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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 99-1564 <br> <br>           DIANA C. WESTOVER, a/k/a DIANA C. BINDLOSS, <br> <br>                           Petitioner, <br>                                  <br>                                v. <br> <br>                 JANET RENO, ATTORNEY GENERAL OF <br>                       THE UNITED STATES, <br> <br>                           Respondent. <br> <br> <br> <br>              PETITION FOR REVIEW OF AN ORDER OF THE <br>                  BOARD OF IMMIGRATION APPEALS <br> <br> <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br>               Boudin and Lynch, Circuit Judges. <br>                                 <br>                                 <br>                                 <br>  M. Ronald Gould, with whom Justin Gould was on brief, for <br>appellant. <br>  John S. Hogan, Attorney, Office of Immigration Litigation, <br>with whom David W. Ogden, Acting Assistant Attorney General, and <br>Karen Fletcher Tortenson, Assistant Director, were on brief, for <br>respondent. <br> <br> <br> <br> <br> <br> <br>February 9, 2000 <br> <br> <br> <br>

         LYNCH, Circuit Judge.  Diana Westover is a native of <br>Tanzania who married her American fianc after removal proceedings <br>against her commenced in 1992.  Westover has remained in the United <br>States for the past eight years while proceedings against her have <br>been pending.  She seeks review of a Board of Immigration Appeals <br>(BIA) final order of removal.  In issuing the order, the BIA upheld <br>the decision of the Immigration Judge finding Westover removable <br>and denying her applications for the discretionary relief of <br>adjustment of status and voluntary departure.  Certain actions by <br>the INS in this case raise concerns, but in the end those actions <br>are not relevant to the legitimate basis for the removal order, <br>which we affirm.   <br>         Westover attacks both the finding that she is removable <br>and the denial of her application for adjustment of status.  <br>Westover argues (1) that her deportation proceedings should be <br>voided because they were the result of an illegal search and <br>because her warrantless arrest violated the Fourth and Fifth <br>Amendments of the United States Constitution and violated <br>Immigration and Naturalization Service regulations; (2) that the <br>BIA relied on impermissible factors in affirming the denial of her <br>application for adjustment of status; (3) that the INS should have <br>been estopped from charging her as deportable and instituting <br>removal proceedings against her; (4) that the IJ erred in failing <br>to adjudicate her Form I-601 Application for Waiver; (5) that the <br>INS improperly charged her with being an "overstay," and (6) that <br>the BIA's decision to affirm the finding of deportability is not <br>supported by substantial evidence and the BIA erred in affirming <br>the denial of her application for adjustment of status.  For the <br>reasons stated below, we affirm the order of the BIA. <br>                               I <br>         The facts are taken from the proceedings before the IJ.  <br>Westover is forty-one years old and is a native of Tanzania and a <br>citizen of the United Kingdom.  She has resided in the United <br>States almost continuously since 1987.  On March 5, 1992, Westover <br>acquired a six month, non-immigrant visitor visa from United States <br>Customs Inspector Jay Labier at the Port of Entry in West <br>Berkshire, Vermont.  Westover's then current visa had not yet <br>expired, but she wanted to extend it.  Because her old visa had not <br>yet expired, Westover left the United States for a period of <br>approximately ten minutes so that she could return and apply for a <br>new visa.  Westover told Labier that she intended to stay in the <br>United States for three to four weeks while she and her fianc <br>awaited the finalization of his divorce so that they could get <br>married.  After consulting with superiors, Labier issued Westover <br>a new visa.   <br>         Two months later, on May 7, 1992, Vermont State Police, <br>accompanied by INS agents, conducted a search of Westover's <br>fianc's home.  Westover also lived there.  The search revealed <br>approximately 300 marijuana plants being grown in the home.  <br>Westover was never charged by the police with any crime.  <br>Westover's fianc was arrested, but charges against him were later <br>dropped when the search was found to have violated the Fourth <br>Amendment.  At the time of the search, Westover was arrested by INS <br>agent David Boocock, and a different agent, Agent Maskell, began <br>investigating her status.  At this time she requested a hearing <br>before an immigration judge to determine her removability.  From <br>her fianc's home, Westover was transported to the Vermont State <br>Police barracks, and eventually the police transferred her to INS <br>custody.  Westover was questioned at Border Patrol Headquarters by <br>agent Boocock.  According to Boocock, she told him that she had no <br>intention of ever leaving the United States, and she withdrew her <br>request for a hearing. <br>         After the questioning by Boocock, the INS issued Westover <br>a Show Cause order, charging her with deportability under then 8 <br>U.S.C.  1251(a)(1)(A) on two separate grounds.  First, Westover <br>was charged with being excludable at entry pursuant to 8 U.S.C. <br> 1182(a)(6)(C)(i) as an alien who by fraud or willful <br>misrepresentation procured a visa or entry into the United States.  <br>Second, based upon the allegations in the first charge, Westover <br>was charged under 8 U.S.C.  1182(a)(7)(A)(i) as an alien not in <br>possession of a valid, unexpired visa or entry document.  Later, <br>during her removal proceedings and after her visa had expired, the <br>INS additionally charged her under then 8 U.S.C.  1251(a)(1)(B) <br>for overstaying her visitor visa.  Westover requested relief in the <br>form of adjustment of status under 8 U.S.C.  1255 and, in the <br>alternative, voluntary departure under 8 U.S.C.  1254(e). <br>         Westover testified at her hearing that she had overstayed <br>visas on at least three other occasions.  She also admitted to <br>working in the United States without authorization for most of the <br>time that she had been here, and she admitted to her failure to pay <br>federal income taxes on her income.  Westover gave somewhat <br>conflicting testimony regarding what she told the border agents at <br>the time of her last entry.  She denied telling Agent Labier that <br>she intended to marry or reside in the United States, and she <br>testified that she said nothing regarding where she intended to <br>reside after marrying her fianc.  She also testified, however, <br>that she informed the agents that she and her fianc would leave <br>the United States, and that they would get married and go to <br>Canada.  Westover also gave ambiguous and somewhat conflicting <br>testimony with regard to what her intentions were upon reentry and <br>where she and her fianc intended to reside.  She claimed that she <br>and her husband intended to go to the United Kingdom or to Canada, <br>but she also said they intended to buy a boat and travel.  While <br>her husband put his house in Vermont up for sale, suggesting the <br>two intended to leave the country, he did so only after she was <br>placed in removal proceedings, and he continued to own a home in <br>New York.  It appears that Westover intended to stay in the United <br>States until her fianc's divorce became final, yet finalization of <br>the divorce had already been pending almost a year when Westover <br>reentered, and it was not certain at the time of her reentry when <br>the divorce would become final.  Westover provided the IJ with <br>affidavits from members of her family, but they gave little <br>indication of where Westover intended to reside. <br>         After the hearing, the IJ determined that Westover had no <br>intention of leaving the United States when she procured the March <br>5, 1992, visa and found her deportable based upon all three <br>charges. <br>         The IJ denied both requests for discretionary relief.  In <br>doing so, the IJ noted that Westover's testimony regarding her <br>knowledge of the marijuana growing operation in her fianc's home <br>was not credible; that she gave false information on her <br>application for adjustment of status; that she had worked without <br>authorization in the United States and had paid no federal income <br>tax; and that she had previously overstayed her visitor visas.  In <br>light of her "prior adverse immigration record and her lack of <br>complete candor," the IJ denied both forms of relief "as a matter <br>of discretion." <br>         The BIA upheld both the IJ's finding of deportability and <br>his denial of discretionary relief.  In reviewing the deportability <br>finding, the BIA excluded from consideration the testimony of both <br>Inspector Labier and Agent Boocock (in response to Westover's <br>challenge to the use of evidence that was the result of the illegal <br>search).  Westover also claimed before the BIA that the INS's <br>charging her with overstaying constituted a denial of due process, <br>but the BIA, relying on its own precedent, dismissed this claim. <br>                               II <br>A. Constitutional and Statutory Violations <br>         Westover alleges that her removal proceedings have been <br>tainted by constitutional and statutory violations in two senses; <br>that the proceedings themselves are invalid and that certain <br>evidence must, in any event, be excluded.  Even though the search <br>of her fianc's home violated the Fourth Amendment, this is not a <br>basis upon which she can attack the validity of her removal <br>proceedings.  The Supreme Court has held that an alien cannot <br>challenge the INS's discovery of her illegal status or the <br>institution of removal proceedings that resulted from an illegal <br>search.  See INS v. Lopez-Mendoza, 468 U.S. 1032, 1040 (1984).  An <br>alien may be able to challenge the use of illegally seized <br>evidence, but only if the seizure constituted an "egregious" <br>violation of the Fourth Amendment.  See id. at 1050-51 (plurality <br>opinion).  In this case the BIA affirmed the decision of the IJ <br>without relying on the testimony of the two INS officers.  Thus, <br>we need not decide whether statements made at the time of <br>Westover's arrest were admissible. <br>         Westover also claims that INS officers violated federal <br>statutes and regulations in arresting and detaining her.  First, <br>she claims that she was not informed of the reason for her arrest <br>or of her removal hearing rights, as required by 8 C.F.R. <br> 287.3(c) when an alien is arrested without a warrant.  The record <br>reveals, however, that Westover was so informed.  <br>         Second, Westover claims that her warrantless arrest <br>violated 8 U.S.C.  1357(a)(2), which states that an INS officer <br>"shall have power without warrant . . . to arrest any alien in the <br>United States, if he has reason to believe that the alien so <br>arrested is in the United States [unlawfully] and is likely to <br>escape before a warrant can be obtained for his arrest."  The <br>government has not responded to this argument, and it appears from <br>the record that Westover's claim is most likely valid.  While INS <br>agents may have had probable cause to arrest Westover by the time <br>they took her into custody, there is no evidence that Westover was <br>likely to escape before a warrant could be obtained for her arrest.  <br>We do not condone the agents' conduct, which appears from the <br>record to be in direct violation of the statute.  Given that Fourth <br>Amendment violations do not constitute grounds for invalidating <br>removal proceedings, though, this mere statutory argument on <br>similar grounds cannot give Westover a basis for relief.  See <br>Katris v. INS, 562 F.2d 866, 869 (2d Cir. 1977) (arrest in <br>violation of 8 U.S.C.  1357(a)(2) does not void subsequent <br>deportation hearing).  Whether evidence obtained from a statutorily <br>invalid arrest should be admitted in an alien's removal hearing is <br>a more difficult question, cf. Navia-Duran v. INS, 568 F.2d 803, <br>809-811 & n.7 (1st Cir. 1977) (excluding coerced confession but not <br>deciding whether INS agent had violated 8 U.S.C.  1357(a)(2) or <br>the effect any such violation might have), but the BIA did not <br>consider any evidence from the time of Westover's arrest. <br>B. Effect of 8 U.S.C.  1255(i) <br>         Aliens who, inter alia, have worked in the United States <br>without authorization, are in unlawful immigration status, have <br>failed to maintain lawful status, or have violated the terms of a <br>non-immigrant visa are not eligible for adjustment of status.  See <br>8 U.S.C.  1255(c).  Under 8 U.S.C.  1255(i), however, aliens <br>ineligible for adjustment of status by virtue of  1255(c) because <br>they have committed certain transgressions can still apply for <br>adjustment of status.  See 8 U.S.C.  1255(i).  They must pay a <br>$1,000 application fee and meet other procedural requirements.  See <br>id. <br>         Although she never submitted an application under <br> 1255(i), Westover argues that the terms of the section precluded <br>the IJ and the BIA from considering her various transgressions of <br>the immigration laws (specifically, those listed in  1255(c)) when <br>deciding on her application for adjustment of status.  Her argument <br>fails for three reasons. <br>         First, Congress enacted  1255(i) in 1994, and the <br>section went into effect on October 1, 1994.  See Act of Aug. 26, <br>1994, Pub. L. 103-317,  506(c), 108 Stat. 1724, 1765, as amended <br>by Act of Nov. 26, 1997, Pub. L. 105-119,  111(b), 111 Stat. 2440, <br>2458, set out as note under 8 U.S.C.  1182.  INS regulations <br>specify that  1255(i) does not apply to applications for <br>adjustment of status filed before October 1, 1994.  See 8 C.F.R. <br> 245.10(e).  Westover filed her application for adjustment of <br>status on December 17, 1992.  Thus,  1255(i) does not apply to her <br>application. <br>         Second, before an alien can be granted the discretionary <br>relief of adjustment of status, she must be prima facie eligible to <br>apply for adjustment of status.  The provisions in  1255(i) render <br>eligible an alien who would otherwise be prima facie ineligible to <br>apply for adjustment of status.  These provisions simply do not <br>preclude the IJ or BIA from considering transgressions of the <br>immigration laws in making the ultimate discretionary determination <br>whether to grant adjustment of status.  <br>         Third, although Westover asserts that the IJ contravened <br>the dictates of  1255(i) when adjudicating her application for <br>adjustment of status, she did not object at her hearing, and she <br>did not raise the issue on appeal before the BIA.  Having remained <br>silent, she has waived any challenge to the BIA's consideration of <br>the factors listed in  1255(i).  See Bernal-Vallejo v. INS, 195 <br>F.3d 56, 64 (1st Cir. 1999). <br>C. Estoppel Claim <br>         Westover claims that the INS should be estopped from <br>charging her with being excludable at entry and being present <br>without a valid visa, as she acquired her visa upon instructions <br>from the INS.  This argument is without merit.  The INS did not <br>instruct Westover that if she intended to stay permanently in the <br>United States, she should apply for a new visa.  Instead, the INS <br>instructed Westover that she could leave the country and apply for <br>a new six-month visa.  She did this.  Nothing in the record <br>suggests that the INS knew, at the time it gave her this advice, <br>that she was intending to violate immigration laws or that she had <br>previously violated immigration laws.  Later she was charged with <br>obtaining this visa with the intent to stay indefinitely.  Estoppel <br>requires showing that the government engaged in "affirmative <br>misconduct" that caused the petitioning individual to act in a way <br>she otherwise would not have.  See Akbarin v. INS, 669 F.2d 839, <br>842-43 (1st Cir. 1982).  Westover has failed to meet either of <br>these requirements.  There is no evidence of government misconduct. <br>D. Failure to Adjudicate Form I-601 <br>         Westover claims that the BIA erred in not adjudicating <br>her form I-601 (waiver of grounds of excludability).  Form I-601 <br>allows an alien who would otherwise be ineligible for adjustment of <br>status to have the grounds of her ineligibility waived.  See 8 <br>C.F.R.  212.7(a)(1)(ii).  Since the IJ denied Westover's <br>application for adjustment of status as a matter of discretion, <br>there was no need to adjudicate the form I-601. <br>E. The Overstay Charge <br>         Westover's visa (which the INS considers to have been <br>fraudulently obtained) was valid when the show cause order was <br>issued but lapsed during her removal proceedings.  The INS then <br>added the charge of being an overstay to her show cause order.  <br>Westover asserts that being charged with overstaying in this <br>context is a violation of due process.  The BIA dismissed this <br>claim based upon its holding, twenty-five years ago, in Matter of <br>Halabi, 15 I. & N. Dec. 105 (1974).  In that case, the BIA held <br>that it was permissible for the INS to charge the alien with <br>overstaying his visa when his visa had expired because he had <br>remained in the United States to defend himself in removal <br>proceedings initially brought on other grounds.  See id. at 106.  <br>The BIA noted that the alien had not attempted to obtain an <br>extension from the INS.  See id.  The Chairman of the BIA <br>dissented, finding that this practice violated due process.  See <br>id. at 107 (Roberts, Chairman, dissenting). <br>         If an alien leaves the country before her visa expires <br>and during her deportation proceedings, she may well be unable to <br>defend against the original charges.  If she stays, however, she <br>becomes removable as a result of overstaying.  It may be that one <br>could successfully challenge the original charges through counsel <br>without personally appearing.  The government's position, and the <br>BIA's position in Halabi, is that the alien should apply for an <br>extension of her visa from the INS District Director.  However, as <br>the Halabi dissent noted, see id. at 107-08, applying for an <br>extension is likely futile.  In this case, the INS considers <br>Westover to be without a valid visa.  There is no reason to believe <br>that the District Director would grant Westover an extension on <br>what the INS considers an invalid visa.  Furthermore, in order to <br>apply for an extension, an alien must have maintained her status <br>and must present a valid visa.  See 8 C.F.R.  214.1(a)(3), (c)(4).  <br>The charges lodged against Westover demonstrate that the INS does <br>not consider Westover capable of meeting these requirements.  See <br>Halabi, 15 I. & N. Dec. at 107-08 (Roberts, Chairman, dissenting). <br>         We pause to note that the practice of charging aliens <br>with overstaying when they remain in the United States to defend <br>themselves in removal proceedings could cause us some concern on <br>given facts.  "[T]he Fifth Amendment entitles aliens to due process <br>of law in deportation proceedings.  At the core of these due <br>process rights is . . . a meaningful opportunity to be heard."  <br>Choeum v. INS, 129 F.3d 29, 38 (1st Cir. 1997) (internal quotation <br>marks and citation omitted); see also Lozada v. INS, 857 F.2d 10, <br>13 (1st Cir. 1988) (due process violated if alien is prevented from <br>reasonably presenting her case).   <br>         The BIA upheld the IJ's findings regarding the original <br>charges that Westover was excludable at entry and was present <br>without a valid visa, and we affirm its order of removal on these <br>grounds, without deciding the overstay issue. <br>F. The BIA's Decision to Uphold the IJ's Finding of Deportability  <br>         We review the BIA's decision in this case under the <br>substantial evidence standard.  See INS v. Elias-Zacarias, 502 U.S. <br>478, 481 (1992); Cordero-Trejo v. INS, 40 F.3d 482, 488 (1st Cir. <br>1994).  Under this standard, we will reverse the BIA's decision <br>only if the evidence presented would compel us to find for the <br>petitioner.  See Elias-Zacarias, 502 U.S. at 483-84.  As the <br>recitation of the facts earlier in this opinion shows, the evidence <br>in this case was sufficient for the BIA to uphold the findings of <br>the IJ. <br>G. Denial of Discretionary Relief <br>         Westover also claims that the BIA erred in denying her <br>application for adjustment of status.  Because she was placed into <br>removal proceedings before April 1, 1997, and her final order of <br>removal came after October 30, 1996, Westover's appeal is governed <br>by  309(c)(4)(E) of the Illegal Immigration Reform and Immigrant <br>Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. <br>3009-546, a transitional rule regarding judicial review.  See Prado <br>v. Reno, 198 F.3d 286, 288 n.2 (1st Cir. 1999); Kalaw v. INS, 133 <br>F.3d 1147, 1149-50 (9th Cir. 1997); IIRIRA  309(c)(4), set out as <br>note under 8 U.S.C.  1101.  Under these transitional rules, we <br>lack jurisdiction to review the BIA's discretionary denial of <br>Westover's application for adjustment of status.  See Bernal- <br>Vallejo, 195 F.3d at 61-63. <br>                              III <br>         We affirm the BIA's order of removal on the basis of the <br>two original charges lodged by the INS.  <br> <br> <br> <br> <br> <br> <br> <br> <br> <br></pre>

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