In re Yaa Achampoma et al., (BIA May 16, 2016) Appeal Dismissed - Rescission under INA 246 Upheld
U.S. Department ofJustice
Executive Office for Immigration Review
Falls Church, Virginia 22041
Files: A072 163 548 - Arlington, VA
A072 163 550
A099 144 921
In re: YAAACHAMPOMA
Decision of the Boardof Immigration Appeals
1 6 ZOib
IN RESCISSION PROCEEDINGS UNDER SECTION 246 OF THE IMMIGRATION AND
ON BEHALF OF RESPONDENTS: John T. Riely, Esquire
The respondents' ^natives and citizens of Ghana, appeal from the Imnugration Judge's
January 20, 2015, decision denying lead respondent's motion toterminate proceedings involving
the rescission ofher lawful permanent resident status and the lawful permanent resident status of
her two children. The appei will be dismissed.
We review findings of fact, including credibility determinations, for clear error. 8 C.F.R.
§ 1003.1(d)(3)(i). We review all other questions denovo, including whether theparties have met
therelevant burden of proofandissues ofdiscretion. 8 C.F.R. § 1003.1(d)(3)(ii).
OnOctober 31,1996, while the lead respondent wasliving in Ghana, theformer Immigration
and Naturalization Service ("INS"), now United States Citizenship and Immigration Services
("USCIS"), approved a visa petition filed on her behalf by her lawful permanent resident
husband (I.J. at 1; Exh. 1(C)). The lead respondent then entered the United States on
September 23, 2001, as the beneficiary of a visa petition entitled to V nonimmigrant status
pursuant tothe enactment ofthe Legal Immigration and Family Equity Act, Pub. L. No. 106-553,
114 Stat. 2762 (I.J. at 1; Resp. July 26, 2013, Pretrial Memorandimi at TabC). See
section 101(a)(15)(V) of theImmigration andNationality Act, 8U.S.C. § 1101(a)(15)(V).
On October 28, 2002, the United States Embassy in Accra, Ghana, cancelled and destroyed
thelead respondent's visa registration andreturned theapproved visapetition totheformer INS
^ The lead respondent (A072 163 548) isthemother of thetwo other respondents in thismatter
(A072 163 550 and A099 144 921). Because all the respondents are the beneficiaries of the
samePetitionfor Alien Relative (Form1-130) and the facts are the same for all the respondents,
the order will refer only to the lead respondent.
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because she did not pursue her immigrant visa or request reinstatement within the time period
allowed (LJ. at 1-2; Exh. 2(B)). See section 203(g) ofthe Act, 8U.S.C. §1153(g).
On July 30, 2003, the lead respondent filed her application for adjustment of status with
USCIS (LJ. at 2; Exhs. 1(A), 1(C)). Thereafter, on November 5, 2003, USCIS notified the
lead respondent's husband that the visa petition filed on her behalfhad been revoked (I.J. at 2,
Exhs. 1(C), 2(A)). See section 203(g) of the Act; 8 C.F.R. § 205.1(a)(1). Nevertheless,
on August 5, 2005, USCIS approved the lead respondent's application for adjustment of status
and she was accorded status asa lawful permanent resident (I.J. at2;Exhs. 1(A), 1(C)).
On April 1, 2010, USCIS served the lead respondent with a Notice of Litent to Rescmd
("NOIR") her lawful permanent resident status on the basis that she was not eligible for
adjustment of status at the time her appUcation was granted (LJ. at 2; Exh. 1(A)). The lead
respondent requested a hearing before an Immigration Judge, who subsequently denied her
motion toterminate herrescission proceedings (I.J. at2,5; Exh. 1(D)).
On appeal, the lead respondent contends that the Immigration Judge erred by denying her
motion to terminate rescission proceedings.^ In support of her claim, she ^leges that the
United States Embassy in Accra, Ghana, violated State Department policy by failing to transfer
the visa petition approved on her behalf to the National Visa Center ("NVC") when she was
issued aVnonimmigrant visa. Additionally, she argues that (1) the rescission proceedings were
tune-barred, (2) equitable estoppel should apply due to the government's error, and (3) the
Department ofHomeland Security ("DHS") did not meet its burden ofestablishing by clear and
convincing evidence thatherstatus should berescinded.
Although the lead respondent maintains that the State Department committed procedural
errors leadmg to the improvident revocation ofthe approved visa petition filed on her behalf, the
relevant issue before usiswhether the DHS met its burden ofestablishing that she was ineligible
for adjustment of status at the time her application was granted (LJ. at 3). See section
246(a) ofthe Act, 8 U.S.C. § 1256(a); Matter of Hernandez-Puente, 20 I&N Dec. 335, 337
(BIA 1991) (stating that the DHS bears the burden in rescission proceedings); Matter ofOnal,
18 I&N Dec. 147, 148 (BIA 1981) (stating that "section 246 of the Act contemplates a
reexamination of the facts and circumstances existing at the time of the alien's adjustment of
Here, USCIS revoked the approved visa petition, filed by the lead respondent's lawful
permanent resident husband on her behalf, on November 5, 2003 (LJ. at 2; Exh. 2(A)).
Accordingly, the lead respondent was not eligible to receive an immigrant visa when she was
^ We have considered the entirety ofthe lead respondent's arguments on appeal. As she has
not paginated her appeal brief, however, we are unable to provide citations to specific pages
ofher briefin this decision. See Boardof Immigration Appeals Practice Manual § 4.6(b) at 56
(April 26,2016), http://www.justice.gov/eoir/board-immigration-appeals-2 ("Briefs should
always be paginated.").
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granted adjustment of status on August 5, 2005 (IJ. at 2, 4-5; Exhs. 1(A), 1(C)). .See section
245(a)(2) ofthe Act, 8U.S.C. §1255(a)(2). The DHS thus met its burden ofestablishing that
her application was improvidently granted and, as such, the Immigration Judge properly denied
hermotion to terminate rescission proceedings (I.J. at 4-5).
Moreover, we agree with the Immigration Judge's determination that the rescission
proceedings were timely instituted (I.J. at 3-4). The 5-year statutory Ihnitation on rescission
proceedings is satisfied wherethe alien is properly servedwith aNOIRwithin5years ofthe date
on which the adjustment of status was granted (I.J. at 3-4). See 8 C.F.R. §§ 246.1, 1246.1
(providing that rescission proceedings are commenced by the personal service ofthe NOIR on
the respondent); Matter ofPereira, 19 I&N Dec. 169, 171 (BIA 1984); Matter ofOnal, supra,
at 149. USCIS properly served the lead respondent with an NOIR on April 1, 2010, which was
less than 5years after she was granted adjustment of status on August 5, 2005 (I.J. at 2, 4;
Exhs. 1(A), 1(C)).^ Accordingly, her rescission proceedings are nottime-barred (I.J. at 4).
We also acknowledge the lead respondent's claim that the DHS should be estopped from
revoking her status due to procedural errors. Even assuming that the United States Embassy
violated State Department policy by not returning the visa petition approved on the lead
respondent's behalfto the NVC, however, such error does not qualify as affirmative misconduct
without evidence that the Embassy acted with malice or an intent to mislead (I.J. at 3-4).
See INSv. HibU 414 U.S. 5, 8-9 (1973); Paul v. Smith, 784 F.2d 564, 565-66 (4th Cir. 1986);
see also Keener v. Eastern Associated Coal Corporation, 954 F.2d 209, 214 n.6 (4th Cir. 1992).
Further, we do not have authority to apply the doctrine ofequitable estoppel against the DHS so
^In support ofher argument that her proceedings are time-barred, the lead respondent relies on
Quintana v. Holland, 255 F.2d 161, 162 (3d Cir. 1958). Nevertheless, we previously concluded
that we are not bound by Quintana v. Holland, supra, because it was decided when the
regulations govemmg rescission differed significantly from the regulations now in effect."
Matter ofPereira, supra, at 171.
^ Based on our disposition in this matter, we find it unnecessary to determme whether ^e
United States Embassy engaged in procedural errors when cancelling the lead respondent svisa
registration. We note, however, that the lead respondent relies on two State Department
Cables to support her argument (Resp. July 26, 2013, Pretrial Memorandum at Tab E). See
State Department Cable No. 01-State-17318, sent on January 30, 2001; State Department Cable
No. 2002-State-79357, sent on April 26, 2002. The lead respondent has not cited any specific
portion of the 2001 Cable to support her position that the United States Embassy should have
returned the approved visa petition to the NVC rather than proceedmg under section 203(g) of
the Act. Further, although the 2002 Cable explains that "posts may return the file to NVC" in
cases where Vvisa applicants intend to process their adjustment ofstatus applications with the
INS, this Cable does not require consular posts to do so. See State Department Cable No. 2002-
State-79357, at H15 (emphasis added). We also note that this guidance was not issued until after
the lead respondent received her V visa on August 15, 2001 (Resp. July 26, 2013,
Pretrial Memorandum at Tab C).
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as to preclude it from undertaking a lawful course of action (I.J. at 3). See Matter of
Hernandez-Puente, supra. Accordingly, the following order shall be entered.
ORDER: Therespondents' appeal is dismissed.
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