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Keywords

statuteappealdeportationstatute of limitationsrescission
statutedeportationstatute of limitationsrescissionrespondent

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Bamidele v. Immigration and Naturalization Service

Facts

Aladetohun Olaniyi Bamidele, a Nigerian citizen, entered the U.S. as a non-immigrant visitor in 1982 and later married a U.S. citizen, Kim Bonita Griffin, in 1983. He obtained lawful permanent resident status in 1984 based on this marriage. However, in 1985, the FBI discovered that the marriage was a sham, but the INS took no action for five years. After a lengthy appeals process, the Board of Immigration Appeals ordered Bamidele's deportation in 1995, citing the fraudulent nature of his adjustment of status.

Bamidele has lived and worked in this country for over fourteen years since entering the United States as a non-immigrant visitor on February 19, 1982. Shortly after arriving in America, Bamidele took up residence in Philadelphia with his brother Larry, who had previously emigrated to this country. Bamidele then began his college education, eventually earning a Bachelor of Science degree in Management, and supported himself by driving a cab on nights and weekends. Following his graduation in 1986, Bamidele held a variety of jobs until establishing himself with his current employer in 1990.

Issue

Whether the INS was time-barred from rescinding Bamidele's adjustment of status under the five-year statute of limitations, and if so, whether this precluded his deportation.

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.

Rule

The court held that the five-year statute of limitations in 246(a) of the Immigration and Nationality Act barred the INS from rescinding Bamidele's adjustment of status, thus preventing his deportation based solely on the fraudulent adjustment.

Because there is no reason to adjust Bamidele's permanent resident status other than the sham marriage which enabled him to obtain permanent resident status under 246(a) and because adjustment under 246(a) is now barred, we conclude that Bamidele's permanent resident status cannot presently be rescinded.

Analysis

The court analyzed the application of the statute of limitations to the INS's ability to rescind Bamidele's adjustment of status. It concluded that since the five-year period had elapsed without action from the INS, Bamidele's permanent resident status could not be rescinded. Therefore, the court determined that he could not be deported on the grounds of his fraudulent adjustment, as there was no valid basis for rescission.

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. Instead we hold, given the novel facts of this case, that rescission proceedings, and by extension the proceedings to deport Bamidele, are time barred.

Conclusion

The court granted the petition for review and vacated the deportation order, ruling that the INS was time-barred from rescinding Bamidele's permanent resident status.

The court granted review and vacated the deportation order because respondent was time-barred from rescinding petitioner's permanent resident status under the Immigration and Nationality Act's statute of limitations.

Who won?

Bamidele prevailed in the case because the court found that the INS could not rescind his permanent resident status due to the expiration of the statute of limitations, thus preventing his deportation.

Bamidele prevailed in the case because the court found that the INS could not rescind his permanent resident status due to the expiration of the statute of limitations, thus preventing his deportation.

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