1 13-4872 Estrada v. Lynch BIA Vomacka, IJ A042 362 035 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 6 th day of May, two thousand fifteen. PRESENT: JOHN M. WALKER, JR., GERARD E. LYNCH, RAYMOND J. LOHIER, JR., Circuit Judges.

_____________________________________ Jolly Yu Estrada, Petitioner , v. 13-4872 Loretta E. Lynch, United States Attorney General, Respondent .

_____________________________________ FOR PETITIONER: Jolly Yu Estrada, pro se, Jackson Heights, N.Y. FOR RESPONDENT: Joyce R. Branda, Acting A ssistant Attorney General; Holly M Smith, Senior Litigation Counsel; Joseph2 D. Hardy, Trial Attorne y, Office of Immigration Litigation, United States Department of Justice, Washington, D.C. UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (“BIA”) decision, it is hereby OR DERED, ADJUDGED, A ND DECREED that the petition for review is DENIED. Petitioner Jolly Yu Estrada, a native and ci tizen of the Philippines, seeks review of a November 21, 2013, decision of the BIA affirming a January 15, 2013, decision of an Immigration Judge (“IJ”) denying Estrada’s motion to terminate her removal proceedings. In re Jolly Yu

Estrada , No. A042 362 035 (B.I.A. Nov. 21, 2013), aff’g No. A042 362 035 (Immig. Ct. N.Y.C. Jan. 15, 2013). We assume the parties’ familiar ity with the underlying facts and procedural history in this case. Because the BIA agreed with the IJ’s deci sion in this case and “emphasize[d] particular aspects of that decision,” we have revi ewed both the BIA’s and IJ’s decisions. Yun-Zui Guan v. Gonzales , 432 F.3d 391, 394 (2d Cir. 2005). We review th e questions of law raised by Estrada’s petition de novo. See Pierre v. Holder , 588 F.3d 767, 772 (2d Cir. 2009). Estrada’s argument that the five-year limitatio ns period that 8 U.S.C. § 1256(a) imposes on rescission of an individual’s adjustment of status renders her removal proceeding untimely requires that Estrada have adjusted her status to th at of a lawful permanent resident (“LPR”) in the first place. However, Estrada affirmativel y abandoned her LPR status in 1999, by filing an

“Abandonment of Lawful Permanent Resident St atus” form with the American Embassy in Manila, Philippines. As of 1999, therefore, she no longer had th at status. Although Estrada argues that the issuance of a “replacement card” in 2000 so mehow conferred on her new LPR3 status, Estrada’s motion to terminate removal pro ceedings concedes that the replacement card was “mistakenly issued by [the United States Citizensh ip and Immigration Services].” Estrada cites no authority for the proposition that the mistaken issuance of a “replacem ent card” conferred LPR status anew. On the contrary, mistaken issu ance of a document that shows status does not actually confer that status. Cf. Hizam v. Kerry , 747 F.3d 102, 105, 107-08 (2d Cir. 2014) (holding that a Consular Report of Birth Abroad that was mistakenly issued by a U.S. Embassy did not confer citizenship). Nor does Estrada provide any other reason why she should be regarded as having had LPR status at the time her removal proceeding was commenced. Because Estrada did

not have LPR status at the time her removal proceeding was commenced (and a fortiori had not “otherwise adjusted” her stat us to that of an LPR, see 8 U.S.C. § 1256(a)), th e five-year statute of

limitations for rescission of LPR status in 8 U.S.C. § 1256(a) has no application. Moreover, even if Estrada still had LPR status , the limitation period set forth in § 1256(a) would not apply to the proceedings in this case for two reasons. First, we have held that, because § 1256(a) applies only to immigrants who have obtained LPR status by adjustment of status, it has no application to those who, lik e Estrada, obtained that stat us by consular processing. See Adams

v. Holder , 692 F.3d 91, 107 (2d Cir. 2012). Second, we ha ve held that § 1256(a) does not apply to removal proceedings. 1 See id . We are bound by the prior precedent from our Court until and

1 A number of other circuits ha ve reached the same conclusion. See Alhuay v. U.S. Att’y Gen. , 661 F.3d 534, 545-46 (1 1th Cir. 2011); Stolaj v. Holder , 577 F.3d 651, 656-57 (6th Cir. 2009); Kim v. Holder , 560 F.3d 833, 837-38 (8th Cir. 2009); Asika v. Ashcroft , 362 F.3d 264, 270-71 (4th Cir. 2004); Oloteo v. INS , 643 F.2d 679, 682-83 (9th Cir. 1981). But see Garcia v. U.S. Att’y Gen ., 553 F.3d 724, 727-28 (3d Cir. 2009) ( holding that the limitations pe riod in 8 U.S.C. § 1256(a) prohibits the initiation of removal proceedings based exclusively on fraud in obtaining the adjustment of status beyond a five-year period). See generally Liliana Zaragoza, Note, Delimiting Limitations: Does the Immigration and Nationality Act Impose a St atute of Limitations4 unless that precedent is abroga ted by the Supreme Court or by our Court sitting en banc. See

United States v. Wilkerson , 361 F.3d 717, 732 (2d Cir. 2004). For the foregoing reasons, the petition for review is DENIED.

FOR THE COURT: Catherine O = Hagan Wolfe, Clerk

on Noncitizen Removal Proceedings? , 112 Colum. L. Rev. 1326 (2012) (discussing split of authority).