                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             AUG 02 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

SALLY GEORGE; et al.,                            No. 15-56684

              Plaintiffs-Appellants,             D.C. No.
                                                 8:14-cv-01382-PSG-JPR
 v.

UNITED STATES OF AMERICA;                        MEMORANDUM*
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                  Argued June 8, 2017; Resubmitted July 25, 2017
                               Pasadena, California

Before: GRABER and MURGUIA, Circuit Judges, and BOLTON,** District
Judge.

      Plaintiff Sally George, an Indian national and a nurse, on behalf of herself

and her immediate family, challenges the 2014 revocation of the 2002 approval of


      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
         The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
her Form I-140 Petition for Alien Worker. We have jurisdiction over this timely

appeal, Herrera v. U.S. Citizenship & Immigration Servs., 571 F.3d 881, 885 (9th

Cir. 2009), and we affirm the summary judgment in favor of the government.

      1. Plaintiff’s employer filed her Form I-140 petition on May 9, 2002. This

served as her "priority date." 8 C.F.R. § 204.5(d). As relevant here, the petition

had to be accompanied by an "application for Schedule A designation," id.

§ 204.5(a)(2), which in turn required (among other things) either an unrestricted

license to practice nursing where Plaintiff was employed or proof that Plaintiff had

passed a particular nursing examination, 20 C.F.R. § 656.5(a)(2). Plaintiff did not

receive the necessary license until 2003 and did not submit any evidence that she

had passed the examination before May 9, 2002. Nevertheless, USCIS approved

the petition on December 6, 2002.

      Whatever our standard of review, the government did not err by revoking the

2002 approval. The approval was given in error because a petitioner must establish

eligibility for the I-140 at the time of filing. 8 C.F.R. § 103.2(b)(1). Plaintiff did

not demonstrate eligibility as of May 9, 2002. Approval of a petition may be

revoked "at any time" for what the Secretary of Homeland Security "deems to be

good and sufficient cause." 8 U.S.C. § 1155. Failure to demonstrate eligibility as

of the filing date is such a cause. Herrera, 571 F.3d at 886.


                                            2
      2. Equitable estoppel does not apply. "The doctrine of equitable estoppel

applies against the government only if it engages in affirmative misconduct going

beyond mere negligence." Sulit v. Schiltgen, 213 F.3d 449, 454 (9th Cir. 2000).

Neither negligence nor a failure to inform an alien of her legal rights constitutes

affirmative misconduct. Id.; accord Socop-Gonzalez v. INS, 272 F.3d 1176, 1184

(9th Cir. 2001) (en banc).1 The record contains no affirmative statement from the

government confirming the validity of Plaintiff’s I-140 after its negligent approval,

nor any affirmative statement from the government assuring Plaintiff that she need

not petition anew after acquiring the required credentials.

      AFFIRMED.




      1
        Watkins v. United States Army, 875 F.2d 699, 701–02 (9th Cir. 1989) (en
banc), on which Plaintiff relies, is distinguishable. For example, there, Watkins
made clear that he was not qualified to reenlist, but the Army reenlisted him
anyway; here, Plaintiff claimed that she was qualified.
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