                                                                            FILED
                              NOT FOR PUBLICATION                           APR 09 2010

                                                                       MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



EMANNUEL LAMPTEY,                                No. 05-76386

                Petitioner,                      Agency No. A095-615-631

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

                Respondent.



                       On Petition for Review of an Order of the
                           Board of Immigration Appeals

                              Submitted March 2, 2010 **
                                 Pasadena, California

Before:         KOZINSKI, Chief Judge, W. FLETCHER, Circuit Judge, and
                GETTLEMAN, Senior District Judge.***

       First, the BIA properly determined that Lamptey was ineligible for

adjustment of status under INA § 245(i), 8 U.S.C. § 1255(i) because his underlying


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
          ***
            The Honorable Robert W. Gettleman, United States District Judge for
the Northern District of Illinois, sitting by designation.
visa petition was filed on October 14, 2003, long after the April 30, 2001, deadline

for establishing eligibility under the statute.

       Second, Lamptey’s claim for equitable estoppel is unavailing. Lamptey

argues that DHS should be estopped from issuing a Notice to Appear against him

because his application for adjustment of status was improperly filed as a

consequence of his attorney’s reliance on misinformation from a Department of

Homeland Security (DHS) filing clerk. This claim fails because Lamptey did not

submit any evidence that the filing clerk engaged in affirmative misconduct. See

Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1184 (9th Cir. 2001)(en banc)(equitable

estoppel is available only where the government engages in “affirmative

misconduct,” which is defined “to mean a deliberate lie or a pattern of false

promises”).

       Lastly, the BIA did not err in denying Lampty’s application for nunc pro

tunc permission to reapply for admission. The BIA has the authority to grant nunc

pro tunc permission to reapply for admission to the United States where such a

grant “will effect a complete disposition of the case.” Dragon v. INS, 748 F.2d

1304, 1306 n.2 (9th Cir. 1984); See Matter of Roman, 19 I&N Dec. 855 (BIA

1988). As discussed above, Lamptey was ineligible for adjustment of status under

section 1255(I), and as an alien who entered the United States without inspection


                                            2
he could not meet the prerequisites for adjustment under section 1255(a). Because

he would remain ineligible under INA § 212(a)(6)(A)(i), a grant of nunc pro tunc

permission would not result in complete disposition of Lamptey’s case.

      PETITION FOR REVIEW DENIED.




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