8 U.S.C. § 1256

Rescission of adjustment of status; effect upon naturalized citizen

Read at: OLRCuscode.house.gov CornellLII GovInfogovinfo.gov JustiaTitle 8 CasesGoogle Scholar

(a) If, at any time within five years after the 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 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 removal in the case of such person if that occurred and the person shall thereupon be subject to all provisions of this chapter to the same extent as if the adjustment of status had not been made. Nothing in this subsection shall require the Attorney General to rescind the alien’s status prior to commencement of procedures to remove the alien under section 1229a of this title, and an order of removal issued by an immigration judge shall be sufficient to rescind the alien’s status.(b) Any person who has become a naturalized citizen of the United States upon the basis of a record of a lawful admission for permanent residence, created as a result of an adjustment of status for which such person was not in fact eligible, and which is subsequently rescinded under subsection (a) of this section, shall be subject to the provisions of section 1451 of this title as a person whose naturalization was procured by concealment of a material fact or by willful misrepresentation.(June 27, 1952, ch. 477, title II, ch. 5, § 246, 66 Stat. 217; Pub. L. 103–416, title II, § 219(m), Oct. 25, 1994, 108 Stat. 4317; Pub. L. 104–208, div. C, title III, §§ 308(e)(1)(H), 378(a), Sept. 30, 1996, 110 Stat. 3009–619, 3009–649.)Editorial NotesReferences in Text

This chapter, referred to in subsec. (a), was in the original, “this Act”, meaning act June 27, 1952, ch. 477, 66 Stat. 163, known as the Immigration and Nationality Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1101 of this title and Tables.

Amendments

1996—Subsec. (a). Pub. L. 104–208, § 378(a), inserted at end “Nothing in this subsection shall require the Attorney General to rescind the alien’s status prior to commencement of procedures to remove the alien under section 1229a of this title, and an order of removal issued by an immigration judge shall be sufficient to rescind the alien’s status.”

Pub. L. 104–208, § 308(e)(1)(H), substituted “removal” for “deportation”.

1994—Subsec. (a). Pub. L. 103–416 struck out first three sentences which read as follows: “If, at any time within five years after the status of a person has been adjusted under the provisions of section 1254 of this title or under section 19(c) of the Immigration Act of February 5, 1917, 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 submit to the Congress a complete and detailed statement of the facts and pertinent provisions of law in the case. Such reports shall be submitted on the first and fifteenth day of each calendar month in which Congress is in session. If during the session of the Congress at which a case is reported, or prior to the close of the session of the Congress next following the session at which a case is reported, the Congress passes a concurrent resolution withdrawing suspension of deportation, the person shall thereupon be subject to all provisions of this chapter to the same extent as if the adjustment of status had not been made.”

Statutory Notes and Related SubsidiariesEffective Date of 1996 Amendment

Amendment by section 308(e)(1)(H) of Pub. L. 104–208 effective, with certain transitional provisions, on the first day of the first month beginning more than 180 days after Sept. 30, 1996, see section 309 of Pub. L. 104–208, set out as a note under section 1101 of this title.

Pub. L. 104–208, div. C, title III, § 378(b), Sept. 30, 1996, 110 Stat. 3009–649, provided that: “The amendment made by subsection (a) [amending this section] shall take effect on the title III–A effective date (as defined in section 309(a) of this division [set out as a note under section 1101 of this title]).”

Effective Date of 1994 Amendment

Pub. L. 103–416, title II, § 219(m), Oct. 25, 1994, 108 Stat. 4317, provided that the amendment made by section 219(m) is effective as of Oct. 25, 1994.

Abolition of Immigration and Naturalization Service and Transfer of Functions

For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title.

References to Order of Removal Deemed To Include Order of Exclusion and Deportation

For purposes of carrying out this chapter, any reference in law to an order of removal is deemed to include a reference to an order of exclusion and deportation or an order of deportation, see section 309(d)(2) of Pub. L. 104–208, set out in an Effective Date of 1996 Amendments note under section 1101 of this title.

Notes of Decisions

Cited in 128 cases (10 in the last 5 years), 1957–2026 · leading case: Alhuay v. U.S. Attorney Gen., 661 F.3d 534 (11th Cir. 2011).

Sort: Relevance Newest Treatment

Alhuay v. U.S. Attorney Gen., 661 F.3d 534 (11th Cir. 2011). · cites it 10× “Appeal to the BIA In her 2009 appeal to the BIA, Alhuay argued that the IJ erred in finding her removable because, inter alia, (1) the government failed to prove that she knowingly made false representations, and (2) Alhuay’s removal proceedings were barred by a five-year…”

Garcia v. Attorney Gen. of US, 553 F.3d 724 (3rd Cir. 2009). · cites it 10× “§ 1182 (a)(6)(C)(i), as an alien who attempted to procure a visa, other documentation, or admission into the United States through fraud or willful misrepresentation of a material fact. An immigration judge ordered Garcia removed on the charged grounds, and the BIA affirmed.”

Felix Ilkechukwu Asika v. John Ashcroft, Attorney Gen., 362 F.3d 264 (4th Cir. 2004). · cites it 6× “See 8 U.S.C. § 1256 (a). Because we conclude that the Immigration and Naturalization Act is ambiguous on this point, we defer to the interpretation of this provision adopted by the Attorney General.”

Adams v. Holder, 692 F.3d 91 (2d Cir. 2012). · cites it 7× “Adams contends that § 246(a) of the Immigration and Nationality Act (“INA”) as amended, see 8 U.S.C. § 1256 (a), 1 bars the Attorney General from ordering removal because (1) Adams was the beneficiary of an adjustment of status when, in 1997, he obtained from the United States…”

Stolaj v. Holder, 577 F.3d 651 (6th Cir. 2009). · cites it 12× “The Stolajs argued that: (1) the Government's removal action was barred by the five-year statute of limitations on rescission proceedings in 8 U.S.C. § 1256 (a); (2) the IJ improperly allowed the Government to initiate removal proceedings without first revoking the Stolajs'…”

Saliba v. Attorney Gen. of the United States, 828 F.3d 182 (3rd Cir. 2016). · cites it 6× “¶ 44); and (2) the USCIS failed to rescind his LPR status or seek to remove him from this country before the expiration of the five-year statute of limitations for taking such an action under 8 U.S.C. § 1256 (a), (ag., Pet. ¶¶ 42-43).”

Malik v. Attorney Gen. of the United States, 659 F.3d 253 (3rd Cir. 2011). · cites it 10× “Malik argues the BIA erred in affirming the decision of the Immigration Judge (“IJ”) that he obtained a visa through a fraudulent marriage and that 8 U.S.C. § 1256 (a) did not bar the institution of removal proceedings *255 against him.”

Sungwook Kim v. Holder, 560 F.3d 833 (8th Cir. 2009). · cites it 6× “” The BIA also noted that 8 U.S.C. § 1256 (a) did not prohibit the removal proceedings as time-barred because the five-year statute of limitations relied upon by Kim applied only to rescission of status adjustments, not removal.”

Sharkey v. Quarantillo, 541 F.3d 75 (2d Cir. 2008). · cites it 2× “1 (emphasis added) (implementing 8 U.S.C. § 1256 (a)). For reasons similar to those outlined above, Section 1252(a)(2)(B)(i) does not bar the district court from deciding Sharkey’s unlawful rescission claim because the agency has a non-discretionary duty to commence rescission…”

Karl Savoury v. U.S. Attorney Gen., 449 F.3d 1307 (11th Cir. 2006). · cites it 2× “In a related thought, Savoury contends that based on INA § 246(a), 8 U.S.C. § 1256 (a), an IJ’s ruling rescinding an alien’s status is effective as of the date of the order of removal.”

Perlito Capili Sulit Estella Gonzalez Sulit v. Thomas J. Schiltgen, Dist. Dir., Immigr. Naturalization Serv., &, 213 F.3d 449 (9th Cir. 2000). · cites it 3× “Ill The Sulits maintain that the INS violated their due process rights by seizing their “green, cards” without providing a rescission hearing pursuant to 8 U.S.C. § 1256 and issuing a warrant of deportation despite their adjustment of status.”

Joseph Shoo Hwan Kim v. Edwin Meese, Iii, Attorney Gen. of the United States, 810 F.2d 1494 (9th Cir. 1987). · cites it 5× “The INS notified Kim that it intended to rescind his adjustment in a proceeding under section 246 of the Act, 8 U.S.C. § 1256 , on the ground that, without a qualifying investment, Kim was not eligible at the time his application was approved for the adjustment of status granted.”

Show all 128 citing cases →

— 8 U.S.C. § 1256(a) — 2 cases

Bahman Khadjenouri v. Immigr. & Naturalization Serv., 460 F.2d 461 (9th Cir. 1972).

Onyeme v. INS (4th Cir. 1998).

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.