The government through the Department of Homeland Security also known as DHS may have two options to attempt to take away legal permanent resident status also known as a green card. One option is through a process called Rescission proceedings and through another similar process known as removal proceedings. We have previously discussed removal proceedings here.
A person who has adjusted status to that of a person lawfully admitted for permanent residence may be placed into rescission proceedings at any time during the first 5 years after the granting of permanent residence, if:
- The United States Citizenship and Immigration Service also known as USCIS determines that the person was not eligible for adjustment of status at the time that permanent residence was granted.
- The person would have not been eligible for adjustment under any other provision of law.
However, a determination that a person is not subject to rescission proceedings does not necessarily mean that no further action may be taken. A person who is not subject to rescission may still be subject to removal proceedings
Notice of Intent to Rescind
USCIS officers will review evidence in the green card record to determine whether there is evidence to support the initiation of recission proceeding. Officers will be reviewing to consider whether a noncitizen was ineligible for adjustment of status at the time the green card was granted.
In order to rescind a noncitizen’s lawful permanent resident status, USCIS must serve the noncitizen through personal service a Notice of Intent to Rescind (NOIR) within 5 years of the date of his or her adjustment. Once the NOIR has been served, a rescission action may proceed even beyond the 5-year time limit.
The NOIR must be sent by certified mail, with return receipt requested, or delivered in person. It must include the following:
- The background of the case, including the basic facts pertaining to the person’s adjustment.
- The information that has arisen indicating that the person was not eligible for adjustment of status. If the file does not establish that he or she is already aware of this information, the notice must also inform the person of his or her right to review the information.
- The various steps of the person’s immigration history that led to his or her ineligibility for Legal Permanent Resident status.
- Any and all pertinent information in order to give the person the opportunity to respond or rebut the allegations.
- All the grounds of inadmissibility applicable to the person and the reasons that these grounds of inadmissibility apply, as well as ineligibility for any other preference classification.
- Statutory and regulatory authority to rescind the adjustment and USCIS’ intent to rescind
- The person’s options should he or she decide to contest the NOIR.
Potential responses to the Notice of Intent to Rescind
- Admit all the allegations and then surrender the legal permanent resident card, Form I-551.
- Submit a written answer to the allegations contained in the NOIR challenging the NOIR under oath, to contest any allegation.
- Request a hearing before an immigration judge to challenge the NOIR.
If the noncitizen admits the allegations or fails to respond:
The rescission becomes final. USCIS will then send the noncitizen a letter by certified mail, return receipt requested, informing that his or her green card status has been rescinded pursuant to immigration law and instructing the person to surrender his or her permanent resident card to the nearest USCIS office. This decision is not appealable.
Challenging the NOIR:
If the person contests any of the allegations in the NOIR or specifically requests a hearing before an IJ, then USCIS refers the case for a rescission hearing before an immigration judge. The decision from the Immigration judge may be appealed.
What if the green card is rescinded?
The noncitizen will then be placed in removal proceedings where the government will seek a formal order of removal, also known as deportation by the judge. This removal order will then allow the government to physically expulse the noncitizen from the United States. We have discussed the different reasons removal proceedings are commenced and methods to challenge a removal proceeding here.
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