1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-1-1996

Bamidele v. INS

Precedential or Non-Precedential:

Docket 96-3075

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Bamidele v. INS" (1996). 1996 Decisions. Paper 22.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/22
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 96-3075 

 

 ALADETOHUN O. BAMIDELE, 

 Petitioner 

 v. 

 IMMIGRATION & NATURALIZATION SERVICE,

 Respondent. 

 

 

 Petition for Review of Board of Immigration Appeals 

 Order dated November 13, 1995 

 ( Action No. 0313-2: A26 387 101) 

 

 Argued September 18, 1996 

 Before: NYGAARD, ROTH and ROSENN, Circuit Judges 

 (Opinion Filed November 1, l996) 

 

John J. Hykel, Esq. (Argued) 

34th Floor 

1735 Market Street 

Mellon Bank Center 

Philadelphia, PA 19103 

 Attorney for Petitioner 

Frank W. Hunger 

Assistant Attorney General 

Karen Fletcher Torstenson 

Assistant Director 

Linda S. Wendtland (Argued) 

Senior Litigation Counsel 
Michael P. Lindemann 

Vernon B. Miles 

United States Department of Justice 

Office of Immigration Litigation 

P.O. Box 878 

Ben Franklin Station 

Washington, DC 20044 

 Attorneys for respondent 

 

 

 OPINION OF THE COURT 

 

ROTH, Circuit Judge: 

 This appeal comes to us from a final order of deportation issued 

by the Board of 

Immigration Appeals. Petitioner Aladetohun Olaniyi Bamidele, a thirtyeight year old native and 

citizen of Nigeria, asks us to review the decision of the Board ordering 

him deported because he 

obtained an adjustment of status pursuant to § 245(a) of the Immigration 

and Nationality Act 

("the Act"), 8 U.S.C. § 1255(a), through a sham marriage. Bamidele claims 

that the Board erred 

as a matter of law in ordering him deported because the grounds for 

deportation relate only to his 

fraudulent adjustment of status. He contends that Immigration and 

Naturalization Service 

("INS") action to rescind that adjustment is barred by the five year 

statute of limitation contained 

in § 246(a) of the Act, 8 U.S.C. § 1256(a). Because there is no reason to 

adjust Bamidele's 

permanent resident status other than the sham marriage which enabled him 

to obtain permanent 

resident status under § 246(a) and because adjustment under § 246(a) is 

now barred, we conclude 

that Bamidele's permanent resident status cannot presently be rescinded. 

As a result, we find 

that he is not now deportable on the sole grounds of his misconduct in 

obtaining his adjustment 

of status. 

 I. Facts 

 Bamidele has lived and worked in this country for over fourteen 

years since entering 

the United States as a non-immigrant visitor on February 19, 1982. 

Shortly after arriving in 

America, Bamidele took up residence in Philadelphia with his brother 

Larry, who had previously 
emigrated to this country. Bamidele then began his college education, 

eventually earning a Bachelor 

of Science degree in Management, and supported himself by driving a cab on 

nights and weekends. 

Following his graduation in 1986, Bamidele held a variety of jobs until 

establishing himself with his 

current employer in 1990. In this position of construction inspector and 

field technician, Bamidele 

has earned the praise and respect of his employer who has described him as 

a "very intelligent, 

dedicated and self-motivated person" and a "very valuable employee." 

 Bamidele's current troubles with the INS, arise out of his May 

19, 1983, marriage to 

Kim Bonita Griffin, a U.S. citizen. A year later, on April 10, 1984, on 

the basis of this marriage, 

Bamidele applied for and was granted an adjustment of status to that of 

lawful permanent resident 

pursuant to § 245(a) of the Act, 8 U.S.C. § 1255(a). In 1985, however, 

while participating in a joint 

FBI/INS investigation of student loan fraud, the FBI inquired into the 

validity of Bamidele's 

marriage to Ms. Griffin. Ms. Griffin told an FBI agent in an interview 

that her marriage to 

Bamidele had been a sham and the two had never lived together. Despite 

having this information 

in 1985, the INS took no action for five years. Bamidele and Griffin were 

subsequently divorced 

on June 17, 1988. 

 On January 31, 1990, the INS finally acted, serving Bamidele with 

an Order to Show 

Cause why he should not be deported. This Order alleged that Bamidele had 

obtained his 

"permanent resident status through fraud," thus rendering his "permanent 

resident status nul [sic] 

and void." Cert. Admin. Rec. at 39. The Order further charged Bamidele 

with violating § 241(a)(2) 

of the Act in two counts. The first count charged Bamidele with being in 

the United States in 

violation of law under § 241(a)(2) of the Act, while the second count 

charged Bamidele, also under 

§ 241(a)(2), with committing fraud within the meaning of § 241(c)(2). A 

hearing followed at which 

Bamidele through counsel presented testimony and other evidence that he 

and Griffin had been in 

love and intended to make a life together. Bamidele also argued that he 

was not deportable under 

a proper reading of §§ 241(a)(2) and 241(c)(2). The immigration judge, 

stating that he found 

Bamidele's version of events incredible, ordered him deported on both 

counts as of October 10, 

1991. 

 Bamidele then embarked on a lengthy appeals process. Appearing 

pro se, he first 
filed a notice of appeal to the Board of Immigration Appeals in which he 

reiterated his contentions 

that his marriage to Griffin was genuine and argued that the immigration 

judge had erred as a matter 

of law in his reading of §§ 241(a)(2) and 241(c)(2). When Bamidele failed 

to file a brief with the 

Board, it affirmed the immigration judge on all bases in a per curiam 

opinion dated December 4, 

1992. The only arguments on which the Board reached the merits were 

Bamidele's contention that 

the second charge was invalid because he did not "reenter" the United 

States within two years of 

marriage and his assertion that the Board should not have credited 

Griffin's testimony. The Board 

summarily rejected both positions in its two page dismissal of Bamidele's 

appeal. On March 15, 

1993, the Board in a second opinion rejected Bamidele's "Motion to 

Reconsider" which the Board 

styled as a "Motion to Reopen" the deportation hearings. 

 Again represented by counsel, Bamidele filed two petitions for 

review in this Court 

which were consolidated for purposes of appeal. In an unreported opinion, 

we ruled that Bamidele 

was not deportable under § 241(c)(2) because any fraud by Bamidele, who at 

all times relevant to 

this litigation resided in the United States, was committed solely for the 

purpose of obtaining an 

adjustment of status and not for the purpose of gaining "entry" to this 

country. Bamidele v. 

Immigration and Naturalization Serv., Nos. 93-3098 & 93-3282, 31 F.3d. 

1170 (3rd Cir. 1994) 

(Table). We also remanded for the Board to determine whether Bamidele 

could be deported solely 

on the basis of § 241(a)(2) as stated in the first count of the Order. 

Additionally, although Bamidele 

raised before us the question of the effect of the statute of limitations 

applicable to rescission actions 

under § 246(a) of the Act, 8 U.S.C. § 1256(a), we refused to consider it 

because we determined that 

it and several additional issues had not be fully briefed and considered 

by the Board. 

 Upon remand, the Board again affirmed the immigration judge's 

order of deportation 

pursuant to § 241(a)(2) of the Act. Bamidele v. Immigration and 

Naturalization Serv., No. A26 387 

101 - Philadelphia (B.I.A. Nov. 13, 1995). The Board first took up the 

question of whether the 

running of the five year statute of limitations for rescission of 

adjustment of status in § 246(a) of the 

Act also precluded the initiation of deportation proceedings. Relying on 

agency adjudications as 

precedent, the Board held that the five year limitation in no way impeded 

deportation proceedings 
after the lapse of the period for rescission. The Board then addressed 

the question of Bamidele's 

deportability under § 241(a)(2) as an alien who is "not presently in 

possession of a valid immigrant 

or valid non-immigrant visa or other valid document" by virtue of having 

obtained his 

documentation through a sham marriage. On this charge the Board found 

that Bamidele never 

qualified for adjustment of status because he was not an "alien lawfully 

admitted for permanent 

residence." § 245(a) of the Act, 8 U.S.C. 1255(a). 

 II. Jurisdiction 

 Bamidele has filed a timely appeal for review of a final order of 

deportation 

issued by the Board of Immigration Appeals. The Board held appellate 

jurisdiction over this 

matter pursuant to 8 C.F.R. § 3.1(b)(2). Our jurisdiction to review the 

Board's order is exclusive 

and arises under § 106(a) of the Act, 8 U.S.C. § 1105(a). 

 III. Standard of Review As a preliminary matter we 

must determine the appropriate standard of review to 

apply in examining the Board's interpretation of its governing statute. 

The INS asserts that this case 

is controlled by Chevron U.S.A. v. Natural Resources Defense Council, 467 

U.S. 837 (1984), and 

its progeny which require us to accord "considerable weight . . . to an 

executive department's 

construction of a statutory scheme it is entrusted to administer . . . ." 

Id. at 844 (footnote omitted). 

Bamidele does not quarrel with the general applicability of Chevron's 

analysis and concedes as 

much in his brief. (See Appellant's Reply Br. at 7-8). 

 We, of course, also acknowledge the general applicability of 

Chevron's analysis to 

our review of an agency's interpretations of its governing statutes. As 

the Supreme Court has stated, 

Chevron divides our analysis into two steps: 

 First, always, is the question whether Congress has directly 

spoken 

 to the precise question at issue. If the intent of Congress is 

clear, that 

 is the end of the matter; for the court, as well as the agency, 

must give 

 effect to the unambiguously expressed intent of Congress. If, 

 however, the court determines Congress has not directly addressed 

 the precise question at issue, the court does not simply impose 

its 

 own construction on the statute, as would be necessary in the 

absence 

 of an administrative interpretation. Rather, if the statute is 

silent or 

 ambiguous with respect to the specific issue, the question for 

the 

 court is whether the agency's answer is based on a permissible 
 construction of the statute. 

Chevron, 467 U.S. at 842-43 (footnotes omitted). When, as in this case, 

Congress has given us little 

guidance, thereby implicitly delegating the matter, we must yield to an 

agency interpretation which 

is a reasonable construction of the statutory provision. Id. at 844. 

Furthermore, we are especially 

aware that the INS's interpretations of the statutes it is charged with 

administering have typically 

been afforded a great deal of deference. See, e.g., Immigration and 

Naturalization Service v. 

Cardoza-Fonseca, 480 U.S. 421, 448 (1987) ("the courts must respect the 

interpretation of the 

agency to which Congress has delegated the responsibility for 

administering the statutory program"); 

Yang v. Maugans, 68 F.3d. 1540, 1546-47 (3rd Cir. 1995) ("The BIA's 

interpretation of the burden 

of proof provisions of the INA is entitled to deference under the 

standards set forth in Chevron."); 

Fatin v. Immigration and Naturalization Serv., 12 F.3rd 1233, 1239 (3d. 

Cir. 1993) ("the Board of 

Immigration Appeals' interpretation of a provision of the Refugee Act is 

entitled to deference 

pursuant to the standards set out in Chevron . . . "). 

 We do not, however, believe this to be the typical case requiring 

agency deference. 

Bamidele challenges the Attorney General's construction of the statute of 

limitations contained in 

§ 246(a) of the Act, which limits actions by the INS to rescind an alien's 

adjustment of status. A 

statute of limitations is not a matter within the particular expertise of 

the INS. Rather, we consider 

this "a clearly legal issue that courts are better equipped to handle." 

Dion v. Secretary of Health and 

Human Serv., 823 F.2d 669, 673 (1st Cir. 1987); see also Lynch v. Lying, 

872 F.2d 718, 724 (6th 

Cir. 1989) ("the amount of weight accorded an agency interpretation 

diminishes further when the 

interpretation does not require special knowledge within the agency's 

field of technical expertise"); 

In re Oliver M. Elam, Jr., Co., Inc., 771 F.2d 174, 181(6th Cir. 1985) 

("When interpretation of the 

statute does not require special knowledge within the agency's field of 

technical expertise, reviewing 

courts sometimes accord little deference to the agency's construction."). 

 Although the INS cites several cases from this Circuit for the 

proposition that 

deference to its views is required, a closer reading reveals that each is 

inapposite to the question now 

before the Court. In Yang, 68 F.3rd at 1546-50, we addressed complicated 

matters such as the 

allocation of the burden of proof and the elements of the entry test for 

determining whether an alien 
is subject to exclusion proceedings or is entitled to the additional 

process available in deportation 

proceedings. Similarly, in Fatin, 12 F.3d. at 1238-1243, we took up the 

equally daunting question 

of the meaning of the term "particular social group" for the purpose of 

determining whether the alien 

was entitled to withholding of deportation or asylum. Finally, in Katsis 

v. Immigration and 

Naturalization Serv., 997 F.2d 1067, 1070-1075 (3rd Cir. 1993), cert. 

denied, 510 U.S. 1081 (1994), 

we considered the definition of the phrase "lawfully admitted for 

permanent residence" as used in 

the context of § 212(c) of the Act, 8 U.S.C. § 1182(c). Each of these 

cases concerned matters 

labyrinthine in their complexity in which our analysis would be bolstered 

by our reliance on the 

expertise of the INS. Moreover, the latter two cases addressed 

terminology which took on unique 

import and meaning informed by the INS's interpretation of its governing 

statute. 

 The instant question, in contrast, evokes none of these 

considerations. While we 

recognize § 246(a) as a part of the Act that the INS is charged with 

administering, a statute of 

limitations is a general legal concept with which the judiciary can deal 

at least as competently as can 

an executive agency. Cf., Love v. Thomas, 858 F.2d 1347, 1352 n.9 (9th 

Cir. 1988), cert. denied, 

sub nom., American Fed'n of Labor and Congress of Indus. Orgs., 490 U.S. 

1035 (1989) ("While 

we ordinarily give great weight to the interpretation of the agency 

charged with enforcement of the 

statute we are construing, . . . that deference does not extend to the 

question of judicial review, a 

matter within the peculiar expertise of the courts."). Thus, in reviewing 

the INS's interpretation of 

the statute of limitations applicable to rescission actions we "will not 

grant it any presumption of 

special expertise . . . ." United States Dep't of Navy v. Federal Labor 

Relations Auth., 840 F.2d 

1131, 1134 (3rd Cir. 1988). 

 IV. Discussion 

 We need only address one of the points Bamidele raises on this 

appeal. He contends 

first that the five year statute of limitations in § 246(a) of the Act has 

run and prevents the INS from 

initiating rescission proceedings. He further maintains that, in these 

circumstances, proceedings to 

rescind the adjustment of status granted him by the INS are a prerequisite 

to initiating deportation 

proceedings. Thus, Bamidele concludes the INS erred as a matter of law in 

ordering him deported 

under § 241(a)(2) when it was time barred from first rescinding his 

adjustment of status. 
Notwithstanding its concession that the limitations period for a 

rescission action has run, the INS 

insists that it properly ordered Bamidele deported under § 241(a)(2). We 

reject the INS's invitation 

to effectively read § 246(a) out of existence. Instead we hold, given the 

novel facts of this case, that 

rescission proceedings, and by extension the proceedings to deport 

Bamidele, are time barred. 

 The Immigration and Nationality Act enacted by Congress in 1952 

created a statutory 

scheme nearly devoid of limitation periods on enforcement actions by the 

INS. See Lehmann v. 

United States ex rel Carson, 353 U.S. 685 (1957) (discussing elimination 

of five year limitation 

period previously contained in the Immigration Act of February 5, 1917, 

Pub. L. No. 301, 39 Stat. 

874, 889 (1917)); see also Charles Gordon, et al., Immigration Law and 

Procedure § 71.01[2][c] 

(1996). One exception, however, appeared in § 246(a), which provided in 

pertinent part: 

 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 person and 

 cancelling deportation 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. 

§ 246(a), 8 U.S.C. 1256(a) (1970), amended by 8 U.S.C. § 1256(a) (Supp. 

1996). The question of 

what force this provision possesses lies at the heart of this case. 

 The INS construes the statute of limitations based on "its belief 

that ‘the five-year 

limitation in § 246(a) is a historical anomaly or the result of an 

accident in the legislative process.'" 

Oloteo v. Immigration and Naturalization Serv., 643 F.2d 679, 683 n.8 (9th 

Cir. 1981). Thus, the 

INS argues that, although § 246(a) proscribes an untimely rescission of an 

alien's status adjustment, 

it has no effect on the INS's ability to deport that same immigrant on the 

very same grounds the INS 

claims render the original adjustment of status improper. 
 While we are aware of the substantial body of case law which has 

accumulated at the agency 

level and in the Ninth Circuit addressing the scope and effect of the § 

246(a) limitation period, we 

nevertheless conclude that the running of the limitation period bars the 

rescission of Bamidele's 

permanent resident status and, in the absence of the commission of any 

other offense, thereby bars 

initiation of deportation proceedings in this case. 

 The INS relies heavily on the reasoning expressed in the Attorney 

General's opinions issued 

in In re Belenzo, 17 I. & N. Dec. 374, (A.G. 1981), and In re S--, 9 I & N 

Dec. 548 (A.G. 1962). 

In In re S--, the Attorney General took the following narrow view of §§ 

245 and 246(a): 

 [R]escission places an alien in the same position "as if the 

adjustment of status had 

 not been made"; that is, one whose status was adjusted under section 

245 to that of 

 an alien "lawfully admitted for permanent residence" is, through 

rescission, returned 

 to nonimmigrant status. Consequently the effect of the five-year 

limitation on 

 rescission is simply to bar the Attorney General from returning an 

alien with adjusted 

 status to the category of nonimmigrant. . . . 

 I recognize that as I construe the time limitation in section 

246 it may be of 

 little practical value to the alien. While the limitation obviously 

prevents the 

 Attorney General from returning the alien to the category of a 

nonimmigrant it could 

 be argued that this entails no real benefit to the alien since the 

same conduct 

 nevertheless can be utilized independently as a ground for his 

deportation or 

 exclusion. This makes it difficult to ascertain precisely why 

Congress enacted the 

 time limitation. But whatever purpose Congress may have intended the 

time 

 limitation to serve, it is clear that it could not, consistently with 

the policies 

 underlying the provisions of the adjusted status laws here involved, 

have intended to 

 confer upon an alien of adjusted status the benefit of immunity from 

exclusion or 

 deportation for prior conduct. 

In re S--, 9 I. & N. Dec. at 553-555. 

 Even were we to accept the reasoning expressed in the Attorney 

General's interpretation of 

the statute, however, we would be compelled to a different result by 

existing Third Circuit precedent. 

In Quintana v. Holland, 255 F.2d 161, 164 (3rd Cir. 1958), we opined: 
 That which is accomplished by a rescission of status is pretty harsh. 

It is comparable 

 to the revocation of citizenship about which the courts have been 

very keen to make 

 sure that the individual received careful protection. The rescission 

blocks the man 

 on the road to citizenship, and results in banishment from a country 

where he may 

 have lived a long time, as in this case. We think, therefore, that 

Congress meant to 

 require the Attorney General to take the described action within five 

years and to be 

 bound by that limitation itself. 

Id. (footnotes omitted). Perhaps we are placing a greater premium on the 

durability of an alien's 

adjustment of status than our counterparts in the executive branch, but to 

do less would "undermine 

the security which ought to attend permanent resident status." Fulgencio 

v. Immigration and 

Naturalization Serv., 573 F.2d 596, 598 (9th Cir. 1978); see also Choe v. 

Immigration and 

Naturalization Serv., 11 F.3d at 930 ("Aliens who obtain adjusted status 

have a legitimate 

expectation that their immigration will be permanent."). The severity of 

the delayed onset of 

deportation proceedings is amply demonstrated here. If the INS were able 

to push the matter 

through, Bamidele would have to relinquish his home, contacts with his 

brother and his friends in 

the United States, and leave his job to return to Nigeria, a country with 

which he has had little 

contact for nearly fifteen years. 

 In any event, we believe the authorities relied on by the INS are 

inapposite to the instant case. 

With the exception of In re Belenzo, 17 I. & N. Dec. 374 (1981), not one 

of these decisions precisely 

addresses the question we confront here. That is, none are responsive to 

the distinction that the sole 

grounds on which the INS has founded its deportation order are the same as 

those which the INS 

claims rendered Bamidele's adjustment of status invalid. It defies logic 

to say that facts known to 

the INS within five years of Bamidele's adjustment of status and which 

would form the basis of a 

rescission action (had the INS taken timely action) should also empower 

the INS to deport Bamidele. 

We find the opinion expressed by the Board in In re Belenzo more 

persuasive and consistent with 

the aim of the statute than was the reasoning of the Attorney General. 

The Board stated, "The bar 

[to deportation] exists only where deportation is based on an attack on 

the adjustment itself, as here. 
If the adjustment is thus attacked, it must be attacked directly, and 

within the 5 years. If deportation 

is predicated on something outside the adjustment, there is no bar." Id. 

at 380. 

 Were we not to enforce the statute of limitations in this narrowly 

defined situation, we, in 

practical effect, would be construing it out of existence. Our acceptance 

of the Attorney General's 

position, would force us to conclude that the only purpose served by the § 

246(a) limitation period 

is to "merely to ‘cut off the availability of a procedure which, although 

to all intents and purposes 

would establish deportability, permitted the Attorney General to act more 

informally and 

expeditiously than he could in a deportation proceeding'." Id. at 382-83 

(quoting In re S--, 9 I. & N. 

Dec. At 555 n.8.) The Attorney General concludes that this reading of the 

statute flows naturally 

from the observation that procedural safeguards in deportation actions are 

established by statute, 

while in rescission actions Congress implicitly left it to the agency to 

develop such protections. SeeIn re S--, 9 I. & N. Dec. at 555 n.8. We 

note, however, that essentially the same procedural

measures, including notice and a hearing, are available in both rescission 

and deportation actions. 

Compare 8 C.F.R. §§ 246.1 to 246.9, with 8 U.S.C. § 1252(b). To us, the 

agency's choice to provide 

this additional process evidences its awareness that the consequences of 

rescission are comparable 

in severity to those associated with deportation. Hence, we cannot agree 

that Congress, presumably 

knowing that rescission usually places an alien at immediate risk of 

deportation, would go to the 

trouble of enacting a statute of limitations on rescission actions, and 

then intend it to be construed 

so narrowly that it offered virtually no protection from untimely action 

by the INS. 

 V. Conclusion 

 We hold that the running of the limitation period contained in § 

246(a) of the Immigration 

and Nationality Act, 8 U.S.C. Sec. 1256(a), prohibits the INS from 

initiating deportation proceedings 

based exclusively on fraud in obtaining the adjustment of status. We 

express no opinion as to 

whether the Immigration Marriage Fraud Amendment Act of 1986 (IMFA), Pub. 

L. 99-639, 100 

Stat. 3537 (1986), the Immigration Act of 1990, Pub. L. 101-649, 104 Stat. 

4978 (1990), or any other 

subsequent amendments to the Act would make someone in Bamidele's position 

deportable. 

Furthermore, in light of our disposition of the case, we need not reach 

the issue of whether Bamidele 

is deportable exclusively under § 241(a)(2). 
 Thus, we will grant the petition for review, we will vacate the order 

of the Board of 

Immigration Appeals dated November 13, 1995, and we will remand this case 

to the Board of 

Immigration Appeals with instructions to terminate the deportation 

proceedings. Each party to bear 

its own costs.