United States Court of Appeals
For the First Circuit
No. 00-1611
JUAN FRANCISCO ROJAS-REYNOSO,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF DEPORTATION
Before
Torruella, Chief Judge,
Lynch, Circuit Judge,
and Garcia-Gregory, District Judge.*
José 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.
December 21, 2000
*
Of the District Puerto Rico, sitting by designation.
LYNCH, Circuit Judge. 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.
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.
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
2
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.
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
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).
3
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.
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.
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
4
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.
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.
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
5
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.
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-
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
6
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 19, 1996 motion to reopen his deportation proceedings
and as confirmed by the minutes of a later AILA meeting on August
27, 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.
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
U.S. at 59-61.
7
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).
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.
A. "Exceptional Circumstances"
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
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).
8
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
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.
9
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,5 was not made before the date of Rojas-
Reynoso's required departure.6 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.7
5
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.
6
Moreover, the minutes of the August 17, 1997 AILA
meeting held long after Rojas-Reynoso's voluntary departure date
state that extensions "were not being granted in most cases."
7
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.
10