Akbarin v. Immigration and Naturalization Service, 80-1790

• Decision Date: 03 February 1982
• Docket Number: No. 80-1790,80-1790
• Citation: 669 F.2d 839
• Parties: Pooran and Mohammad AKBARIN, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 839

669 F.2d 839

Pooran and Mohammad AKBARIN, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 80-1790.

United States Court of Appeals, First Circuit.

Argued Nov. 5, 1981.

Decided Feb. 3, 1982.

Ruth M. Diaz, Winthrop, Mass., for petitioners.

Daniel E. Fromstein, Atty., Dept. of Justice, Washington, D. C., with whom Lauri Steven Filppu, Atty., Dept. of Justice, Washington, D. C., was on brief, for respondent.

Before DAVIS, ^* Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

Mohammad Akbarin and his wife, Pooran Akbarin, petition us to review an order of the Board of Immigration Appeals (BIA) dismissing their appeal from an immigration judge's decision finding them deportable and granting them voluntary departure. The immigration judge found petitioners deportable under 8 U.S.C. § 1251(a)(9) ¹ for failing to maintain nonimmigrant status under 8 U.S.C. § 1101(a)(15)(F). The immigration judge found that petitioners so failed because Akbarin had accepted employment without obtaining the authorization form required under 8 C.F.R. § 214.2(f)(6). We must determine whether the refusal of the immigration judge to allow evidence purporting to prove that an INS official had orally authorized Akbarin's employment was an error of such nature as to require either reversal or a new hearing. We have jurisdiction under 8 U.S.C. § 1105a(a).

Petitioners are Iranians who were admitted to the United States as nonimmigrant aliens, Akbarin as a student, see 8 U.S.C. § 1101(a)(15)(F)(i), and Mrs. Akbarin as his spouse, see 8 U.S.C. § 1101(a)(15)(F)(ii), whose status depends on that of her husband. Akbarin has been pursuing an undergraduate course of study in civil engineering at Northeastern University. In order to maintain his student status, Akbarin is required to meet a number of conditions set out in 8 U.S.C. § 1101(a)(15)(F) and 8 C.F.R. § 214.2(f). Among the conditions is the following:

A nonimmigrant who has a classification under section 101(a)(15)(F)(i) of the Act (8 U.S.C. § 1101(a)(15)(F)(i) ) is not permitted to engage in off-campus employment in the United States, either for an employer or independently, unless all of the following conditions are met: (i) The student is in good standing as a student who is carrying a full course of studies as defined in subparagraph (1a) of this paragraph (8 C.F.R. § 214.2(f)(1a) ); (ii) the student has demonstrated economic necessity due to unforeseen circumstances arising subsequent to entry or subsequent to change to student classification; (iii) the student has demonstrated that acceptance of employment will not interfere with his/her carrying a full course of study; (iv) the student has agreed that employment while school is in session will not exceed 20 hours per week; and (v) the student has submitted to an authorized official of a school approved by the Attorney General a form I-538, and this form has been certified by that official that all the aforementioned requirements have been met. The authorized official of the school will submit the certified form I-538 containing his recommendation together with the student's form I-94 to the Service office which has jurisdiction over the place where the school is located. The student has permission to accept employment when he/she receives the form I-94 endorsed by the Service to that effect.

8 C.F.R. § 214.2(f)(6).

Akbarin worked as a busboy at the Boston Park Plaza Hotel (the Hotel) from April 25, 1980 to May 16, 1980. He did not file the form I-538 as required by 8 C.F.R. § 214.2(f)(6). Akbarin, however, alleges the following facts as the reason he failed to file the form. On April 25, 1980, he went to the Hotel to inquire about the availability of employment and spoke with the Hotel's Director of Personnel, Paul R. Staffier. He told Staffier that he was an Iranian student. With Akbarin present, Staffier then telephoned the INS to find out whether Akbarin was eligible to work. An unidentified official told Staffier that Akbarin was authorized to work up to twenty hours per week and that he could put Akbarin to work. Staffier then related the conversation to Akbarin and offered him a position as a busboy at $3.70 an hour for twenty hours or less per week.

Akbarin began work that day and held the job until May 16, 1980, when an Order to Show Cause and Notice of Hearing and an arrest warrant were issued against him for failure to maintain status by accepting unauthorized employment at the Hotel. The INS apparently issued these papers on the basis of a letter, also received May 16, 1980, from Staffier stating that Akbarin had been employed as a busboy at the Hotel since April 25, 1980. A similar Order and Notice was issued against Mrs. Akbarin on May 27, 1980.

At the hearing before the immigration judge, the Government introduced the letter from Staffier and the two forms I-538 that Akbarin had completed in August and December, 1979, neither of which sought permission for employment. In defense, Akbarin sought to testify about the alleged oral authorization of employment given in the telephone conversation between Staffier and the INS and moved for a subpoena to compel Staffier's testimony about the conversation. The immigration judge refused to allow Akbarin to testify about the oral authorization and denied the motion for subpoena on the ground that the evidence sought to be introduced was irrelevant because Akbarin could have obtained authorization for employment only by submitting a form I-538 to the INS. The immigration judge found that the other evidence met the "clear, unequivocal, and convincing" test of Woodby v. INS, 385 U.S. 276, 285-86, 87 S.Ct. 483, 487-88, 17 L.Ed.2d 362 (1966). The Akbarins were declared deportable and granted voluntary departure.

On appeal to the BIA, the Akbarins argued that they were denied procedural due process because Akbarin was unable to testify about the telephone call and because the subpoena for Staffier was denied. They also contended that the INS was estopped because of the alleged oral authorization from asserting that Akbarin was not authorized to work. The BIA upheld the immigration judge's decision, refusing to accept petitioners' due process claim on the ground that the evidence sought to be introduced was irrelevant and rejecting the estoppel argument because there was no "affirmative misconduct" by the INS and because Akbarin knew that he had to file form I-538 in order to obtain employment authorization.

We must uphold the decision of the immigration judge if the hearing before him was fair, if there was evidence to support his findings, and if he committed no error of law. Kessler v. Strecker, 307 U.S 22, 34, 59 S.Ct. 694, 700, 83 L.Ed. 1082 (1939); Castaneda-Delgado v. INS, 525 F.2d 1295, 1299-1300 (7th Cir. 1975) (citing cases). The fair hearing and sufficient evidence standards are also recognized by statute, 8 U.S.C. § 1252(b).

The immigration judge's refusal to allow any evidence of an oral authorization by an INS official was based on relevancy. The sole purpose of the evidence was to assert an estoppel claim against the Government. If such a claim of estoppel could be made as a matter of law, then exclusion of the evidence was error. Petitioners' due process argument, assertedly based on Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950), and Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945), is only another way of saying that they have a valid claim of equitable estoppel against the Government that they were not allowed to make. The estoppel claim is that the INS induced Akbarin to change his position or that Akbarin reasonably relied on INS statements that caused him to change his position, either of which estops the INS from deporting him and his wife. ² Although stating the claim is simple, determining whether it can be upheld is not without difficulty.

The traditional doctrine of equitable estoppel does not apply fully in cases of estoppel against the Government. For the Government to be estopped, it is necessary not only that a party have relied on the Government's conduct-the basis of the traditional doctrine-but also that the Government have engaged in "affirmative misconduct." In its most recent analysis of estoppel against the Government, the Supreme Court held that a Social Security Administration official's oral advice to the plaintiff that she was ineligible for certain benefits when in fact she was did not estop the Government from denying her retroactive benefits for which she did not apply in time because of the oral advice. The decision seems to rest on two grounds: one, that no misconduct occurred because the official's error was only a misinterpretation of the nonbinding Social Security Claims Manual; and, two, that no reasonable reliance occurred because the plaintiff could have corrected the error by filing a written application. Schweiker v. Hansen, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981) (per curiam). Even when affirmative misconduct and reasonable reliance occur, however, it is not clear that the Government should be estopped. The Supreme Court indicated that if estoppel would threaten the public fisc, courts should apply estoppel cautiously. Id. at 788 & n.4, 101 S.Ct. at 1471 & n.4. This court has not had frequent occasion to address the question, but in a case involving both tax and citizenship issues, we observed in dictum that where the appellant had severed her ties to the United States at the direction of the State Department (and lost the protection of the United States), the Government was estopped from taxing her income in the following years. United States v. Rexach, 558 F.2d 37, 43 (1st Cir. 1976). ³

In immigration cases, the state of the doctrine of estoppel against the Government is difficult to determine. "In two cases involving denial of citizenship, the (Supreme) Court has declined to decide whether even 'affirmative...