Reyes-Batista v. Garland ( 2022 )

United States Court of Appeals
For the First Circuit
No. 21-1111
AMAURY VLADIMIR REYES-BATISTA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITON FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Barron, Chief Judge,
Howard and Gelpí, Circuit Judges.
Stuart Altman, Law Office of Stuart Altman, for petitioner.
Todd J. Cochran, Office of Immigration Litigation, Civil
Division, United States Department of Justice, with whom Brian M.
Boynton, Assistant Attorney General, and John S. Hogan, Assistant
Director, Office of Immigration Litigation, were on brief, for
respondent.
October 7, 2022
HOWARD, Circuit Judge. Petitioner Amaury Vladimir
Reyes-Batista seeks review of the Board of Immigration Appeals'
("BIA") dismissal of his appeal of an immigration judge's ("IJ")
order denying him relief from removal. Reyes-Batista argues that
the BIA erred in denying him nunc pro tunc relief under former
§ 212(c) of the Immigration and Nationality Act ("INA") and on
equitable estoppel grounds. Discerning no error in the agency
decision, we deny the petition.
I.
Reyes-Batista, a citizen of the Dominican Republic, was
granted lawful permanent resident ("LPR") status in October 1990,
at the age of fourteen. In 1996, he was convicted in New York of
third-degree attempted criminal sale of a controlled substance
(heroin). As a result, the government initiated removal
proceedings against him in Oakdale, Louisiana. At his removal
hearing, Reyes-Batista sought relief under former § 212(c) of the
INA. See 8 U.S.C. § 1182(c) (1996). Section 212(c) gave the
Attorney General discretion to waive removal for certain LPRs,
provided that they had established a domicile in the United States
for seven consecutive years. An IJ found that Reyes-Batista did
not meet the seven-year domicile requirement necessary for relief
and ordered him removed. Reyes-Batista was removed to the
Dominican Republic in October 1996.
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Reyes-Batista later made his way back to the United
States, entering without inspection. In 2015, he was charged in
the U.S. District Court for the District of Connecticut with
various offenses stemming from his involvement in a fraudulent tax
scheme. See United States v. Reyes-Batista, 844 F. App'x 404, 406
(2d. Cir. 2021). An additional charge for illegal reentry under
8 U.S.C. § 1326(a) was dismissed before trial because the district
court found that Reyes-Batista was prejudiced by a fundamental
procedural error in his 1996 removal proceeding when the IJ
informed him that he was ineligible for § 212(c) relief. According
to the district court, Reyes-Batista's mother's lawful residency
"could be imputed" to him for purposes of establishing the seven-
year domicile period.
Reyes-Batista was convicted of the fraud-related charges
and sentenced to time served, plus three years of supervised
release and restitution. Reyes-Batista, 844 F. App'x at 406. In
early 2021, the Second Circuit affirmed his convictions. Id. at
410.
On December 9, 2019, the Department of Homeland Security
("DHS") initiated removal proceedings against Reyes-Batista by
filing a Notice to Appear ("NTA") in Boston immigration court.
The NTA charged Reyes-Batista with removability based on four INA
provisions: 1) § 212(a)(2)(C) (8 U.S.C. § 1182(a)(2)(C)(i))
("alien who the consular officer or the Attorney General knows or
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has reason to believe . . . is or has been an illicit trafficker
in any controlled substance"); 2) § 212(a)(9)(C)(i)(II) (8 U.S.C.
§ 1182(a)(9)(C)(i)(II)) ("alien who . . . has been ordered
removed . . . who enters or attempts to reenter the United States
without being admitted"); 3) § 212(a)(6)(A)(i) (8 U.S.C.
§ 1182(a)(6)(A)(i)) ("alien present in the United States without
being admitted or paroled, or who arrives in the United States at
any time or place other than as designated by the Attorney
General"); and 4) § 212(a)(7)(A)(i)(I) (8 U.S.C.
§ 1182(a)(7)(A)(i)(I)) (immigrant not in possession of "valid
entry document[s]"). Reyes-Batista denied the charges of
removability and argued that DHS should be equitably estopped from
removing him, and sought cancellation of removal, nunc pro tunc
§ 212(c) relief, and voluntary departure. Following two hearings,
the Boston IJ ultimately concluded that the evidence sufficiently
sustained all four charges, and that Reyes-Batista was ineligible
for relief from removal.
Reyes-Batista appealed this decision to the BIA,
focusing on the IJ's denial of his nunc pro tunc and equitable
estoppel claims. On January 7, 2021, the BIA dismissed the appeal.1
Reyes-Batista's timely petition for review followed.
1In his appeal to the BIA, Reyes-Batista also challenged the
IJ's denial of his request for a continuance. The BIA rejected
this claim in its decision, and Reyes-Batista has not challenged
this portion of the BIA's decision on appeal.
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II.
"Where, as here, the BIA adopted and affirmed the IJ's
ruling, and discussed some of the bases for the IJ's opinion, we
review both the BIA's and IJ's opinions." Idy v. Holder, 674 F.3d
111, 117 (1st Cir. 2012) (citing Zheng v. Gonzales, 475 F.3d 30,
33 (1st Cir. 2007)). "We review the BIA's and/or IJ's findings of
fact under the substantial evidence standard, reversing only if
'the record evidence would compel a reasonable factfinder to make
a contrary determination.'" Stroni v. Gonzales, 454 F.3d 82, 87
(1st Cir. 2006) (quoting Romilus v. Ashcroft, 385 F.3d 1, 5 (1st
Cir. 2004)). "We review legal conclusions de novo, 'with
appropriate deference to the agency's interpretation of the
underlying statute in accordance with administrative law
principles.'" Id. (quoting Gailius v. INS, 147 F.3d 34, 43 (1st
Cir. 1998)).
A. Reyes-Batista is not eligible for nunc pro tunc
relief under former § 212(c)
A noncitizen convicted of an aggravated felony after
admission to the United States is removable. See 8 U.S.C.
§ 1227(a)(2)(A)(iii). Former INA § 212(c) gave the Attorney
General "relatively broad discretion to grant relief to aliens
otherwise deemed inadmissible or removable if they had established
a lawful, unrelinquished domicile in the United States of seven
consecutive years." Omar v. Lynch, 814 F.3d 565, 567 (1st Cir.
2016) (citing former § 212(c)). Although § 212(c) was repealed by
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§ 304(b) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 ("IIRIRA"), the Supreme Court
subsequently held that IIRIRA's repeal of former § 212(c) does not
apply retroactively. See INS v. St. Cyr, 533 U.S. 289, 326 (2001).
Thus, § 212(c) relief remains available to eligible persons
convicted of an offense before IIRIRA’s effective date in April
1997. See id. at 315, 326.
But Reyes-Batista is not presently eligible for § 212(c)
relief. Current regulations provide that relief under former
§ 212(c) is only available to LPRs. See 8 C.F.R. § 1212.3(f)(1).
As the IJ noted, and Reyes-Batista does not dispute, he is not an
LPR because his 1996 removal order -- which terminated his LPR
status -- remains valid. Therefore, his only means of obtaining
§ 212(c) relief would be through a nunc pro tunc waiver.
"Nunc pro tunc, . . . meaning 'now for then,' refers to
the power of [an adjudication] to treat something done now --
typically a court order -- as effective as of an earlier date."
Gutierrez-Castillo v. Holder, 568 F.3d 256, 261 (1st Cir. 2009)
(quoting Mahabir v. Ashcroft, 387 F.3d 32, 33 (1st Cir. 2004)).
In pursuing nunc pro tunc permission to reapply for relief under
former INA § 212(c), Reyes-Batista asks to have his § 212(c)
application adjudicated nunc pro tunc to the date of his original
hearing in 1996, before he lost his LPR status.
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The IJ concluded that Reyes-Batista was not entitled to
nunc pro tunc relief, because granting it would not eliminate his
four grounds of removability under the INA. The BIA agreed,
explaining that "[n]unc pro tunc relief is not available unless it
would completely dispose of the case," and Reyes-Batista "would
still be considered an arriving alien, and inadmissible, even if
he were granted a section 212(c) waiver nunc pro tunc."
We agree. First, as a threshold matter, and as Reyes-
Batista points out, it is not clear whether nunc pro tunc relief
is available in this circuit to correct a substantive error by a
previous immigration court. See Fernandes Pereira v. Gonzales,
417 F.3d 38, 47-48 (1st Cir. 2005) (declining to extend nunc pro
tunc relief to petitioner who "was denied the opportunity to seek
timely section 212(c) relief under a good faith legal
interpretation of the law at the time," and noting that "we have
stated that nunc pro tunc authority may only be used to correct
inadvertent or clerical errors").
Nevertheless, nunc pro tunc relief under former § 212(c)
is not an available remedy here. As the BIA has explained, its
authority and that of "[IJs] to grant [nunc pro tunc] permission
in deportation or exclusion proceedings . . . is
limited . . . . [and] has been extended only to instances where
all established grounds of deportability or inadmissibility are
eliminated." In re Garcia-Linares, 21 I. & N. Dec. 254, 258 (BIA
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1996); see Trejo v. Holder, 421 F. App'x 339, 341 (5th Cir. 2011)
(per curiam) (explaining that "[t]he immigration courts have
'discretion to allow nunc pro tunc proceedings in two well defined
situations,'" one of which is "where the only ground of
deportability or inadmissibility would thereby be eliminated"
(citation omitted)); Corona-Mendez v. Holder, 593 F.3d 1143, 1148
(9th Cir. 2010) ("Because the Board does not grant nunc pro tunc
permission to reapply if the petitioner is deportable based on
multiple grounds of inadmissibility, it was . . . properly denied
here."); Patel v. Gonzales, 432 F.3d 685, 693 (6th Cir. 2005);
Matter of Roman, 19 I. & N. Dec. 855, 859 (BIA 1988). Because the
BIA's policy regarding nunc pro tunc relief is a "discretionary
administrative practice," we "have no authority to require the
Board to extend" it. Corona-Mendez, 593 F.3d at 1148 n.4.
Here, even were Reyes-Batista to receive retroactive
§ 212(c) relief through a grant of nunc pro tunc permission to
reapply, it would not "complete[ly] dispos[e] of [his] case."
Reyes-Batista would remain removable at the very least under the
INA provision relating to his unauthorized reentry,
§ 212(a)(9)(C)(i)(II). See supra at 4. That alone renders him
ineligible for nunc pro tunc relief. See In re Garcia-Linares, 21
I. & N. at 258.
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B. Equitable estoppel is not warranted
"Estoppel requires showing that the government engaged
in 'affirmative misconduct' that caused the petitioning individual
to act in a way []he otherwise would not have." Westover v. Reno,
202 F.3d 475, 481 (1st Cir. 2000) (quoting Akbarin v. INS, 669
F.2d 839, 842-43 (1st Cir. 1982)).2
Reyes-Batista argues that the government should be
equitably estopped from bringing new removal proceedings against
him because the first IJ, in Louisiana, failed to inform him at
his 1996 hearing that he was potentially eligible for § 212(c)
relief. According to Reyes-Batista, this eligibility stemmed from
a 1992 Second Circuit case holding that a parent's domicile could
be imputed to a child for purposes of § 212(c) if there was a
significant relationship between the parties.3 Reyes-Batista
points to the following colloquy at his 1996 removal hearing as
2 Even where these two elements of estoppel are met, estoppel
against the government may nevertheless be inappropriate based on
competing policy and equitable considerations. See Akbarin, 669
F.2d at 844. This is all the more true in immigration cases, where
"the state of the doctrine of estoppel against the Government is
difficult to determine." Id. at 842.
3 Reyes-Batista does not mention the case -- Rosario v. INS,
962 F.2d 220 (2d. Cir. 1992) -- in his brief, but instead relies
primarily on the Connecticut district court's fundamental fairness
analysis to support his equitable estoppel claim, which, in turn,
relied on Rosario. Although Reyes-Batista's argument lacks
development, we assume arguendo that it was not waived and proceed
to the merits.
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evidence that the Louisiana IJ engaged in affirmative misconduct
by misinforming him of his eligibility for § 212(c) relief:
[IJ]: Counselor, do you seek any relief
from deportation?
Counsel for Reyes-Batista: Umm, well, we
would . . . 212c, since the Attorney General
has vacated Soriano, we believe that he's
eligible, at least for the time being, until
some new decision is made as to whether it
pertains to cases that were, or convictions,
that were prior to April 24th.
[IJ]: Okay[.]
Government: Your honor, the respondent
doesn’t have the requisite 7 years for 212c
relief. He entered this country as an
immigrant on Oct. 12, 1990.
[IJ]: He doesn’t even have the 7 years
counselor.
Counsel: Oh, I must have miscalculated
when I read this then. Um, that's the only
form that I know of your honor.
[IJ]: I understand that. I'm not aware
of any relief, is the government aware of any
relief?
Government: No, your honor.
. . . .
[IJ]: The respondent through counsel
would seek 212c waiver. And there is the issue
in the Second Circuit and how you calculate
the time that his mother had lawful permanent
residence and also the . . . but it doesn't
apply here . . . and also because of the
Antiterrorism bill, he surely does not
have . . . he's not eligible currently for the
212c waiver.
The Boston IJ found that the "facts of this case fall
far short of the affirmative government misconduct standard"
because even if Reyes-Batista would have been eligible for relief
under former § 212(c), there was "insufficient evidence that [the
Louisiana IJ's statements were] an intentional act meant to deprive
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[Reyes-Batista] of his due process rights to apply from relief
from removal." The IJ further noted that the Louisiana IJ
"consulted with and sought input from both government counsel and
[Reyes-Batista's] counsel at the hearing." The BIA agreed, stating
only that "[e]quitable estoppel is not appropriate because the
record does not establish that the [IJ] in the prior deportation
proceedings engaged in affirmative misconduct by finding the
respondent ineligible for relief under former section 212(c)."
We concur. The Second Circuit case that Reyes-Batista
identifies as creating the "imputed domicile" theory under which
he may have satisfied the seven-year requirement was not binding
on the Louisiana immigration court in his 1996 proceeding, and no
similar Fifth Circuit precedent existed at the time -- in fact,
the available Fifth Circuit precedent suggested the contrary.
Compare Rosario, 962 F.2d at 224 (holding that "the ameliorative
purpose of § 212(c) is better served by permitting a minor to
establish domicile through a parent with whom he had a significant
relationship during the time in question") with Madrid-Tavarez v.
INS, 999 F.2d 111, 111 (5th Cir. 1993) (holding "that a lawful
permanent resident who is short of the seven year legal residence
requirement cannot meet it by tacking time previously spent in the
United States as an illegal alien for purposes of § 212(c)").4
4The Supreme Court has since affirmed the BIA’s
interpretation that a person must meet § 1229b(a)'s (the statutory
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More importantly, the Louisiana IJ appears to have given the
question of Reyes-Batista's § 212(c) eligibility adequate
consideration, and Reyes-Batista has failed to identify anything
suggestive of "government misconduct." Westover, 202 F.3d at 481.
Estoppel is therefore not appropriate here. Cf. Akbarin, 669 F.2d
at 842 (explaining that "the Supreme Court [has] held that a Social
Security Administration official's oral advice . . . that
[plaintiff] was ineligible for certain benefits when in fact she
was [eligible] did not estop the Government from denying her
retroactive benefits for which she did not apply in time because
of the oral advice").
III.
For the foregoing reasons, we deny Reyes-Batista's
petition.
provision that replaced § 212(c)) duration requirements on his or
her own, thereby overruling Rosario and the decisions of two other
circuit courts which had previously held that "the Board should
impute a parent's years of domicile to his or her child" when
"determining eligibility for relief under § 212(c)." Holder v.
Martinez Gutierrez, 566 U.S. 583, 592 (2012).
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