of a
United States citizen. J.A. 122, 124, 150.
2
In particular, the INS asserted that Asika was inadmissible — and
therefore deportable — because he filed for an adjustment of status in
1989 (1) for the purpose of performing "skilled or unskilled labor" with-
out a certification from the Secretary of Labor, 8 U.S.C. § 1182(a)(5)(A),
and (2) without "a valid, unexpired immigrant visa," 8 U.S.C. § 1181(a).
J.A. 324.
4 ASIKA v. ASHCROFT
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 adjust-
ment 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 (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 rea-
son, 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 limita-
tions must be applied to deportation proceedings as well, where the
INS’s only ground for deportation is that the individual’s adjustment
3
Asika also argues that the IJ’s order of removal was in error because
the IJ relied for his determination that Asika was inadmissible at the time
of his adjustment on the fact that Asika lacked a valid entry document.
Asika contends that under 8 U.S.C. §§ 1255a(4)(A), (b)(1)(C), and
(d)(2), this ground for inadmissibility cannot be relied upon to deny
"legalization-related" adjustments. We have no jurisdiction to consider
this argument, however, because Asika failed to make it before the Board
and, therefore, failed to exhaust "all administrative remedies." See 8
U.S.C. § 1252(d); Gallanosa v. United States, 785 F.2d 116, 119 (4th
Cir. 1986) (holding that the predecessor statute to section 1252(d) is
jurisdictional).
ASIKA v. ASHCROFT 5
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 exis-
tence." 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 (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 cancel-
ling 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).
6 ASIKA v. ASHCROFT
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 (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 adjust-
ment 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 "pro-
secutorial 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 (Att’y
Gen. 1981).
We need not — and do not — consider today, in the absence of any
4
The text of section 246(a) appears to require the Attorney General to
rescind an adjustment of status if he determines that such an adjustment
was erroneous within five years of the agency’s decision to grant it. It
states, "the Attorney General shall rescind the action taken granting an
adjustment of status," "if, at any time within five years after" that adjust-
ment, "it shall appear to [his] satisfaction [ ] that the person [who
received the adjustment] was not in fact eligible for" it. See 8 U.S.C.
§ 1256(a) (emphasis added). At least on its face, the statutory text does
not even address the question of whether the Attorney General has the
discretionary power to act to rescind an adjustment after the passage of
five years.
Were section 246(a) so interpreted, Asika’s claim would necessarily
fail. If section 246(a) does not create a statute of limitation for even
rescission proceedings, there can be no claim that deportation proceed-
ings are so limited by that section.
ASIKA v. ASHCROFT 7
briefing by the parties, whether the interpretation of section 246(a)
adopted by the Attorney General is permissible in the face of the stat-
utory text. We do observe, however, that the Attorney General’s per-
missive interpretation of "shall," on which this interpretation rests,
finds parallels in both the immigration and criminal contexts.5
B.
Even assuming that section 246(a) establishes a five-year limitation
on the Attorney General’s power to rescind an adjustment, Asika’s
claim that such a limitation must also extend to the Attorney Gener-
al’s authority to deport must still fail.
The Attorney General has held, since 1962, that section 246(a)’s
five-year limitation on the rescission of adjustment of status does not
apply to deportation proceedings, even when the deportation occurs
"on grounds which existed prior to the adjustment and which would
also have supported rescission." See Matter of S—, 9 I. & N. Dec.
548, 548 (Att’y Gen. 1962). Asika’s claim obviously implicates this
construction of the Act, which the Attorney General is charged with
enforcing. Therefore, we are bound to review the Attorney General’s
construction under "the principles of deference described in Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
842-44 (1984)." See INS v. Aguirre-Aguirre, 526 U.S. 415, 424
(1999).
5
The INS commonly interprets the term, "shall," in the same permis-
sive manner as the Attorney General has in this case, see Memorandum
from INS Commissioner Doris Meissner to Regional Directors, et al.,
Exercising Prosecutorial Discretion, at 3 (Nov. 17, 2000) (explaining
that, "a statute directing that the INS ‘shall’ remove removable aliens
would not be construed by itself to limit prosecutorial discretion"), a
practice that has been sanctioned by courts in both the immigration and
criminal context. See, e.g., Reno v. American-Arab Anti-Discrimination
Cmme., 525 U.S. 471, 483-84 (1999); Costa v. INS, 233 F.3d 31, 37 (1st
Cir. 2000); see also Heckler v. Chaney, 470 U.S. 821, 835 (1985) (inter-
preting the directive in section 334 of the FDCA that violators "shall be
imprisoned . . . or fined," to "commit complete discretion to the Secretary
to decide how and when" to prosecute under the Act).
8 ASIKA v. ASHCROFT
i.
Our first task under Chevron is to determine whether "Congress has
[ ] directly addressed the precise question at issue." See Chevron, 467
U.S. at 842-43. We agree with the Third Circuit that it has not. See
Bamidele, 99 F.3d at 561 (holding that "Congress has given us little
guidance" on this question); but see Oloteo v. INS, 643 F.2d 679, 682-
83 (9th Cir. 1981) (holding that the intent of Congress was "plainly,
unequivocally and unambiguously" expressed in the Act and that the
five-year limitation on the rescission of adjustments did not apply to
deportation proceedings). The Act does not speak directly to the inter-
play between the Attorney General’s authority to rescind an adjust-
ment of status and his authority to deport, and provides no express
guidance whatsoever on the more narrow question of whether the
five-year limitation on rescission actions must also apply to deporta-
tion actions, in those cases where the same grounds that justify depor-
tation would also support rescission of status. Moreover, to the extent
that the language of the Act provides any direction at all, it implicitly
supports the Attorney General’s position that Congress intended for
section 246(a)’s five-year limitation to apply only to the rescission of
adjustments. See id. Section 246(a) itself gives no indication that its
five-year limitation restrains the Attorney General’s deportation
authority, and the provisions of the Act that govern deportation refer
neither to section 246 nor the statute of limitations that it purportedly
creates, nor, for that matter, to any time limitation on deportation at
all.
In support of his argument that the statute forecloses the position
taken by the Attorney General, Asika points to the final sentence of
section 246(a), added to the Act as part of a 1996 amendment, which
provides,
Nothing in this subsection shall require the Attorney Gen-
eral to rescind the alien’s status prior to 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). If an order of removal "shall be
sufficient to rescind" an adjustment of status, Asika reasons, then the
five-year limitation on rescission must also be applied to the Attorney
ASIKA v. ASHCROFT 9
General’s authority to deport, or else the Attorney General would be
able to rescind an alien’s status through the deportation process, not-
withstanding the passage of the five-year statute of limitations on
rescission actions. To adopt such a construction, Asika argues, would
be, in effect, to "construe [section 246(a)] out of existence." See
Bamidele, 99 F.3d at 564.
We recognize, as does the Attorney General (at least implicitly),6
that this inferential argument has some force; however, it is not the
only way in which the Act may be interpreted to give independent
effect to section 246(a). In fact, contrary to Asika’s argument — and
the Third Circuit’s statement in Bamidele — section 246(a)’s five-
year limitation on rescission actions plays an important, if limited,
role, even in the Attorney General’s construction of Act. Under the
Act, rescission proceedings are subject to few, if any, procedural pro-
tections, see 8 U.S.C. § 1256; deportation proceedings, in contrast, are
subject to extensive procedural regulations set forth in 8 U.S.C.
§ 1229a. In light of this difference in the two procedures, section
246(a)’s five-year limitation on rescission — even if interpreted to
apply only to rescission proceedings — provides an important safe-
guard to aliens like Asika, who have been in the country for more
than five years after their status has been erroneously adjusted, by
forcing the Attorney General to establish their deportability through
the more rigorous procedures of removal, see 8 U.S.C. § 1229a, rather
than the less procedurally-onerous process of rescission.7 See Matter
of S—, 9 I. & N. at 555 n. 8. Asika is, therefore, wrong to argue that
the Attorney General’s construction of the statute is not tenable in
light of the statutory scheme.
6
In Matter of S—, the Attorney General conceded that his construction
"of the time limitation in section 246 may be of little practical value to
the alien." See Matter of S—, 9 I. & N. at 555.
7
Asika argues that this statutory difference in procedural protections
should not figure in our analysis because, in practice, the INS conducts
rescission and deportation proceedings in an almost identical fashion.
This argument is meritless. The touchstone of the first step under Chev-
ron is congressional intent. See Chevron, 467 U.S. at 842-43. That the
INS has chosen in its discretion to provide additional procedural protec-
tions to aliens in rescission proceedings reveals nothing about whether
Congress relied on the statutory disparity in procedures for rescission
and removal in enacting section 246(a).
10 ASIKA v. ASHCROFT
When the statute does not speak unambiguously to the precise
question at issue, our inquiry under Chevron is simply to ask whether
the Attorney General’s position "is based on a permissible construc-
tion of the statute." See Chevron, 467 U.S. at 863; Akindemowo v.
INS, 61 F.3d 282, 284 (4th Cir. 1995). Because the Act itself provides
little textual guidance as to the interplay between deportation and
rescission, and the construction adopted by the Attorney General
gives meaning to each of the Act’s terms, we hold that it is. See Chev-
ron, 467 U.S. at 863 n.11.
ii.
Having so concluded, we are bound by Chevron to defer to the
Attorney General’s construction of the Act so long as it is reasonable.8
We believe it is. First, as the Attorney General explained in Matter
of S—, the extension of section 246(a)’s five-year limitation to depor-
tation proceedings would create an apparent anomaly in the Act, lim-
iting to five years the Attorney General’s authority to deport those
aliens who received lawful permanent residence status through adjust-
8
The Third Circuit agreed that Congress had not spoken clearly to the
question at issue in this case, but nevertheless refused to defer to the
Attorney General’s interpretation of the Act because it believed that the
interpretation concerned only a statute of limitations, and "a statute of
limitations is not a matter within the particular expertise of the INS."
Bamidele, 99 F.3d at 561. We disagree. The Attorney General’s answer
to the question presented in this case — whether section 246(a)’s five-
year statute of limitations should also serve to limit the Attorney Gener-
al’s power to deport in those instances where deportation would have the
effect of rescinding a previous adjustment of status — does not depend
on a straightforward interpretation and application of a statute of limita-
tions; rather, it requires the Attorney General to consider whether a five-
year statute of limitations would be consistent with the statutory and reg-
ulatory framework for deportation, when applied to a few, but not all, of
the cases within that framework. Unlike the Third Circuit, we believe
that such a judgment calls upon precisely the sort of agency expertise to
which Chevron requires the courts to defer. See Akindemowo, 61 F.3d at
285 (holding that, "deference to an agency’s interpretation is particularly
apropos here because the immigration laws ‘have produced a complex
and highly regulatory program’ entailing policy determinations that fall
within the ambit of agency expertise.’").
ASIKA v. ASHCROFT 11
ment, but not those who gained such status upon entering the country.
See Matter of S—, 9 I. & N. at 554. It is not unreasonable for the
Attorney General to read the Act to avoid such disparate treatment of
aliens, based solely on the means by which they received permanent
resident status.
Second, as explained above, the Act requires the Attorney General
to provide aliens charged with deportability greater procedural protec-
tions than those faced with the rescission of their status adjustment,
even though the rescission of an adjustment serves to establish the
alien’s deportability by returning him to nonimmigrant status. The
Attorney General reasoned from this difference in procedural protec-
tions that,
the five-year limitation [on rescission] would thus seem to
be recognition that it would be unfair to permit indefinitely
such serious consequences to be effected through a some-
what informal process. After five years, the Attorney Gen-
eral is, therefore, required to correct mistakes in granting
permanent resident status to those initially admitted as non-
immigrants in the same manner as in the case of other
aliens, i.e., through deportation.
Matter of S—, 9 I. & N. at 555 n. 8. As above, we find this explana-
tion to be reasonable. The removal of an alien — even one that is in
the United States due to a mistake by the INS — is a serious and dis-
ruptive event in that individual’s life; the difficulties that such an
action cause for the alien are likely to be increasingly severe the lon-
ger he has remained in the country. In view of these difficulties, we
believe it is entirely reasonable for the Attorney General to interpret
the statute to have limited his ability to utilize the less formal rescis-
sion process to the five-year period after an alien has received an
adjustment, but not to have placed such a limitation on his ability to
effect removal proceedings.
III.
The judgment of the Board of Immigration Appeals, affirming the
IJ’s order of removal is, accordingly, affirmed.
AFFIRMED