[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-10966 MAY 25, 2006
________________________ THOMAS K. KAHN
CLERK
BIA No. A29-826-372
KARL SAVOURY,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 25, 2006)
Before CARNES, WILSON and PRYOR, Circuit Judges.
CARNES, Circuit Judge:
Karl Savoury lawfully entered the United States as a visitor from Jamaica in
1984. In September 1988 he was arrested on state drug charges in Newark, New
Jersey. In March 1991 while those charges were pending, Savoury married a
citizen of this country and later that same month he filed for an adjustment of
status based on his marriage. At his adjustment interview, Savoury told the INS
officer about his arrest and the pending criminal charges. The officer asked
Savoury to inform him about the final disposition of the criminal charges.
On May 18, 1992, Savoury pleaded guilty to and was convicted of
possession of cocaine with intent to distribute in the third degree, a felony, and his
counsel thereafter provided the INS officer who had conducted the adjustment of
status interview with a letter informing him of the conviction. On August 5, 1992,
the INS adjusted Savoury’s status to lawful permanent resident. (The cases
sometimes refer to this status as simply “permanent resident” and so will we.)
Under 8 U.S.C. § 1186a(a)(1), when an adjustment to that status is based on
marriage to a citizen that was entered into less than twenty-four months previously
the adjustment is conditional. In the ninety-day period before the second
anniversary of the grant of status, the alien and spouse must submit a joint
application to remove the conditional basis. Id. at § 1186a(c) & (d). The
Savourys did that, and on August 18, 1994 the INS granted their application to
remove the conditional basis of his permanent resident status.
Thereafter Savoury filed an application for naturalization, but it was denied
because of insufficient evidence of child support. The denial document did not
2
mention Savoury’s conviction. Savoury requested a review of the denial, and the
INS affirmed it on September 5, 2002. Records from Savoury’s naturalization
proceedings confirm that the INS had knowledge of his conviction at the time his
status was adjusted to permanent resident. The “Continuation Processing
Worksheet” of Savoury’s application for naturalization included a notation, dated
May 6, 2002, which states: “As per consultation with a SDAO [Supervisory
District Adjudications Officer], the Service knew about this conviction at the time
of adjustment, therefore, we have to DNR this arrest.” At oral argument counsel
for Savoury stated that “DNR” stands for “Do Not Relate”and means that the INS
would not relate or connect the arrest to Savoury’s file. The INS has not contended
that “DNR” has any other meaning.
After a brief trip abroad, Savoury attempted to reenter this country on
December 2, 2002. The INS detained him and issued a notice to appear, charging
him with removability under INA § 212(a)(2)(A)(i)(II) on the ground that he was
inadmissible due to his prior conviction. After an amendment to the notice to
appear regarding his conviction date, Savoury admitted the allegations in the notice
but denied removability and requested relief under INA § 212(c). After a hearing,
the immigration judge determined that Savoury was removable under INA §
212(a)(2)(A)(i)(II) and that he was also ineligible for § 212(c) relief because his
3
original adjustment to permanent resident status was not lawful. The BIA agreed
with the IJ and dismissed Savoury’s appeal. Savoury petitioned us for review.
I.
The first thing we must decide is whether to grant the government’s motion
to dismiss the petition for lack of jurisdiction. That motion is based on this
provision of the INA:
Notwithstanding any other provision of law . . . no court shall have
jurisdiction to review any final order of removal against an alien who
is removable by reason of having committed a criminal offense
covered in section 1182(a)(2) . . . of this title.
8 U.S.C. § 1252(a)(2)(C). Those words fit Savoury’s petition for review because
his state drug offense conviction is covered by § 1182(a). See 8 U.S.C. §
1182(a)(2)(A)(i)(II).
Even though § 1252(a)(2)(C) says what it does, courts still have jurisdiction
not only to decide if the conditions that bar jurisdiction exist—whether the
petitioner (1) is an alien (2) who is removable (3) by reason of having committed a
crime covered by § 1252(a)(2)(C)—but also to decide any substantial
constitutional challenges. Sebastian-Soler v. U.S. Att’y Gen., 409 F.3d 1280, 1283
(11th Cir. 2005). In its motion to dismiss, the government contends that because
Savoury fits the criteria that bar jurisdiction and raises no substantial constitutional
challenges, we lack jurisdiction to rule on the merits of his petition.
4
After the government filed its motion to dismiss, however, the REAL ID Act
of 2005 became law. It added to the law a provision now codified as 8 U.S.C. §
1252(a)(2)(D), which states:
Nothing in subparagraph (B) or (C), or in any other provision of this
chapter (other than this section) which limits or eliminates judicial
review, shall be construed as precluding review of constitutional
claims or questions of law raised upon a petition for review filed with
an appropriate court of appeals in accordance with this section.
8 U.S.C. § 1252(a)(2)(D). That provision applies retroactively “to all pending
proceedings regardless of the date of the final administrative order.” Balogun v.
U.S. Att’y Gen., 425 F.3d 1356, 1360 (11th Cir. 2005); see also Tovar-Alvarez v.
U.S. Att’y Gen., 427 F.3d 1350, 1352 (11th Cir. 2005) (recognizing that the REAL
ID Act has given this Court jurisdiction to review questions of law raised in a
petition for review even though § 1252(a)(2)(C) applied). In his petition, Savoury
does not dispute the BIA’s factual determinations but raises questions of law.
Because of § 1252(a)(2)(D) we have jurisdiction to decide those legal issues.
Savoury prevails on the jurisdictional issue; but that is all he is entitled to prevail
on in this proceeding.
II.
When the BIA issues a decision we review only that decision, except to the
extent that it expressly adopts the immigration judge’s decision. Al Najjar v.
Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). To the extent that the BIA does
5
adopt the IJ’s reasoning, we review the IJ’s reasoning as well. Id. In this case the
Board expressly adopted and affirmed the IJ’s decision with a few additions, so we
will review his decision as supplemented by the Board. On a petition for review of
a final order of removal, we will defer to the BIA’s statutory interpretation if it is
reasonable. Brooks v. Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002). Naturally,
if we would have reached the same interpretation ourselves we will inevitably
decide that it is a reasonable one.
At the hearing and after it Savoury admitted the factual allegations charged
in the notice to appear. The notice to appear charged Savoury with being
removable pursuant to “[s]ection 212(a)(2)(A)(i)(II) of the Immigration and
Nationality Act, as amended, in that you are an alien who has been convicted of, or
admits having committed, or admits committing acts which constitute the essential
elements of, a violation or a conspiracy or attempt to violate any law or regulation
of a State . . . relating to a controlled substance.” He does not dispute that he was
convicted of state felony drug charges or that it made him removable under INA §
212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II). Savoury requested relief
under former INA § 212(c), which provided:
Aliens lawfully admitted for permanent residence who temporarily
proceeded abroad voluntarily and not under an order of deportation,
and who are returning to a lawful unrelinquished domicile of seven
consecutive years, may be admitted in the discretion of the Attorney
General.
6
Jaramillo v. INS, 1 F.3d 1149, 1151 (11th Cir. 1993) (quoting the since repealed
INA § 212(c), 8 U.S.C. § 1182(c) (emphasis added)). Savoury contends that he is
eligible for § 212(c) relief because he is an alien lawfully admitted for permanent
residence who, when detained, was returning to his lawful unrelinquished domicile
of seven consecutive years in the United States after a brief, voluntary trip abroad.
Section 212(c) was repealed in 1996, but the Supreme Court partially
extended its availability in INS v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271 (2001).
The St. Cyr decision holds that Ҥ 212(c) relief remains available for aliens . . .
whose convictions were obtained through plea agreements and who,
notwithstanding those convictions, would have been eligible for § 212(c) relief at
the time of their plea under the law then in effect.” Id. at 326, 121 S. Ct. at 2293.
Savoury pleaded guilty in 1992 while § 212(c) was still in effect. Under St. Cyr he
could apply for relief from the removability that arose from his conviction, which
made him removable under 8 U.S.C. § 1182(a)(2)(A)(i)(II). In order to obtain §
212(c) relief, however, Savoury had to demonstrate that he was “lawfully admitted
for permanent residence” and was “returning to a lawful unrelinquished domicile
of seven consecutive years.” See INA § 212(c) (repealed 1996). The duration of
his unrelinquished domicile has never been disputed, but the nature of that
domicile or his status during it has been and is the central contest of this appeal.
7
The immigration judge did not question that the INS knew of Savoury’s
conviction at the time it adjusted him to lawful permanent resident status in 1992,
but the judge believed that made no difference. He determined that Savoury was
not entitled to § 212(c) relief because he had “not shown that he acquired his
lawful permanent residence lawfully, and therefore he was not lawfully admitted
for permanent residence.” In reaching that conclusion the IJ looked to cases in
which the petitioner had initially acquired permanent residence through fraud and
reasoned that the same rationale applied to Savoury’s case. The IJ determined that
for § 212(c) eligibility purposes no difference exists between a petitioner who
obtained legal status by INS mistake and one who obtained it through fraud on the
INS. On that basis the IJ ruled that Savoury was ineligible for 212(c) relief or
other cancellation of removal and ordered him removed. The BIA expressly
adopted and affirmed the IJ’s decision, adding a few thoughts of its own. The
Board cited its prior decision in Matter of Koloamatangi, 23 I. & N. Dec. 548 (BIA
2003), as the immigration judge had. About that decision the Board stated: “In
that case, we held that the correct interpretation of the term ‘lawfully admitted for
permanent residence’ is that an alien is deemed, ab initio, never to have obtained
lawful permanent resident status once his original ineligibility is determined in
proceedings.” The Board said that “lawfully admitted for permanent residence”
does not apply to aliens who either obtained that status by fraud (which is not this
8
case) or who were given it though not entitled to it (which is this case). Because
Savoury was inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) at the time he was
initially adjusted to permanent resident status, he was not entitled to that
adjustment in status, and for that reason the Board treated him as though he had
never obtained it.
A.
The first issue before us is whether it was reasonable for the Board to
interpret the statutory phrase “lawfully admitted for permanent residence” in the
way it did. We think it was. The adverb “lawfully” requires more than the absence
of fraud. It requires consistency with all applicable law. According to 8 U.S.C. §
1101(a)(20), “lawfully admitted for permanent residence” is “the status of having
been lawfully accorded the privilege of residing permanently in the United States
as an immigrant in accordance with the immigration laws, such status not having
changed.” 8 U.S.C. § 1101(a)(20) (emphasis added); see also Matter of Longstaff,
716 F.2d 1439, 1441 (5th Cir. 1983) (“The term ‘lawfully’ denotes compliance
with substantive legal requirements, not mere procedural regularity.”); Black’s
Law Dictionary 902 (8th ed. 2004) (defining “lawful” as “[n]ot contrary to law;
permitted by law”). The applicable immigration law includes 8 U.S.C. §
1182(a)(2)(A)(i)(II), which renders Savoury inadmissible because of his
conviction. That law helps define, by exclusion, eligibility for permanent resident
9
status and should have been applied to deny Savory permanent resident status in
1992. Because Savoury was rendered ineligible for permanent resident status by §
1182(a)(2)(A)(i)(II), the award of that status to him was not consistent with the
law; it was not lawful; it was not “in accordance with the immigration laws.” 8
U.S.C. § 1101(a)(20).
What we have said is enough to convince us that the Board’s interpretation
of § 212(c)’s “lawfully admitted for permanent residence” language is reasonable,
and we could stop with that. However, the lawyers have spent a lot of time talking
about various decisions, as lawyers do, and we will discuss those decisions.
In reaching the decision that Savoury was not lawfully admitted, the Board
and the immigration judge primarily relied on Koloamatangi, 23 I. & N. Dec. 548.
Unlike Savoury’s case, that case involved fraud on the INS by the petitioner. See
id. at 549. The fraud in Koloamatangi was that the petitioner had obtained
permanent resident status by holding out a bigamous marriage as a valid one. Id.
The BIA determined that the petitioner was not entitled to INA § 240A(a)1 relief
1
INA § 240A(a) replaced § 212(c), the provision at issue in this case, and for present
purposes is materially identical to the earlier one. It provides:
The Attorney General may cancel removal in the case of an alien who is
inadmissible or deportable from the United States if the alien—(1) has
been an alien lawfully admitted for permanent residence for not less than 5
years, (2) has resided in the United States continuously for 7 years after
having been admitted in any status, and (3) has not been convicted of any
aggravated felony.
10
because he had never been “lawfully admitted for permanent residence.” Id. at
551. The Board held that once it is determined that an alien was originally
ineligible for permanent resident status, he would be deemed never to have
obtained that status, or more accurately never to have obtained it lawfully. Id.
In reaching its decision in Koloamatangi, the BIA considered a 1996
amendment to the regulatory definition of “lawfully admitted for permanent
residence.” Id. at 549. As we have noted, the statutory definition of that term is
“the status of having been lawfully accorded the privilege of residing permanently
in the United States as an immigrant in accordance with the immigration laws, such
status not having changed.” 8 U.S.C. § 1101(a)(20). The regulations contain the
same definition, see 8 C.F.R. § 1.1(p), but in 1996 an additional sentence was
added to the end of the definition in the regulations. See Koloamatangi, 23 I. & N.
Dec. at 549 (discussing amendment to 8 C.F.R. § 1.1(p)). That added sentence
states: “Such status terminates upon entry of a final administrative order of
exclusion, deportation, or removal.” 8 C.F.R. § 1.1(p). Koloamatangi argued that
the amendment applied to him and that he had made it to the five-year point as an
alien admitted for permanent residence before a final administrative order was
entered against him. Koloamatangi, 23 I. & N. Dec. at 549.
8 U.S.C. § 1229b(a).
11
The Board rejected Koloamatangi’s argument, reasoning that the
amendment was intended to clarify that “an alien’s permanent resident status,
which had been lawfully obtained, terminated with the entry of a final
administrative order of deportation” and did not turn on when the alien physically
departed the country. Id. It explained that: “There is no indication that the
addition of the final sentence was intended to undermine the long-standing
decisions holding that an alien was not ‘lawfully’ admitted for permanent resident
status if, at the time such status was accorded, he or she was not entitled to it.” 2 Id.
Savoury contends that the Koloamatangi decision is limited to cases
involving fraud and that the BIA should not have extended the holding of that
decision to cover his situation, which came about because of the Board’s own
screw up. The more apt decision in his view is Matter of Ayala, 22 I. & N. Dec.
398 (BIA 1998), where the arguments were turned upside down. Ayala had
2
Savoury makes the same contention that Koloamatangi did about the amendment to 8
C.F.R. § 1.1(p), and we reject it for the same reasons that the Board gave in that case. The
regulation, as amended, does nothing more than clarify the effective date of rescission when an
alien, who, unlike Savoury, was “lawfully” admitted as a permanent resident, loses that status.
In a related thought, Savoury contends that based on INA § 246(a), 8 U.S.C. § 1256(a),
an IJ’s ruling rescinding an alien’s status is effective as of the date of the order of removal. He
argues that renders wrong the BIA’s holding that his status was void from the beginning. What
§ 246(a) does is establish a five-year statute of limitations for the Attorney General to bring
rescission proceedings and further clarifies that an IJ’s order of removal may also act as a
rescission of status even if it is issued after that five year period. See 8 U.S.C. § 1256(a). That
provision has nothing to do with whether an alien who was not entitled to permanent resident
status was “lawfully admitted for permanent residence.”
12
entered this country in 1991 and was admitted as a permanent resident. Id. at 399.
Thereafter, he was convicted of conspiracy to defraud the United States, and that
conviction led to deportation proceedings. Id. Ayala sought a waiver under INA §
212(h), id. at 398–99, but that provision rules out a waiver for “an alien who has
previously been admitted to the United States as an alien lawfully admitted for
permanent residence if . . . the alien has not lawfully resided continuously in the
United States for a period of not less than 7 years.” 8 U.S.C. § 1182(h). Because
he had not resided continuously in this country for seven or more years, Ayala
sought to establish that he had not been lawfully admitted to begin with. Ayala, 22
I. & N. Dec. at 400. He argued that at the time he was admitted he had been
involved in the ongoing criminal conspiracy for which he was later convicted and
for that reason his admission as a permanent resident had not been lawful. Id.
Absent lawful admission, Ayala contended, he was not subject to the requirement
of seven years of continuous residence before a § 212(h) waiver could be granted.
Id.
In rejecting Ayala’s argument, the Board noted that § 212(h) distinguishes
between those who have been previously admitted for permanent residence and
those who have not. Id. at 401. It does not distinguish “between those whose
admission was lawful and those who were previously admitted for lawful
permanent residence but are subsequently determined to have been admitted in
13
violation of the law. To read such a distinction into the statute would be arbitrary
and capricious.” Id.
Ayala does not apply to Savoury’s situation because it focused on whether
the alien had “previously been admitted” for permanent residence, not on whether
he had been “lawfully admitted for permanent residence.” See id. at 402. Because
Ayala had previously been admitted as a permanent resident and had not accrued
the seven years of lawful residence, he was ineligible for a waiver under § 212(h).
Id. The different question in this § 212(c) case is not whether Savoury was
previously admitted for permanent residence but whether he was lawfully admitted
for permanent residence. And the answer is that Savoury was not lawfully
admitted because 8 U.S.C. § 1182(a)(2)(A)(i)(II) barred his admission as a
permanent resident given his felony drug conviction.
There are three court of appeals decisions close enough to the point to merit
discussing. In Monet v. INS, 791 F.2d 752, 753 (9th Cir. 1986), the petitioner had
obtained an adjustment of status to permanent resident alien by concealing a prior
drug conviction. Id. The Ninth Circuit held that § 212(c) relief was unavailable
because he had never been “lawfully admitted.” Id. at 753, 755. In other words,
that court reached the same conclusion in Monet as the BIA had reached in
Koloamatangi. (The BIA had also reached the same decision in Matter of T-, 6 I.
& N. Dec. 136, 137–38 (BIA 1954)).
14
But, as we have said, the present case does not involve an alien’s fraud but
the INS’s error. The facts in Matter of Longstaff, 716 F.2d 1439 (5th Cir. 1983),
are closer to point because they involved an honest alien who obtained a status or
benefit that he was not lawfully entitled to receive under the immigration laws.
Longstaff was admitted to this country after completing an “Application for
Immigrant Visa and Alien Registration.” Id. at 1440. On the form Longstaff
indicated that he did not have a “psychopathic personality” although, unbeknownst
to him, the law at that time classified his homosexuality as a psychopathic disorder.
Id. When Longstaff applied for naturalization fifteen years later, his application
was denied because at the time he was admitted, Longstaff was excludable under
the INA because of his homosexuality and, for that reason, he had not been
“lawfully admitted.” Id. at 1441. The Fifth Circuit affirmed the denial of his
petition for naturalization on this basis. Id.
Longstaff argued that he was eligible for naturalization because he had been
admitted in a “procedurally regular fashion.” Id. The Fifth Circuit rejected this
“narrow reading of the term ‘lawfully admitted,’” explaining that “[a]dmission is
not lawful if it is regular only in form. The term ‘lawfully’ denotes compliance
with substantive legal requirements, not mere procedural regularity.” Id. The
court noted that the statutory definition of the term “lawfully admitted for
permanent residence” supported its conclusion because the definition turned on
15
whether the petitioner had been “lawfully accorded the privilege of residing
permanently in the United States as an immigrant in accordance with the
immigration laws.” Id. (citing 8 U.S.C. § 1101(a)(20)) (emphasis added). Though
innocent of any fraud, Longstaff had not been granted his status “in accordance
with the immigration laws.” He had been granted it in spite of immigration laws.
The Eighth Circuit recently reached the same conclusion in Arellano-Garcia
v. Gonzales, 429 F.3d 1183 (8th Cir. 2005), which involved facts that are not
distinguishable in any meaningful way from those in the case before us. Arellano-
Garcia became a temporary permanent resident in 1987. Id. at 1184. The next
year he pleaded guilty to possession of cocaine and was deported. Id. Three days
after being deported Arellano-Garcia re-entered this country using his temporary
permanent resident card, which had not been taken from him. Id. The INS later
mistakenly approved him for permanent resident status. Id. Several years later the
agency realized its mistake and placed Arellano-Garcia in removal proceedings.
Id. at 1185. He conceded removability but sought a waiver under § 212(c). Id.
The immigration judge ruled that Arellano-Garcia was not entitled to § 212(c)
relief because he had not been lawfully granted resident status; his earlier
conviction had made unlawful the purported grant of lawful resident status. Id.
The BIA affirmed. Id.
16
In reviewing that ruling, the Eighth Circuit specifically noted that there was
no evidence that Arellano-Garcia made any fraudulent statements or
misrepresentations when he was adjusted to permanent resident status. Id. at 1186.
Instead, as in the present case, the “favorable status was obtained by a negligent
mistake made by the government.” Id. The question presented by Arellano-
Garcia’s case, and by the present case, is “whether an alien who received an
adjustment to permanent residency status by a mistake can be considered an alien
‘lawfully admitted for permanent residence’ within the meaning of the now
repealed INA § 212(c).” Id. Answering that question “no,” the court affirmed the
BIA’s decision that Arellano-Garcia was not “lawfully admitted for permanent
residence.” Id.
The Eighth Circuit explained that the definition given “lawful” in
Koloamatangi was reasonable. Id. at 1186–87. In doing so, the court noted the
BIA’s reasoning was based on circuit court decisions in Longstaff and Monet, both
of which had decided that lawful status is required, lawful procedure is not enough.
Id. The court then elaborated on that reasoning:
[T]he agency’s interpretation of “lawful,” which is based upon circuit
court precedent, is reasonable and applies not only where there has
been fraud in the procurement of the adjusted status, but also to a
situation where the alien was not entitled to an adjustment but
received it by a negligent mistake of the agency. Arellano-Garcia
may have received the adjustment through lawful procedure, and thus
he reaped the benefits of permanent residence status until the mistake
17
was discovered, but we defer to the BIA’s reasoned statutory
interpretation and conclusion that he never “lawfully” acquired the
status through that mistake. We will not “deem” him to be a “lawfully
admitted permanent resident” when he obtained permanent residence
status through a mistake and was not otherwise eligible for the status
adjustment. Therefore, Arellano-Garcia was not eligible for § 212(c)
relief.
Id. at 1187. We agree with the Eighth Circuit that the Board’s interpretation of §
212(c) is reasonable. Savoury did not “lawfully” acquire permanent resident status
when the INS mistakenly adjusted him to that status in 1992.
We agree with the Fifth and Eighth Circuits and with the BIA that “lawfully
admitted” means more than admitted in a procedurally regular fashion. It means
more than that the right forms were stamped in the right places. It means that the
alien’s admission to the status was in compliance with the substantive requirements
of the law. What is lawful depends on the law and not on administrative
inadvertence or error. The BIA can no more amend or vary a statutory requirement
through negligence or mistake than it can do so intentionally in deliberate defiance
of a congressional mandate.
For all of these reasons we agree with the Board that Savoury was not
eligible for § 212(c) relief because he was not “lawfully” admitted for permanent
resident status when he was accorded that status in 1992 and when the conditional
nature of it was removed in 1994. Absent some overriding affirmative defense, his
petition for review is due to be denied.
18
B.
One affirmative defense Savoury has asserted is waiver. He contends that
regardless of what the law requires, by approving his initial adjustment of status
and later removing the conditional basis of that status, all with knowledge of his
conviction, the INS waived the right to assert that conviction for any purpose later.
To recognize such a defense would give the INS the right to amend the
requirements that Congress has set forth in the immigration laws, something that
we are not willing to do.
Savoury cites the decision in Matter of G-A-, 7 I. & N. Dec. 274 (BIA
1956), where the BIA exercised its discretion to grant § 212(c) relief to an alien
who had lawfully attained permanent resident status and otherwise met the
requirements of that provision. Id. at 276. The special inquiry officer had denied §
212(c) relief because he noted that even if it were granted, the respondent would
still be subject to deportation under a different section of the INA. Id. at 275. In
reversing the denial of § 212(c) relief the BIA explained that once it had “waived”
under § 212(c) a ground of inadmissibility based on a criminal conviction, a
deportation proceeding would not be instituted based on that same criminal
conviction, unless the Attorney General revoked the previous grant of relief. Id.
That is not what happened here.
19
By citing Matter of G-A- for his waiver argument, Savoury is confusing
“waiver” in the formal, lawfully granted § 212(c) relief sense with waiver as an
affirmative defense based on non-assertion of authority that is not statutorily
sanctioned. Unlike the alien in Matter of G-A-, Savoury had not been lawfully
admitted for permanent resident status and he was not eligible for § 212(c) relief,
which is characterized in INA-speak as a “waiver.” He wants us to prevent the
INS from enforcing the immigration laws based on its earlier failure to do so. The
alien in Matter of G-A- did not ask for that.
C.
Closely related to the concept of waiver is the affirmative defense of
estoppel. Savoury asserts that the INS is estopped by its previous actions and
inactions from treating him as not “lawfully admitted for permanent residence.”
The immediate, serious problem that crops up, of course, is that it is far from clear
that the doctrine of equitable estoppel may even be applied against a government
agency. The Supreme Court has never held that it may be. See Office of Pers.
Mgmt. v. Richmond, 496 U.S. 414, 422–23, 110 S. Ct. 2465, 2470 (1990) (noting
that the Court has reversed every finding of estoppel against the government that it
has reviewed); but cf. Heckler v. Cmty. Health Servs. of Crawford, 467 U.S. 51,
60–61, 104 S. Ct. 2218, 2224 (1984) (noting that there might be some cases in
which “the public interest in ensuring that the Government can enforce the law free
20
from estoppel might be outweighed by the countervailing interest of citizens in
some minimum standard of decency, honor, and reliability in their dealings with
their Government”).
The Supreme Court has specifically declined to apply estoppel against the
government in several cases in the immigration context. See INS v. Miranda, 459
U.S. 14, 17–18, 103 S. Ct. 281, 282–83 (1982) (petitioner was ordered deported
because he was no longer eligible for permanent resident status after getting a
divorce during the eighteen months the INS was holding his visa application); INS
v. Hibi, 414 U.S. 5, 7–8, 94 S. Ct. 19, 21–22 (1973) (petitioner missed his
opportunity for naturalization because the government failed to publicize the
relaxed requirements which would have applied to him and did not place any
representatives in his country to alert or help him with the process); Montana v.
Kennedy, 366 U.S. 308, 314–15, 81 S. Ct. 1336, 1340–41 (1961) (petitioner was
denied citizenship because of his foreign birth even though his mother had sought
to return to the United States just before his birth and was erroneously informed
that she could not legally return). Savoury’s estoppel argument is no more
compelling than the ones the Supreme Court rejected in those three cases.
Even if estoppel were available as a defense against the government,
Savoury would still have to establish its traditional elements: “(1) words, conduct,
or acquiescence that induces reliance; (2) willfulness or negligence with regard to
21
the acts, conduct, or acquiescence; [and] (3) detrimental reliance.” United States v.
McCorkle, 321 F.3d 1292, 1297 (11th Cir. 2003). Additionally, we have said that
if estoppel does lie against the government in the immigration context, the alien
asserting it would have to show the government engaged in affirmative
misconduct. Tefel v. Reno, 180 F.3d 1286, 1302–03 (11th Cir. 1999).
“Affirmative misconduct requires more than governmental negligence or inaction,”
because a traditional claim of estoppel already requires at least negligence by the
party being estopped. McCorkle, 321 F.3d at 1297. The higher burden of showing
affirmative misconduct in order to estop the government would give effect to the
Supreme Court’s statements that, if the government may be estopped at all, it
would take more of a showing than when the doctrine is applied against a private
litigant. See Tefel, 180 F.3d at 1303 (citing Heckler, 467 U.S. at 60, 104 S. Ct. at
2224).
In Tovar-Alvarez v. U.S. Att’y Gen., 427 F.3d 1350, 1353–54 (11th Cir.
2005), we declined to hold the government estopped from removing the petitioner
where there was no showing of affirmative misconduct by the government. The
petitioner completed all application requirements for naturalization, but the INS
had not finished processing his application almost two years later when he was
convicted of a drug offense and charged with removability. Id. at 1351. Tovar-
Alvarez argued that the INS should be estopped from treating him as an alien
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because INS regulations required the Service to process his application within 120
days. Id. at 1353. We concluded that the “INS’s delay in processing Tovar-
Alvarez’s petition for naturalization does not rise to the level of affirmative
misconduct.” Id. at 1354.
Savoury argues that the government engaged in affirmative misconduct in
this case by attempting to remove him from the United States even after it had
adjusted his status with knowledge of his conviction; had failed to raise the issue of
his conviction in removing the conditional basis on his permanent residence; and
had not raised it in his naturalization proceedings. He notes that the government
did not institute removal proceedings against him for over ten years despite these
and other opportunities to do so. Savoury argues that the law requires lawful
permanent residents to reside in the United States, and this encourages people who
are granted that status to establish roots in their communities and raise families
here.
Savoury has not demonstrated anything beyond negligence, oversight, or
laxness on the part of the INS. That is not enough. See, e.g., McCorkle, 321 F.3d
at 1297. Nor has he shown detrimental reliance. As a result of the action about
which he now complains Savoury was allowed to enjoy the status of permanent
resident in this country for more than a decade, a status to which he was not
entitled, and a status that is so non-detrimental to him that he would like to
23
continue enjoying it indefinitely. He has not been worse off but instead has been
better off because the INS granted him permanent resident status in 1992 instead of
removing him from this country as it should have. Instead of suffering a detriment,
Savoury has enjoyed a windfall. He has not come close to showing what would be
required if estoppel could be asserted against the government.
D.
Savoury’s attempt to assert laches suffers from the same problems as his
estoppel defense. Neither this Court nor the Supreme Court has ever indicated that
laches applies against the government. Instead, the Supreme Court has stated that,
“[a]s a general rule laches or neglect of duty on the part of officers of the
Government is no defense to a suit by it to enforce a public right or protect a public
interest.” Hibi, 414 U.S. at 8, 94 S. Ct. at 21. We have gone even further, holding
that laches “cannot be asserted against the United States in its sovereign capacity to
enforce a public right or to protect the public interest.” United States v. Arrow
Transp. Co., 658 F.2d 392, 394 (5th Cir. Unit B 1981).3 The INS does act in the
public interest when it enforces the immigration laws of this country. Hibi, 414
U.S. at 8, 94 S. Ct. at 21. That is what happened in this case: after years of failing
3
Decisions by a Unit B panel of the former Fifth Circuit are binding precedent in the
Eleventh Circuit. Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982).
24
to do so, the INS finally enforced the immigration laws against Savoury. Laches
cannot be asserted to prevent it from doing so.
E.
Savoury’s final argument is that the government violated his due process
rights by denying him the opportunity to apply for relief from removal. To prevail
on this argument Savoury must show substantial prejudice. Ibrahim v. INS, 821
F.2d 1547, 1550 (11th Cir. 1987). In Ibrahim we held that the petitioner had not
demonstrated substantial prejudice because he had failed to show that the outcome
of his case would have been different if the requested procedures had been used.
Id. To the extent the injury Savoury alleges is procedural, he has not stated what
procedures should have been employed or how they would have resulted in a
different outcome.
Savoury relies on the Seventh Circuit’s decision in Singh v. Reno, 182 F.3d
504, 507 (7th Cir. 1999), but the prejudice was clear in that case. The INS had
issued an order to show cause in 1992 but did not hold a hearing until 1996 despite
Singh’s requests for one. Id. at 510. By the time of his hearing, relief under §
212(c) had been eliminated by statute. Id. The Court found that Singh had
presented a substantial constitutional claim and remanded to the IJ for a hearing.
Id. at 511. Unlike Singh, Savoury cannot show that he was prejudiced by the
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INS’s delay in acting to enforce the law. All he suffered was enjoyment of a
substantial benefit to which he was not entitled. That is hardly prejudice.
III.
The motion to DISMISS for lack of jurisdiction is DENIED, but the petition
for review of the decision of the Board of Immigration Appeals is also DENIED.
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