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. e du/thir dc ir c uit_1996/22UNITED 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 Judg es

(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 CounselMichael 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 mar riage. 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). Becaus e there is no reason to adjust Bamidele's permanent resident status other than the sham marri age which enabled him to obtain permanent resident status under § 246(a) and because adjustme nt under § 246(a) is now barred, we conclude that Bamidele's permanent resident status cannot pr esently be rescinded. As a result, we find that he is not now deportable on the sole grounds o f his misconduct in obtaining his adjustment
of status.

I. Facts Bamidele has lived and worked in this coun try for over fourteen years since entering the United States as a non-immigrant visitor on Feb ruary 19, 1982. Shortly after arriving in America, Bamidele took up residence in Philadelphia with his brother Larry, who had previouslyemigrated to this country. Bamidele then began his college education,

eventually earning a Bachelor of Science degree in Management, and supported hims elf by driving a cab on nights and weekends. Following his graduation in 1986, Bamidele held a v ariety of jobs until establishing himself with his current employer in 1990. In this position of cons truction inspector and field technician, Bamidele has earned the praise and respect of his employer w ho has described him as a "very intelligent, dedicated and self-motivated person" and a "very va luable 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 FB I inquired into the validity of Bamidele's marriage to Ms. Griffin. Ms. Griffin told an FBI a gent in an interview that her marriage to
Bamidele had been a sham and the two had never live d together. Despite having this information in 1985, the INS took no action for five years. Ba midele 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 al leged that Bamidele had
obtained his "permanent resident status through fraud," thus ren dering his "permanent resident status nul [sic]
and void." Cert. Admin. Rec. at 39. The Order furt her 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, whil e the second count charged Bamidele, also under § 241(a)(2), with committing fraud within the meani ng of § 241(c)(2). A hearing followed at which Bamidele through counsel presented testimony and ot her evidence that he
and Griffin had been in love and intended to make a life together. Bamidel e also argued that he was not deportable under a proper reading of §§ 241(a)(2) and 241(c)(2). Th e immigration judge, stating that he found Bamidele's version of events incredible, ordered hi m deported on both counts as of October 10,
1991. Bamidele then embarked on a lengthy appeal s process. Appearing pro se, he firstfiled a notice of appeal to the Board of Immigratio n 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 bas es in a per curiam opinion dated December 4, 1992. The only arguments on which the Board reache d the merits were
Bamidele's contention that the second charge was invalid because he did not "r eenter" the United States within two years of marriage and his assertion that the Board should no t have credited Griffin's testimony. The Board summarily rejected both positions in its two page d ismissal of Bamidele's appeal. On March 15, 1993, the Board in a second opinion rejected Bamide le's "Motion to
Reconsider" which the Board styled as a "Motion to Reopen" the deportation hear ings. Again represented by counsel, Bamidele fil ed 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 fr aud by Bamidele, who at
all times relevant to this litigation resided in the United States, was c ommitted solely for the purpose of obtaining an adjustment of status and not for the purpose of ga ining "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 determin e 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 r efused to consider it
because we determined that it and several additional issues had not be fully b riefed 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. Imm igration and Naturalization Serv., No. A26 387 101 - Philadelphia (B.I.A. Nov. 13, 1995). The Boa rd 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 pr oceedings. Relying on agency adjudications as precedent, the Board held that the five year limita tion in no way impeded deportation proceedingsafter 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 cha rge the Board found
that Bamidele never qualified for adjustment of status because he was n ot 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 rev iew of a final order of deportation issued by the Board of Immigration Appeals. The Bo ard held appellate jurisdiction over this matter pursuant to 8 C.F.R. § 3.1(b)(2). Our juris diction to review the
Board's order is exclusive and arises under § 106(a) of the Act, 8 U.S.C. § 11 05(a).
III. Standard of Review As a preliminary matter we must determine the appropriate standard of review t o apply in examining the Board's interpretation of it s governing statute.
The INS asserts that this case is controlled by Chevron U.S.A. v. Natural Resource s Defense Council, 467 U.S. 837 (1984), and its progeny which require us to accord "considerabl e 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 applicab ility 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 genera l applicability of Chevron's analysis to our review of an agency's interpretations of its go verning statutes. As the Supreme Court has stated, Chevron divides our analysis into two steps: First, always, is the question whether Con gress 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, a s well as the agency, must give effect to the unambiguously expressed inte nt of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court d oes not simply impose
its own construction on the statute, as would be necessary in the
absence of an administrative interpretation. Rath er, if the statute is
silent or ambiguous with respect to the specific iss ue, the question for
the court is whether the agency's answer is ba sed on a permissibleconstruction of the statute.

Chevron, 467 U.S. at 842-43 (footnotes omitted). W hen, 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 provi sion. Id. at 844. Furthermore, we are especially aware that the INS's interpretations of the statute s 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 cou rts must respect the interpretation of the agency to which Congress has delegated the responsi bility for administering the statutory program"); Yang v. Maugans, 68 F.3d. 1540, 1546-47 (3rd Cir. 1 995) ("The BIA's interpretation of the burden of proof provisions of the INA is entitled to defer ence 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 construc tion of the statute of
limitations contained in § 246(a) of the Act, which limits actions by the IN S to rescind an alien's adjustment of status. A statute of limitations is not a matter within the p articular 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 agenc y interpretation
diminishes further when the interpretation does not require special knowledge w ithin 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 t he agency's field of technical expertise, reviewing courts sometimes accord little deference to the age ncy's construction."). Although the INS cites several cases from this Circuit for the proposition that deference to its views is required, a closer readin g reveals that each is inapposite to the question now before the Court. In Yang, 68 F.3rd at 1546-50, w e addressed complicated
matters such as the allocation of the burden of proof and the elements of the entry test for determining whether an alienis 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 asylu m. 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 "lawfull y 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 analy sis would be bolstered by our reliance on the expertise of the INS. Moreover, the latter two cas es addressed terminology which took on unique import and meaning informed by the INS's interpreta tion 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 IN S is charged with administering, a statute of limitations is a general legal concept with which t he judiciary can deal at least as competently as can an executive agency. Cf., Love v. Thomas, 858 F.2 d 1347, 1352 n.9 (9th Cir. 1988), cert. denied, sub nom., American Fed'n of Labor and Congress of I ndus. Orgs., 490 U.S. 1035 (1989) ("While we ordinarily give great weight to the interpretati on of the agency charged with enforcement of the statute we are construing, . . . that deference doe s 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 N avy v. Federal Labor Relations Auth., 840 F.2d 1131, 1134 (3rd Cir. 1988).
IV. Discussion We need only address one of the points Bam idele 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 main tains 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 erre d as a matter of law in ordering him deported under § 241(a)(2) when it was time barred from firs t 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. Ins tead we hold, given the novel facts of this case, that rescission proceedings, and by extension the procee dings to deport Bamidele, are time barred. The Immigration and Nationality Act enacte d by Congress in 1952 created a statutory scheme nearly devoid of limitation periods on enfor cement actions by the
INS. See Lehmann v. United States ex rel Carson, 353 U.S. 685 (1957) (d iscussing 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 th e 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 t o that of an alien lawfully admitted for permanent residence, it shall appear to the
satisfaction of the Attorney General that the person wa s not in fact eligible
for such adjustment of status, the Attorney Ge neral shall rescind the action taken granting an adjustment of sta tus to such person and cancelling deportation in the case of such person if that
occurred and the person shall thereupon be subject to a ll 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 hea rt of this case.
The INS construes the statute of limitatio ns based on "its belief that ‘the five-year limitation in § 246(a) is a historical anomaly or t he 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 un timely rescission of an alien's status adjustment, it has no effect on the INS's ability to deport tha t same immigrant on the very same grounds the INS claims render the original adjustment of status imp roper.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 limit ation period bars the
rescission of Bamidele's permanent resident status and, in the absence of th e commission of any other offense, thereby bars initiation of deportation proceedings in this case. The INS relies heavily on the reasoning expres sed 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 followi ng narrow view of §§ 245 and 246(a): [R]escission places an alien in the same posi tion "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 resi dence" is, through rescission, returned to nonimmigrant status. Consequently the effe ct of the five-year
limitation on rescission is simply to bar the Attorney Gener al from returning an alien with adjusted status to the category of nonimmigrant. . . . I recognize that as I construe the time l imitation in section 246 it may be of little practical value to the alien. While th e limitation obviously prevents the Attorney General from returning the alien to t he 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 ascerta in precisely why Congress enacted the time limitation. But whatever purpose Congres s 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 stat us laws here involved,
have intended to confer upon an alien of adjusted status the be nefit 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 di fferent 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 t he courts have been very keen to make sure that the individual received careful prot ection. The rescission
blocks the man on the road to citizenship, and results in ban ishment from a country where he may have lived a long time, as in this case. We t hink, therefore, that Congress meant to require the Attorney General to take the descr ibed 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 e xecutive branch, but to
do less would "undermine the security which ought to attend permanent reside nt status." Fulgencio v. Immigration and Naturalization Serv., 573 F.2d 596, 598 (9th Cir. 1 978); 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 permanen t."). 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 N igeria, a country with
which he has had little contact for nearly fifteen years. In any event, we believe the authorities relie d 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 deportatio n order are the same as
those which the INS claims rendered Bamidele's adjustment of status inv alid. 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 th e Attorney General. The Board stated, "The bar [to deportation] exists only where deportation is b ased on an attack on the adjustment itself, as here.If the adjustment is thus attacked, it must be atta cked 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 limit ations in this narrowly defined situation, we, in practical effect, would be construing it out of exi stence. 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 pro cedure which, although to all intents and purposes would establish deportability, permitted the Attorn ey General to act more informally and expeditiously than he could in a deportation procee ding'." Id. at 382-83 (quoting In re S--, 9 I. & N. Dec. At 555 n.8.) The Attorney General concludes t hat 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 lef t 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 avail able 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 tha t 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 res cission 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 per iod contained in § 246(a) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1256(a), prohibi ts the INS from initiating deportation proceedings based exclusively on fraud in obtaining the adjustm ent of status. We express no opinion as to whether the Immigration Marriage Fraud Amendment Ac t 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 cas e, we need not reach
the issue of whether Bamidele is deportable exclusively under § 241(a)(2).Thus, we will grant the petition for review, w e 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.