join, concurring in part and dissenting in part:
To the best of my understanding, the majority opinion holds that Kwon is not entitled to relief in this case because at the time Kwon applied for a visa and a change of status, there were no visas available in any of the categories in which Kwon was eligible to apply. On that basis, the majority concludes that an equitable retroactive remedy would be inappropriate. With that conclusion I totally agree. As the proposed opinion points out, the only circumstance in which it would be appropriate to grant relief nunc pro tunc is when the facts warranting such relief “existed at the time his application was originally submitted... . ” Majority Opinion, at 917. In Kwon’s case, it is clear that the only categories for which he could have applied on March 31, 1976 were those having no available visas. For that reason, I wholeheartedly embrace the result reached by the majority.
*920In addition to the above discussed basis for affirming the Board of Immigration Appeal’s (BIA) decision, the majority opinion sets out three additional grounds, each of which independently justifies the conclusion reached. In the initial proceeding, the INS District Director determined on January 26, 1978 that Kwon had withheld material facts when he first applied for his visa. That fact alone supports the conclusion that Kwon is not presently entitled to relief. Additionally, the District Director found that, assuming Kwon had not presented false information, he did not qualify for investor status,1 the category in which he applied. That fact also justifies denying relief now. Finally, the ALJ who held a de novo hearing found that Kwon subsisted below the poverty level, that he had been an illegal alien prior to filing his application for status adjustment, and that, contra to his statement that he intended to enter this country as a tourist, he had a preconceived intent to reside in the United States permanently. For those reasons, the ALJ determined that it was inappropriate to exercise his discretion in that instance to grant Kwon relief.
I am of the opinion that any and all of the four bases discussed above justify our affirmance of the result reached by the BIA. The majority opinion states, however, that this Court may not consider the facts found by the District Director and the ALJ as the basis for our affirmance of the BIA decision. In support of its position, the proposed opinion cites Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962); Real v. Simon, 514 F.2d 738 (5th Cir. 1975); and SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). Those cases do not support the proposition for which they are cited, nor is that proposition now or has it ever been the law. The cases cited in the majority opinion stand for the simple and justifiable proposition that an appellate court should not base its conclusion on facts or legal theories not raised with the administrative agency during that agency’s review process. They do not mean, however, that the appellate court may consider only the latest pronouncement of an administrative agency in a given case. A cursory review of the decisions of this court reveals numerous cases in which we have affirmed or reversed the determination of an administrative agency on the basis of an ALJ’s report as well as the intra-agency appellate review of that report. See, e. g., Abilene Sheet Metal, Inc. v. N. L. R. B., 619 F.2d 332 (5th Cir. 1980); Pigrenet v. Boland Marine & Manufacturing Co., 636 F.2d 1107 (5th Cir. 1980).
My quarrel with the proposed opinion is not, as the earlier discussion might suggest, with the exclusion of the three additional grounds for achieving the final resolution of this case. As I indicated at the outset, I agree totally with the majority’s conclusion that equitable relief is inappropriate in this case. Were the disagreement only on the grounds for affirmance, I would not write this dissent. It seems to me, however, that having resolved the issue presented, the opinion should come to a close. It is a fundamental principle that the courts decide only cases or controversies and, having done so, they will not offer opinions on issues not before them. This is a most wise rule for the operation of our courts. The failure of the majority opinion to follow it in this case makes it only too clear that bad legal principles will all too often be established when courts offer resolutions for issues with which they are not confronted. Knowing the record amply supports the denial of any relief based upon the facts, it is difficult to understand why the majority opinion reaches out to decide the question of the availability of equitable relief to all *921cases involving immigration law, when that question is not before the Court. I do not mean to suggest that I am unappreciative of Judge Rubin’s scholarly work in attempting to explain the intricate and convoluted operation of the immigration laws. My concern is that much of the information set forth would more appropriately be presented in a law review article, rather than in an opinion on which it has no bearing. I particularly object to the inclusion of such gratuitous discussion when it forms the basis for the reconsideration and reversal of an opinion of this Court which is not at issue in the case at bar and which was not reviewed by the court en banc.
Though the majority opinion had effectively resolved all issues presented in Kwon’s appeal, it goes on to reconsider the decision by a panel of this Court in Suh v. Immigration and Naturalization Service, 592 F.2d 230 (5th Cir. 1979). Most astoundingly, the majority opinion overrules that decision totally with dicta. The opinion attacks Suh on the grounds that the panel erred when it determined that the INS had violated its own regulation. Accordingly, the opinion .continues, it was erroneous to grant relief on the basis of the purported regulations violation. As if it were not enough to overrule the particular judgment of a case which was not at issue, the majority opinion goes on to say that, even if the panel was correct that a regulation was violated, there is no support for the legal principle on which the granting of equitable relief was based.
In addition to my belief that the majority opinion unjustifiably considered issues not before it, I am equally convinced the Suh opinion was correct on the question of the regulations violation and in applying the legal principle articulated.
Application of the majority opinion’s own analytic framework demonstrates that this Court correctly decided in Suh that the INS had violated its own regulations. In Suh, Judge Ingraham concluded that the INS failed to comply with 8 C.F.R. § 245.2(a)(2) (1976)2 when it retained Suh’s adjustment application at a time when no visa numbers were immediately available. The majority opinion explains that the Suh panel erred by treating the adjustment application as a visa petition and, accordingly, applied the incorrect regulation. The opinion points out that it is only when an alien submits an adjustment application and a visa petition simultaneously that the INS is required to reject the former immediately in the event that a visa number is not available. In this the proposed opinion is correct. The problem I have is that in Suh, as in this case, the alien did file both documents and, accordingly the regulation was applicable. Both Suh and Kwon submitted form 1-485 to the INS at a time when neither had a valid visa. In fact, both Suh and Kwon applied for non-preference investor status. In that situation, the majority tells us, “[i]f a person does not possess a valid visa and is not entitled to any of the special exemptions, his 1-485 constitutes a simultaneous submission of a visa petition.” Majority Opinion, at 914. Applying the same rule, the Suh panel determined that the 1-485 filed constituted both an adjustment application and a visa petition, and accordingly concluded that 8 C.F.R. § 245.2(a)(2) (1976) was applicable. Not only is this result supported by the same rule but this opinion actually reaches the identical conclusion with respect to Kwon’s filing of his 1-485. The majority states, “... we treat Kwon’s application [form 1^485] as the simultaneous submission of a visa petition and an application for adjustment of status because he did not *922possess a valid visa and was not entitled to any exemption.” Majority Opinion, at 914. Accordingly, I am unable to understand why the majority reaches the conclusion that the same regulation found to be applicable in Suh was not violated.3
My most serious concern with the majority opinion is that it appears to hold that this Court is without power to order equitable relief of a retroactive nature to an alien whose opportunity to obtain citizenship in this country is prejudiced by the unjustified acts of the INS through its agents.4 I would make the following responses to the proposed opinion: (1) the fact that the INS may have violated its internal operating procedure rather than the regulations is without significance to this Court’s power to grant equitable relief to an alien whose rights are prejudiced by that violation; (2) this Court does not depend, as the proposed opinion suggests, on a statutory or regulatory authorization in order to exercise its inherent equitable powers; and (3) the Supreme Court’s decision in Immigration and Naturalization Service v. Hibi, 414 U.S. 5, 8, 94 S.Ct. 19, 21, 38 L.Ed.2d 7 (1973), does not limit the equitable power of federal courts to only those cases in which an estoppel is appropriate, so long as the right to equitable relief is based on “affirmative conduct” of the INS.
The majority opinion makes much of the fact that the “worst” the INS did in Suh was violate its own Operations Instructions. Since these instructions do not have the force of law, unlike the regulations, the majority reasons that we may not correct an unjust result arising from their violation. Assuming, arguendo, that only the Operating Instructions were violated in Suh, I conclude that such legal reasoning is wholly fallacious. It confuses that underlying jurisprudential distinction between law and equity. If regulations, having the force of law, were violated, the alien would have a right to both legal and equitable relief. When, however, an alien is prejudiced by the unjustifiable, yet not illegal acts of the INS, his only recourse is to seek equitable relief.
The majority’s next position, that this Court can not grant equitable relief because it is not statutorily provided for, is equally untenable. Such an argument fails to recognize that the power of the federal courts to grant equitable relief arises out of their constitutional grant of authority under Article III, and does not depend on specific legislative authorization. Were this not the case, the power of federal courts to exercise their equitable powers would be limited to those very few situations in which Congress specifically authorized them to do so. This is clearly not the law. One need only look to Immigration and Naturalization Service v. Hibi, 414 U.S. 5, 8, 94 S.Ct. 19, 21, 38 L.Ed.2d 7 (1973), cited in the majority opin*923ion, for proof that the Supreme Court concluded that equitable relief, although not appropriate under the facts of Hibi, was within the power of the federal courts to grant in the proper circumstances. See, Santiago v. Immigration and Naturalization Service, 526 F.2d 488 (9th Cir. 1975) (en banc), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976); Yoo v. Immigration and Naturalization Service, 534 F.2d 1325 (9th Cir. 1976).
The final point made in the proposed opinion is that if equitable relief is ever proper, Hibi limits the situations in which it should be granted to those that constitute an estoppel. There are several reasons why such an interpretation is incorrect. In the first place, as the Ninth Circuit Court of Appeals noted in Santiago, the ruling in Hibi is unique in that the Court was asked to estop the government from enforcing a broad decision of the Executive Branch made some twenty years earlier relating to post-World War II policy as it applied to a large class of people. There is a tremendous difference between seeking to estop the government when it is acting in its sovereign capacity and when it is performing a largely ministerial function. As Judge Choy said in his concurring and dissenting opinion in Santiago
The conduct at issue in Hibi was not the negligence or malfeasance of minor officials, but a deliberate decision of policy by the Attorney General. Although acting in the face of a contrary congressional purpose, the executive branch was attempting to advance diplomatic relations between the United States and the government of the Philippines. Regardless of whether the Government’s conduct constituted an abuse of discretion, its decisions were so patently of the type committed to the executive branch that the Court was extremely reluctant to nullify them over 20 years later in order to relieve one individual instance of hardship.
526 F.2d at 496. Secondly, Hibi does not suggest that estoppel is the only type of equitable relief that may be granted. The simple reason that estoppel was discussed in Hibi is that it was the type of equitable relief that would have been appropriate to the facts of the case. As I read Hibi, we are instructed that equitable relief against the government is only appropriate if the injury complained of is caused by “affirmative misconduct” of the government agent. I see nothing in Hibi that says we may grant equitable relief only in those cases in which an estoppel is factually appropriate. Therefore, in my opinion, the suggestion, that the relief granted in Suh was inappropriate because it was not an estoppel, is simply wrong. One need only read the facts of Suh to see that there was nothing from which to estop the government. If relief was to be effective it had to be of a mandatory rather than a prohibitory nature. The final point I Would make with respect to Hibi, is that whatever else the elusive term “affirmative misconduct” may mean,5 it most certainly must encompass a *924situation like that in Suh where the INS fails in its duty to provide the applicant alien with the information which the regulations and its own operating procedures require it to provide.
Conclusion
Being personally convinced that my most scholarly brother errs in traveling far out of his way to abolish equitable retroactive remedial relief, I would like to offer several reasons why, in the proper case, it is both appropriate and essential. One conclusion that anyone who reads the majority opinion must reach is that the INS regulations are incomprehensible. Their apparent internal inconsistencies defy comprehension by even the most learned in our society. As the majority opinion admits, “[wjhatever guidance the regulations furnish to those cognoscenti familiar with INS procedures, this Court, despite many years of legal experience, finds that they yield up meaning only grudgingly and that morsels of comprehension must be pried from mollusks of jargon.” Majority Opinion, at 919. Consider further that the individuals whose responsibility it is to divine some sense from these regulations are the aliens themselves. These are not legal scholars; they often are poor, uneducated individuals, barely conversant in what to them is the foreign language of English. It seems to me that the INS regulations and internal operating rules that instruct INS agents to provide applicant aliens with certain information were created with the knowledge of these unequal positions in mind. Though the personnel within INS are being asked to perform the impossible6 in many parts of our country, the law requires them to follow the rules set down for the performance of their job. When they fail to meet this funda*925mental obligation, for whatever reason, and that failure operates to the prejudice of an applicant alien who otherwise is qualified for citizenship, it is the duty of this Court to use whatever equitable tools are at its disposal to restore the injured party to his or her rightful position.
We live in the greatest nation on Earth. It should come as no surprise that people of all races, creeds, and nationalities would desire to become citizens. It was the desire to live in this great nation that brought many of our ancestors to these shores in the last two centuries. To decide the propriety of granting retroactive remedial relief, one need only ask oneself how he would hope his ancestors would have been treated had the negligence of an INS officer stood as the only bar between citizenship and deportation to a hostile land.
Accordingly, I concur in the result achieved and respectfully dissent from the remainder of the proposed opinion.
. The effective regulations at the time Kwon applied for investor status required an applicant to establish (1) that he was seeking to enter the United States to engage in an agricultural or commercial enterprise in which at least $10,000 would be invested and (2) that he had at least one year of experience or training qualifying him to engage in such a business. 8 C.F.R. § 212.8(b)(4) (1976); 22 C.F.R. § 42.-91(a)(14)(ii), (d) (1976). In the initial proceeding, the District Director found that Kwon’s investment did not reach the required statutory amount.
. That section provides in pertinent part:
If a visa petition is submitted simultaneously with the adjustment application, the adjustment application shall be retained and processed only if the petition is found to be in order for approval upon initial review by an immigration officer, is approved, and approval makes the visa immediately available. (emphasis added)
In the Suh case, the 1-485 form should not have been retained because, as the INS admits, approval could not have made a visa immediately available. This is true because there were no more visa numbers available that year for those seeking investor status, and the INS official who retained the form was or should have been aware of that fact.
. Apparently, even the INS admits that the regulations were violated in Suh. Not only did the INS not seek a rehearing of that decision, it has not asserted here that that decision was erroneous. Rather, the INS has attempted, successfully I might add, to distinguish Suh from the case at bar.
. I say that the majority opinion appears to hold that this Court is without equitable power to grant retroactive relief because certain internal inconsistencies in the opinion make it impossible to say that that definitely is the conclusion reached. For example, the proposed opinion begins with the unequivocal position that this Court may not grant equitable relief in any INS case because it is not authorized by regulation or statute. That position is then followed by the statement that if equitable relief is to be granted nunc pro tunc, in any case, precisely what was previously said to be improper, it must appear that the alien was eligible then for the status change being authorized now. I would add that I am in total agreement with this last statement. The proposed opinion goes on to say that equitable relief is inappropriate in this case because Kwon wasn’t eligible for labor certification at the time he applied for investor status. I also agree with that. Finally, the opinion closes with the statement that it does not decide whether this Court does or does not have the power to grant the type of equitable relief granted in Suh.
As I count, the proposed opinion expresses three mutually exclusive positions on the question of the power of this Court to grant equitable relief. Because I fear that the opinion will be cited for the proposition that this Court lacks the power to grant equitable relief of a retroactive nature, I have written the remainder of this opinion as if that were the clear holding of the proposed opinion.
. As the Ninth Circuit pointed out in Santiago The Court in Hibi did not elaborate on the meaning of “affirmative misconduct” and we do not believe that it would be productive to dwell overlong on the possible reasons for the inclusion of the modifier “affirmative.” That term, as well as the use in Hibi of a quotation from Utah Power & Light Co. v. United States concerning “neglect of duty,” suggests that a distinction might be drawn between nonfeasance and misfeasance. But these are slippery terms. The two “failures” in Hibi can be viewed as either, a point which Mr. Justice Douglas made in characterizing the governmental conduct there as a “deliberate effort.”
526 F.2d 492-493. In his concurring and dissenting opinion, Judge Choy elaborated further, saying
“Affirmative” and “negative,” like “misfeasance” and “nonfeasance,” are indeed slippery terms. Each one of the claims paraphrased negatively can readily be restated affirmatively; e. g., the immigration officer admitted Khan even after learning that Khan was not accompanying or following to join his father. But it is not how we cast the facts, but the facts themselves that should dictate the nature of relief warranted.
In Hibi, it is true, the Court denied estoppel relief based on the “failure to fully publicize” the right of an ex-Philippine Scout to apply for naturalization and the “failure to have stationed” in the Philippines a naturalization *924representative during all the period Hibi was eligible for naturalization. 414 U.S. at 9, 94 S.Ct. 19 [at 21, 38 L.Ed.2d 7]. Still, the Court intimated that conduct adverted to in Montana v. Kennedy, 366 U.S. 308, 315, 81 S.Ct. 1336 [1341], 6 L.Ed.2d 313 (1961), might be “affirmative misconduct” warranting estoppel in cases of this nature. Id. [414 U.S.] at 8, 94 S.Ct. 19 [at 21, 38 L.Ed.2d 7]. Montana refers the reader to Podea v. Acheson, 179 F.2d 306 (2d Cir. 1950), and Lee You Fee v. Dulles, 236 F.2d 885, 887 (7th Cir. 1956).
In Podea, a United States citizen living in Romania asked the American consul there for a United States passport in order to avoid Romanian military service. The consul refused the passport on the basis of an erroneous ruling of an official in the State Department that Podea had lost his United States citizenship. Podea was conscripted into the Romanian army and took its oath of allegiance. Held: Podea did not voluntarily expatriate himself since his acts were primarily caused by erroneous advice of the State Department.
Lee You Fee itself presents no case of estoppel, but at 236 F.2d 887 discusses three cases that did; Lee Bang Hong v. Acheson, 110 F.Supp. 48 (D.Haw.1951); Lee Hong v. Acheson, 110 F.Supp. 60 (N.D.Cal.1953); and Lee Wing Hong v. Dulles, 214 F.2d 753 (7th Cir. 1954). In all three cases, foreign-born United States citizens who made timely applications for entry documents were prevented from reaching the United States by their sixteenth birthdays because the American consular officials abroad refused to issue or delayed issuance of the documents. Held: The failure of the consular officials did not divest those persons of their United States nationality. As the court in Lee You Fee commented about these three cases: “Certainly the Government should not be heard to contend that a plaintiff had been deprived of his citizenship because of the failure of the plaintiff to do something which the officials of the Government had carelessly or willfully prevented his doing.” 236 F.2d at 887.
It is unclear, therefore, what behavior the Supreme Court considers to be “affirmative misconduct.” Certainly the governmental conduct “adverted to” in Montana v. Kennedy partook more of the nature of error or carelessness than of the extreme blameworthiness which the majority apparently contemplates as the only basis for estoppel. Rather than juggle the terminology found in the Hibi opinion, I would inquire into the interests which the Hibi Court sought to protect.”
526 F.2d 495-96.
. Enormous problems exist in many of our border states including Texas, Florida and California. Cases pending in this Court point out the incredible number of applicants being processed. Classes have been certified to control the litigation. All are aware of the Cuban and Haitian boat lifts. None of this, however, lessens the duty of those charged with the responsibility of processing aliens and to date this Court has not compromised such. It appears we will now travel a different road.