Delimiting Limitations: Does the Immigration and Nationality Act Impose a Statute of Limitations on Noncitizen Removal Proceedings?

By: Liliana Zaragoza

With the rate of noncitizen removal reaching its peak in 2011, it is no wonder that in recent years the Obama Administration, policymakers, and commentators across many fields have increasingly analyzed potential removal policy changes in light of the successes and failures of the system as a whole. While the topic of comprehensive reform of the Immigration and Nationality Act (INA) has been one major subject of conversation, there has been little discussion of how the exist- ing statute could provide new—or at least never-before-used—forms of relief for noncitizens. Section 246(a) of the INA creates a five-year statute of limitations for rescinding a Lawful Permanent Resident’s (LPR’s) status upon a finding that the LPR was ineligible for LPR status at the time of adjustment and thus received the status erroneously. In situations where the limitations period has passed, this section has on many occasions come into conflict with INA sections governing noncitizen removal. This tension has resulted in a split among the circuit courts as to whether the five-year statute of limitations that applies to rescinding an LPR’s status acquired by adjustment of status should apply to removal proceedings in which the Department of Homeland Security’s claim for removal is that the noncitizen was ineligible for LPR status at the time of adjustment. Though this circuit split has existed for over fifteen years and resolving the contentious issue could potentially change the landscape of removal proceedings and immigration law, there is no literature on the topic. This Note fills that void by outlining and analyzing the various circuits’ positions. The Note then argues—in line with the Third Circuit’s approach—that the statute of limitations applies to removal proceedings in a narrow class of cases. Finally, the Note develops the rationale provided by the Third Circuit.


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