Chapter 1 - Purpose and Background

A. Purpose

Rescission proceedings serve the goal of removing a person’s lawful permanent resident (LPR) status when USCIS determines that he or she was not eligible for adjustment of status at the time LPR status was granted. Rescission places the person in the same standing that he or she would have been in if USCIS had never granted adjustment of status. In certain limited circumstances, this can result in the person being in a period of authorized stay or having some form of lawful immigration status even after rescission. In most instances, however, it results in the person having no lawful status and not being in a period of authorized stay, and therefore subject to removal proceedings. A contested rescission proceeding requires a hearing before an immigration judge (IJ), so most cases subject to possible rescission are placed in removal proceedings instead of rescission proceedings.

B. Background

Rescission is a cumbersome process that was once required before the initiation of removal proceedings against certain LPRs.^[1] Rescission is now an option that USCIS uses only in limited instances. In most cases, USCIS can and should place the person into removal proceedings under INA 240 with a Notice to Appear.^[2] Any subsequent order of removal issued by an IJ is now sufficient to rescind the LPR’s status. Because most cases that used to require rescission (for example, adjustment obtained by fraud) now may be resolved in the context of removal proceedings under INA 240, rescission should be an infrequent process.^[3]

C. Legal Authorities

• INA 246 – Rescission of adjustment of status; effect upon naturalized citizen; 8 CFR 246 – Rescission of adjustment of status

Footnotes

[^ 1] See Matter of Saunders (PDF), 16 I&N Dec. 326 (BIA 1977) (lawful permanent resident who (1) obtained his or her status through adjustment of status and (2) was subject to the rescission provisions of INA 246 could not be placed into deportation proceedings prior to rescission of his or her status by legacy Immigration and Naturalization Service (INS)).

[^ 2] See INA 246.

[^ 3] See Garcia v. Att’y Gen., 553 F.3d 724 (3d Cir. 2009) (PDF). In 2009, the U.S. Court of Appeals for the Third Circuit issued Garcia v. Attorney General, which held that the U.S. Government must initiate either rescission or removal proceedings within 5 years or else is barred from initiating removal proceedings. The Third Circuit relied on Bamidele v. INS, a Third Circuit pre-Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) case that interpreted the time limitation of INA 246 to apply to removal proceedings as well as rescissions. The decision only applies to cases that fall within the jurisdiction of the Third Circuit.