Dacosta v. Gonzales, 05-1438.

• Citation: 449 F.3d 45
• Decision Date: 24 May 2006
• Docket Number: No. 05-1438.,05-1438.
• Parties: Sandra H. DACOSTA, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

449 F.3d 45

Sandra H. DACOSTA, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.

No. 05-1438.

United States Court of Appeals, First Circuit.

Submitted March 7, 2006.

Decided May 24, 2006.

Jose A. Vazquez on brief for petitioner.

Peter D. Keisler, Assistant Attorney General, Anthony W. Norwood, Senior Litigation Counsel, and Terri J. Scadron, Assistant Director, Office of Immigration Litigation, Civil Division, on brief for respondent.

Before LIPEZ, Circuit Judge, CYR, Senior Circuit Judge, and HOWARD, Circuit Judge.

HOWARD, Circuit Judge.

Sandra DaCosta, a native and citizen of Brazil, petitions for review of a decision of the Board of Immigration Appeals (BIA). The BIA found DaCosta statutorily ineligible for adjustment of status and ordered her removed from the United States. We deny the petition.

DaCosta failed to depart the United States when her six-month tourist visa expired in May 1994. Over two years later, she filed an application for political asylum and withholding of removal with the Immigration and Naturalization Service (INS)¹ claiming that she had been threatened by Brazilian drug traffickers. In July 1997, the INS commenced removal proceedings against DaCosta by charging her with overstaying her visa. Conceding removability, DaCosta renewed her request for asylum. Following a hearing, an immigration judge found DaCosta removable and denied her applications for asylum and withholding of removal. The immigration judge granted her voluntary departure in lieu of removal but informed her that if she failed to depart by October 13, 1998, she would be subject to removal without further notice.

The BIA affirmed without opinion on June 6, 2002 and granted DaCosta an additional 30 days to voluntarily depart the United States "subject to any extension beyond that time that may be granted by the district director." Citing section 240B(d) of the Immigration and Nationality Act (INA), the BIA warned that if DaCosta failed "to depart the United States within the time specified, or any extensions granted by the district director, [DaCosta] . . . shall be ineligible for a period of 10 years for any further relief including adjustment of status." See 8 U.S.C. § 1229c(d). DaCosta did not petition for review of that order, and, despite the BIA's warning, failed to depart or to request an extension of the voluntary departure period.

On September 3, 2002, DaCosta moved the BIA to reopen her case to allow her to apply for an adjustment of status to lawful permanent resident. DaCosta claimed that she had married a United States citizen and that, in August 2000, during the pendency of her BIA appeal, her spouse had filed an I-130 "alien relative" petition in support of her I-485 application for adjustment. According to DaCosta's motion, the INS had accepted her application, her husband's petition and the accompanying processing fees, and had subsequently notified DaCosta to appear for an interview at the INS office in Hartford, Connecticut. DaCosta claimed that the INS agent who conducted the interview informed her that her application would be transferred to the Providence, Rhode Island, INS office.

DaCosta further claimed that, on July 16, 2002, she received a letter from the Providence office informing her that it lacked jurisdiction to process her application because she was in removal proceedings. See 8 C.F.R. § 245.2(a)(1) ("After an alien . . . is in deportation or removal proceedings, his or her application for adjustment of status . . . shall be made and considered only in those proceedings."). According to DaCosta's motion, for nearly two years she had been led to believe that her application was being processed by the INS when in fact it was not. DaCosta therefore asserted that her case should be reopened because the INS had "misled" her during the time period when she could have asked the BIA to remand her case for consideration of her adjustment application. The INS did not file an opposition to DaCosta's motion to reopen.

On October 24, 2002, the BIA, noting only the lack of opposition from the INS, granted DaCosta's motion to reopen and remanded the case for further proceedings.² On remand, the INS argued that DaCosta was ineligible for adjustment of status because she had failed to comply with the BIA's voluntary departure order of June 6, 2002. The INS argued that INA § 240B(d) mandates that an alien who fails to voluntarily depart within the time period specified in a voluntary departure order is ineligible for adjustment of status for a period of ten years. See 8 U.S.C. § 1229c(d). The immigration judge disagreed, finding that the BIA's order reopening the case extinguished the legal consequences of her failure to timely depart. The immigration judge therefore considered the merits of DaCosta's adjustment application. During cross-examination at the hearing, DaCosta confirmed her receipt of the BIA's June 6, 2002 order denying her appeal. She testified that she understood that the order required her to leave the United States within 30 days and that if she failed to depart within that time, she could be fined and would be ineligible for certain forms of relief. Nevertheless, on October 23, 2003, the immigration judge granted DaCosta's application for adjustment of status. See 8 U.S.C. § 1255.

The INS appealed to the BIA, again arguing that DaCosta was statutorily ineligible for relief. DaCosta, citing to a provision in the INA that was repealed in 1996 with passage of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), responded that "exceptional circumstances" beyond her control — the INS's two-year delay in notifying her that it did not have jurisdiction to adjudicate her application — excused her failure to depart. See INA § 242B (codified at 8 U.S.C. § 1252b(e)(2)(A) (1995) (repealed 1996)). DaCosta also argued that the INS had waived its opportunity to appeal the immigration judge's decision to grant adjustment of status by failing to oppose her motion to reopen. On February 24, 2005, the BIA sustained the INS's appeal and vacated the order granting adjustment. Acknowledging that it had made a good-faith error in reopening the case, the BIA agreed with the INS that DaCosta was statutorily ineligible for adjustment of status because she had violated an order to depart. Citing Matter of Shaar, the BIA held that DaCosta had failed to establish "exceptional circumstances" sufficient to excuse her failure to depart. See 21 I. & N. Dec. 541, 544-46 (BIA 1996) (holding that, during the pendency of a voluntary departure period, neither the filing of a motion to reopen to apply for a new form of discretionary relief nor an immigration judge's failure to adjudicate such a motion qualify as "exceptional circumstances" sufficient to excuse a failure to depart within the confines of the departure order). The BIA ordered DaCosta removed to Brazil. She thereafter filed the present petition for review.³

DaCosta's petition to this court does not contest that INA § 240B(d) bars an alien from receiving an adjustment of status where the alien has previously failed to depart the United States within the deadline of a voluntary departure order. See Jupiter v. Ashcroft, 396 F.3d 487, 491 (1st Cir.2005) (holding that the plain language of INA § 240B(d) renders an alien ineligible for adjustment of status where the alien has previously failed to adhere to a voluntary departure order). She also abandons her argument that "exceptional circumstances" excuse her failure to timely depart. Rather, she asserts that, by failing to oppose her motion to reopen for consideration of her application for adjustment of status, the INS waived its right to contest the immigration judge's subsequent order granting her adjustment. She further contends that the BIA's order reopening her case had the effect of reopening and tolling her voluntary departure period and gave the immigration judge the authority to consider afresh her application for adjustment of status.

DaCosta also presents three new legal theories based on the same set of operative facts previously cited in support of her "exceptional circumstances" argument. First, she argues that the government should be equitably estopped from asserting her ineligibility for adjustment in light of her detrimental reliance on the INS's implicit and explicit representations that it was processing her application. For similar reasons, she contends that the running of her voluntary departure period should be regarded as having been equitably tolled until October 21, 2002, the date in which her husband's I-130 petition was approved. Finally, she asserts that the INS's conduct in mishandling her application violated her due process rights.

We begin by outlining the limits of our jurisdiction to adjudicate DaCosta's claims. The INA strips the courts of jurisdiction to review BIA decisions granting or denying discretionary relief such as adjustment of status. See 8 U.S.C. § 1252(a)(2)(B). Because a BIA decision on the merits of an application for adjustment of status is committed to the discretion of the Attorney General, "arguably, this court would not have jurisdiction to review that discretionary determination." Succar v. Ashcroft, 394 F.3d 8, 19 n. 15 (1st Cir.2005). In this case, however, the BIA did not reach the merits of DaCosta's adjustment claim, finding, as a threshold matter, that she is statutorily ineligible for such relief. The arguments presented in DaCosta's petition are legal in nature, "and as such [are] not within the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B)." Id. at 19; see also Cho v. Gonzales, 404 F.3d 96, 100 (1st Cir.2005). We review such legal questions de novo, subject to established principles of agency deference. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999); Herrera-Inirio v. INS, 208 F.3d 299, 304 (1st Cir.2000).

There is another...