[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 19, 2005
No. 04-16128 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos. A76-999-908 & A76-999-909
CLARITA MUNOZ-MANCILLA,
VALENTIN BELLAGAMBA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
__________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(July 19, 2005)
Before TJOFLAT, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Clarita Munoz-Mancilla and Valentin Bellagamba (“Petitioners”) seek
review of the Immigration Judge’s (“IJ’s”) removal order, which became the final
agency determination when the Board of Immigration Appeals (“BIA”) summarily
affirmed it without an opinion. Because Petitioners’ removal proceedings
commenced after April 1, 1997, the effective date of the Illegal Immigration
Reform and Immigrant Responsibility Act (“IIRIRA”), this case is governed by
the permanent provisions of the Immigration and Nationality Act (“INA”), as
amended by IIRIRA. Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332
(11th Cir. 2003).
I.
Petitioners, husband and wife, are natives and citizens of Chile, S.A. They
first entered the United States on February 24, 1988, as temporary visitors for
pleasure with authorization to remain until August 23, 1988. They remained here
without Immigration and Naturalization Service (“INS”) authorization well
beyond that exit date, however.
On November 10, 1998, Petitioners filed an application for adjustment of
status on the basis of an approved visa petition filed by Mr. Bellagamba’s sister, a
United States citizen. On July 22, 1999, Bellagamba submitted an application for
a travel document, requesting advance parole so he could travel to Chile to visit
his mother, whom, he said, was “very sick.” After submitting this application, he
signed a “Notice to Applicant” form that contained the following advisement:
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NOTICE TO APPLICANT: Presentation of this authorization will
permit you to resume your application for adjustment of status upon
your return to the United States. If your adjustment application is
denied, you will be subject to removal proceedings under section
235(b)(1) or 240 of the Act. If, after April 1, 1997, you were
unlawfully present in the United States for more than 180 days
before applying for adjustment of status, you may be found
inadmissible under section 212(a)(9)(B)(i) of the Act when you
return to the United States to resume the processing of your
application. If you are found inadmissible, you will need to qualify
for a waiver of inadmissibility in order for your adjustment of status
application to be approved.
The INS also provided Bellagamba with a form informing him of the time and date
he had to return for a decision on his request for advance parole. On this form, an
INS official noted that Bellagamba “appears inadmissible under 212(a)(9)(B).”
The INS approved Bellagamba’s request for advance parole on July 26, 1999, and
he departed for Chile on August 20, 1999.
Ms Munoz-Mancilla applied for advance parole on August 23, 1999, so she
could attend the wedding of her daughter in Chile. She signed a “Notice to
Applicant” form identical to the one her husband had signed. In addition, she was
given a notice as to the time and date of the decision on her application for
advance parole, which stated that she could be subject to “possible inadmissibility
under 212(a)(9)(B).” The INS approved her application for advance parole on
August 25, 1999, and she departed for Chile on September 7, 1999.
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Mr. Bellagamba returned to the United States on September 20, 1999; Ms.
Munoz-Mancilla returned eight days later. Both were paroled into the country.
On September 28, 2000, the INS denied Bellagamba’s application for adjustment
of status on the ground that he was inadmissible under section 212(a)(9)(B)(i) of
the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(9)(B)(i), in that
he had been unlawfully present in the United States for a period of more than a
year and had sought admission within ten years of his departure. Because he did
not have a qualifying relative for a waiver of inadmissability under section
212(a)(9)(B)(v) of the INA, 8 U.S.C. § 1182(a)(9)(B)(v), the INS found that he
was ineligible for adjustment of status; he could not establish his admissibility into
the United States.
On October 13, 2000, Petitioners filed a second application for adjustment
of status, this time based on a pending petition for alien relative filed by their
United States citizen daughter. On September 5, 2001, Munoz-Mancilla moved to
withdraw her initial adjustment application in lieu of her second application, and
the INS granted her request on September 20, 2001. On September 24, 2001, the
INS denied Petitioners’ second adjustment-of-status application for the reason it
denied Bellagamba’s first application. Because Petitioners did not have a
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qualifying relative for a waiver of inadmissibility, the INS denied their
applications on statutory eligibility grounds.
On September 18, 2002, the INS commenced removal proceedings against
Petitioners. It charged Petitioners with being removable under sections
212(a)(7)(A)(i)(I) and 212(a)(9)(B)(i)(II) of the INA, 8 U.S.C. §§
1182(a)(7)(A)(i)(I) and 1182(a)(9)(B)(i)(II), as immigrants not in possession of a
valid entry document at the time of their application for admission and as aliens
who had been unlawfully present in the United States for more than a year and had
sought admission within ten years of their departure.
The IJ found Petitioners removable as charged. The judge concluded that
an alien “who departs the United States under a grant of advance[] parole pending
[his or her] adjustment application is considered an arriving alien as set forth in
the regulations and applicable case law.” The IJ found that Petitioners, as arriving
applicants for admission, did not possess a valid entry document upon their return
to the United States in 1999. The judge concluded that the “advance[] parole
granted to both [Petitioners did] not fulfill the documentary requirements of
Section[] 212(a)(7)(A)(i)(I) of the [INA].”
The IJ also found Petitioners removable under section 212(a)(9)(B)(i)(II) of
the INA, insofar as they had been unlawfully present in the United States from
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IIRIRA’s April 1, 1997 effective date until November 10, 1998, the date they filed
their first application for adjustment of status. The judge therefore found that they
had been “unlawfully present in the United States for more than one year before
returning to the United States from travel abroad,” which made them inadmissible
under 8 U.S.C. § 1182(a)(9)(B)(i)(II).
In lieu of removal, Petitioners renewed their application for adjustment of
status. They contended that the ten-year bar to admissibility under 8 U.S.C. §
1182(a)(9)(B)(i)(II) should not apply to them because the INS had acted in bad
faith in granting their applications for advance parole, knowing that their departure
could result in their inadmissibility and ineligibility for adjustment of status. They
also contended that 8 U.S.C. § 1182(a)(9)(B)(i) conflicted with 8 U.S.C. § 1255(i),
under which nonimmigrant aliens in unlawful status could apply for adjustment of
status without having to depart the country.
The IJ rejected their contentions, finding that both Petitioners were on
express notice of the consequences of leaving the United States. Citing Balogun
v. United States Attorney General, 304 F. 3d 1303 (11th Cir. 2002), and Dimenski
v. INS, 275 F. 3d 574 (7th Cir. 2001), the judge noted that “the INS has no duty,
constitutional or otherwise, to provide legal advice to aliens who petition the
agency for a grant of advance[] parole.” The judge added that, even though the
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INS “was not required to give [Petitioners] any . . . warning or legal advice”
regarding “the consequences of leaving the United States on a grant of advance[]
parole,” it had nonetheless done so by giving them the written “Notice to
Applicant” forms which they signed at the time they requested advance parole.
In sum, the IJ found Petitioners ineligible for adjustment of status due to the
ten-year bar to admissibility under INA § 212(a)(9)(B)(i)(II) and the fact that they
were arriving aliens in removal proceedings. Finding no “authority or jurisdiction
to extend any equity to [Petitioners],” the IJ ordered them removed to Chile. As
noted above, the BIA affirmed the IJ’s decision without opinion.
II.
In their brief, Petitioners argue that leaving the United States under an
advance parole is not a “departure” as described in INA § 212(a)(9)(B)(i)(II), 8
U.S.C. § 1182(a)(9)(B)(i)(II). They rely not on the explicit statutory language, but
on their interpretation of congressional intent. They theorize that, in enacting
§ 212(a)(9)(B)(i)(II), Congress sought to penalize aliens who overstayed their
lawful admission status and had become eligible for a family or labor petition.
Before this, prior illegal presence had no impact on admissibility. The purpose of
INA § 245(i), 8 U.S.C. § 1255(i), they submit, was to prevent the harsh impact of
INA § 212(a)(9)(B)(i) by allowing aliens to obtain visas without departing the
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United States as they were previously to do. As Congress sought to protect the
class of aliens similar to that of the Petitioners by not requiring that they leave the
United States to obtain a visa, it could not have been Congress’s intent to penalize
them now.
An alien who has been paroled into the United States may seek an
adjustment in status to that of a permanent resident provided that: “(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.” INA § 245(a), 8 U.S.C. § 1255(a). Section 245(i) also requires that the
applicant be admissible. INA § 245(i)(2)(A), 8 U.S.C. § 1255(i)(2)(A). Section
1182 of Title 8 of the United States Code provides:
Except as otherwise provided in this chapter, aliens who are
inadmissible under the following paragraphs are ineligible to receive
visas and ineligible to be admitted to the United States:
Any alien (other than an alien lawfully admitted for permanent
residence) who -
(I) was unlawfully present in the United States for a period of more
than 180 days but less than 1 year, voluntarily departed the United
States (whether or not pursuant to section 1254a(e) of this title) prior
to the commencement of proceedings under section 1225(b)(1) or
section 1229(a) of this title, and again seeks admission within 3 years
of the date of such alien's departure or removal, or
(II) has been unlawfully present in the United States for one year or
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more, and who again seeks admission within 10 years of the date of
such alien's departure or removal from the United States,
is inadmissible
8 U.S.C. § 1182(a)(9)(B)(i)(I), (II). The Attorney General has discretion to parole
an alien into the United States temporarily. 8 U.S.C. § 1182(d)(5)(A). However,
this parole is not regarded as an admission into the United States. Id. Instead,
though the alien may enter the United States, he or she is considered
constructively at the border. Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1338
(11th Cir. 2003). An alien granted parole may travel outside the United States
during the pendancy of his application for change of status and not be considered
to have abandoned his application. 8 C.F.R. § 245.2(a)(4)(ii)(B). However, if his
application is denied, he will be treated as an applicant for admission and subject
to INA § 212(a)(9)(B)(i). Id.
We conclude that the IJ correctly found Petitioners inadmissible. The grant
of advance parole did not operate to prevent Petitioners’ departure from the United
States, but instead prevented their readmission. Further, though Congress may
have intended to alleviate the harsh results possible with the application of INA
§ 212(a)(9)(B)(i) with § 245(i), Petitioners’ did not avail themselves of its
protection as they departed the United States and triggered § 212(a)(9)(B)(i).
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Next, Petitioners contend (1) that an internal INS memorandum states that
advance paroles should not be issued to adjustment-of-status applicants who have
accrued more than 180 days of illegal presence in the United States unless it
appears likely that such applicants would receive a waiver of inadmissibility, and
(2) that the INS should be bound to this rule. As the INS granted Petitioners
advance paroles in contradiction of its own policy and with full knowledge of the
legal consequences of INA § 212(a)(9)(B)(i)(II)’s application, their argument
concludes, the INS should be estopped from asserting Petitioners departed the
United States.
A party asserting estoppel must establish: (1) “words, acts, conduct or
acquiescence causing another to believe in the existence of a certain state of
things,” (2) “wilfulness or negligence with regard to the acts, conduct or
acquiescence,” and (3) “detrimental reliance by the other party upon the state of
things so indicated.” Tefel v. Reno, 180 F.3d 1286, 1302 (11th Cir. 1999)
(citations omitted). Additionally, when asserting a claim of estoppel against the
government, “the party . . . must prove, in addition to the traditional elements of
estoppel, some affirmative misconduct by the government.” Id. at 1303. The INS
is under no duty to counsel applicants or parolees adequately on the potential legal
consequences of their decisions. Balogun, 304 F.3d at 1312.
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The IJ correctly rejected Petitioners’ estoppel argument. Given the
warnings they signed regarding the applicability and effect of INS
§ 212(a)(9)(B)(i), Petitioners could not reasonably have relied on the grant of
advance parole as a guarantee that they would be admitted into the United States.
Furthermore, they failed to establish any affirmative misconduct on the part of the
INS.
We have examined carefully each of Petitioners’ claims of error. None have
merit.
PETITION DENIED.
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