Estrada v. Lynch

601 F. App'x 65

• Court: Court of Appeals for the Second Circuit
• Decided: May 6, 2015
• Docket: 13-4872
• Status: Unpublished

Opinion

SUMMARY ORDER

Petitioner Jolly Yu Estrada, a native and citizen of the Philippines, seeks review of a November 21, 2013, decision of the BIA affirming a January 15, 2013, decision of an Immigration Judge (“U”) denying Estrada’s motion to terminate her removal proceedings. In re Jolly Yu Estrada, No. A042 362 035 (B.I.A. Nov. 21, 2013), aff'g No. A042 362 035 (Immig.Ct.N.Y.C. Jan. 15, 2013). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Because the BIA agreed with the IJ’s decision in this case and “emphasize[d] particular aspects of that decision,” we have reviewed both the BIA’s and IJ’s decisions. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the questions of law raised by Estrada’s petition de novo. See Pierre v. Holder, 588 F.3d 767, 772 (2d Cir.2009).

Estrada’s argument that the five-year limitations period that 8 U.S.C. § 1256(a) imposes on rescission of an individual’s adjustment of status renders her removal proceeding untimely requires that Estrada have adjusted her status to that of a lawful permanent resident (“LPR”) in the first place. However, Estrada affirmatively abandoned her LPR status in 1999, by filing an “Abandonment of Lawful Permanent Resident Status” form with the American Embassy in Manila, Philippines. As of 1999, therefore, she no longer had that status. Although Estrada argues that the issuance of a “replacement card” in 2000 somehow conferred on her new LPR status, Estrada’s motion to terminate removal proceedings concedes that the replacement card was “mistakenly issued by [the United States Citizenship and Immigration Services].” Estrada cites no authority for the proposition that the mistaken issuance of a “replacement card” conferred LPR status anew. On the contrary, mistaken issuance of a document that shows status does not actually confer that status. Cf. Hizam v. Kerry, 747 F.3d 102, 105, 107-08 (2d Cir.2014) (holding that a Consular Report of Birth Abroad that was mistakenly issued by a U.S. Embassy did not confer citizenship). Nor does Estrada provide any other reason why she should be regarded as having had LPR status at the time' her removal proceeding was commenced. Because Estrada did not have LPR status at the time her removal proceeding was commenced (and a fortiori had not “otherwise adjusted” her status to that of an LPR, see 8 U.S.C. § 1256(a)), the five-year statute of limitations for rescission of LPR status in 8 U.S.C. § 1256(a) has no application.

Moreover, even if Estrada still had LPR status, the limitation period set forth in § 1256(a) would not apply to the proceedings in this case for two reasons. First, we have held that, because § 1256(a) applies only to immigrants who have obtained LPR status by adjustment of status, it has no application to those who, like Estrada, obtained that status by consular processing. See Adams v. Holder, 692 F.3d 91, 107 (2d Cir.2012). Second, we have held that § 1256(a) does not apply to removal proceedings. 1 See id. We are bound by the prior precedent from our Court until and unless that precedent is abrogated by the Supreme Court or by our Court sitting en banc. See United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir.2004).

For the foregoing reasons, the petition for review is DENIED.

1 . A number of other circuits have reached the same conclusion. See Alhuay v. U.S. Att’y Gen., 661 F.3d 534, 545-46 (11th Cir.2011); Stolaj v. Holder, 577 F.3d 651, 656-57 (6th Cir.2009); Kim v. Holder, 560 F.3d 833, 837-38 (8th Cir.2009); Asika v. Ashcroft, 362 F.3d 264, 270-71 (4th Cir.2004); Oloteo v. INS, 643 F.2d 679, 682-83 (9th Cir.1981). But see Garcia v. U.S. Att’y Gen., 553 F.3d 724, 727-28 (3d Cir.2009) (holding that the limitations period in 8 U.S.C. § 1256(a) prohibits the initiation of removal proceedings based exclusively on fraud in obtaining the adjustment of status beyond a five-year period). See generally Liliana Zaragoza, Note, Delimiting Limitations: Does the Immigration and Nationality Act Impose a Statute of Limitations on Noncit-izen Removal Proceedings?, 112 Colum. L.Rev. 1326 (2012) (discussing split of authority).