Kap Sun Butka v. U.S. Attorney General , 427 F. App'x 819 ( 2011 )


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  •                                                                       [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________            FILED
    U.S. COURT OF APPEALS
    No. 10-14200         ELEVENTH CIRCUIT
    Non-Argument Calendar        MAY 26, 2011
    ________________________        JOHN LEY
    CLERK
    Agency No. A079-061-829
    KAP SUN BUTKA,
    llllllllllllllllllllllllllllllllllllllll                                      Petitioner,
    versus
    U.S. ATTORNEY GENERAL,
    llllllllllllllllllllllllllllllllllllllll                                    Respondent.
    ________________________
    Petition for Review of a Decision of the
    Board of Immigration Appeals
    ________________________
    (May 26, 2011)
    Before HULL, PRYOR and FAY, Circuit Judges.
    PER CURIAM:
    Kap Sun Butka, a native and citizen of South Korea, petitions this Court for
    review of the Board of Immigration Appeals’ (“BIA”) order affirming the
    Immigration Judge’s (“IJ”) final order of removal and denying her application for
    adjustment of status, INA § 245(a), 
    8 U.S.C. § 1255
    (a). Butka argues that the
    government should be equitably estopped from seeking to remove her on the basis
    of a prior drug conviction because the government earlier admitted her into the
    United States despite that conviction. Butka also contends that the IJ violated her
    right to due process by denying her application for adjustment of status without
    holding a hearing and without giving her an opportunity to apply for voluntary
    departure. For the reasons stated below, we deny the petition for review.
    I.
    The Department of Homeland Security issued a Notice To Appear to Butka,
    alleging that she was a native and citizen of South Korea who was admitted to the
    United States in October 1981 as a nonimmigrant visitor for pleasure, for a
    temporary period not to exceed six months. The notice further stated that Butka
    had been convicted in the Criminal District Court of Seoul, South Korea, for the
    offense of possession of 105 grams of marijuana. The notice charged that Butka
    was subject to removal under INA § 212(a)(2)(A)(i)(II), 
    8 U.S.C. § 1182
    (a)(2)(A)(i)(II), as an alien who had been convicted of a controlled
    2
    substance offense. The judgment from Butka’s 1977 drug conviction revealed that
    she had been convicted of possessing 105 grams of hemp.
    Butka submitted a written pleading admitting the allegations in the notice to
    appear and conceding removability. She filed an application for adjustment of
    status pursuant to 
    8 U.S.C. § 1255
    (a), and requested a merits hearing. Butka also
    applied for a waiver of inadmissibility under INA § 212(h), 
    8 U.S.C. § 1182
    (h),
    seeking to waive her drug conviction.
    At a master calendar hearing, the Department of Homeland Security served
    Butka with a Form I-261 listing an additional charge of removability. The Form
    I-261 alleged that Butka had remained in the United States after expiration of her
    visa, and was removable under INA § 237(a)(1)(B), 
    8 U.S.C. § 1227
    (a)(1)(B), as
    an alien present in the United States in violation of the INA or any other law of the
    United States. Butka requested additional time to answer the new charge, so the IJ
    directed Butka to submit a written pleading by February 28, 2009, responding to
    the new charge and identifying any forms of relief that she wished to request. The
    IJ asked Butka to state in her response whether a hearing would be needed.
    After the February 28, 2009, deadline passed without a response from
    Butka, the IJ issued a written decision pretermitting Butka’s request for a § 212(h)
    waiver and denying her application for adjustment of status. The IJ concluded that
    3
    Butka was not eligible for adjustment of status because her prior drug conviction
    rendered her inadmissible. The IJ further noted that Butka’s drug conviction could
    not be waived under § 212(h) because it involved more than 30 grams of
    marijuana. The IJ observed that Butka had not formally applied for voluntary
    departure, and, in any event, the IJ determined that Butka was ineligible for
    voluntary departure because she had not provided the government with a travel
    document such as a passport that would be sufficient for admission to a foreign
    country. Accordingly, The IJ ordered that Butka be removed to South Korea.
    Butka appealed to the BIA, but the BIA dismissed her appeal. The BIA
    observed that Butka was ineligible for adjustment of status due to her conviction
    for a controlled substance violation. The BIA further noted that Butka could not
    seek a waiver under § 212(h) because her conviction had involved more than 30
    grams of marijuana. In addition, the BIA concluded that the IJ did not violate
    Butka’s right to due process by issuing a removal order without holding a hearing.
    The BIA pointed out that Butka had failed to comply with the IJ’s instructions to
    file a written pleading identifying any forms of relief that she was seeking. In
    light of Butka’s failure to file a response, the BIA determined that it was
    reasonable for the IJ to conclude that she was not requesting voluntary departure.
    II.
    4
    As an initial matter, we note that we have jurisdiction over Butka’s petition.
    As a general matter, we may not review a final order of removal entered against an
    alien such as Butka who has been found to be removable based on a conviction for
    a criminal offense. INA § 242(a)(2)(C), 
    8 U.S.C. § 1252
    (a)(2)(C). We do have
    jurisdiction, however, to review constitutional claims and questions of law. INA
    § 242(a)(2)(D), 
    8 U.S.C. § 1252
    (a)(2)(D). Here, Butka only raises legal and
    constitutional arguments, so 
    8 U.S.C. § 1252
    (a)(2)(C) does not preclude us from
    exercising jurisdiction over her claims.
    “Whether equitable estoppel should apply is a legal question that we review
    de novo.” Tovar-Alvarez v. U.S. Att’y Gen., 
    427 F.3d 1350
    , 1353 (11th Cir. 2005).
    Neither this Court nor the Supreme Court has definitively held that the doctrine of
    equitable estoppel is applicable to immigration proceedings. See Savoury v. U.S.
    Att’y Gen., 
    449 F.3d 1307
    , 1318-19 (11th Cir. 2006) (noting that “it is far from
    clear that the doctrine of equitable estoppel may be applied against a government
    agency,” and pointing out that the Supreme Court has, in several immigration
    cases, specifically declined to apply estoppel against the government). Assuming
    that equitable estoppel can be applied in an immigration case, a petitioner must
    establish three elements in order to invoke it: “‘(1) words, conduct, or
    acquiescence that induces reliance; (2) willfulness or negligence with regard to the
    5
    acts, conduct, or acquiescence; [and] (3) detrimental reliance.’” 
    Id. at 1319
    (quoting United States v. McCorkle, 
    321 F.3d 1292
    , 1297 (11th Cir. 2003))
    (alteration in original). In addition, the petitioner must demonstrate that the
    government engaged in affirmative misconduct—a showing of negligence or mere
    inaction is insufficient. 
    Id.
    Here, even assuming without deciding that equitable estoppel may be
    applied against the government in the immigration context, Butka has not
    established the elements of an estoppel claim. First, she has not shown that the
    government’s initial decision to admit her into the United States was due to
    affirmative misconduct, rather than to inaction or negligence. See 
    id.
     In addition,
    Butka did not suffer any legal detriment as a result of the government’s decision to
    admit her into the United States. See 
    id.
     (explaining that an alien who had
    mistakenly been granted adjustment of status could not invoke equitable estoppel
    to bar his removal because he had received a benefit from the government’s earlier
    mistake, rather than suffering a detriment). Thus, Butka’s equitable estoppel claim
    fails.
    III.
    We review constitutional challenges de novo. Lapaix v. U.S. Att’y Gen.,
    
    605 F.3d 1138
    , 1143 (11th Cir. 2010). Aliens in removal proceedings are entitled
    6
    to due process of law, meaning that they must be given both notice and an
    opportunity to be heard. 
    Id.
     “To establish a due process violation, the petitioner
    must show that she was deprived of liberty without due process of law and that the
    purported errors caused her substantial prejudice.” 
    Id.
     “To show substantial
    prejudice, an alien must demonstrate that, in the absence of the alleged violations,
    the outcome of the proceeding would have been different.” 
    Id.
    An alien seeking adjustment of status must show that she is eligible to
    receive an immigrant visa, and is admissible for permanent residence. INA
    § 245(a), 
    8 U.S.C. § 1255
    (a). Thus, aliens who are inadmissible based on criminal
    convictions may not receive adjustment of status. The Attorney General may
    waive certain convictions that normally would render an alien inadmissible. INA
    § 242(h), 
    8 U.S.C. § 1182
    (h). Among other things, the Attorney General may
    waive an alien’s prior conviction for a controlled substance offense involving the
    possession of 30 grams or less of marijuana. See INA § 242(a)(2)(A)(i)(II) and
    (h), 
    8 U.S.C. § 1182
    (a)(2)(A)(i)(II) and (h).
    In this case, the IJ did not violate Butka’s right to due process by issuing a
    removal order without holding a merits hearing. First, the IJ gave Butka a
    sufficient opportunity to apply for voluntary departure. At the master calendar
    hearing, the IJ directed Butka to submit a written pleading identifying the forms of
    7
    relief that she was requesting. When Butka failed to file any such pleading by the
    deadline set by the IJ, it was reasonable for the IJ to conclude that she did not
    intend to request voluntary departure.
    In addition, the IJ did not have to hold a hearing on Butka’s application for
    adjustment of status because the documentary evidence clearly established that she
    was not eligible for that form of relief. Butka admitted that she had a prior
    conviction for possession of 105 grams of marijuana. That conviction could not
    be waived under § 212(h) because it involved more than 30 grams of marijuana.
    See INA § 212(h), 
    8 U.S.C. § 1182
    (h). Butka’s conviction rendered her
    inadmissible under 
    8 U.S.C. § 1182
    (a)(2)(A)(i)(II), making her ineligible for
    adjustment of status. See INA § 245(a), 
    8 U.S.C. § 1255
    (a) (explaining that an
    alien must be admissible in order to receive adjustment of status). Because the
    outcome of the proceedings would not have changed had the IJ held a hearing,
    Butka was not substantially prejudiced by the IJ’s decision not to hold one. See
    Lapaix, 605 F.3d at 1143.
    Accordingly, after review of the record and the parties’ briefs, we deny the
    petition for review.
    PETITION DENIED.
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Document Info

Docket Number: 10-14200

Citation Numbers: 427 F. App'x 819

Judges: Fay, Hull, Per Curiam, Pryor

Filed Date: 5/26/2011

Precedential Status: Non-Precedential

Modified Date: 8/3/2023