Not Precedential
Not Precedential
Not Precedential
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
ground that, under 8 U.S.C. 1256(a), DHS had no legal authority to initiate removal
proceedings more than five years from the date of her purported adjustment of status.
The IJ agreed with the Petitioner and dismissed the case. In a published decision, In re
Cruz de Ortiz, 25 I. & N. Dec. 601 (BIA Sept. 20, 2011), the BIA sustained DHSs appeal
and remanded the case to give Petitioner an opportunity to apply for any relief for which
she may be eligible (and to allow the IJ to enter a new decision). On remand, the IJ
pretermitted Petitioners application for cancellation and ordered her to be removed. The
IJ also denied her motion to postpone because no I-130 petition (which could lead to an
inadmissibility waiver) had been filed on Petitioners behalf. Petitioner appealed to the
BIA, but the BIA dismissed her appeal.1
II.
The BIA recognized that this Court has held that the five-year statute of limitations
established by 1256(a) extends to removal proceedings where the grounds of
removability are based on the aliens fraud or misrepresentation in obtaining adjustment
of status.2 See Garcia v. Attorney General, 553 F.3d 724, 725-29 (3d Cir. 2009);
Bamidele v. INS, 99 F.3d 557, 558-65 (3d Cir. 1996). However, the agency determined
Petitioner filed a motion to reopen proceedings, which included proof that her
United States citizen daughter submitted an I-130 petition on her behalf (after the IJs
decision was issued). The IJ denied the motion on jurisdictional grounds (i.e., by the time
the motion was filed, there was an appeal pending with the BIA), and Petitioner did not
appeal to the BIA from this denial of her motion to reopen. According to Petitioner, the
daughters petition has been approved.
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that this provision does not apply to an alien who was admitted as a lawful permanent
resident from abroad and whose status was therefore never adjusted. De Ortiz, 25 I. &
N. Dec. at 604. According to Petitioner, the BIA erred in failing to sua sponte terminate
proceedings pursuant to 8 U.S.C. 1256(a), which Petitioner submits, barred the
institution of removal proceedings against her, as she adjusted her status, from conditional
to permanent resident, within the United States. (Petitioners Brief at 7.) We agree with
the Attorney General that the removal of conditions to lawful permanent residency does
not fall under 1256(a). Specifically, Petitioner did not file an application for adjustment
of status to become a lawful permanent resident. Instead, she was admitted as a lawful
permanent resident through the consular process and remained a lawful permanent
resident when the conditions were removed. See, e.g., Malik v. Attorney General, 659
F.3d 253, 257 (3d Cir. 2011) (Malik did not obtain an adjustment of status to become an
LPR [lawful permanent resident]. Instead, he derived his LPR status through the process
described in 8 U.S.C. 1201. Because 1256(a) explicitly discusses adjustment of
status, the statute of limitations does not apply to the institution of removal proceedings
where Malik did not obtain his LPR status in this manner.).
Petitioner further contends that she was entitled to a continuance and that the IJs
refusal to grant her a continuance violated her due process right to a full and fair hearing.
This Court does not have jurisdiction to review a final order of removal against an alien
who is removable by reason of having committed a crime involving moral turpitude,
although we do retain jurisdiction with respect to colorable constitutional and legal
4