                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-24-2003

Ali-Bocas v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket 02-2518




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                    Case No: 02-2518

             DENYSE VASHANTI ALI-BOCAS; ANTONIA ALI-BOCAS;
                         LEEANDRA ALI-BOCAS,

                                                        Petitioners


                                             v.

                          JOHN ASHCROFT, Attorney General
                                of the United States,

                                                        Respondent

                          Petition for review of an Order of the
                         Immigration and Naturalization Service
                                 (Case No. A 74-993-712)

                       Submitted Under Third Circuit LAR 34.1(a)
                                   on April 3, 2003

                        Before: MCKEE, SMITH, Circuit Judges,
                           and HOCHBERG, District Judge*

                                 (Filed: April 24, 2003 )

                               OPINION OF THE COURT




_______________
* Hon. Faith Hochberg, United States District Court for the District of New Jersey, sitting
by designation.
SMITH, Circuit Judge

                                            I.

      Petitioner Denyse Vashanti Alibocas seeks review of a May 7, 2002 final order of

removal by the Board of Immigration Appeals (hereinafter “BIA” or “Board”), affirming

an immigration judge’s decision finding removability, and denying asylum and

withholding of deportation. The BIA also affirmed the denial of Alibocas’s application

for adjustment of status under Section 245 of the Immigration and Nationality Act

(hereinafter “INA”), 8 U.S.C. § 1255 (2000). We will affirm the BIA’s decision.

                                            II.

      Petitioner Alibocas is a native and citizen of Trinidad. She arrived in the United

States in October 1989 with her husband, Martinez Alibocas, and their two children. The

Alibocas family entered the United States as nonimmigrant visitors with authorization to

remain for a temporary period not to exceed six months.

      Alibocas and her husband began working with Reverend Edwards, pastor of a

Pentecostal church in Philadelphia. Alibocas served as the director of the school

affiliated with the church, and her husband was an assistant pastor. Alibocas’s husband

filed a religious worker immigrant petition with the INS. The INS approved the

immigrant petition, but Alibocas’s husband died before his application for adjustment of




                                            2
status was adjudicated by the INS.1 Alibocas withdrew her application for adjustment of

status after her husband died.

       The Pentecostal church then filed a religious worker immigrant petition on behalf

of Alibocas, pursuant to Section 203(b)(4) of the INA, 8 U.S.C. § 1153(b)(4) (1994). The

INS denied the petition, and Alibocas appealed to the INS’s Administrative Appeals Unit

(hereinafter “AAU”). On October 26, 1998, the AAU dismissed the appeal because

Alibocas’s duties with the church did not require any specific religious training, and

therefore did not constitute a qualifying religious vocation or occupation for purposes of

approval of an immigration petition for a religious worker. 2

       Meanwhile, the INS undertook removal proceedings against Alibocas, serving her

a Notice of Appear in removal proceedings on July 1, 1997. The Notice charged Alibocas

with removability for having remained in the United States for a time longer than

permitted. She appeared before an immigration judge, admitted the factual allegations in

the Notice, conceded removability, and was granted voluntary departure for sixty days.


  1
     Alibocas stated that her husband filed for religious worker status on or about March
16, 1990, and that the INS lost the file until 1993. As part of her appeal to the BIA, she
filed an affidavit stating that her husband filed a second application in 1995 because the
INS had not acted on the first application in a timely manner. Upon her husband’s death,
the family withdrew their applications for adjustment of status that had been based on the
husband’s religious immigrant worker petition, and reapplied based on Alibocas’s own
employment. INS files indicate that Alibocas’s husband filed a petition for religious
worker special immigrant status on May 30, 1996, which was approved on September 23,
1996 and revoked on May 5, 1997, following his death on December 2, 1996.
  2
   Alibocas does not challenge the AAU decision with respect to her religious worker
immigrant position.

                                             3
On May 7, 2002, the BIA affirmed the immigration judge’s decision and dismissed the

appeal.

                                            III.

       The BIA had jurisdiction pursuant to 8 C.F.R. §§ 3.1(b)(3) and 240.15 (2001),

which grants the BIA appellate jurisdiction over decisions of immigration judges in

removal proceedings. We have jurisdiction under Section 242(a) of the INA, 8 U.S.C. §

1252(a) (2000).

                                            IV.

       We generally afford deference to decisions of administrative agencies when we are

reviewing the agency’s interpretation of a statute the agency is charged with

administering. See Patel v. Ashcroft, 294 F.3d 465, 467 (3d Cir. 2002) (citing Chevron

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)).

                                            V.

       A.     The BIA properly held that Alibocas was ineligible for adjustment of status

       Before the BIA, Alibocas argued that had the INS not mismanaged her husband’s

file, he would have been granted status as a lawful permanent resident prior to his sudden

death. As a result, Alibocas claims that she then would have been able to adjust her status

and would not have had to undergo removal proceedings. While noting that “there are

sympathetic circumstances in this case,” the BIA determined that the immigration judge

did not have nunc pro tunc authority to approve the adjustment of status application of



                                             4
Petitioner’s deceased husband. We agree, despite what are indeed “sympathetic

circumstances.” The INS correctly asserts that the Attorney General’s authority to review

the denial of employment-based visa petitions or petitions relating to special immigrants,

such as Alibocas’s husband’s petition, has been delegated to the AAU. 8 C.F.R. §

204.5(n)(2) provides that “the denial of a petition for classification under § 203(b)(1)

[through] (b)(4) of the Act (as it relates to special immigrants under section 101(a)(27)(C)

of the Act) shall be appealable to the Associate Commissioner for Examinations.” See

also M atter of Aurelio, 19 I & N Dec. 458, 460 (BIA 1987) (Proceedings in which visa

petitions are adjudicated are separate from exclusion and deportation proceedings, such

that immigration judges have no authority to decide visa petitions. The BIA lacks

jurisdiction in visa petition proceedings to consider the district director’s decision to

revoke a visa petition following the death of the petitioner.).

       With respect to Alibocas’s own application for adjustment of status, we agree with

the BIA that she is not eligible for adjustment of status pursuant to 8 U.S.C. § 1255(a).

Section 1255(a), which governs “[a]djustment of status of nonimmigrant to that of person

admitted for permanent residence,” provides that adjustment of status is a discretionary

benefit which requires that the alien: (1) make an application for adjustment of status; (2)

be eligible to receive an immigrant visa and be admissible to the United States for

permanent residence; and (3) show that an immigrant visa is immediately available to her

at the time the application is filed. 8 U.S.C. § 1255(a). Since Alibocas’s own application



                                               5
for religious worker immigrant status was denied, and the AAU dismissed her appeal, her

application for adjustment of status was derivative of her husband’s. Her husband,

however, was ineligible for adjustment of status because he died prior to his adjustment

of status interview and final agency action. Alibocas’s application for adjustment of

status was conditioned upon INS approval of her husband’s application pursuant to 8

U.S.C. § 1101(a)(27)(c), and therefore cannot succeed because she was not eligible for an

immigrant visa.3

       Alibocas’s argument that both she and her deceased husband are entitled to nunc




  3
    8 U.S.C. § 1101(a)(27)(C), provides, in relevant part:
      (27) The term “special immigrant” means –
             (C) an immigrant, and the immigrant’s spouse and children if
             accompanying or following to join the immigrant, who –
                    (i) for at least two years immediately preceding the time of
                    application for admission, has been a member of a religious
                    denomination having a bona fide nonprofit, religious
                    organization in the United States;
                    (ii) seeks to enter the United States –
                            (I) solely for the purpose of carrying on the vocation of
                            a minister of that religious denomination,
                            (II) before October 1, 2003 in order to work for the
                            organization at the request of the organization in a
                            professional capacity in a religious vocation or
                            occupation, or
                            (III) before October 1, 2003, in order to work for the
                            organization . . . at the request of the organization in a
                            religious vocation or occupation; and
                    (iii) has been carrying on such vocation, professional work, or
                    other work continuously for at least the 2-year period
                    described in clause (i).
8 U.S.C. § 1101(a)(27)(C) (1994).

                                              6
pro tunc relief because only a ministerial action was required to finalize her husband’s

adjustment of status also must fail. Grants of adjustment in status are discretionary in

nature. 8 U.S.C. § 1255. In addition, aliens who have accepted unauthorized

employment, including religious workers who have worked without authorization for

more than 180 days, are ineligible for adjustment of status. See 8 U.S.C. § 1255(c)(2);

Matter of Bennett, 19 I & N Dec. 21 (BIA 1984) (Alien admitted to the United States as a

nonimmigrant visitor, who worked for a church without the permission of the INS found

to be deportable even though he later qualified as a special immigrant minister and

intended to work for the same church). Since both Alibocas and her husband worked

without INS authorization for the Pentecostal church since their entry into the United

States in 1989, it is quite possible that such unauthorized employment might have barred

Alibocas’s husband from adjustment of status under 8 U.S.C. § 1255(c)(2).

       B.     The BIA properly declined to apply equitable estoppel against the INS, with
              respect to Alibocas’s deceased husband’s adjustment of status application

       Interpreting Alibocas’s appeal as one of equitable estoppel, the BIA stated that

“[e]ssentially, she is requesting this Board (1) to adjust her husband’s status as of 1990

and (2) to then grant her (and her children) immigrant status under former section

102(a)(27)(D)(ii) of the Act as aliens ‘accompanying or following to join’ the principal

alien.” A.R. 3. The BIA correctly determined that “this Board and Immigration Judges

are without authority to apply the doctrine of equitable estoppel against the Service so as

to preclude it from taking a lawful course of action that it is empowered to pursue by

                                              7
statute and regulation.” A.R. 3; See M atter of Hernandez-Puente, 20 I & N, Dec. 335

(BIA 1991) (determining that BIA has no jurisdiction to review a decision to deny

adjustment of status, or to review a failure to act on an application for adjustment of

status). Consequently, the BIA properly determined that it did not have jurisdiction to

remedy a failure of the INS to act on the adjustment application of Petitioner’s husband.

       C.     Alibocas has failed to meet the requirements for equitable estoppel

       The Supreme Court has never upheld equitable estoppel against the government,

but has mentioned the possibility that, in the right case, some type of “affirmative

misconduct” on the part of the government, combined with the traditional elements of

equitable estoppel, might warrant estoppel against the government. See Office of

Personnel Management v. Richmond, 496 U.S. 414, 421 (1990); see also Yang v. INS,

574 F.2d 171, 175 (3d Cir. 1978) (stating that estoppel requires proof of affirmative

misconduct on the part of the government but declining to decide whether estoppel is

appropriate in that case). In order to recover based on traditional principles of equitable

estoppel, Alibocas must prove: (1) a misrepresentation by the INS; (2) on which she

reasonably relied; (3) to her detriment. U.S. v. Asmar, 827 F.2d 907 (3d Cir. 1987).

Here, Alibocas complains that she reasonably relied on INS assertions that, after having

lost her husband’s file for three years, the INS would find it and act on it efficiently. We

are not prepared to find reasonable reliance because Alibocas voluntarily withdrew her

husband’s application. Because Alibocas has not satisfied the traditional elements of



                                              8
equitable estoppel, we need not address the issue of whether there was affirmative

misconduct on the part of the government.

VI.   CONCLUSION

      For the foregoing reasons, the order of the Board of Immigration Appeals will be

affirmed.




               TO THE CLERK:


                         Please file the foregoing Opinion.




                                                       D. Brooks Smith
                                                       Circuit Judge




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