Jesus Almonte-Vasquez v. Eric Holder, Jr. ( 2014 )


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  •      Case: 13-60716       Document: 00512720893         Page: 1     Date Filed: 08/04/2014
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 13-60716                             July 29, 2014
    Summary Calendar
    Lyle W. Cayce
    Clerk
    JESUS BIENVENIDO ALMONTE-VASQUEZ, also known as Jose Armonte,
    also known as Jesos Almonte, also known as Jose Almonte,
    Petitioner
    v.
    ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
    Respondent
    Petition for Review of an Order of the
    Board of Immigration Appeals
    BIA No. A030 977 618
    Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
    PER CURIAM: *
    Jesus Bienvenido Almonte-Vasquez, proceeding pro se and in forma
    pauperis, petitions for review of the Board of Immigration Appeals’ (BIA)
    affirming an order of removal by an immigration judge and dismissing
    Almonte’s appeal. Almonte, who entered the United States in July 1973 as a
    lawful permanent resident, was ordered removed based on his conviction of an
    * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5th Cir.
    R. 47.5.4.
    Case: 13-60716    Document: 00512720893      Page: 2   Date Filed: 08/04/2014
    No. 13-60716
    aggravated felony: conspiracy to possess, with intent to distribute, cocaine and
    marijuana, in violation of 21 U.S.C. §§ 841(a) and 846.            See 8 U.S.C.
    § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any
    time after admission is deportable.”).        The BIA also rejected Almonte’s
    contention that the Government should be equitably estopped from deporting
    him because the former Immigration and Naturalization Service (INS) violated
    his due process rights by mishandling and, later, terminating his 1981
    application for naturalization.
    Almonte does not challenge the BIA’s determination that his drug
    conspiracy conviction is an aggravated felony. Because he is removable on that
    basis, we have jurisdiction only to review constitutional claims or questions of
    law. See 8 U.S.C. § 1252(a)(2)(C), (D).
    Almonte contends the INS committed affirmative misconduct by failing
    to notify him of the time, date, and place to appear in connection with his
    naturalization application. He further contends the INS failed to comply with
    regulations governing the processing of applications for naturalization,
    primarily by taking several years to process his application. Finally, he asserts
    the INS improperly terminated his application.
    On petition for review of a BIA decision, we review factual findings for
    substantial evidence and questions of law de novo.         E.g., Lopez-Gomez v.
    Ashcroft, 
    263 F.3d 442
    , 444 (5th Cir. 2001). Whether the Government should
    be estopped from bringing a removal proceeding constitutes a question of law,
    reviewed de novo. See Andrade v. Gonzales, 
    459 F.3d 538
    , 542 (5th Cir. 2006).
    “Courts have been exceedingly reluctant to grant equitable estoppel
    against the government.” Robertson-Dewar v. Holder, 
    646 F.3d 226
    , 229 (5th
    Cir. 2011). The remedy of equitable estoppel, if it is available, requires a
    showing of, inter alia, affirmative misconduct on the part of the Government.
    2
    Case: 13-60716   Document: 00512720893    Page: 3   Date Filed: 08/04/2014
    No. 13-60716
    
    Id. “Affirmative misconduct
    requires an affirmative misrepresentation or
    affirmative concealment of a material fact by the government.” 
    Id. at 229–30
    (quoting Linkous v. United States, 
    142 F.3d 271
    , 278 (5th Cir. 1998)).
    Almonte’s contentions, at most, amount to allegations of delay, inaction,
    and negligence on the part of the INS in handling his application for
    naturalization.   Such action or inaction, however, does not constitute the
    requisite affirmative misconduct. See 
    id. at 229.
           DENIED.
    3
    

Document Info

Docket Number: 13-60716

Judges: Jones, Barksdale, Haynes

Filed Date: 8/4/2014

Precedential Status: Non-Precedential

Modified Date: 3/2/2024