April 9, 1956 passed a concurrent resolution withdrawing suspension of deportation.

The Government took the position that the rescission proceedings were timely because Quintana was notified of the intention to rescind within five years of the date he paid his fee for suspension of deportation on July 22, 1948. The Government also argued that suspension of deportation is a "matter of legislative grace within a field of congressional supremacy the disposition of which Congress had reserved for itself," and the courts cannot either review or overrule an action taken by Congress.

The court stated in effect that the Government's argument was not based on a sound or valid premise. It stated, "We think ... that Congress meant to require the Attorney General to take the described action within five years and to be bound by that limitation itself... The giving of notice within the five-year period is not enough..." Referring to the phrase used in the statute "it shall appear to the satisfaction of the Attorney General," the court interpreted this as meaning that the Attorney General must make a "reasonable determination ... in good faith after such investigation and hearing as is required." The court stated that "the Attorney General could have made no such determination by the end of the five-year period from the latest possible date that can be considered" (255 F.2d 164).

We do not agree with the court's interpretation of the limitation provision of section 246. The ruling of a reviewing court in one circuit is not necessarily dispositive of the issue; a conflicting view may be expressed by a court in another circuit. See e.g. Errico v. INS, 349 F.2d 541 (9 Cir., 1965), and Scott v. INS, 350 F.2d 894 (2 Cir., 1965). Similarly the Government's failure to appeal from a court's adverse decision does not of itself indicate acquiescence. The determination not to appeal may be based on other considerations, such as the inadequacy of the record as a vehicle for appeal or factors outside of the record which render an appeal undesireable. Cf. Matter of Lim, Interim Decision No. 1947 (BIA, 1969).

There was conflict between the circuits with regard to the limitation provisions found in section 19 (a) of the 1917 Act.3 The Third Circuit in the case of Hughes v. Tropello, 296 F. 306 (1924), and McCandless v. U.S. ex rel. Swystun, 33 F.2d 882 (1929), construed the phrase "at any time within [five or three] years after entry" as "words of limitation." The court said that

3 Section 19 (a) of the 1917 Act limited the deportability of certain designatted aliens to "at any time within [five or three] years after entry."

in order to give effect to them "the warrant of deportation and not merely the warrant of arrest" must be issued within the statutory period and if not "the power of deportation is exhausted" (33 F.2d 883).

The majority of the Circuit Courts of Appeal did not adhere to the interpretation of the "words of limitation" enunciated by the Third Circuit. The most recent case is that of Miller v. U.S. ex rel. Hunt, 181 F.2d 363 (5 Cir., 1950). The question before the court was whether a timely-issued warrant of arrest, as distinguished from a warrant of deportation, served to toll the running of the limitation provision as set forth in section 19 (a) of the 1917 Act. The court referred to the fact that there was a diversity of opinion prevailing between several of the circuits and the Third Circuit. The court ruled that a timely issuance of the warrant of arrest suffices and in support of its position said:

This position is warranted by the express phraseology of the statute and is rendered persuasive by consideration of the universal rule prevailing in the various states and federal courts, that the filing of charges, whether by information or by indictment, tolls the running of the statute of limitations against a criminal prosecution and is effective even though the warrant be not served upon the accused until after the running of the statute.

We find no basis for applying a different rule with regard to the limitation provision of section 246. The function served by any statute of limitation is to give the accused notice of the assertion of a claim against him before it has become stale, in order that he may be duly warned to preserve his evidence if he wishes to contest the asserted claim, D'Onofrio Construction Company v. Recon Company, 255 F.2d 904, 908 (1 Cir., 1958). The Attorney General has said: "The effect of the five-year limitation on rescission is simply to bar the Attorney General from returning an alien with adjusted status [under section 245] to the category of a nonimmigrant," Matter of S—, 9 I. & N. Dec. 547, 554 (A.G., 1962).

Here the respondent seeks to bar the rescission of his adjusted status by claiming immunity under the five-year limitation provided by section 246. The Supreme Court has said that where one

4 The court cited in support of its position the following immigration case: U.S. ex rel. David v. Tod, 289 F. 60 (2 Cir., 1923); U.S. ex rel. Patton v. Tod, 297 F. 385 (2 Cir., 1924); U.S. ex rel. Danikas v. Day, 20 F.2d 733 (2 Cir., 1927); U.S. ex rel. Ginal v. Day, 22 F.2d 1022 (2 Cir., 1927); Metaxis v. Weedin, 44 F.2d 539 (9 Cir., 1930); Marty v. Nagle, 44 F.2d 695 (9 Cir., 1930); Tillinghast v. Cresswell ex rel. Di Pierro, 54 F.2d 459 (1 Cir., 1931); Raftery ex rel. Giacomazzi v. Tillinghast, 63 F.2d 97 (1 Cir., 1933); Bun Chew v. Connell, 233 F. 220 (9 Cir., 1916).

resorts to a statute of limitations in order "to bar the rights of Government," such statute "must receive a strict construction in favor of the Government," E. I. Dupont De Nemours and Company v. Davis, 264 U.S. 456, 462, 68 L. Ed. 788, 791 (1924). If rescission proceedings must be concluded and not merely begun within the five-year period, the immigration authorities to whom the Attorney General has delegated his authority would of necessity in some cases be constrained to hasty and otherwise drastic procedure in order to avoid failure in their duty to obey the statute. Cf. Nocchi v. Johnson, 6 F.2d 1 (1 Cir., 1925). The Third Circuit's interpretation of the limitation provision of section 246 as stated in Quintana places a premium on the use of any and all means to delay a decision by the special inquiry officer. We cannot believe that the Congress intended that the power and authority to rescind would cease merely because the time accorded to the alien in which to have his day in court had run beyond five years, notwithstanding the fact that the notice to rescind had been served upon him within the five-year period of limitation. Cf. U.S. ex rel. Patton v. Tod, 297 F. 385, 397 (2 Cir., 1924). The statute must be given a fair and reasonable interpretation in order to effectuate its purpose, namely, to prevent undue delay in the bringing of actions, Missouri, K. and T. R. Company v. Harriman Brothers, 227 U.S. 657, 57 L. Ed. 690 (1913).

The notice of intention to rescind (Ex. 1), served upon the respondent by registered mail within the five-year period of limitation, fully sets forth the essential facts for commencement of rescission proceedings under section 246 of the Immigration and Nationality Act. Furthermore, it appears from a reading of the notice to rescind that there was probable cause for believing that the respondent had obtained his adjustment of status unlawfully. It has been held that where the foregoing factors are clearly set forth in a complaint served upon the accused, the service of the complaint tools the running of the statute of limitations, Jaben v. United States, 333 F.2d 535 (8 Cir., 1964), aff'd 381 U.S. 214, 14 L. Ed. 2d 345 (1965).

Contrary to the rationale applied by the Third Circuit in Quintana, we find nothing in the statute which says when the Attorney General must make "a reasonable determination ... in good faith... after . . . investigation and hearing..." (255 F.2d 165).5

5 It appears that the reasoning of the court with regard to whether the limitation provision of the statute had been met was influenced by the fact that at the time the notice to rescind suspension of deportatiton was served upon Quintana, the investigation with regard to his membership in the Communist Party had concluded negatively and the Service was then engaged in

In fact, a reading of the notice to rescind in the case before us makes it clear that the immigration officers to whom the Attorney General has delegated his authority had made "a reasonable determination... in good faith . . . after investigation..." because otherwise the notice to rescind would not have been served upon the respondent. All that remained was the hearing provided by 8 CFR 246.5 which affords the alien an opportunity to rebut the allegations set forth in the notice to rescind. The allegations by their very nature are notice to the respondent that the Attorney General is not satisfied that he "was... in fact eligible for such adjustment of status."

We conclude on the basis of the foregoing that the five-year limitation provision of section 246 of the Act is tolled when the notice to rescind is issued by the District Director in accordance with 8 CFR 246.1. The decision and order of the special inquiry officer will be reversed and the case remanded for further proceedings in conformity with this opinion.

ORDER: It is ordered that the order entered by the special inquiry officer on December 6, 1968 terminating this proceeding be and the same is hereby withdrawn.

It is further ordered that the case be remanded to the special inquiry officer for further proceedings in conformity with the foregoing opinion.

seeking further evidence with which to convince the special inquiry officer that Quintana had been a member of the Communist Party (see 255 F.2d 165). This factor is not present in the case before us.

MATTER OF PON

In Deportation Proceedings

A-10490469

Decided by Board December 31, 1969

An alien who entered the United States as a nonimmigrant visitor upon presentation of a certificate of identity obtained upon a fraudulent claim to United States citizenship, thereby avoiding inspection and determination of admissibility as an immigrant alien, was not "otherwise admissible" at time of entry and, therefore, is ineligible for the benefits of section 241 (f) of the Immigration and Nationality Act, as amended [Matter of Lee, Interim Decision No. 1960*].

CHARGES:

Warrant: Act of May 24-Immigrant-no visa

Act of May 22, 1918, as amended

Act of Feb. 5, 1917-Did not present unexpired passport.

ON BEHALF OF RESPONDENT:

Joseph P. Fallon, Jr., Esquire

30 Hotaling Place

San Francisco, California 94111
(Brief filed)

The case has been certified to us by the special inquiry officer who denied respondent's motion to reopen proceedings for the purpose of applying for adjustment of status under section 245 of the Immigration and Nationality Act. Our careful study of the issues herein persuades us that the motion should be granted.

The respondent originally entered the United States on November 29, 1951, as a nonimmigrant visitor pursuant to section 3 (2) of the Immigration Act of 1924. At the time of entry, he presented a certificate of identity issued by the American Consul under section 503 of the Nationality Act of 1940, which certificate was obtained upon the respondent's fraudulent claim to United States citizenship. On January 8, 1953, the United States District Court for the Northern District of California denied re

*See, Matter of Yee, Interim Decision No. 2104.