Interim Decision #2017
MATTER OF SINGH
In Section 246 Proceedings
A-11430285
Decided by Board December 19, 1969
The running of the five-year limitation provision of section 246 of the Immigration and Nationality Act is tolled by the service upon the alien of "notice of intention to rescind" adjustment of status issued by the District
Director in accordance with the provisions of 8 CFR 296.1.
RESCISSION GROUNDS: Marriage not valid for nonquota status, and quota
visa not available.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Joseph. S. Hertogs, Esquire Irving A. Appleman
580 Washington Street Appellate Trial Attorney
San Francisco, Calif. 94111 Stephen M. Suffin
Trial Attorney
(Brief filed)
The above-captioned case concerns an interpretation of the
five-year limitation provision of section 246(a) of the Immigration and Nationality Act (8 U.S.C. 1256(a) ) 1 insofar as it relates
to the rescission of •an adjustment of a nonimmigrant alien's immigration status to that of a permanent resident alien. The special inquiry officer, on December 6, 1968, concluded that it is
I The limitation provision of section 246(a) insofar as it relates to a rescission of an adjustment of status under section 245 of the Act reads as follows:
If, at any time within five years after the status of a person has been
otherwise adjusted under the provisions of section 245 . . 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 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 Act to the same extent as if the adjustment of status had not been made.
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impossible to enter an order of rescission "at any time within five
years after the status of [the respondent] has been adjusted"
under section 245 and terminated the proceeding. He relies upon
Quintana v. Holland, 255 F.2d 161 (3 Cir., 1958). The trial attorney appeals on the ground that service of a "Notice of Intention
to Rescind" within the five-year period is sufficient to toll the
running of the statute.
The respondent is a native and citizen of India who was admitted to the United States at the port of New York on January 10,
1959 as a nonimmigrant student. He married a United States citizen at Reno, Nevada on July 24, 1963. An application for permanent residence status was granted on October 18, 1963. The notice
of intention to rescind charges that the respondent's marriage to
a United States citizen was entered into solely for the purpose of
enabling him to acquire the status of a permanent resident of the
United States because he never cohabited in a husband and wife
relationship with his citizen wife.
The notice of intention to rescind was mailed to the respondent
on September 12, 1968 by "certified mail—return receipt requested" (ex. 1). The return receipt shows that it was received
by the respondent on September 19, 1968. Counsel by letter dated
October 11, 1968 requested a hearing before a special inquiry officer. The hearing was held on December 6, 1968, during the
course of which, counsel moved for termination of the proceeding
on the ground that the proceeding is not in accord with "precedent decisions of the Board of Immigration Appeals and the Service" since "more than five years elapsed from the granting of permanent resident status on October 18, 1963, and the date of any
entry of any decision in connection with the rescission proceeding" (p. 3).
Counsel in his brief on appeal relies upon Quintana v. Holland,
255 F.2d 161 (3 Cir., 1958), the Assistant Commissioner's decision in Matter of T—,
8 I. & N. Dec. 96 (1958), and an unreported decision by this Board in Matter of Ettlinger, A-12548706
(1966 and 1968). One of the issues presented in Matter of T—
was whether appellate rights preserved for the alien under 8
CFR 246 prevented final disposition of the case within the five-year period of limitation provided by the statute. The Assistant
Commissioner ruled that since the alien's application for adjustment of status was granted on June 11, 1953, the entry of an
order by rescission by the District Director on June 3, 1958 tolled
the five-year-period of limitation provided by the statute notwith-
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standing that the appellate rights to which the alien was entitled
have prevented final disposition of the case within the five years. 2
A similar issue was before us in Matter of Ettlinger (supra).
Ettlinger's status was adjusted on October 6, 1961 and the special
inquiry officer's order of rescission was entered on August 17,
1966, within the five-year period of limitation. We noted in our
opinion of December 1, 1966 that the case of Quintana v. Holland
is distinguishable. The case was again before us in deportation
proceedings on February 7, 1968. We remanded in order to have
the special inquiry officer reconsider the evidence in light of the
burden of proof of clear, unequivocal and convincing evidence
pursuant to the Waziri decision of the Ninth Circuit (392 F.2d
55, 1968) and the Rodrigues decision of the Third Circuit (
389
F.2d 129, 1968). We said in our opinion, "Reconsideration for the
purpose of applying this burden of proof does not affect our prior
holding that the rescission order of the special inquiry officer on
August 17, 1966 was timely, and that thereafter the statute of
limitations in section 246 was tolled."
We find little support for either counsel's position or that of the
special inquiry officer in Matter of T—, or Ettlinger, because in
those cases the issue was whether appellate rights when exercised
granted the alien an immunity if the appellate proceeding was
not completed within the five-year period of limitation. In this
case we are concerned with whether the service of a notice to rescind or the date of the decision of the special inquiry officer tolls
the running of the statute.
The Court of Appeals in Quintana v. Holland (supra) had before it a case involving the rescission of suspension of deportation on the ground that the alien's membership in the Communist
Party made him ineligible therefor. Quintana's deportation was
suspended by the Immigration Service on December 3, 1947, and
reported to the Congress on December 15, 1947. He paid the fee
on July 22, 1948, and on July 6, 1949 a congressional resolution
approved suspension of deportation. The District Director notified
Quintana on July 9, 1953 of his intention to rescind the grant of
suspension of deportation. Following hearings in 1954 and 1955,
the District Director on March 30, 1955 approved a recommendation for rescission of suspension of deportation. The Acting Regional Commissioner approved on April 11, 1955. Congress on
Quintana 17_ I inlIond (supra) was decided on May 23, 1958 and the Assistant Commissioner made no reference to the decision of the Third Circuit
Court of Appeals in his decision of July 31, 1958.
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April 9, 1956 passed a concurrent resolution withdrawing suspension of deportation.
The Government took the position that the rescission proceedings were timely because Quintana was notified of the intention
to rescind within five years of the date he paid his fee for suspension of deportation on July 22, 1948. The Government also argued
that suspension of deportation is a "matter of legislative grace
within a field of congressional supremacy the disposition of which
Congress had reserved for itself," and the courts cannot either
review or overrule an action taken by Congress.
The court stated in effect that the Government's argument was
not based on a sound or valid premise. It stated, "We think ...
that Congress meant to require the Attorney General to take the
described action within five years and to be bound by that limitation itself ... The giving of notice within the five-year period is
not enough ..." Referring to the phrase used in the statute "it
shall appear to the satisfaction of the Attorney General," the
court interpreted this as meaning that the Attorney General must
make a "reasonable determination ... in good faith after such investigation and hearing as is required." The court stated that
"the Attorney General could have made no such determination by I
the end of the five-year period from the latest possible date that
can be considered" (255 F.2d 164).
We do not agree with the court's interpretation of the limitation provision of section 246. The ruling of a reviewing court in
one circuit is not necessarily dispositive of the issue; a conflicting
view may be expressed by a court in another circuit. See e.g. Errico v. INS, 349 F.2d 541 (9 Cir., 1965), and Scott v. INS,
350
F.2d 894 (2 Cir., 1965). Similarly the Government's failure to ap-
)eal from a court's adverse decision does not of itself indicate aciuiescence. The determination not to appeal may be based on 1
ether considerations, such as the inadequacy of the record as a
'chicle for appeal or factors outside of the record which render
n appeal undesireable. Cf. Matter of Lint, Interim Decision No.
947 (BIA, 1969).
There was conflict between the circuits with regard to the limiation provisions found in section 19(a) of the 1917 Act.' The
'bird Circuit in the case of Hughes v. Tropello, 296 F. 306
1924), and McCandless v. U.S. ex rel. Swystun,
33 F.2d 882
1929), construed the phrase "at any time within [five or three]
ears after entry" as "words of limitation." The court said that
8 Section 19(a) of the 1917 Act limited the deportability of certain desigitted aliens to "at any time within [five or three] years after entry."
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in order to give effect to them "the warrant of deportation and
not merely the warrant of arrest" must be issued within the statutory period and if not "the power of deportation is exhausted"
(33 F.2d 883).
The majority of the Circuit Courts of Appeal did not adhere to
the interpretation of the "words of limitation" enunciated by the
Third Circuit. The most recent case is that of Miller v. U.S. ex
rel. Hunt,
181 F.2d 363 (5 Cir., 1950). The question before the
court was whether a timely-issued warrant of arrest, as distinguished from a warrant of deportation, served to toll the running
of the limitation provision as set forth in section 19 (a) of the
1917 Act. The court referred to the fact that there was a diversity of opinion prevailing between several of the circuits and the
Third Circuit. The court ruled that a timely issuance of the warrant of arrest suffices and in support of its position said:
This position is warranted by the express phraseology of the statute and
is rendered persuasive by consideration of the universal rule prevailing in
the various states and federal courts, 4 that the filing of charges, whether by
information or by indictment, tolls the running of the statute of limitations
against a criminal prosecution and is effective even though the warrant be
not served upon the accused until after the running of the statute.
We find no basis for applying a different rule with regard to
the limitation provision of section 246. The function served by
any statute of limitation is to give the accused notice of the assertion of a claim against him before it has become stale, in order
that he may be duly warned to preserve his evidence if he wishes
to contest the asserted claim, D'Onofrio Construction Company v.
Pecan Company,
255 F.2d 904, 908 (1 Cir., 1958). The Attorney
General has said: "The effect of the five-year limitation on rescission is simply to bar the Attorney General from returning an
alien with adjusted status [under section 245] to the category of
a nonimmigrant," Matter of S—, 9 1. & N. Dec. 547, 554 (A.G.,
1962).
Here the respondent seeks to bar the rescission of his adjusted
status by claiming immunity under the five-year limitation provided by section 246. The Supreme Court has said that where one
4 The court cited in support of its position the following immigration case:
U.S. ex rel. David v. Tod,
289 F. 60 (2 Cir., 1923); U.S. ex rel. Patton v.
Tod,
297 F. 385 (2 Cir., 1924) ; 'U.S. ex rel. Danikas v. Day,
20 F.2d 733 (2
Cir., 1927) ; U.S. ex rel. Ginal v. Day,
22 F.2d 1022 (2 Cir., 1927) ; Metaxis
v. Weedin,
44 F.2d 539 (9 Cir., 1930) ; Marty v. Nag/e,
44 F.2d 695 (9 Cir.,
1930) ; Tillinghast v. Cresswell ex rel. Di Pierre, 54 F.24 459 (1 Cir., 1931);
Rat tery ex rel. Giacornazzi v. Tillinghast,
63 F.2d 9'7 (1 Cir., 1933); Bun
Chew v. Connell,
233 F. 220 (9 Cir., 1916).
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resorts to a statute of limitations in order "to bar the rights of
Government," such statute "must receive a strict construction in
favor of the Government," E. I. Dupont De Nemours and Company v. Davis, 264 U.S. 456, 462,
68 L. Ed. 788, 791 (1924). If
rescission proceedings must be concluded and not merely begun
within the five-year period, the immigration authorities to whom
the Attorney General has delegated his authority would of necessity in some cases be constrained to hasty and otherwise drastic
pr ocedure in order to avoid failure in their duty to obey the statute. Cf. Nocchi v. Johnson,
6 F.2d 1 (1 Cir., 1925). The Third
Circuit's interpretation of the limitation provision of section 246
as stated in Quintana places a premium on the use of any and all
means to delay a decision by the special inquiry officer. We cannot
believe that the Congress intended that the power and authority
to rescind would cease merely because the time accorded to the
alien in which to have his day in court had run beyond five years,
notwithstanding the fact that the notice to rescind had been
served upon him within the five-year period of limitation. Cf.
U.S. ex rel. Patton v. Tod,
297 F. 385, 397 (2 Cir., 1924). The
statute must be given a fair and reasonable interpretation in
order to effectuate its purpose, namely, to prevent undue delay in I
the bringing of actions, Missouri, K. and T. R. Company v. Harriman Brothers,
227 U.S. 657,
57 L. Ed. 690 (1913).
The notice of intention to rescind (Ex. 1 ) , served upon the respondent by registered mail within the five-year period of limitation, fully sets forth the essential facts for commencement of rescission proceedings under section 246 of the Immigration and
Nationality Act. Furthermore, it appears from a reading of the
lotice to rescind that there was probable cause for believing that
:he respondent had obtained his adjustment of status unlawfully.
It has been held that where the foregoing factors are clearly set
'orth in a complaint served upon the accused, the service of the
ornplaint tools the running of the statute of limitations, Jaben v.
7nited States, 333 F.2d 535 (8 Cir., 1964), aff'd
381 U.S. 214, 14
I.,. Ed. 2d 346 (1966).
Contrary to the rationale applied by the Third Circuit in Quinana, we find nothing in the statute which says when the Attorley General must make "a reasonable determination ... in good
'aith ... after ... investigation and hearing ..." (255 F.2d 165)
5 It appears that the reasoning of the court with regard to whether the
imitation provision of the statute had been met was influenced by the fact
hat at the time the notice to rescind suspension of deportatiton was served
pon Quintana, the investigation with regard to his membership in the Corniunist Party had concluded negatively and the Service was then engaged in
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In fact, a reading of the notice to rescind in the case before us
makes it clear that the immigration officers to whom the Attorney
General has delegated his authority had made "a reasonable determination ... in good faith . .. after investigation ..." because
otherwise the notice to rescind would not have been served upon
the respondent. All that remained was the hearing provided by 8
CFR 246.5 which affords the alien an opportunity to rebut the allegations set forth in the notice to rescind. The allegations by
their very nature are notice to the respondent that the Attorney
General is not satisfied that he "was ... in fact eligible for such
adjustment of status."
We conclude on the basis of the foregoing that the five-year
limitation provision of section 246 of the Act is tolled when the
notice to rescind is issued by the District Director in accordance
with 8 CFR 246.1. The decision and order of the special inquiry
officer will be reversed and the case remanded for further proceedings in conformity with this opinion.
ORDER: It is ordered that the order entered by the special inquiry officer on December 6, 1968 terminating this proceeding be
and the same is hereby withdrawn.
It is further ordered that the case be remanded to the special
inquiry officer for further proceedings in conformity with the
foregoing opinion.
seeking further evidence with which to convince the special inquiry officer
that Quintana had been a member of the Communist Party (see 255 14'.2d
165). This factor is not present in the case before us.
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