Markowski v. Atty Gen USA , 66 F. App'x 374 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
5-7-2003
Markowski v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket 02-2953
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Recommended Citation
"Markowski v. Atty Gen USA" (2003). 2003 Decisions. Paper 569.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 02-2953
__________
ANDRZEJ M ARKOWSKI,
Petitioner
v.
JOHN ASHCROFT,
Attorney General of the United States,
Respondent
__________
On Petition for Review of an Order of the
Board of Immigration Appeals
(BIA No. A73-479-932)
__________
Argued April 8, 2003
Before: BECKER**, Chief Judge, BARRY, and BRIGHT * , Circuit Judges.
(Filed: May 7, 2003)
JEFFREY A. FEINBLOOM, ESQUIRE (ARGUED)
Feinbloom Bertisch LLP
350 Fifth Avenue, Suite 6101
New York, NY 10118
Attorney for Petitioner
*
Honorable Myron H. Bright, Senior Judge of the United States Court of Appeals for
the Eighth Circuit, sitting by designation.
** Judge Becker completed his term as Chief Judge on May 4, 2003.
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ALISON M. IGOE, ESQUIRE (ARGUED)
ROBERT D. McCALLUM, JR., ESQUIRE
WILLIAM C. MINICK, ESQUIRE
MARGARET J. PERRY, ESQUIRE
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044
Attorneys for Respondent
__________
OPINION OF THE COURT
__________
PER CURIAM.
Andrzej Markowski, a Polish citizen, petitions this court for review of a Board of
Immigration Appeals ("BIA") order finding Markowski removable as charged, denying
his application for adjustment of status, and ordering him removed from the United
States. Markowski argues that removal proceedings should be equitably estopped based
on affirmative misconduct by Immigration and Naturalization Service ("INS") officials.
We recognize the unfortunate and regrettable situation of the appellant, but we are
obliged to deny the petition for review of the BIA's order.
I. BACKGROUND
Markowski is a Polish citizen who entered the United States on December 9, 1989,
as a nonimmigrant visitor with permission to remain lawfully until May 8, 1990.
Markowski failed to depart on or before that date. In 1994, the INS notified him that he
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had been selected to apply for an immigrant visa based on his application to the 1995
Diversity Visa program ("DV-95"). On December 19, 1994, Markowski filed for
adjustment of status based on his DV-95 selection. The INS interviewed Markowski on
September 19, 1995, but by that date there were no more available visas under DV-95.
On December 18, 1996, the INS attempted to notify Markowski by letter that he
was eligible for adjustment of status under section 637 of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. 104-208, and the INS had
scheduled an interview for January 7, 1997. The notification letter was returned to the
INS in an envelope marked, "Return to Sender - No such street." Although Markowski's
actual mailing address was the only address on file with the INS, the INS made no effort
to verify his address, resend the notification letter or otherwise contact Markowski.
On July 29, 1997, Markowski filed a second application for adjustment of status
based on IIRIRA § 637. Under that statutory provision, visa numbers for DV-95 winners
were available from the fiscal 1997 program. Markowski's application was filed prior to
the expiration of DV-97, but the INS did not schedule an interview with Markowski until
the available visa numbers had expired. On February 9, 1998, the INS notified
Markowski that the fiscal 1997 diversity lottery program ended on September 30, 1997,
and consequently, Markowski was no longer eligible to adjust his status by receiving a
visa.
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On March 5, 1999, the INS served Markowski with a Notice to Appear, charging
him with being removable from the United States for overstaying his visa. The
Immigration Judge ("IJ") rejected Markowski's argument that the INS's denial of his
adjustment application was the result of malfeasance. The IJ ruled that because there
were no longer visa numbers available she could not grant Markowski's application for
adjustment of status. The IJ found M arkowski removable as charged and granted him
voluntary departure.
Markowski appealed to the BIA and requested that the BIA apply the doctrine of
equitable estoppel to order the INS to adjust his status. The BIA determined that it had no
authority to apply the doctrine of equitable estoppel and it dismissed Markowski's appeal.
Markowski now appeals and asks this court to apply equitable estoppel.
II. DISCUSSION
We have recognized that estoppel is an equitable doctrine applied in order to avoid
injustice. Fredericks v. Commissioner of Internal Revenue, 126 F.3d 433, 438 (3d Cir.
1997). A party seeking estoppel against the government bears the burden of showing that
a government official engaged in affirmative misconduct. Id. This circuit has
considered, but not applied equitable estoppel in the immigration context. See Yang v.
INS, 574 F.2d 171, 175 (3d Cir. 1978) (remanding immigration appeal to BIA for
reconsideration of new policies in lieu of appellate court applying estoppel principles).
Other courts, however, have applied the doctrine explicitly. See, e.g. Socop-Gonzalez v.
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INS, 208 F.3d 838, 842 (9th Cir. 2000) (applying equitable estoppel against the
government where it engages in affirmative misconduct beyond mere negligence).
While Markowski has certainly demonstrated that INS officials were negligent in
their handling of his applications, he has not provided evidence of affirmative
misconduct. There is no question that the INS failed to process his initial adjustment of
status application in a timely fashion, and failed to notify him of his eligibility for
adjustment of status despite having his correct address on file throughout this matter.
However, none of this conduct is sufficient to trigger equitable estoppel.
Even if we were inclined to apply equitable estoppel in this matter, the problem of
fashioning an appropriate remedy would remain. As the BIA recognized, Markowski was
selected under a diversity visa program whereby an applicant must qualify for adjustment
of status during a specified fiscal year. The visas under DV-95 and IIRIRA § 637 are no
longer available. We have no authority to order the INS to grant Markowski a non-
existent visa. This fact has been recognized by other courts. See e.g., Iddir v. INS, 301
F.3d 492, 501 (7th Cir. 2002) (dismissing mandamus action brought by diversity visa
applicants because the statutory deadline set by Congress deprives the INS of authority to
award the relief sought). Indeed, the Eleventh Circuit has recently reversed a district
court's invocation of its mandamus jurisdiction to order the INS to process certain visa
applications as though fiscal year 1998 had not ended. Nyaga v. Ashcroft, 323 F.3d 906(11th Cir. 2003). The court concluded that the applicant's case was moot as of midnight
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on September 30, 1998 pursuant to explicit statutory language. Id. at 908-09 (citing 8
U.S.C. § 1154(a)(1)(I)(ii)(II)). In light of this provision, the district court could no longer
provide meaningful relief and the INS's failure to process the visa application did not
extend the "statutorily-limited period of eligibility for a diversity visa." Id. at 914.
For these reasons, we are compelled to DENY the petition for review of the BIA's
order. In doing so, we suggest that personnel supervising and handling immigration
matters take greater care in processing visa applications and other matters so that similar
unfortunate situations such as this do not arise.
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