Stolaj v. Holder , 577 F.3d 651 ( 2009 )

KAREN NELSON MOORE, Circuit Judge,

concurring in part and concurring in the judgment.

I write separately because I believe it is unnecessary to weigh in on the circuit split concerning the applicability of the five-year statute of limitations in 8 U.S.C. § 1256(a) to certain removal proceedings. The circuit split involves the narrow question of whether § 1256(a)’s five-year statute of limitations on rescission proceedings (i.e., proceedings to rescind an alien’s permanent residency status) applies to removal proceedings that are based solely on fraud or error in the procurement of permanent-residency status. Three circuits have deferred to the Attorney General’s opinions in Matter of S-, 9 I. & N. Dec. 548, 557 (A.G.1962), and Matter of Belenzo, 17 I. & N. Dec. 374, 384 (A.G.1981), and have held that § 1256(a)’s five-year statute of limitations does not apply to removal proceedings even when removal is based solely on violations or errors in the adjustment-of-status process. See Kim v. Holder, 560 F.3d 833, 837-38 (8th Cir.2009); Asika v. Ashcroft, 362 F.3d 264, 269-71 (4th Cir.2004); Monet v. INS, 791 F.2d 752, 754 (9th Cir.1986). However, the Third Circuit has rejected the Attorney General’s construction of § 1256(a) and has held that the five-year statute of limitations applies to removal proceedings when the removal proceedings are based solely on an attack on the adjustment process. Bamidele v. INS, 99 F.3d 557, 564-65 (3d Cir.1996).

In my view, we need not weigh in on this circuit split because the disagreement in these cases centers on an issue that is absent from the instant case. Each of the cases cited above involved aliens whose removability was based solely on fraud or error in the adjustment process. See Kim, 560 F.3d at 835 (fraud in obtaining green card/adjusting status); Asika, 362 F.3d at 266 (erroneous adjustment by INS); Monet, 791 F.2d at 753 (concealment of prior conviction when seeking adjustment); Bamidele, 99 F.3d at 558 (fraud in adjusting status through sham marriage). By contrast, the Stolajs’ removal was not based on fraud or error in the adjustment process, but rather on their fraud in obtaining asylum. There is no dispute in the case law that when, as here, removal proceedings are based on grounds entirely separate and distinct from the adjustment-of-status process, § 1256(a)’s five-year statute of limitations does not apply. It is therefore unnecessary and imprudent for us to reach the narrower — and more difficult — question that has split the circuits. See Arellano-Garcia v. Gonzales, 429 F.3d 1183, 1186 (8th Cir.2005) (concluding that § 1256(a)’s statute of limitations was inapplicable and declining to comment on Bamidele, Asika, and Belenzo because the removal proceedings were based on the alien’s “prior conviction, not on the erroneous grant of permanent residency status”). Accordingly, I concur in the result of Part II without joining its reasoning. On the remaining issues, I concur and join in the majority opinion.