Jose Miguel Mispireta-Castro v. U.S. Attorney General , 564 F. App'x 460 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14511
Non-Argument Calendar
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Agency No. A090-957-775
JOSE MIGUEL MISPIRETA-CASTRO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 28, 2014)
Before HULL, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Jose Miguel Mispireta-Castro, a native and citizen of Peru, seeks review of
the Board of Immigration Appeals’s (“BIA”) decision affirming the Immigration
Judge’s (“IJ”) denial of his motions to terminate proceedings and his application
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for a waiver of inadmissibility under the former Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1182(c) (“§ 212(c) waiver”). On appeal, Mispireta-Castro
argues that: (1) his removal proceedings were invalid because the Department of
Homeland Security (“DHS”) failed to rescind his lawful permanent resident
(“LPR”) status prior to placing him in removal proceedings, as required by 8
C.F.R. §§ 245a.3(o), 246.1, and 246.3; (2) the five-year statute of limitations in 8
U.S.C. § 1256 barred the government from placing him in removal proceedings
based on a purported lack of eligibility for adjustment of status; and (3) equitable
estoppel precluded his removal because the IJ and BIA erroneously concluded that
he had never been an LPR. After thorough review, we deny the petition.
We review only the BIA’s decision, except to the extent it expressly adopts
the IJ’s opinion. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We
review questions of law de novo. De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276,
1278 (11th Cir. 2006). Whether equitable estoppel applies is a legal question we
review de novo. Tovar-Alvarez v. U.S. Att’y Gen., 427 F.3d 1350, 1353 (11th Cir.
2005). Under the prior precedent rule, we must follow prior binding precedents
unless they are overruled by the Supreme Court or this Court en banc. United
States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008).
First, we are unpersuaded by Mispireta-Castro’s claim that DHS was
required to rescind his LPR status prior to placing him in removal proceedings, and
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failed to do so. The provision of the INA that governs the adjustment of status of
certain aliens who entered the United States before 1982 was 8 U.S.C. § 1255a.
Under this section, the Attorney General was required to adjust an alien’s status to
that of a temporary resident if he met certain requirements, including that he be
“admissible to the United States as an immigrant.” 8 U.S.C. § 1255a(a)(4)(A).
The temporary resident’s status was then required to be adjusted to that of an alien
lawfully admitted for permanent residence if he met certain requirements,
including that he be “admissible to the United States as an immigrant” and not
convicted of any felony in the United States. 8 U.S.C. § 1255a(b)(1)(C)(i)-(ii).
“Rescission of adjustment of status under [8 U.S.C. § 1255a] shall occur under the
guidelines established in [8 U.S.C. § 1256].” 8 C.F.R. § 245a.3(o).
Under 8 U.S.C. § 1256(a),
[i]f, at any time within five years after the status of a person has been
otherwise adjusted under [§ 1255]. . . or any other provision of law to that of
an alien lawfully admitted for permanent residence, it shall appear to the
satisfaction of the Attorney General that the person was not in fact eligible
for such adjustment of status, the Attorney General shall rescind the action
taken granting an adjustment of status to such person and cancelling removal
in the case of such person if that occurred and the person shall thereupon be
subject to all provisions of this chapter to the same extent as if the
adjustment of status had not been made. Nothing in this subsection shall
require the Attorney General to rescind the alien’s status prior to
commencement of procedures to remove the alien under [§] 1229a of this
title, and an order of removal issued by an [IJ] shall be sufficient to rescind
the alien’s status.
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The regulations set forth the procedure for rescission proceedings brought pursuant
to § 1256(a). See 8 C.F.R. Part 246. In Alhuay v. U.S. Att’y Gen., we considered
whether the five-year statute of limitations in § 1256(a) applied to both rescission
and removal proceedings. 661 F.3d 534, 543-46 (11th Cir. 2011). We noted that
the last sentence of § 1256(a) drew a clear line between rescission and removal,
and “unequivocally permits the Attorney General to remove an alien without first
rescinding [his] status.” Id. at 545-46.
Here, the BIA did not err in concluding that the IJ had jurisdiction over
Mispireta-Castro’s case even though the DHS did not first rescind his permanent
resident status. Section 1256(a) undisputedly applies to Mispireta-Castro even
though his status was adjusted pursuant to § 1255a, not § 1255. See 8 U.S.C. §
1256(a) (indicating that it applied to any person who adjusted their status under §§
1255 or 1259 or “any other provision of law to that of an alien lawfully admitted
for permanent residence”); 8 C.F.R. § 245a.3(o). As we acknowledged in Alhuay,
the last sentence of § 1256(a) clearly provides that the DHS did not have to rescind
Mispireta-Castro’s permanent resident status prior to the initiation of removal
proceedings. 8 U.S.C. § 1256(a); Alhuay, 661 F.3d at 545-46. The fact that the
regulations set forth a procedure for rescission proceedings does not mean that
DHS must first conduct such proceedings before initiating removal proceedings.
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We likewise find no merit to Mispireta-Castro’s claim that the five-year
statute of limitations in 8 U.S.C. § 1256 barred the government from placing him
in removal proceedings. In Alhuay, we joined the Fourth, Sixth, Eighth, and Ninth
Circuit in holding that § 1256(a) did not bar the government from removing an
alien merely because that alien’s status was erroneously adjusted to that of a
permanent resident more than five years earlier. 661 F.3d at 544-45. We noted
that the first sentence of the provision, which contained the five-year limitation,
merely mandated the rescission of adjustment of status for individuals who fell
within the prescribed category, but said nothing about beginning removal
proceedings or DHS’s power to remove any alien. Id. at 545. Again, the
provision’s last sentence supported the conclusion that the five-year statute of
limitations did not apply to removal proceedings because it drew a clear line
between rescission and removal proceedings. Id.As applied here, the BIA did not err in concluding that Mispireta-Castro’s
removal proceedings were not barred by the statute of limitations. Pursuant to
Alhuay, the five-year statute of limitations in § 1256 does not apply to removal
proceedings. 661 F.3d at 544-45. Because neither this Court sitting en banc nor
the Supreme Court has overruled Alhuay, we are bound to follow its holding. See
Vega-Castillo, 540 F.3d at 1236.
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Finally, we reject Mispireta-Castro’s claim that equitable estoppel precluded
his removal. 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).
But 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 acts, conduct, or acquiescence; [and] (3) detrimental reliance.” Id. at 1319(quotation omitted). In addition, the petitioner must demonstrate that the
government engaged in affirmative misconduct -- a showing of negligence or mere
inaction is insufficient. Id.In Savoury, we held that an alien whose status was erroneously adjusted to
that of a permanent resident because he had a prior criminal conviction that
rendered him inadmissible at the time of adjustment of status had never been
lawfully admitted to the United States for permanent residence, and thus, was not
statutorily eligible for a § 212(c) waiver. Id. at 1313, 1317. We further determined
that, even if equitable estoppel applied in immigration proceedings, Savoury could
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not establish the elements of such a claim. Id. at 1319. Savoury had not shown
that his adjustment of status was due to affirmative misconduct even though he told
the immigration officer at his adjustment interview about his pending drug charges
and, after he was convicted, but before he was granted adjustment of status,
submitted his conviction records. Id. at 1310, 1319. He also could not show
detrimental reliance because he had received a benefit from the government’s
earlier mistake in granting him adjustment of status, rather than suffering a
detriment. Id. at 1319.
As an initial matter, Mispireta-Castro’s argument that the IJ and BIA
erroneously determined that he had never been an LPR is meritless. The fact that
his status was adjusted to that of a temporary resident does not mean that his status
was subsequently lawfully adjusted to that of a permanent resident. See 8 U.S.C. §
1255a(b)(1)(C) (providing that the Attorney General shall adjust the status of an
alien lawfully provided temporary resident status to that of a permanent resident if,
among other things, he is admissible to the United States and has not been
convicted of a felony in the United States). Based on his 1989 delivery of cocaine
conviction, Mispireta-Castro did not meet these requirements at the time of his
1992 adjustment of status. Id.; see 8 U.S.C. § 1182(a)(2)(A)(i)(II). Because
Mispireta-Castro was not statutorily eligible for adjustment of status at the time it
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was granted, he had never been lawfully admitted for permanent residence. See
Savoury, 449 F.3d at 1317.
Even assuming that equitable estoppel can be applied against the
government in an immigration proceeding, Mispireta-Castro has failed to establish
the elements of an estoppel claim. First, he has not shown that government’s
initial decision to adjust his status to that of a permanent resident was due to
affirmative misconduct, rather than to inaction or negligence. See id. at 1310,
1319. In addition, Mispireta-Castro did not suffer any legal detriment as a result of
the government’s decision to admit him into the United States. See id. at 1319.
Thus, Mispireta-Castro’s equitable estoppel claim fails.
PETITION DENIED.
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