Interim Decision #2793 

MATTER OF BELENZO 

In Deportation Proceedings 

A-20040248 

Decided by Board May 6, 1980, December 2, 1980, and May 19, 1981 

Decided by Attorney General April 28, 1981 

(1) Under section 246(a) of the Immigration and Nationality Act, 8 U.S.C. 1256(a), the 

Attorney General is directed to rescind the adjustment of status granted an alien if 

within 5 years it appears to his satisfaction that the alien was not is fact eligible for 

such adjustment. 

(2) In Matter of 8—, 9 I&N Dec. (BIA 1961,1962; LG. 1962), the Attorney General ruled 

that the 5-year limitation period for rescission of adjustment of status set forth in 

section 246 of the Act did not preclude subsequent deportation proceedings against 

adjusted aliens who, before the adjustment was made, committed acts justifying 

deportation. 

(3) For the same reasons set forth in Matter of S—, supra, the Attorney General now 

holds that the 5-year rescission limitation does not bar subsequent deportation 

proceedings even where the alleged grounds for the deportation are acts committed in 

procuring the adjustment of status. 

CHARGES: 

Order: Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time of entry 

Sec. 212(a)(14) [8 U.S.C. 1182(a)(14)]—No labor certification 

Sec. 212(a)(19) [8 U.S.C. 1182(a)(19)1---Visa or other documentation procured by fraud or misrepresentation of a material 

fact 

ON BEHALF OF RESPONDENT: 

Pro so 

ON BEHALF OF SERVICE 

David Crosland 

Acting Commissioner 

Gerald S. Hurwitz 

Appellate Trial Attorney 

BEFORE THE BOARD 

(May 6, 1980) 

Br: Milhollan, Chairman; Maniatis, Maguire, and Farb, Board Members. Concurring 

Opinion: Appleman, Board Member 

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Interim Decision #2793 

This is an appeal by the Service from a decision of the immigration 

judge ordering that these proceedings be terminated. The appeal will 

be dismissed. 

The respondent is a native and citizen of the Philippines who initially entered the United States as a visitor in August 1971. He last 

entered the United States in May 1976 as a returning resident alien. He 

obtained permanent resident status in March 1972, by virtue of his 

marriage to a United States citizen 2 months after his arrival here. He 

was therefore exempt from the requirement of an alien labor certification. The respondent, however, concealed from the Service a prior 

marriage to a native and citizen of the Philippines in 1964, which was 

never terminated. The respondent stated at the hearing that he still 

supported his first wife and their four children and wanted to bring 

them to this country from the Philippines. He further stated that he 

and his second spouse never lived together as husband and wife and 

that their marriage was entered into so that he could adjust his 

immigration status. The marriage ended in divorce in 1973. 

Section 246(a) of the Immigration and Nationality Act, as amended, 

provides in pertinent part 

If, at any time within five years after the status of a person has been otherwise 

adjusted under the provisions of Sections 2d5 or 219 of this Act 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 feet 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 Aet to the same extent as if the adjustment of status had not been 

made. 

The immigration judge found that inure than 5 years had elapsed 

since the respondent's status was adjusted under section 245 of the 

Act, 8 U.S.C. 1255, and that the time in which rescission proceedings 

could have been brought under section 246 of the Act had expired. In 

ordering these proceedings terminated, the immigration judge noted 

that the respondent was last admitted to the United States upon 

presentation of his alien registration receipt card (Form 1-151) and 

that rescission proceedings under section 246 of the Act have never 

been instituted against him. The immigration judge further noted that 

deportation proceedings were not instituted within the 5 year period 

during which rescission proceedings could have been brought and 

found that the Service apparently comm.enced the instant proceedings 

on the theory that such action is permissible under the Attorney 

General's decision in Matter of S —, 9 LAN Dec. 548 (BIA 1961; A.f4_ 

1962; BIA 1962).' The immigration judge concluded that none of the 

' Matter of S— involved exclusion proceedings- The alien fraudulently obtained an 

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Interim Decision #2793 

deportation charges in the instant case would have been "appropriate 

prior to the grant of 245 relief' even if the permanent resident status 

of the respondent could have been voided. A fortiori, he found that if 

the grant of the respondent's permanent resident status cannot now be 

rescinded, such charges would not lie. 

On appeal, and at oral argument, the Service contended that the 

mere fact that an alien has had his status adjusted within the United 

States to that of a lawful permanent resident pursuant to section 245 

of the Act does not preclude the subsequent deportation of the alien 

although his status as a lawful permanent resident was not rescinded 

nor an action begun within the statutory 5 year period pursuant to 

section 246 of the Act- In support of its position, the Service cites 

Matter of S—, supra. 

Upon review of the record, we adopt the rationale of the immigration 

judge. We conclude that since the Service cannot now rescind the 

respondent's adjustment of status solely on eligibility grounds because 

of the specified time limitation'in section 246 of the Act, the qualitative 

charges stated in the Order to Show Cause, which did. not exist independently of the procurement of adjustment, cannot be supported in 

deportation proceedings. Accordingly, the appeal by the Service will be 

dismissed. 

ORDER, The appeal is dismissed. 

CONCURRING OPINION: Irving A. Appleman, Board Member 

This respondent obtained an adjustment of status in March 1972, by 

claiming a fraudulent marriage to a United States citizen at a time 

when he was already married to someone else. He last entered in 1976 

as a returning resident. No rescission proceedings were ever brought 

under section 246 of the Act to take away the lawful permanent 

residence acquired in 1972. Instead, on October 31, 19/7, an Order to 

Show Cause was issued, charging him with deportability (1) under 

section 241(a)(1) of the Immigration and Nationality Act, in that at 

time of entry in 1976 he did not have the required labor certification 

(section 212(a)(14)) and (2) under section 241(a)(1) in that at time of 

entry in 1976 he had obtained documentation by fraud (section 

adjustment of status in April 1955, concealing the fact that he had obtained a visa by 

fraud in 1949. No rescission occurred within 5 years. Instead, the facts came to light 

when he attempted to reenter the United States in August 1960, as a lawful permanent 

resident returning after a visit abroad. The Board held that the passing of the 5 years 

operated as a statute of limitation barring exclusion on any ground which existed prior 

Ix, the adjustment. Pointing to the legislative history, in remanding the case to the 

Board, the Attorney General noted that adjustment under section! 245 was never intended to confer greater rights than those enjoyed by a permanent resident who gained 

his status through entry with an immigrant visa. 

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Interim Decision #2793 

212(a)(19)). The immigration judge terminated since the respondent's 

lawful permanent residence had never been revoked. The Service 

appealed. 

The Service appeal is predicated on language in Matter of S—, 9 I&N 

Dec. 548 (BIA 1961; A.G. 1962; BIA 1962), which, it is argued, permits a 

deportation action notwithstanding the fact that the 5 year rescission 

period authorized in section 246 has run. As the immigration judge 

correctly noted in his excellent decision below, we had addressed this 

issue in Matter of Saunders,16 I&N Dec. 326 (BIA 1977). In that case I 

took issue, in a separate opinion, with what I regarded as the aberrated 

reasoning that rescission must take place if the 5 years have not yet 

run, but is not required if the 5 years have run. 

The present ruling comes much closer to the position I urged in 

Saunders, and I have no difficulty in concurring_ In this case the 

claimed deportable grounds stem entirely from the "fraud" perpetrated at the time of the adjustment. There are no deportable grounds 

preceding the adjustment, that have independent existence outside of 

that "fraudulent" adjustment. So long as the adjustment exists, and is 

a fact, the alien cannot be deported. In this respect the case differs 

factually from Matter of S—, supra, but is the same as Matter. of V—, 7 

MN Der_ 262 (131A 1956). 

Since the adjustment can no longer be rescinded, and there is no 

deportable ground preceding the adjustment and independent of it, the 

proceeding must be terminated. 

This is the thrust of the decision, and, while the majority does not 

labor the point, the majority position in Saunders now appears to be 

overruled. 

BEFORE THE BOARD 

(December 2, 1980) 

BY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members 

The Service has moved for reconsideration of our decision of May 6, 

1980, in which we affirmed a decision of the immigration judge 

terminating the proceedings, and dismissed the Service appeal' Execution of our order has been deferred pending disposition of the 

instant motion. The motion to reconsider will be denied. 

The respondent procured an adjustment of status by concealing a 

prior undissolved marriage and entering into an immigration marriage of convenience. While thus illegally adjusted, he entered the 

' Matter of Belenzo, Interim Decision 2793 (BIA May 6, 1980). 

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Interim Decision #2793 

United States as a returning resident. He is charged with deportability 

for lack of a labor certification at time of entry, and obtaining entry by 

fraud. 

In our prior order, we concluded that since the Service cannot now 

rescind the respondent's adjustment of status because of the 5 year 

time limitation in section 246 of the Immigration and Nationality Act, 

the qualitative charges stated in the Order to Show Cause cannot be 

sustained in deportation proceedings since they have no existence 

independently of the claimed illegal procurment of adjustment. 

The Service contends that "both case law and legislative history 

support the view that an adjustment can be successfully attacked in 

deportation proceedings" and that section 246 was not meant to be a 

statute of limitations; that "an adjustee was never intended to gain 

additional benefits by virtue of his adjustment." The Service has cited 

Matter of S—, 9 I&N Dec. 548 (BIA 1961; A.G. 1962; BIA 1962), as well 

as Ubiera v. Bell, 463 F.Supp. 181 (S.D.N.Y. 1978), affd, without opinion 

Ubiera v. Bell, 594 F.2d 853 (2 Cir. 1978), as support. 

The motion further argues that rescission was originally intended as 

a summary procedure to take away permanent residence "without all 

the complex, due process requirements of the deportation proceedings;" that the 5 years can be read as a "simple time limit" in which 

this "summary" procedure could be used, but that after 5 years, 

because of greater equities, the alien's status could only be taken away 

by a deportation proceeding. 

We find this reading of the statute unacceptable. The statute says 

that after rescission, the alien may or may not be deported — i.e., he 

shall be treated as any other alien' Deportation does not necessarily 

follow after rescission, e.g. — the case may receive nonpriority treatment, the alien may again adjust, etc. If deportation is to occur, 

another proceeding must be initiated after rescission — i.e., there 

must be two proceedings instead of the one which the Service argues 

can take place any time after 5 years. Rather than being "summary" 

the procedure is more cumbersome. As an argument for the Service's 

position it must be rejected. 

In addition, we note that whatever the 5 year time limit on rescission 

means for section 245 adjustment, it means the same thing for section 

244 (suspension of deportation) and for section 249 (registry). If rescission of adjustment of status under section 245 can be bypassed after 

the 5 years, then so too can rescission of adjustment under section 249 

or section 244. Yet section 246 requires a concurrent resolution of the 

Congress for withdrawal of a grant of suspension of deportation. 

Literally, "the person shall thereupon be subject to all provisions of this Act to the 

same extent as if the adjustment of status had not been made" (section 246 of the Act). 

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Interim Decision #2793 

Obviously, this is a mandate not lightly to be ignored, nor is it consistent with the "summary" vs. "expeditious" argument of the Service. 

Such judicial expressions as exist also afford no comfort to the 

Service position. The courts have been uniformly solicitous to preserve 

lawful permanent residence, once acquired, from procedurally improper encroachment; see generally Chew v. Colding, 344 U.S. 590 

(1953); Waziri v. INS, 392 F.2d 55 (9 Cir. 1968); Fulgencio v. INS, 513 

F.2d 596 (9 Gin 1978). Those courts which have dealt specifically with 

the 5-year limitation, have tended to view it as an absolute statute of 

limitations, to be ignored only upon a tolling of its running. See 

Quintana v. Holland, 255 F.2d 161 (3 Cir. 1958); Singh v. INS, 456 F.2d 

1092 (9 Cir. 1972); cert. denied, 409 U.S. 847 (1972); Zaoutis v. Kiley, 558 

F.2d 1096 (2 Cir. 1977). Nowhere in these cases is there an intimation 

the Service would have the choice of proceeding alternatively in 

deportation. 

In Fulgencio v. INS, supra, the government attempted to urge a 

somewhat analogous position to that presented here. Fulgencio had 

been granted adjustment of status "conditioned upon the absence of 

any derogatory information" upon later record checks. The Service 

subsequently sought to reopen the deportation proceedings when derogatory information developed_ Pointing to fundamental unfairness 

in reopening the deportation case, the court pointed out that rescission 

was preferable because of its procedural safeguards. The conditional 

grant in deportation proceedings, according to the court, "undermined 

the security which ought to attend permanent resident status," whereas "a rescission proceeding is governed by a 5 year statute of limitations." Id. at 598. Citing Quintana v. Holland, supra, with approval, the 

court held the conditional grant improper. 

It is true that in Matter of 2—, supra, the Attorney General ruled 

that an adjusted alien was not intended to be favored over other 

permanent resident aliens with respect to deportability. In that ease 

the ground of deportation, a fraud at time of original entry, existed 

dehors the adjustment and independently of it. Rescission was not 

necessary to reach the deportable ground. Both Matter of 3— and 

Ubiera v. Bell, supra, are consistent with our holding in this case. 

This "deportation" proceeding is in effect a rescission proceeding 

under a different name. The alleged fraud and labor certification 

violation occurred at the time of adjustment. When perceived as to 

what it really is, the necessity for compliance with the 5 year limit 

becomes apparent. The accident of reentry after adjustment, which the 

motion for reconsideration notes as establishing the deportation 

charge, does not affect the rule of law involved. It is doubtful that the 

Service is advocating that the respondent is deportable only because he 

effected a reentry, and that if he had not done so, he would not be 

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Interim Decision #2793 

deportable. Rather, the motion is addressed to all aliens in the respondent's category, and would presumably hold true whether the 

alien had departed or not, cf. Francis v. INS, 532 F.2d 268 (2 Cir. 1976). 

In any case, we take the same position whether or not reentry is 

involved. The grounds of deportability arising from the reentry all 

relate to the claimed illegal procurement of adjustment. This is to 

mask a rescission proceeding under the guise of a deportation proceeding, and if it is a rescission proceeding it must be initiated within the 5 

years. 

The motion erroneously states (Tr. p. 5) that the Board has set up an 

absolute bar to deportation. The bar 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. 

The respondent is presently a lawful permanent resident of the 

United States and until his lawful permanent residence is revoked or 

rescinded, he is not deportable. In this respect he differs from the alien 

in Matter of S—, supra, who was deportable, whether or not rescission 

took place, because of a fraud which was not related to the adjustment. 

See also Matter of V—, 7 I&N Dee. 363 (BIA 1956). We know of no 

deportation charge in this case which can exist independently of the 

alleged impropriety in achieving adjustment, nor does the Service 

allege any. Since the adjustment can no longer be revoked, the motion 

must be denied. 

ORDER: The motion for reconsideration is denied. 

BEFORE THE ATTORNEY GENERAL 

April 28, 1981 

Under 8 U.S.C. § 1255, the Attorney General may adjust the status of 

an alien admitted or paroled into the United States to that of a 

permanent resident if the alien is eligible to receive a permanent visa 

and is admissible to the United States for permanent residence. 

Within 5 years, the Attorney General is authorized to rescind the 

action granting permanent resident status if the person was not in fact 

eligible for adjustment to that status. 8 U.S.C. § 1256. In Matter of S—, 

9 I&N Dec. 548 (1962), the Attorney General ruled that the 5-year 

limitation period for rescission did not apply to deportation proceedings initiated against adjusted aliens who, before the adjustment was 

made, committed acts justifying deportation. 

In this case, the Board of Immigration Appeals (BIA) ruled that the 

5-year limitation nonetheless bars the initiation of deportation 

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Interim Decision #2793 

proceedings against an adjusted alien when the alleged grounds for the 

deportation are acts committed in procuring the adjustment. The BIA 

certified this case to me for review under 8 C.F.R. 3.1(h)(1)(iii). After 

review of the record, I disapprove the BIA's decision. 

I. 

Respondent, a native and citizen of the Philippines, initially entered 

the United States as a visitor in. August 1971. On March 22, 1972, his 

status was adjusted to that of a permanent resident by virtue of his 

marriage on October 29, 1971, to> a United States citizen. In obtaining 

the adjustment, respondent concealed from the Immigration and 

Naturalization Service (INS) his marriage on July 16, 1964, to a native 

and citizen of the Philippines. Testimony during the proceedings below 

revealed that respondent's prior marriage was never terminated' 

Respondent and his second spouse never lived together as husband and 

wife and their marriage was entered into solely in order for him to 

obtain permanent status. Respondent's second marriage ended in 

divorce in 1973. 

Respondent last reentered the United States as a returning resident 

on May 9, 1976, and was admitted upon presenting his alien registration receipt card. On October 31, 1977, the INS issued an Order to Show 

Cause in deportation against respondent, charging him with deportability on the grounds that, at the time of his entry in 1976, 

respondent did not have an alien labor certification and had obtained 

his visa or other documentation by fraud. Rescission proceedings have 

never been instituted against him. 

The immigration judge terminated the proceedings on the ground 

that the exclusive route for challenging the respondent's conduct in 

obtaining permanent resident status was a rescission proceeding 

under 8 § 1256. Since the 5-year limitation period in that provision had elapsed, the judge ruled that the deportation proceedings 

must be terminated. The BIA dismissed the INS's appeal, adopting the 

reasoning of the immigration judge. On the INS's motion for reconsideration, the BIA explained that Matter of S—, supra, involved a fraud 

committed at the time of original entry, not in obtaining permanent 

resident status. That fraud was entirely independent of the adjustment. As the BIA interpreted the relevant statutes, the 5-year limitations period was a bar on an attack on an alien's conduct in procuring 

the adjustment, even if the proceedings were brought for deportation 

rather than rescission. According to the BIA, nothing in Matter of S— 

foreclosed this conclusion. The 131A concluded that the current 

' Respondent continues to support his first wife and their four children and wants to 

bring them from the Philippines to the United States. 

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Interim Decision #2793 

proceeding was in effect a rescission proceeding "under a different 

name" and was thus barred by the 5-year limitations period. 

II. 

Analysis of the issue presented in this case must begin with the 

Attorney General's opinion in Matter of S—. In that case the INS 

sought in 1960 to exclude applicant on the ground that he procured his 

initial entry into .the United States, in 1949, by fraud or wilful misrepresentation of a material fact. In April 1955 the applicant's status 

had been adjusted to that of a permanent resident. The immigration 

judge and BIA concluded that exclusion or deportation proceedings 

based on grounds that would also have supported rescission were 

indirect attacks on the adjustment of status, and that Congress, in 

barring rescission of adjustment status after 5 years, also intended to 

bar indirect attacks on that adjustment. 

The Attorney General disagreed. He noted that the exclusion and 

deportation provisions of the Immigration and Nationality Act, unlike 

the rescission provisions, contain no statutes of limitations. Congress 

did not, in his view, intend to give special immunity from deportation 

to those who acquired permanent resident status. The Attorney 

General found no "basis for believing that the 5 -year limitation ... on 

the Attorney General's rescission authority has the effect of broadening the benefits conferred by [an] ... adjustment so as to place nonimmigrants who -thereby acquire the status of aliens lawfully admitted 

for permanent residence in a better position than those who have 

initially entered as permanent residents." Id. at 552. Accord Ubiera v. 

Bell, 463 F.Supp. 181, 1862(S.D.N.Y. 1978), oed without opinion, Ubiera 

v. Bell, 594 F.2d 853 (2d Cir. 1978). On the contrary, he concluded that 

"the effect of the 5-year limitation on rescission is simply to bar the 

Attorney General from returning an alien with adjusted status to the 

category of nonixnmigrant." Id. at 554. So "narrow" a provision was not 

"intended to be read as qualifying the express authority provided by 

the Act to deport or exclude aliens without time limitation." Id. at 555. 

In a passage of particular relevance to the present matter, the 

Attorney General recognized that, under his construction, "the time 

limitation in section 246 ... may be of little practical value to the 

alien." But as he understood it, the purpose of the limitation was 

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

intents and purposes would establish deportability, permitted the At- 

'In Vbiora, the court state& "The Service _ _ considers that all alions, I-word/Rag of 

how they obtained status or the length of residence here, are subject to deportation at any 

time, Matter of S—, supra, and the Attorney General's interpretation of Section 246(a) in 

that proceeding is consistent with the legislative history...." (Emphasis added). 

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Interim Decision #2793 

torney General to act more informally and expeditiously than he could 

in a deportation proceeding."' In the Attorney General's view, the 

rescission procedures might provide a more informal and expeditious 

means of correcting mistakes made in granting permanent residence 

status through adjustment. The Attorney General concluded: 

Congress must have been aware that rescission by returning the alien to nonimmigrant status, in fact, established his deportability on the ground that he had 

overstayed the period of his admission. The 5-year limitation would thus seem to be a 

recognition that it would be unfair to permit indefinitely such serious consequences to 

be effected through a somewhat informal procedure. After 5 years, the Attorney 

General is, therefore, required to correct mistakes in granting permanent resident 

status to those initially admitted as noitimmigrants in the same manner as in the case 

of other aliens, i.e., through deportation. 

Id. at 555-56 n.8. Under this view of the purpose underlying the 5-year 

limitations period for rescission, the Attorney General concluded that 

the limitations period was inapplicable to deportation proceedings, 

which were governed by different statutory provisions and which, by 

statute, furnished generous procedural safeguards.' 

In my view, Matter of 8— was correctly decided, and the Attorney 

General's reasoning in that case leads to rejection of the BIA's position 

here. Under the plain terms of the Act, there is no statute of limitations for deportation and the 5-year period of § 1256 is, by its own 

terms, applicable only to rescission. The BIA's approach would have 

the anomolous consequence of favoring those who gained permanent 

resident status through adjustment over those who initially entered as 

permanent residents. For these reasons, I believe that the deportation 

proceeding at issue here is not barred. 

I acknowledge that this conclusion, based on the text of the Act, 

might be avoided if it were plainly inconsistent with the intent underlying the 5-year limitations period. The BIA purported to find such an 

inconsistency, contending that the period would have no function if it 

did not insulate the alien from all claims arising from improprieties in 

the alien's conduct in obtaining permanent resident status. This position, however, was squarely rejected in Matter of S—. As the Attorney 

General there explained, the limitations period is designed to assure 

that, if no action to obtain rescission is taken within 5 years, the 

Attorney General may not use the procedural mechanism for rescis- 

' 9 I&N Dec. at 555 n. 8 (emphasis in original). Under INS regulations, the procedures 

for rescission are generally formal. See 8 C.F.R. 246.12(a) and (b). The deportation 

procedures are, however, imposed by statute, see 8r U.S.C. 1252(b), while the rescission 

procedures lie within the Attorney General's discretion. 

The BIA ignored this reasoning here in emphasizing that an alien whose adjustment 

had been rescinded was nonetheJese entitled to deportation procedures before being 

deported. Rescission automatically establishes grounds for deportation, as the Attorney 

General explained. 

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sion, but must instead seek deportation, a route that offers special 

statutory safeguards to the alien. The underlying purpose of the limitation period for rescission does not, therefore, justify its application 

to deportation proceedings. 

The BIA suggested in this case that Matter of S— might be distinguished because the grounds for deportation in that case were entirely 

separate from the procurement of permanent resident status. Here, by 

contrast, alleged misconduct in the adjustment is the asserted grounds 

for deportation. I see no basis, however, for the conclusion that the 5- 

year limitations period for rescission becomes applicable to deportation proceedings simply because those proceedings are based on conduct in obtaining the adjustment. There is no ground for such a 

conclusion in the language, history, or structure of the Act, and the 

proposition advanced by the BIA is certainly not self-evident. I believe 

that the BIA's distinction is unpersuasive. 

The BIA also takes the position that the limitations period is applicable because, in substance, the current proceeding is one for rescission. I disagree. The INS seeks deportation, not rescission. The respondent is entitled to the safeguards accompanying deportation, not 

those applicable to rescission. To be sure, the allegations on which 

deportation was sought could also have formed the basis for an action 

for rescission if the 5-year limitations provision were satisfied. That 

fact does not, however, alter the fundamental nature of the proceeding. 

Since this proceeding is one for deportation, the limitations period 

applicable to rescission is not applicable here. 

I conclude that under the terms of the Act, the 5-year limitations 

period in § 1256 is not applicable to a deportation proceeding, and that 

nothing in the underlying purposes of the relevant statutes requires a 

contrary result. Accordingly, I disapprove the BIA's decision, and the 

case is remanded for further proceedings consistent with this opinion. 

BEFORE THE BOARD 

May 19, 1981 

Bv: Milhollan, Chairman; Maniatia, and Maguire, Board Members 

Following the Board's denial on. December 2, 1980, of a Service 

motion for reconsideration of our decision of May 6, 1980, 1in which we 

affirmed a decision of the immigration judge terminating the proceed- 

, ings, the Service requested the Attorney General to review and reverse 

our initial decision. The Attorney General, by order dated April 28, 

1981, noted that this proceeding is one for deportation and that the 

5-year limitations period applicable to rescission proceedings is not 

' Interim Decision 2793 (BIA 1980). 

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applicable in this instance. The Attorney General expressed his disapproval of the Board's decision and ordered this case remanded for 

further proceedings consistent with his opinion. Accordingly, this case 

will be remanded to the immigration judge for further proceedings 

consistent with the Attorney General's decision. 

ORDER, The case is remanded to the immigration judge for 

further proceedings consistent with the Attorney General's decision. 

385