Can A Green Card be Taken Away After 5 Years (if incorrectly issued)?


Can USCIS take away your green
card if you had one for more than five years but you
obtained it incorrectly ? I’m going to discuss that and
more. Hi, I’,m immigration attorney
John Khosravi. You know, since I’ve been
practicing, a lot of people
have said and I’ve heard here and there that
if you’ve had your green card for five years regardless if
you obtain that green card incorrectly or
there was misrepresentation to obtain it they won’t take
it away and can’t take it away
anymore. Well you know there was a case
that came out last week in the 9th Circuit and the name
of the cases USA v. Phatty and this led me down a
hole, a rabbit’s hole, to really
dissect this statute the statutes that are
involved and find out what
really the situation is and I wanted
to to help you better understand as well and to
learn about it. Just keep in mind these things
change constantly and is up to
interpretation as always, since this law. So do your own research. But to start in USA v. Phatty there was a gentleman
who had applied for asylum and he had some history
of some fraud related to that but he
was able to get the asylum claim get a green card get
citizenship and then seven years later they
realized that he had done this asylum
fraud because his fingerprints came back and they matched the
previous false claim of
asylum. And so they got him for
denaturalization and he tried to keep his green card by
saying that I’ve had my
citizenship for more than five years and
had the green card five
years as well, you can’t take this away from
me. Now there is a statute 8 USC
145(a), and thi statute says if you did
misrepresentation in the past they can do
naturalize you or revoke it or rescined your citizenship and
take it away. However the person here, the
applicant here, was arguing that under 28 USC 2462 there is a limitation of how
long they can go back after a certain time to take
away something like that, and that it is a penalty to do
something like that. The court analyzed it and it
comes up with the idea that under that second or second
statute mentioned , that it is not a penalty to
take away naturalization. So that five year statute of
limitations doesn’t apply. And the can denaturalize this
person. So that was the story of that
cas,. but I once I start reading the
statue I start digging in a
little deeper. You know 8 USC 1451(a), the DeNatz action and breakdown, finds
itself and actually gets the original
power from INA 246(b) Immigration Nationality
Act 246(b), also known as 8 USC 1256. Now this statute 246, and I
like to use the INA when I’m talking about this
stuff, so
INA 246, you know INA 245 isthe adjustment status statute. INA 246 talks about rescission and
INA 246(a), the first portion says that if
you had your green card for five years that it can’t be
rescinded afterwards and then 245(b) says if you
have citizenship and you obtain citizenship
based on fraud they can
DeNaturalize and take that way, open it up
and take away the green card. So one thing that pops
up in people’s mind is: well
maybe you keep the green card and
never file for naturalization
because that’s usually when people get caught which
is one of the ways
peopel get caught when they
have had misrep or mistakes in
their adjustment status in the
past. But when you look at 246(a),
the question does com: So if they had that misrep to
get that green card could they keep their green card
once five years have passed. Well there is an interesting
story that goes along with
this. But to start I went to the
Adjudicators Field Manual
(AFM) and looked into how they look
at this rescission statue and they
said it is something we rarely
do and that you should really look
incredibly hard before doing
it. And there are some you know
case law, BIA kind of stuff that said if they are going to
do a rescission, the date that you received
notice of rescission is the date it gets locked in. So the idea that you had notice
that
they were going to rescind and
then a judge makes a final
determination, the final
determination of the
judge doesn’t have to to
happen in the five years. It is just that initial notice
action notice to appear that comes in and that their
idea that they could rescind is when the timeline stops within that five years and
they can’t do it afterwards.
Ok, that is easy enough. And there was another case now that
case was called, the first
case I mentioned was Matter of Pereira. The second one I talked about
was matter Matter of Carrillo. This was a Cuban Adjustment and kind of like asylum where once
you adjust they backdate the adjustment date and this
person said once they
backdated it, it didn’t fall within the five
years when they want to
rescind , but the court said
and the BIA said No, that no the rescission time starts
from when the adjustment is actually
approved. So that’s good enough I was
excited reading that there’s
such a thing of blocking rescission after
five years because mistakes happen every once in a while. But once I dug in deeper I
realized that’s not really the
case unfortunately. Now the statue INA 246(a) has changed over the years
previous to in the early 90s that the IRIRARA time before
that it was really a certain
way. But nowadays is run differently
at most of the circuit courts. Almost everyone has dealt with
this issue which is owns
majority have said that essentially 245 essentially 246 a doesn’t even
exist. So let me get into that. I’m gonna analyze one case
Adams v. Holder in the Second Circuit
that really breaks
this dow, and many of those Circuits, the
fourth and so on have agreed with this line of thinking
which is this: INA 24(a) says that the attorney general
should rescind if they find out that there’s been
some sort of misrepresentation
that happened in the last five years. So you know OK good for the
applicant if it goes past
that. However they say specifically
with regards to rescission there’s
a five year timeline. It doesn’t say removal and to
them removal in rescission are
different procedures and
different issues. So they could still initiate
removal. And there’s nothing in the
removal statutes that sets a
timeline. Let me say that again: there is nothing in
the removal statutes that sets
a timeline of when they can reopen and
rescind
an adjustment of status green
card case. So that’s very important to
know. Another interesting thing that
they talk about in this is
that this 246 a rescission statute
only applies adjustment of status
and not to Consular
Processing. Because the statute
specifically talks about
adjustment status. But doesn’t really matter
because what the, you know,
DHS will do is instead of
rescinding they’ll just go to court and NTA you for
removal proceedings and the really came up in the case of
Bamidele v. INs, they had a different
interpretation and they stuck
with it in a subsequent case and they
said that no we interpret it that the five year
limitation for rescission also applies to removal. So if you are on thethird circuit
you have some protections
there but you can bet if this issue
comes up the DHS is going to fight it and fight
it, and maybe take it all the
way up. Because the rest of the circuit
courts that that dealt with it had been on their side. So unless you’re in the Third
Circuit, if an issue pops up where there is
misrepresentation or any other
issue and the
obtain…obainment of the adjustment of status
green card, the DHS will issue removal
proceedings based on the removal statute
and avoid the rescission statute altogether. So this five year timeline of
protection doesn’t really
exist. And I would not rely on or tell
clients to use that or have some sort of
relief from it. Now we’ve seen this most recent
case I start with a 9th circuit case,USA v. Phatty with a P H. In that case you know the guy
had naturalization , and seven years gone by since
Natz and it didn’t matter. They still rescinded it, the
guys in removal, he’s going to
be kicked out unless some other protections come. So I thought that was a really
important thing to talk about
and bring up and it’s going through this
case law and the statute. It is very interesting stuff how
nuance immigration laws. I hope this information helped,
you could always go to an
ImmigrationLawyersToolbox.com for more information. The YouTube page for
ImmigrationLawyersTool.com is available with a lot of
videos and updates as well. And as always the Immigration
Lawyer Podcast is there, you
can find it wherever you find
podcasts, where I regularly
talk about immigration news and
events for practitioners of
immigration law. So you could be updated on
what’s going on because as you
know it seems, I used to say every
couple of years things have
changed that every year six months every
day now seems like every four or five hours
something is changing. So I’m doing my best to be on
top of it to get this
information and get it out to
you. Hope this
information helped. Until next one,
have a good one.

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