Does 5-year limit on rescission of adjustment of status apply to conditional residents?

[motopokep10 0]

INA § 1256(a)  imposes a 5-year limit for a green card holder to have their lawful permanent resident status rescinded.  Does that apply to conditional residents?  If an I-751 took 5 years to be denied and the person has been a conditional lawful permanent resident for 8 years by now (status adjusted in the US through I-485) is there anything that says that INA § 1256(a) is not applicable?   Can anyone cite a case or a BIA decision please?  Thank you.

[Demise 1,298]

INA 246 (8 USC 1256) is basically a dead letter everywhere except the 3rd Circuit (NJ, PA, DE). 2nd, 4th, 6th, 8th, 9th, and 11th basically ignore it, as does the BIA (which remains the controlling authority in 1st, 5th, 7th, 10th, and DC circuits) per decisions in Matter of V-- (7 I. & N. Dec. 363) and Matter of S-- (9 I. & N Dec. 548, 55), where basically all agree that while the green card can't be just pulled after 5 years, it doesn't prevent starting removal proceedings and eventual removal. 3rd Circuit was the only one to rule that USCIS has 5 years from the date of adjustment application being approved to catch any fraud and if they don't, the immigrant is home free.

 

https://www.seyfarth.com/images/content/6/5/6592/WhentheGreenCardIsIssuedinError.pdf

 

That being said, where INA 246 applies it would not prevent a conditional resident from losing their status if the I-751 is ultimately denied, since what happens there is the status essentially expiring rather than the whole AOS being rolled back which is what INA 246 safeguards against. The controlling law in this case is INA 216 (8 USC 1186a) for family-based CLPRs or INA 216A (8 USC 1186b) for investment based CLPRs.

Edited July 28, 2020 by Demise