     Case: 14-60693          Document: 00513596665       Page: 1   Date Filed: 07/18/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                                                 Fifth Circuit

                                                                                FILED
                                                                              July 18, 2016
                                          No. 14-60693
                                                                              Lyle W. Cayce
                                                                                   Clerk
ORLANDO GUTIERREZ, also known as Orlando Gutierrez Martinez,

                 Petitioner

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL,

                 Respondent




                               Petition for Review of Order of
                             the Board of Immigration Appeals


Before DAVIS, JONES, and GRAVES, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
      An Immigration Judge ordered that Petitioner Orlando Gutierrez be
removed from the United States. 1 Gutierrez appealed the Immigration Judge’s
removal order to the Board of Immigration Appeals (“BIA”), which dismissed
the appeal.
      Gutierrez now petitions this Court for review of the BIA’s order. He
claims that he is not subject to removal because he became a lawful permanent
resident before he turned eighteen, and thereby automatically became a




      1   See 8 U.S.C. § 1227(a)(2)(A)(iii), (B)(i).
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                                      No. 14-60693
United States citizen under the Child Citizenship Act of 2000 (“CCA”). 2 We
disagree, and therefore deny the petition.


                                             I.
       The CCA provides that a child born outside of the United States
automatically becomes a citizen of the United States when all of the following
conditions have been fulfilled:
       (1) At least one parent of the child is a citizen of the United States,
       whether by birth or naturalization;

       (2) The child is under the age of eighteen years; and

       (3) The child is residing in the United States in the legal and
       physical custody of the citizen parent pursuant to a lawful
       admission for permanent residence. 3

Gutierrez was born in Colombia on March 29, 1983 and entered the United
States with his father. Gutierrez’s father became a naturalized United States
citizen on July 25, 1997. Gutierrez then applied for, and ultimately obtained,
lawful permanent resident status. Thus, Gutierrez satisfies several of the
CCA’s prerequisites for citizenship.
       The crucial question, however, is when Gutierrez became a lawful
permanent resident. If he became a lawful permanent resident after he turned
eighteen, then he is ineligible for citizenship under the CCA. 4 If, instead, he




       2 Id. § 1431.
       3 Id.
       4 See Gonzelez-Lupercio v. Lynch, 613 F. App’x 443, 444-45 (5th Cir. 2015) (“Since

Gonzalez failed to establish that he was admitted for lawful permanent residence while under
the age of eighteen, the BIA did not err in finding that he did not satisfy the statutory
requirements for derivative citizenship.” (citing Pena v. Holder, 521 F. App’x 347, 348 (5th
Cir. 2013))).
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                                       No. 14-60693
became a lawful permanent resident before he turned eighteen, then he
automatically became a citizen under the CCA, and he is not subject to removal
proceedings.
       Gutierrez submitted his application for lawful permanent resident
status on October 23, 1997, before he turned eighteen. On May 30, 2000,
Gutierrez, then seventeen years old, met with an INS officer for his adjustment
of status interview. During that interview, the INS officer signed an I-89 Form
which certified that Gutierrez was entitled to a permanent resident card.
       However, United States Citizenship & Immigration Services (“USCIS”)
did not formally approve Gutierrez’s application and issue his permanent
resident card until March 15, 2004, long after Gutierrez’s eighteenth birthday.
       We must therefore decide whether Gutierrez became a lawful permanent
resident in 2000, when the INS officer signed the I-89 Form certifying that
Gutierrez was eligible for a permanent resident card, or in 2004, when USCIS
formally approved his application and actually issued the card.


                                              II.
       We agree with the BIA that Gutierrez became a permanent resident in
2004, when USCIS formally approved his application. 8 U.S.C. § 1255(b)
provides that an alien becomes a lawful permanent resident on “the date the
order of the Attorney General approving the application for the adjustment of
status is made.” 5 The I-89 Form that the INS officer certified in 2000 was not
an “order of the Attorney General” approving Gutierrez’s application for




       58 U.S.C. § 1255(b). Accord 8 C.F.R. § 1245.2(a)(5)(ii) (“If the application is approved,
the applicant's permanent residence shall be recorded as of the date of the order approving
the adjustment of status.”).
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                                        No. 14-60693
adjustment of status. 6 Thus, Gutierrez did not become a lawful permanent
resident in 2000. Instead, Gutierrez became a lawful permanent resident in
2004, after his eighteenth birthday. Gutierrez is therefore not entitled to
citizenship under the CCA, and he is subject to removal proceedings.


                                              III.
       Gutierrez argues in the alternative that the United States is equitably
estopped from removing him from the country because it unreasonably delayed
issuing his lawful permanent resident card. He emphasizes that the INS officer
informed Gutierrez at his adjustment interview that Gutierrez would have his
permanent resident card in three months, yet USCIS delayed four years before
officially issuing his card. INS committed various bureaucratic errors when
processing his fingerprint and criminal history checks, which needlessly
exacerbated the delay. Gutierrez and his parents diligently followed up with
INS regarding the status of his adjustment application, yet INS nevertheless
failed to timely approve his application.
       We are sympathetic to Gutierrez’s plight. The United States’s
unreasonable delay cost Gutierrez the opportunity to obtain citizenship under
the CCA and thereby avoid removal.
       However, we cannot estop the United States on the facts of this case. We
are bound by our published opinion in Robertson-Dewar v. Holder, 7 which
rejected a similar equitable estoppel claim. Robertson-Dewar, like Gutierrez,
claimed that he became a lawful permanent resident before his eighteenth




       6  We therefore disagree with the dissent’s assertion that the I-89 Form “ha[s] the effect
of conferring [lawful permanent resident] status” under the facts of this case.
        7 646 F.3d 226 (5th Cir. 2011).

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                                     No. 14-60693
birthday and thereby became eligible for citizenship. 8 However, USCIS
inexplicably waited eleven years before ruling on Robertson-Dewar’s
application for a certificate of citizenship. 9 As a result of its extreme delay, the
United States had still not adjudicated Robertson-Dewar’s application by the
time it initiated removal proceedings against him. 10
      Robertson-Dewar argued that “the government should be equitably
estopped from deporting him because he should have been granted citizenship
based on the application his father filed before he turned eighteen.” 11 He
claimed that “the government should not be permitted to deport him because
of its failure to timely perform a mandatory duty.” 12
      We disagreed. We noted that “[c]ourts have been exceedingly reluctant
to grant equitable estoppel against the government.” 13 “‘[T]o state a cause of
action for estoppel against the government, a private party must allege more
than mere negligence, delay, inaction, or failure to follow an internal agency
guideline.’” 14 Instead, the petitioner must establish, among other things,
“affirmative misconduct by the government.” 15
      We concluded that Robertson-Dewar failed to show “affirmative
misconduct by the government that goes beyond mere negligence or delay.” 16
Because Robertson-Dewar presented no “evidence that the government
delayed ruling on his application with the intent of not acting therein until he


      8  Id. at 227, 229.
      9  Id. at 227.
       10 Id.
       11 Id. at 229.
       12 Id.
       13 Id. (citing Office of Pers. Mgmt. v. Richmond, 496 U.S. 414 (1990)).
       14 Id. (quoting Fano v. O’Neill, 806 F.2d 1262, 1265 (5th Cir. 1997)) (brackets and

internal quotation marks omitted).
       15 Id. (citing United States v. Bloom, 112 F.3d 200, 205 (5th Cir. 1997)).
       16 Id. at 230.

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                                        No. 14-60693
had aged out of the statute,” he was “not entitled to the remedy of equitable
estoppel to preclude his deportation.” 17
       In all relevant respects, Robertson-Dewar is indistinguishable from the
instant case. There is no evidence that the United States purposefully “delayed
ruling on [Gutierrez’s] application with the intent of not acting therein until
he had aged out of the statute,” 18 so there is no evidence of affirmative
misconduct. We must therefore reject Gutierrez’s equitable estoppel argument.
       PETITION DENIED. 19




       17  Id.
       18  See id.
        19 The dissent would also “conclude that Gutierrez is entitled to equitable tolling.”

However, Gutierrez does not raise an equitable tolling argument in his brief. “This court ‘will
not raise and discuss legal issues that [an appellant] has failed to assert.’” Longoria v. Dretke,
507 F.3d 898, 901 (5th Cir. 2007) (quoting Brinkmann v. Abner, 813 F.2d 744, 748 (5th Cir.
1987)).
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                                 No. 14-60693
GRAVES, Circuit Judge, dissenting.

      Because I would grant the petition for review, I respectfully dissent.
      Orlando Gutierrez began residing in the United States with his parents
and siblings in February of 1985 when he was approximately two years old.
Gutierrez was brought to the United States by his father, who was then a
Lawful Permanent Resident (LPR). His father was naturalized on July 25,
1997, when Gutierrez was fourteen years old. His father filed an application
for adjustment of status for Gutierrez just a few months later on October 23,
1997. Gutierrez attended his adjustment interview on May 30, 2000, when he
was seventeen years and two months old. At the hearing, both Gutierrez and
his sister were told they would have their LPR cards within three months. The
sister received her card approximately two months later. Gutierrez did not
receive his card for nearly four years. Then in 2013, Gutierrez was placed in
removal proceedings as a LPR for a conviction earlier that year.
      Gutierrez asserts that the BIA erred in its conclusion that he did not
obtain derivative citizenship under the Child Citizenship Act (CCA) because
his application for permanent residence was not approved until March 15,
2004, which was after his eighteenth birthday. Specifically, Gutierrez asserts
that, for purposes of the CCA, the certification of the I-89 form was sufficient
to demonstrate that he was a lawful permanent resident prior to his eighteenth
birthday and allowed him to automatically acquire citizenship.
      Under the CCA:
            A child born outside of the United States automatically
      becomes a citizen of the United States when all of the following
      conditions have been fulfilled:
            (1) At least one parent of the child is a citizen of the United
            States, whether by birth or naturalization.

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                                  No. 14-60693
             (2) The child is under the age of eighteen years.
             (3) The child is residing in the United States in the legal and
             physical custody of the citizen parent pursuant to a lawful
             admission for permanent residence.


8 U.S.C. § 1431(a).
      The only issue is whether Gutierrez was residing pursuant to a lawful
admission for permanent residence prior to his eighteenth birthday. Gutierrez
asserts that he was because his application for adjustment was approved on
May 30, 2000, when he was still seventeen years old. The BIA concluded that
Gutierrez did not derive citizenship until March 14, 2004, under 8 C.F.R. §
1245.2(a)(5)(ii).
      There is no authority to indicate that the INS certification of Gutierrez’s
I-89 form does not have the effect of conferring LPR status for the limited
purpose of complying with section 1431(a)(3) when, as here, the government
misrepresented to Gutierrez that he would receive his permanent resident card
within three months, the government misrepresented other reasons for the
delay and concealed the actual reason for the delay, the petitioner diligently
and timely did everything he could do, and the delay was entirely the fault of
the government.
      Under 8 U.S.C. § 1255(a), Gutierrez was eligible to have his status
adjusted by showing: “(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). Gutierrez was eligible upon application and, from that point on, the
process was basically a procedural formality. Further, as Gutierrez asserts,


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                                  No. 14-60693
the DHS officer certified on May 30, 2000, that he was entitled to receive his
LPR card.
      However, even if the INS certification of Gutierrez’s I-89 form could not
have the effect of conferring LPR status for the limited purpose of complying
with section 1431(a)(3), I would conclude that Gutierrez is entitled to equitable
tolling. The record here establishes that Gutierrez clearly demonstrated the
due diligence necessary to invoke equitable tolling.
      This court has said that:
      As a discretionary doctrine that turns on the facts and
      circumstances of a particular case, equitable tolling does not lend
      itself to bright-line rules, but we draw on general principles to
      guide when equitable tolling is appropriate. We must be cautious
      not to apply the statute of limitations too harshly.


Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999).
      On habeas, this court has applied equitable tolling where a district court
order unintentionally misled a prisoner. United States v. Patterson, 211 F.3d
927, 931 (5th Cir. 2000).
      In immigration cases, courts have applied equitable tolling to statutory
deadlines. See Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000) (filing deadline may
be equitably tolled, but petitioner did not exercise due diligence); Borges v.
Gonzales, 402 F.3d 398, 406 (3d Cir. 2005) (180-day limitation for reopening in
absentia order of removal could be tolled due to counsel's fraud); Varela v. INS,
204 F.3d 1237 (9th Cir. 2000) (tolling of filing deadline for motion to reopen
after legal assistant incorrectly assured alien he did not have to leave United
States before nine-month voluntary departure deadline) superseded by statute
as stated in Granados-Oseguera v. Mukasey, 546 F.3d 1011 (9th Cir. 2008); and


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                                        No. 14-60693
Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir. 1999) (180-day filing deadline
provided in 8 U.S.C. § 1252b(c)(3) is subject to equitable tolling).
       Here, Gutierrez was required by statute to obtain LPR status.                         He
applied for it years in advance – as soon as his father was naturalized. He
showed up for his interview. The government misrepresented to Gutierrez that
he would receive his permanent resident card within three months.                           The
government also made other affirmative misrepresentations as to the reason
for the delay in response to the repeated attempts by the Gutierrez family to
resolve the matter and concealed the fact that the paperwork was misfiled. 1
       Alternatively, Gutierrez asserts that the doctrine of equitable estoppel
bars the government from removing him and denying his citizenship claim.
       A party seeking equitable estoppel against the government must
establish:
       (1) affirmative misconduct by the government, (2) that the
       government was aware of the relevant facts and (3) intended its
       act or omission to be acted upon, (4) that the party seeking estoppel
       had no knowledge of the relevant facts and (5) reasonably relied on



       1  Gutierrez’s mother testified that when his card did not arrive, she went to the Dallas
INS office nine or ten times and was given various excuses about the officer in charge of the
case having gotten married, being away on a honeymoon and leaving things in “disarray.”
She also stated that an INS official finally told her not to return to the INS office or security
would eject her. Gutierrez’s father also made repeated inquiries with the INS.
        Gutierrez’s mother also testified regarding letters they had sent to the Governor and
a United States Senator attempting to get the matter resolved. In the letter, Gutierrez’s
father stated that INS officials had said the delay was a result of waiting for an FBI rap sheet
based on Gutierrez’s fingerprints.
        Gutierrez’s mother further testified that she ultimately got into contact with an INS
official in an out-of-state office who investigated Gutierrez’s case and discovered a “huge
error,” which was that his paperwork had been “mixed up” with his sister’s papers and filed
in her folder. Gutierrez’s mother testified that the official forwarded the information to the
Dallas INS office, which made a new appointment for Gutierrez and that shortly thereafter
Gutierrez received his permanent resident card in the mail.

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                                  No. 14-60693
       the government's conduct and as a result of his reliance, suffered
       substantial injury.


Robertson-Dewar v. Holder, 646 F.3d 226, 229 (5th Cir. 2011).
       The majority concludes that it cannot estop the United States here under
Robertson-Dewar, which it says is indistinguishable.          I disagree because
Robertson-Dewar is distinguishable.          Unlike Gutierrez, Robertson-Dewar
submitted the wrong form, offered no evidence that a DHS officer had certified
he was entitled to citizenship and offered nothing other than the delay to
satisfy the prongs required for equitable estoppel to apply. Here, Gutierrez
submitted the correct form, offered evidence that a DHS officer had certified
he was entitled to LPR status and he can satisfy the applicable prongs, as
discussed below. Further, this court specifically acknowledged in Robertson-
Dewar that it was “not called upon to decide whether a court can ever grant
equitable estoppel against the government.” Robertson-Dewar, 646 F.3d at
230.
       With regard to Gutierrez, under the first prong, “[a]ffirmative
misconduct    requires   an    affirmative    misrepresentation   or   affirmative
concealment of a material fact by the government.” Linkous v. United States,
142 F.3d 271, 278 (5th Cir. 1998) (internal marks and citation omitted). In this
case, the government misrepresented to Gutierrez that he would receive his
permanent resident card within three months. He did not receive his card
within three months.          The government also made other affirmative
misrepresentations as to the reason for the delay in response to the repeated
attempts by the Gutierrez family to resolve the matter, i.e., the officer got
married, went on a honeymoon, fingerprints, etc. Moreover, the government
affirmatively concealed the fact that Gutierrez’s paperwork was misfiled.


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                                  No. 14-60693
      Under prong two, the government was aware of the relevant facts
because the Gutierrez family repeatedly contacted them about the delay.
There was correspondence, forms and testimony to support this contact.
Further, any misfiling was done by the government.
      Under prong three, the government intended its act or omission to be
acted upon because the Gutierrez family was instructed to just wait. The
sister’s card indeed arrived within three months. Upon additional inquiries as
to the reason for the delay with Gutierrez’s permanent resident card, the
government then instructed the Gutierrez family to keep waiting and
eventually told them to stop returning to the office.
      Under prong four, the record indicates that Gutierrez had no knowledge
of the relevant facts until contacting an out-of-state office.
      Under prong five, Gutierrez had no choice but to rely on the
government’s conduct, thus, his reliance was reasonable. This is supported by
the fact that he eventually received his permanent resident card. He suffered
substantial injury in that there is an order for his removal and he has been
denied citizenship.
      Thus, I would conclude that in a case such as this where the government
provided a time-frame, repeatedly instructed Gutierrez to wait and provided
numerous excuses despite the diligent effort of the Gutierrez family, the
unreasonableness      of   the    delay        combined   with    the    affirmative
misrepresentations and concealment of the actual reason for the delay warrant
the application of equitable estoppel.
      For these reasons, I would grant the petition for review and I respectfully
dissent.




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