United States Court of Appeals
For the First Circuit
No. 99-2357
JOSE COSTA,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF REMOVAL OF
THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Circuit Judge,
Coffin and Bownes, Senior Circuit Judges.
Lidia M. Sanchez, with whom Cooper & Sanchez was on brief,
for petitioner.
Paul D. Kovac, Attorney, Office of Immigration Litigation,
United States Department of Justice, with whom David W. Ogden,
Acting Assistant Attorney General, Civil Division, and Mark C.
Walters, Assistant Director, Office of Immigration Litigation,
were on brief, for respondent.
November 28, 2000
SELYA, Circuit Judge. Petitioner-appellant José Costa,
a forty-five-year-old Cape Verdean who has no known criminal
record, claims that he was eligible to apply for suspension of
deportation, but that the Board of Immigration Appeals (BIA)
incorrectly refused to recognize that fact. In the alternative,
he claims that the BIA erred by failing to treat him as eligible
for suspension of deportation on the basis of equitable
estoppel. Finding his arguments unconvincing, we deny his
petition for review.
I.
Background
This case plays out against a kaleidoscopic backdrop
of recent developments in immigration law. We focus on one
small area of change. Prior to April 1, 1997, non-criminal
aliens could apply for suspension of deportation, provided that
they had accumulated seven years of continuous physical presence
in the United States and had satisfied certain other
requirements. See Immigration and Nationality Act (INA) § 244,
8 U.S.C. § 1254 (repealed 1997). Congress's enactment of the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, 3546
(codified as amended in scattered sections of 5, 8, 18, 28, 42,
& 48 U.S.C.), eliminated that option; IIRIRA abolished
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suspension of deportation entirely and replaced it, effective
April 1, 1997, with a more restrictive procedure called
cancellation of removal. IIRIRA § 304(a)(3), 8 U.S.C. §
1229b(b)(1) (1999) (replacing INA § 244 with a new § 240A).
Eligibility for cancellation of removal requires, inter alia, a
minimum of ten years of continuous physical presence in the
United States. Id.
This shifting series of congressional directives makes
timing very important. Under those directives, non-criminal
aliens placed in deportation proceedings prior to April 1, 1997,
are eligible for suspension of deportation if they meet the
familiar requirements of INA § 244, whereas those placed in
deportation proceedings after that date are eligible only for
cancellation of removal under IIRIRA § 340(a)(3). This line-
drawing matters here inasmuch as the petitioner satisfies the
criteria for INA § 244 relief but not the more stringent
criteria imposed by IIRIRA § 340(a)(3). Because he lawfully
entered the United States in June of 1989, overstayed his six-
month nonimmigrant visa, and made a life for himself here, he
had more than seven, but fewer than ten, years of continuous
physical presence in the United States when suspension of
deportation metamorphosed into cancellation of removal.
-4-
With a change in the law looming and the calendar
working against him, the petitioner decided to take matters into
his own hands. On March 18, 1997 — after Congress had passed
IIRIRA but prior to the date on which the abolition of INA § 244
took effect — the petitioner, accompanied by an attorney,
presented himself at the local Immigration and Naturalization
Service (INS) office in Providence, Rhode Island, requesting
that he be placed in deportation proceedings. He asserts that
the INS issued an Order to Show Cause (OSC) at that time, and
although the INS questions this assertion in its brief — the OSC
was never produced in the course of subsequent proceedings — we
assume arguendo the veracity of the petitioner's account.
In all events, the INS did not file the OSC with the
Immigration Court prior to the April 1 cut-off date.1 Instead,
it served the petitioner with a Notice to Appear (NTA) on June
19, 1997, and thereafter filed the NTA with the Immigration
Court.
Given this sequence of events, the petitioner's burden
is to show that his case falls under the old regime rather than
the new. The adequacy of this showing depends, in the first
1
The Immigration Court (sometimes called the Office of the
Immigration Judge) is an administrative court that operates
under the hegemony of the Executive Office of Immigration
Review, a unit of the Department of Justice. It functions
independently of the INS.
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instance, on the statutory text. In pertinent part, IIRIRA
provides that "an alien who is in exclusion or deportation
proceedings as of the [statute's] effective date" (April 1,
1997) is not subject to the new rules. IIRIRA § 309(c)(1). The
parties interpret this language differently. The petitioner
asserts that the issuance of an OSC invariably marks the
commencement of deportation proceedings, and that, therefore, he
was in deportation proceedings from and after the date that such
a document was served upon him. Since that event occurred prior
to April 1, 1997, his thesis runs, the more favorable suspension
of deportation paradigm applies to his case. The INS demurs,
asserting that the petitioner was not in deportation proceedings
until the agency filed the NTA in the Immigration Court. Since
that event occurred after April 1, 1997, the INS posits that the
less favorable cancellation of removal paradigm applies.
The Immigration Judge (IJ) accepted the INS's view,
applied the more onerous criteria, rejected the petitioner's
estoppel argument, and ordered removal. The petitioner sought
further administrative review but the BIA dismissed his appeal.
He now prosecutes this petition for judicial review. 2 To the
2Post-IIRIRA, the proper respondent in a petition for
judicial review of an order of removal is the Attorney General,
not the INS. See 8 U.S.C. § 1252(b)(3)(A). The petitioner,
however, flouted this rule and named the INS instead of the
Attorney General. Because the error appears harmless, we
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extent that the petition presents an abstract legal question
concerning the effect, if any, of a served but unfiled OSC on
the choice of law seemingly demanded by the confluence of two
different statutory schemes, we afford de novo review. Gailius
v. INS, 147 F.3d 34, 43 (1st Cir. 1998); Fergiste v. INS, 138
F.3d 14, 17 (1st Cir. 1998).
II.
Discussion
We divide our analysis into two segments, corresponding
to the petitioner's broadsides.
A.
When Deportation Proceedings Commenced
By statute, the Attorney General has authority to
"establish such regulations . . . as he deems necessary for
carrying out his authority under the [immigration laws]." 8
U.S.C. § 1103(a)(3). The Attorney General has delegated this
rulemaking power to the INS. 8 C.F.R. § 2.1. The INS's view of
when the petitioner first became embroiled in deportation
overlook the discrepancy on this occasion.
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proceedings draws sustenance from a regulation promulgated
pursuant to this authority. The regulation provides explicitly
that "[j]urisdiction vests, and proceedings before an
Immigration Judge commence, when a charging document is filed
with the Immigration Court by the Service." 8 C.F.R. § 3.14(a).
This regulation hardly could be clearer and, under familiar
principles, ordinarily would be entitled to great weight.
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 844 (1984); Sidell v. Commissioner, 225 F.3d 103,
109 (1st Cir. 2000). Here, however, the petitioner scoffs at
the suggestion that deference is due. He claims that our
decision in Wallace v. Reno, 194 F.3d 279 (1st Cir. 1999),
blunts the force of the regulation. Our next task, then, is to
determine what effect, if any, Wallace has on the applicability
of the regulation in the circumstances at hand.
The Wallace case did not primarily involve IIRIRA, but,
rather, a complementary set of changes to the immigration laws
effected by the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996).
Wallace, a native of Jamaica who immigrated to this country in
1988, was convicted of a drug-trafficking offense in February
1996, following a guilty plea. On March 20, 1996 (prior to
AEDPA's April 24, 1996, effective date), the INS served him with
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an OSC challenging his immigration status. It filed the OSC
with the Immigration Court on June 14, 1996 (subsequent to
AEDPA's effective date). On December 18, 1996, Wallace conceded
deportability. An IJ thereafter found him ineligible to apply
for a discretionary waiver of deportation under section 212(c),
reasoning that the newly-enacted ban on waivers of deportation
for aliens convicted of certain aggravated felonies, contained
in AEDPA § 440(d), had enlarged the category of statutorily
ineligible individuals to include criminal aliens who, like
Wallace, had been convicted of drug-trafficking crimes,
regardless of length of sentence.3 The BIA dismissed Wallace's
administrative appeal.
Wallace then filed a habeas application in the district
court, "claiming that it was impermissibly retroactive to apply
AEDPA's new limitation on waivers to him." Wallace, 194 F.3d at
282. The retroactivity argument pertained directly to Wallace's
pre-AEDPA conviction and to the legitimacy of using that
conviction as a fulcrum to force him out of the country under
the new law. See id. The district court granted the requested
3
The type of relief pursued by Wallace is similar, but not
identical, to that pursued by Costa. Wallace sought relief
under INA § 212(c), which applies to criminal aliens. By
contrast, Costa seeks relief under INA § 244, which applies in
somewhat different terms to non-criminal aliens. See Cipriano
v. INS, 24 F.3d 763, 764 (5th Cir. 1994) (limning both forms of
relief).
-9-
relief. Wallace v. Reno, 24 F. Supp. 2d 104 (D. Mass. 1998).
We affirmed, albeit on different grounds.4
Faced with a close question as to whether the enlarged
ban on waivers could constitutionally be applied to a person
who, prior to AEDPA's effective date, had pled guilty to a
felony which at the time of the plea did not render the
perpetrator ineligible for suspension of deportation, we
concluded that Congress did not intend the ban on discretionary
waivers to operate in so draconian a fashion. Wallace, 194 F.3d
at 286-87. In that context, we rejected the INS's contention
that 8 C.F.R. § 3.14(a) controlled and held that, for purposes
of his habeas case, Wallace had been placed in deportation
proceedings on March 20, 1996 (when the INS served him with an
OSC). Id. at 287. In that connection, we wrote:
In this case we are not concerned with the
INS's internal time tables, starting points,
due dates, and the like but with the
judicial question of retroactivity. This
question turns on considerations unrelated
to the purpose of INS regulations —
primarily (in the absence of statutory
guidance) with the evil Congress sought to
prevent and the realities of reasonable
reliance or settled expectations on the part
of litigants. From this standpoint, we
4We consolidated Wallace's appeal with an appeal taken by an
unrelated party, one Lemos, and Judge Boudin wrote a single
opinion encompassing both appeals. Because the petitioner's
argument derives from the panel's treatment of Wallace rather
than Lemos, we limit our account accordingly.
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think that when an order to show cause is
served on the alien, the deportation process
has effectively begun and expectations
properly form, even if there is no actual
reliance.
Id. (emphasis in original).
Wallace is inapposite here. There, we were concerned
that once criminal proceedings against an alien had begun, the
existing rules applicable to suspension of deportation likely
would command his attention and foster reliance during his
decisionmaking in connection with the pending criminal charges.
Id. Given the likelihood that such rules might have played a
significant role in the alien's strategic choices when defending
against the pre-AEDPA criminal charges (e.g., deciding whether
to plead guilty or to stand trial), changing them after the game
had started raised a special set of fairness concerns. Id.
The instant case, which involves a non-criminal alien,
is a horse of a different hue. Unlike Wallace, the petitioner
is not a criminal alien and, unlike Wallace, he is not subject
to deportation on the basis of a criminal conviction that left
him eligible for section 212(c) relief when it occurred. It
follows inexorably that the petitioner was not confronted with
the same need to make strategic choices as was a criminal alien
in Wallace's position. It likewise follows that retroactivity
concerns, central to our decision in Wallace, are absent in this
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case. Although it is true that, from a theoretical standpoint,
the petitioner faced deportation from the time he overstayed his
visa, the government did not force him to make choices in
reliance on existing law — and then pull the rug out from under
him by revising that law. Thus, while the petitioner, when he
presented himself at the local INS office, might have hoped to
take advantage of the favorable rules that he knew were being
phased out, the decision to attempt to accelerate consideration
of his immigration status was not one made under the compulsion
of pending criminal charges (or under any comparable compulsion,
for that matter).
Moreover, the petitioner cannot be heard to complain
that he was unfairly mousetrapped by the service of an OSC.
After all, Congress passed IIRIRA on September 30, 1996 — nearly
six months before the petitioner self-reported to the Providence
INS office. IIRIRA § 309(a), 8 U.S.C.A. § 1101 (Note). The
petitioner has not argued that his appearance on the INS's
doorstep less than two weeks before the new law's effective date
was a coincidence. We safely can assume, therefore, that the
petitioner was on notice of the impending shift from suspension
of deportation to cancellation of removal when he invited the
issuance of an OSC. In light of that fact, he cannot
convincingly claim, as could Wallace, that he relied to his
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detriment on a prior legal regime. 5 Cf. Martin v. Hadix, 527
U.S. 343, 360 (1999) (concluding that passage of a statute
eliminated retroactivity concerns by placing attorneys on notice
of certain fee constraints, thus undermining any reasonable
expectation of higher fees in respect to engagements undertaken,
but not completed, between the day of passage and the effective
date of the fee constraints).
Wallace is inapposite for another reason as well. That
case arose in the habeas context. Here, unlike in Wallace, we
are dealing with direct review of a BIA order.6 For that reason,
5 Two other cases cited by the petitioner, namely, Alanis-
Bustamante v. Reno, 201 F.3d 1303 (11th Cir. 2000), and Pena-
Rosario v. Reno, 83 F. Supp. 2d 349 (E.D.N.Y. 2000), are cast in
the Wallace mold. Both of them lean heavily on the language of
the Wallace court. Alanis-Bustamante, 201 F.3d at 1309; Pena-
Rosario, 83 F. Supp. 2d at 362-63. Moreover, both of them
involve the question of whether the enlarged definition of
"aggravated felony" contained in AEDPA § 440(d) can
constitutionally be applied to criminal convictions antedating
AEDPA's effective date. Alanis-Bustamante, 201 F.3d at 1307-08;
Pena-Rosario, 83 F. Supp. 2d at 363-65. For these reasons, the
two cases, like Wallace itself, fail to assist the petitioner
here.
6We note in passing that, aside from the two distinctions
discussed herein, there are other differences between this case
and Wallace. First, the OSC at issue here was served but not
filed, whereas the OSC in Wallace was both served and filed.
Wallace, 194 F.3d at 282. Second, this case arises under IIRIRA
and its permanent rules, and the Wallace court did not purport
to deal with that situation. Id. at 288 (cautioning that the
decision "applies only to cases governed by IIRIRA's
transitional rules; the permanent IIRIRA regime could affect
various of the issues discussed and we leave those cases for
another day"). Third, Wallace sought relief under INA § 212(c),
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"the INS's internal time tables, starting points, . . . and the
like," immaterial in Wallace, are of critical importance.
Straightforward judicial review of an administrative order
cannot proceed without reference to agency time tables, starting
points, and the like — and in this case, straightforward
judicial review is all that is necessary. Because the
petitioner is a non-criminal alien, he is subject to a simple
removal proceeding, with no extraneous concerns about the
collateral consequences of past activity. Under such
circumstances, the agency's application and interpretation of
the pertinent IIRIRA provision, contained in a regulation
promulgated under legislative mandate, is controlling as long as
it is not obviously erroneous or inconsistent with the language
of the statute. Stinson v. United States, 508 U.S. 36, 45
(1993); Sidell, 225 F.3d at 109. The regulation at issue here,
8 C.F.R. § 3.14(a), easily passes this undemanding test.
This is especially true because the Attorney General
(and, in turn, the INS, as her designee) has broad discretion in
deciding, administratively, whether and when to pursue
deportation against an alien. See Reno v. American-Arab Anti-
Discrimination Comm., 525 U.S. 471, 483-85 (1999); United States
rather than INA § 244. See supra note 3. We take no view of
the significance, if any, of these other distinctions.
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v. Camacho-Bordes, 94 F.3d 1168, 1174 (8th Cir. 1996); Cabasug
v. INS, 847 F.2d 1321, 1324 (9th Cir. 1988); Cervantes v.
Perryman, 954 F. Supp. 1257, 1265 (N.D. Ill. 1997); see also 8
U.S.C. § 1227(a). The Attorney General's "responsibility in
this regard is akin to his responsibility for enforcing the
criminal laws: in both situations, he has discretion to refrain
from instituting proceedings even though grounds for their
commencement may exist." Johns v. Department of Justice, 653
F.2d 884, 889 (5th Cir. 1981). An alien illegally in the United
States cannot force the Attorney General's hand by the simple
expedient of calling attention to his status and demanding
immediate action.
In a last-ditch effort to sidestep the regulation, the
petitioner argues that the INS acted in bad faith when it failed
to file the OSC with the Immigration Court. This argument will
not wash.
In United States v. Gertner, 65 F.3d 963 (1st Cir.
1995), we explained what was necessary to overcome the
presumption of good-faith action by the government. The party
seeking to overcome that presumption "must articulate specific
allegations of bad faith and, if necessary, produce reasonably
particularized evidence in support of those allegations." Id.
-15-
at 967. This is "a significant burden," id., and the petitioner
has failed to carry it here. We explain briefly.
The petitioner focuses his argument exclusively on the
INS's failure to file the OSC with the Immigration Court. By
his own account, however, he solicited the OSC a mere thirteen
days before the repeal of INA § 244 took effect, and the INS
therefore had less than two weeks within which to perfect the
filing. The petitioner has identified no regulation or custom
that establishes a fixed interval within which an OSC, once
served, should be filed. Nor has he presented any probative
evidence that the INS promised him it would file the OSC with
the Immigration Court within the thirteen-day window. We are
not prepared to say, on an otherwise empty record, that the mere
passage of thirteen days supports a claim of bad faith. Cf.
United States v. Alegria, 192 F.3d 179, 189 (1st Cir. 1999)
(explaining that carelessness on the part of prosecutors "does
not suffice to make out a case of bad faith").
That ends this aspect of the matter. We uphold the
BIA's administrative determination that the petitioner was not
in deportation proceedings until the NTA was filed with the
Immigration Court. See Chevron, 467 U.S. at 837 (declaring that
regulations promulgated by an agency under a statutory scheme
within its purview will be given controlling weight unless
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"arbitrary, capricious, or manifestly contrary to the statute");
Sidell, 225 F.3d at 109 (explaining that an agency's
interpretation of its own regulations is entitled to great
deference). And since that filing occurred after April 1, 1997,
the BIA did not err in ruling that section 244 relief no longer
was available.
B.
Equitable Estoppel
The petitioner has a fallback position. He suggests
that the INS should be estopped from proceeding under the new
rules. In his view, this estoppel arises because (1) the INS
should have filed the OSC with the Immigration Court during the
thirteen-day interval that elapsed between the issuance of the
OSC and the date of the shift in rules, and (2) the service of
the OSC created an expectancy on his part that he would be
eligible for suspension of deportation. Neither argument is
persuasive.
Asserting an estoppel claim against the government is
more easily said than done. The proponent must "demonstrat[e]
that the traditional elements of an estoppel are present."
Heckler v. Community Health Servs., 467 U.S. 51, 61 (1984). He
also must "demonstrate that government agents have been guilty
of affirmative misconduct." Dantran, Inc. v. United States
-17-
Dep't of Labor, 171 F.3d 58, 67 (1st Cir. 1999). The upshot is
that a private party who presses for an estoppel against the
government must establish (1) the occurrence of affirmative
government misconduct (2) engendering a reasonable (though
erroneous) belief that a certain state of affairs exists (3)
upon which the private party relies to his detriment. See
Akbarin v. INS, 669 F.2d 839, 842 (1st Cir. 1982). Given the
rigors of this gauntlet, it is not surprising that estoppel
against the government — if it exists at all — is hen's-teeth
rare. OPM v. Richmond, 496 U.S. 414, 422 (1990) (noting that
the Justices "have reversed every finding of estoppel [against
the government] that [they] have reviewed"); United States v.
Ven-Fuel, Inc., 758 F.2d 741, 761 (1st Cir. 1985) ("The
possibility of harm to a private party inherent in denying
equitable estoppel . . . is often (if not always) grossly
outweighed by the pressing public interest in the enforcement of
congressionally mandated public policy.").
The petitioner is unable to overcome these obstacles.
First, he cannot meet the "affirmative misconduct" requirement
because the INS has done nothing wrong in this case. There is
no set time either for initiating a deportation proceeding or
for filing a served OSC. Indeed, as we already have remarked,
the INS has virtually unfettered discretion in such respects.
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American-Arab Anti-Discrimination Comm., 525 U.S. at 483-85.
Second, the petitioner has made no showing of detrimental
reliance; because he had no right to call the tune as to when
the INS would commence deportation proceedings against him, he
cannot claim reasonable reliance on the import of the OSC (and,
at any rate, he did not change his position because of it).7 For
these reasons, the petitioner's claim of equitable estoppel
lacks force.
III.
Conclusion
7 At the expense of carting coals to Newcastle, we add that,
in order for there to be detrimental reliance, the aggrieved
party must show that he has surrendered a right that he
possessed. Heckler, 467 U.S. at 61-62. Here, however, the
petitioner had no right to suspension of deportation. He had,
at most, a hope of obtaining discretionary relief. Gonzalez-
Torres v. INS, 213 F.3d 899, 903 (5th Cir. 2000) ("While
petitioners may have expected that they would be eligible for
suspension of deportation, IIRIRA's amendment limited only their
eligibility for discretionary relief; it did not infringe on a
right that they possessed prior to its enactment.") (emphasis in
original); Kolster v. INS, 101 F.3d 785, 789 (1st Cir. 1996)
(similar).
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We need go no further. Because the petitioner has
offered us no sound basis for disturbing the BIA's decision, we
deny his petition for review.
It is so ordered.
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Costa v. Immigration & Naturalization Service
Court: Court of Appeals for the First Circuit
Date filed: 2000-11-29
Citations: 233 F.3d 31
Copy CitationsCombined Opinion