No less than in other areas of law, so with immigration, the statute of limitations stands as a bulwark against litigation that should have been heard while evidence is still accessible, witnesses available and memories not dimmed by the passage of time. As this article will show, however, a number of federal courts of appeal have issued decisions that effectively repeal the immigration statute of limitations. The U.S. Court of Appeals for the Second Circuit recently became the sixth court of appeals to render essentially meaningless a five-year statute of limitations preventing the immigration authorities from rescinding green cards that had been granted improvidently. The U.S. Court of Appeals for the Third Circuit is now further isolated as the sole circuit where immigrants can rely on the statute of limitations for protection from the agency revisiting allegedly flawed green card approvals decided five or more years ago.

In Adams v. Holder1 the Second Circuit agreed with the Fourth,2 Sixth,3 Eighth,4 Ninth5 and Eleventh6 circuits in upholding what it considered to be the long-standing interpretation by the Attorney General and Board of Immigration Appeals (BIA) of Immigration and Nationality Act (INA) §246(a), 8 USC §1256(a). At stake is whether the immigration authorities, by initiating removal proceedings, can make an end-run around the five-year statute of limitations that applies to rescission proceedings.

Statute and Cases

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