235 F.3d 26 (1st Cir. 2000)
JUAN FRANCISCO ROJAS-REYNOSO, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 00-1611.
United States Court of Appeals, For the First Circuit.
Heard Nov. 15, 2000.Decided December 21, 2000.

ON PETITION FOR REVIEW OF AN ORDER OF DEPORTATION.
Jose Guillermo Gonzalez for petitioner.
Ann Carroll Varnon, with whom David W. Ogden, Assistant  Attorney General, Civil Division, and Margaret J. Perry,  Senior Litigation Counsel, were on brief for respondent.
Before Torruella, Chief Judge, Lynch, Circuit Judge, and Garcia-Gregory, District Judge.*
LYNCH, Circuit Judge.


1
Juan Francisco Rojas-Reynoso, a  citizen of the Dominican Republic, petitions for review of the April  20, 2000 decision of the Board of Immigration Appeals dismissing his  appeal from the denial of his motion to reopen his deportation  proceedings.  We affirm that dismissal.

I.

2
In 1991, Rojas-Reynoso illegally entered the United  States.  On December 4, 1993, he married a United States citizen. On  May 20, 1994, his wife applied for a visa petition on his behalf so  that he could seek adjustment of immigration status within the United  States from non-immigrant to permanent resident alien.  On September  17, 1994, she was notified that the application had been approved.


3
On May 23, 1995, the INS issued Rojas-Reynoso an Order to Show  Cause, charging him with entry without inspection in violation of  section 241(a)(1)(B) of the Immigration and Nationality Act.  At his  August 15, 1995 deportation hearing, Rojas-Reynoso admitted the  allegations in the OSC and conceded deportability.  He requested  extended voluntary departure until February 15, 1996, in place of  deportation.  That request was granted, and an alternate order of  deportation to the Dominican Republic was entered.   The immigration  judge, Rafael B. Ortiz-Segura, orally instructed Rojas-Reynoso that  any request he made before that time to have the voluntary departure  date extended was within the sole discretion of the local INS  district director.  Furthermore, the immigration judge warned Rojas-Reynoso that if he failed to timely depart, he would be statutorily  ineligible for five years from the scheduled date of departure for  various forms of relief, including adjustment of immigration status.1 To avoid the application of this five-year bar, an alien must  demonstrate "exceptional circumstances," defined as "exceptional  circumstances (such as serious illness of the alien or death of an  immediate relative of the alien, but not including less compelling  circumstances) beyond the control of the alien." INA § 242B(f)(2), 8  U.S.C. § 1252b(f)(2) (repealed 1996); Shaar v. INS, 141 F.3d 953,  956-58 (9th Cir. 1998) (discussing the narrow definition of  "exceptional circumstances" adopted by Congress).  Nonetheless,  Rojas-Reynoso took no steps to seek adjustment of status, despite his  knowledge since September 17, 1994, that he could do so.


4
Rojas-Reynoso failed to depart by the scheduled date. On  March 18, 1996, over a month after his voluntary departure date had  passed, Rojas-Reynoso filed a written motion to reopen his  deportation proceedings to apply for an adjustment of status based on  the approved visa petition filed by his United States citizen spouse. Although the governing regulations provided that "a request by an  alien for . . . an extension of time within which to depart  voluntarily shall be filed with the district director having  jurisdiction over the alien's place of residence,"  8 C.F.R. § 240.57  (emphasis added), Rojas-Reynoso instead claimed he had appeared in  person before the INS to request an extension of the voluntary  departure date.  On April 3, 1996, the immigration judge issued an  order granting reopening and scheduling a hearing.


5
The INS then filed an interlocutory appeal with the BIA  challenging the reopening on the ground that Rojas-Reynoso was  statutorily ineligible for adjustment of status because he had failed  to comply with scheduled voluntary departure date.  On January 16,  1997, the BIA declined to consider the interlocutory appeal until the  proceedings were completed and remanded to the immigration judge.


6
On April 10, 1997, the INS filed a motion for  reconsideration of the reopening.  A continued hearing was held on  March 31, 1998, before a different immigration judge, Nancy R.  McCormack.  At the hearing, Rojas-Reynoso's counsel represented that  she and Rojas-Reynoso had appeared before the INS on February 8,  1996, to request an extension of the February 15, 1996 voluntary  departure date.  Rojas-Reynoso's counsel also claimed that on  February 26, 1996, approximately eleven days after the voluntary  departure date had passed, she met with a deportation officer to  discuss Rojas-Reynoso's case and his requests for extension of the  voluntary departure date.  Counsel further contended that since no  answer to the oral requests for an extension had been given, she  wrote a letter to the INS on February 29, 1996, approximately  fourteen days after the voluntary departure date had passed,  asserting that a timely request for voluntary departure had been made  and that she considered that request to be pending.


7
When asked what "exceptional circumstances" prevented  Rojas-Reynoso from departing within the voluntary departure date,  counsel replied that her client had not departed because he believed  he could remain in the country until the district director responded  in writing to the oral requests for an extension.  Counsel also noted  that in late February or March 1996 she attended a meeting of the  American Immigration Lawyers' Association.  Counsel alleged that at  that meeting, the INS district director indicated that an alien who  had timely requested an extension of voluntary departure could remain  in the United States without any adverse consequences until the  request was decided.  Counsel conceded that Rojas-Reynoso neither  received an extension of the voluntary departure date nor departed  before that date had expired.


8
The immigration judge terminated the reopened proceedings,  finding they were barred by statute, and reinstated the August 15,  1995 alternate order of deportation.  Specifically, the immigration  judge found that Rojas-Reynoso had been advised orally and in writing  of the consequences of his failure to depart by the voluntary  departure date.  The immigration judge also noted that Rojas-Reynoso  did not file his motion to reopen until over one month after the  period for voluntary departure had expired and that he had never been  granted an extension of the voluntary departure date.  She further  concluded that the alleged statements of the district director at the  1996 AILA meeting were made after Rojas-Reynoso's voluntary departure  date had passed and that Rojas-Reynoso's alleged excuse for his  failure to depart timely did not constitute the "exceptional  circumstances" required under the INA to excuse the failure to depart  by a voluntary departure date.


9
Rojas-Reynoso appealed the decision to the BIA. The  BIA affirmed the immigration judge's denial of the motion to  reopen and for adjustment of status.  The BIA reasoned that  (1) there were no "exceptional circumstances" as it had  previously defined the term in In re Shaar, Interim Decision  No. 3290, 1996 WL 426889 (BIA July 11, 1996), aff'd 141 F.3d  953 (9th Cir. 1998), and (2) Rojas-Reynoso's argument was  basically one of equitable estoppel.  Assuming arguendo that  the equitable estoppel doctrine applied to the government in  immigration cases, the BIA utilized the three-part test of Heckler v. Community Health Servs., 467 U.S. 51 (1984),2 and  focused on whether Rojas-Reynoso's reliance was reasonable. The BIA found that Rojas-Reynoso had not established  reasonable reliance because: (1) he knew his petition would  likely be denied as he acknowledged in his March 18, 1996  motion to reopen his deportation proceedings and as confirmed  by the minutes of a later AILA meeting on August 21, 1997,  stating that extensions "were not being granted in most  cases"; (2) Rojas-Reynoso produced no evidence he was ready to  depart as ordered, but for the district director's statements;  (3) the written request for an extension was not filed until  after the voluntary departure date; (4) other than the minutes  from the August 21, 1997 AILA meeting, held approximately  seventeen months after the passage of Rojas-Reynoso's  voluntary departure date, Rojas-Reynoso produced no evidence  that the district director had made the alleged statements  prior to Rojas-Reynoso's voluntary departure date; and (5)  Rojas-Reynoso himself claimed that the district director first  made the alleged statements "on or about late February or the  beginning of March of 1996," and therefore after the  expiration of the voluntary departure period.  Accordingly,  the BIA dismissed Rojas-Reynoso's appeal.

II.

10
We review the BIA's dismissal of a denial of a motion to  reopen for abuse of discretion.  INS v. Doherty, 502 U.S. 314, 323  (1992).  We review the BIA's legal conclusions de novo, with  appropriate deference to the agency's interpretation of the  underlying statute in accordance with administrative law principles. Gailius v. INS, 147 F.3d 34, 43 (1st Cir. 1998).


11
At the heart of this case are two questions: whether Rojas-Reynoso fell within the "exceptional circumstances" set forth under  the INA; or whether, nonetheless, the INS is equitably estopped from  denying his motion.


12
A. "Exceptional Circumstances"


13
In his appeal to this court, Rojas-Reynoso does not  argue, as he did before the BIA, that he met the "exceptional  circumstances" test.  Although the argument is therefore  waived, we note again that the term "exceptional  circumstances" refers to "exceptional circumstances (such as  serious illness of the alien or death of an immediate relative  of the alien, but not including less compelling circumstances)  beyond the control of the alien."  Shaar, 141 F.3d at 957 (citing  8 U.S.C. § 1252b(f)(2)).3  Rojas-Reynoso presents no such  "exceptional circumstances," and we conclude, as did the BIA,  that he fails that test.

B.  Equitable Estoppel

14
Rojas-Reynoso now says that this case is not  properly analyzed under the "exceptional circumstances" test  because his voluntary departure date was extended as a result  of the policy of the INS district director to extend voluntary  departure dates upon oral request until there was a written  decision declining such request.  Further, he says the  district director had sole jurisdiction to extend the  voluntary departure deadline, and that any such decision is  not reviewable.  See 8 C.F.R. § 240.57.4  We assume  arguendo the equitable estoppel doctrine applies with respect  to an alien's reasonable reliance on the "affirmative  misconduct" of the Government in its enforcement of the  immigration laws.  See Akbarin v. INS, 669 F.2d 839, 842-44  (1st Cir. 1982) (discussing the application of estoppel  principles to the Government).5  As the agency applied the  correct test and the attack is on the decision reached, we  review for abuse of discretion, and find there was none. Also, Rojas-Reynoso did not make the argument before the BIA  in the terms that he now makes: that the voluntary departure  deadline was extended by the supposed oral policy of the  district director to extend departure deadlines upon oral request  until the request was acted on.  Assuming dubitante the argument is  preserved by Rojas-Reynoso's vague equitable argument before the  agency, it still fails.  The immigration judge found that the  departure date was not extended and that the supposed statement by  the district director, if made at all,6 was not made before the  date of Rojas-Reynoso's required departure.7  Petitioner's  vague claims that there was a "policy" in effect at the local  INS office before his February 15, 1996 voluntary departure  date is unsupported by any statement from the district  director and does not controvert those specific findings. Those findings doom his petition, and the petition is denied.8



Notes:


*
  Of the District Puerto Rico, sitting by designation.


1
  Subject to [receiving written and oral notice of the  consequences of remaining in the United States after the  scheduled day of departure], any alien allowed to depart  voluntarily under section 1254(e)(1) of this title . . .  who remains in the United States after the scheduled date  of departure, other than because of exceptional  circumstances, shall not be eligible for relief  [including, inter alia, adjustment of status] for a period  of 5 years after the scheduled date of departure or the  date of unlawful reentry, respectively.
INA § 242B(e)(2)(A), 8 U.S.C. § 1252b(e)(2)(A) (repealed  1996).


2
  Under Heckler, an individual seeking to estop the U.S.  Government must show, at a minimum, that the Government or its agents  engaged in affirmative misconduct, that the individual reasonably  relied on the Government's act or representation, and that the  individual was prejudiced by that reliance.  See 467 U.S. at 59-61.


3
  Thus, the mere request for an extension of a  voluntary departure date, even if made in writing as required,  does not itself constitute "exceptional circumstances" and  thereby extend such date.  See Mardones v. McElroy, 197 F.3d  619, 624 (2d Cir. 1999).  Similarly, the mere filing of a motion  to reopen deportation proceedings does not itself constitute  "exceptional circumstances."  Shaar, 141 F.3d at 957; Stewart v. INS,  181 F.3d 587, 596 (4th Cir. 1999).


4
  That same provision provides that any request for  extension of the time for voluntary departure shall be filed with the  district director.


5
  In Akbarin, we stated that "the soundest method for  analyzing a claim of estoppel against the Government in an  immigration case is to make two principal inquiries: whether the  Government's action was error, and, if the complaining party reacted  to the error, whether the action was intended to or could reasonably  have been intended to induce reliance."  669 F.2d at 843.


6
 If the district director did later make a statement that a  voluntary departure deadline could be extended by a mere oral request  until the office acted on the request, and if aliens relied to their  detriment on such a statement, that would be a matter of considerable  concern.  This case does not, however, present that issue.


7
  Moreover, the minutes of the August 21, 1997 AILA meeting  held long after Rojas-Reynoso's voluntary departure date state that  extensions "were not being granted in most cases."


8
  Rojas-Reynoso also argues that the BIA erred in not  accepting the findings of fact of Judge Ortiz-Segura, the immigration  judge who initially reopened the proceedings on the ground that the  motion to reopen was "timely and reasonable." However, Judge Ortiz-Segura did not make any specific findings as to the only material  facts in issue -- the existence, nature, and time-frame of the  district director's purported policy of extending voluntary departure  dates upon oral request.  Indeed, Rojas-Reynoso concedes that what  prompted Judge Ortiz-Segura to grant his motion to reopen "is only  conjecture."   Thereafter, the second immigration judge, Nancy R.  McCormack, properly found that Rojas-Reynoso was ineligible for  relief.


