                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-3969
                                   ___________


Martha Beatriz Ibarra de Varela;        *
Samuel Varela-Ibarra; Karen             *
Paulina Varela-Ibarra; Luis             *
Armando Varela-Ibarra,                  *
                                        * Petition for Review of an
             Petitioners,               * Order of the Board of
                                        * Immigration Appeals.
      v.                                *
                                        *
John Ashcroft,                          *
                                        *
             Respondent.                *
                                   ___________

                             Submitted: February 13, 2004
                                Filed: May 13, 2004
                                 ___________

Before MORRIS SHEPPARD ARNOLD, JOHN R. GIBSON, and RILEY, Circuit
      Judges.
                         ___________

RILEY, Circuit Judge.

       Martha Beatriz Ibarra de Varela (Varela), a native and citizen of Mexico,
petitions for review of a final order of removal issued by the Board of Immigration
Appeals (BIA). The BIA held Varela was statutorily ineligible to adjust her status to
that of a permanent resident based upon the immigrant visa petition filed by her
former husband, a United States citizen, because the Immigration and Naturalization
Service (INS) denied her immigrant visa petition in 1997 for failure to prosecute.
Furthermore, the BIA held the INS could not be equitably estopped, because Varela
failed to establish the INS committed “affirmative misconduct.” We deny the petition
and affirm the BIA’s decision.

       We review de novo the BIA’s legal conclusions, giving substantial deference
to the BIA’s interpretation of section 245(a) of the Immigration and Naturalization
Act (Act), 8 U.S.C. § 1255(a), and its implementing regulations. See INS v.
Aguirre-Aguirre, 526 U.S. 415, 424 (1999); Escudero-Corona v. INS, 244 F.3d 608,
613 (8th Cir. 2001).

       An alien may become a permanent resident, and the Attorney General, at his
discretion, may adjust the status of an alien “to that of an alien lawfully admitted for
permanent residence if (1) the alien makes an application for such adjustment, (2) the
alien is eligible to receive an immigrant visa and is admissible to the United States
for permanent residence, and (3) an immigrant visa is immediately available to him
at the time his application is filed.” 8 U.S.C. § 1255(a). The record clearly
establishes Varela is statutorily ineligible for adjustment of status, because she cannot
establish an immigrant visa was immediately available to her. The record shows the
INS denied Varela’s original immigration visa petition on January 30, 1997, and
Varela presented no evidence establishing a subsequent immigrant visa petition had
been filed on her behalf during the intervening years. Therefore, the immigration
judge lacked jurisdiction to adjudicate Varela’s adjustment application, and properly
ordered her deported to Mexico.

       Varela principally argues the BIA erred in failing to equitably estop the INS
from placing her in removal proceedings, contending (1) the INS erroneously advised
her to depart the United States voluntarily while her immigration visa application was
pending, and (2) the INS then failed to forward her adjustment application to the
consular office in Mexico for processing. To establish a claim of equitable estoppel,

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Varela must prove: (1) false representation by the government; (2) the government
had the intent to induce the claimant to act on the misrepresentation; (3) “the
claimant’s lack of knowledge or inability to obtain the true facts”; and (4) the
claimant’s reliance on the misrepresentation to her detriment. Story v. Marsh, 732
F.2d 1375, 1383 (8th Cir. 1984). Additionally, because Varela seeks to invoke
equitable estoppel against the government, Varela must first prove the government
committed “affirmative misconduct.” Wang v. Att’y Gen., 823 F.2d 1273, 1276 (8th
Cir. 1987) (citing INS v. Miranda, 459 U.S. 14, 17-18 (1982) (per curiam)). We
agree with the BIA’s legal conclusion that Varela’s allegations against the INS do not
rise to the actionable level of affirmative misconduct required under Miranda. See,
e.g., Montana v. Kennedy, 366 U.S. 308, 314-15 (1961) (declaring an American
consular official’s misstatement that petitioner’s mother could not, due to her
pregnancy, receive a passport to leave Italy and return to America, “falls far short of
misconduct such as might prevent the United States from relying on the petitioner’s
foreign birth”); Socop-Gonzalez v. INS, 272 F.3d 1176, 1184 (9th Cir. 2001) (en
banc) (holding negligently provided misinformation an alien received from an INS
officer could not serve as the basis for equitable estoppel, because the alien must
show the INS engaged in “affirmative misconduct,” defined as a “deliberate lie” or
“a pattern of false promises”).

      Accordingly, we deny Varela’s petition.
                      _____________________________




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