Скачать или смотреть Can A Green Card be Taken Away After 5 Years (if incorrectly issued)?

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USA v. Phattey (9th Cir. 2019)
AFM 26.2
Matter of Pereira, 19 I&N Dec. 169 (BIA 1984)
Matter of Carrillo-Gutierrez, 16 I&N Dec. 429 (BIA 1977)
8 USC 1451(a)
28 USC 2462 / INA 246 / 8 USC1256
Adams v. Holder 2nd Cir., 2012 692 F.3d 91
Bamidele v. INS 3rd. 1996 99 F.3d 557

Can USCIS take away your green card if you had one for more than five years but you obtained it incorrectly? I'm going to discuss that and more. Hi, I',m immigration attorney John Khosravi. You know, since I've been practicing, a lot of people have said and I've heard here and there that if you've had your green card for five years regardless if you obtain that green card incorrectly or there was misrepresentation to obtain it they won't take it away and can't take it away anymore. Well you know there was a case that came out last week in the 9th Circuit and the name of the cases USA v. Phatty and this led me down a hole, a rabbit's hole, to really dissect this statute the statutes that are involved and find out what really the situation is and I wanted to to help you better understand as well and to learn about it. Just keep in mind these things change constantly and is up to interpretation as always, since this law.

So do your own research. But to start in USA v. Phatty there was a gentleman who had applied for asylum and he had some history of some fraud related to that but he was able to get the asylum claim get a green card get citizenship and then seven years later they realized that he had done this asylum fraud because his fingerprints came back and they matched the previous false claim of asylum. And so they got him for denaturalization and he tried to keep his green card by saying that I've had my citizenship for more than five years and had the green card five years as well,

you can't take this away from me. Now there is a statute 8 USC 145(a), and thi statute says if you did misrepresentation in the past they can do naturalize you or revoke it or rescined your citizenship and take it away. However the person here, the applicant here, was arguing that under 28 USC 2462 there is a limitation of how long they can go back after a certain time to take away something like that, and that it is a penalty to do something like that. The court analyzed it and it comes up with the idea that under that second or second statute mentioned, that it is not a penalty to take away naturalization.

So that five year statute of limitations doesn't apply. And the can denaturalize this person. So that was the story of that cas,. but I once I start reading the statue I start digging in a little deeper. You know 8 USC 1451(a), the DeNatz action and breakdown, finds itselfand actually gets the original power from INA 246(b) Immigration Nationality Act 246(b), also known as 8 USC 1256. Now this statute 246, and I like to use the INA when I'm talking about this stuff, so INA 246, you know INA 245 isthe adjustment status statute. INA 246 talks about rescission and INA 246(a), the first portion says that if you had your green card for five years that it can't be rescinded afterwards and then 245(b) says if you have citizenship and you obtain citizenship based on fraud they can DeNaturalize and take that way, open it up and take away the green card.

So one thing that pops up in people's mind is: well maybe you keep the green card and never file for naturalization because that's usually when people get caught which is one of the ways peopel get caught when they have had misrep or mistakes in their adjustment status in the past. But when you look at 246(a), the question does com: So if they had that misrep to get that green card could they keep their green card once five years have passed. Well there is an interesting story that goes along with this. But to start I went to the Adjudicators Field Manual (AFM) and looked into how they look at this rescission statue and they said it is something we rarely do and that you should really look incredibly hard before doing it.

And there are some you know case law, BIA kind of stuff that said if they are going to do a rescission, the date that you received notice of rescission is the date it gets locked in. So the idea that you had notice that they were going to rescind and then a judge makes a final determination, the final determination of the judge doesn't have to to happen in the five years. It is just that initial notice action notice to appear that comes in and that their idea that they could rescind is when the timeline stops within that five years and they can't do it afterwards.
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