Mukherjee v. I.N.S.
| Decision Date | 03 July 1986 |
| Docket Number | 85-3761,Nos. 85-3723,s. 85-3723 |
| Citation | 793 F.2d 1006 |
| Parties | Dipankar MUKHERJEE, Plaintiff-Appellee/Cross-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Defendant-Appellant/Cross-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Paul R. Hribernick, Gerald H. Robinson, Portland, Or., for plaintiff-appellee/cross-appellant.
Alfred Mullin, Barbara L. Herwig, Richard A. Olderman, Dept. of Justice, Washington, D.C., for defendant-appellant/cross-appellee.
Appeal from the United States District Court for the District of Oregon.
Before FLETCHER, ALARCON and WIGGINS, Circuit Judges.
The INS appeals from the district court's grant of summary judgment to appellee Dipankar Mukherjee. The INS asserts that the district court erred in holding that the INS is estopped from subjecting Mukherjee to the two-year foreign residence requirement of 8 U.S.C. Sec. 1182(e). Mukherjee cross-appeals the district court's failure to find that the INS abused its discretion in denying Mukherjee a waiver of the two-year requirement and the district court's failure to grant Mukherjee permanent resident status. We reverse the grant of summary judgment based on estoppel and affirm the denial of a grant of permanent residence. We remand to the district court for its determination of whether the INS's denial of a waiver of the two-year requirement was arbitrary, capricious, or an abuse of discretion, and for a statement of its reasons for that determination.
The facts are essentially undisputed. Mukherjee is a native and citizen of India. On May 12, 1976, Mukherjee filed a third preference immigrant visa petition at the U.S. embassy in New Delhi, India, seeking to become a lawful permanent resident of the United States on the basis of his profession. The petition was approved and sent to the U.S. embassy in New Delhi, which mailed it to Mukherjee on December 22, 1976. Mukherjee left for New Zealand on December 24, 1976, without knowing that his petition had been approved.
While in New Zealand, Mukherjee contacted the American Consul General there and asked about his visa petition. After checking, the vice consul told him that there was no record of the petition. On the advice of the vice consul, Mukjerhee then sought and obtained a "J-1" nonimmigrant exchange visitor visa under 8 U.S.C. Sec. 1101(a)(15)(j). The document approving the J-1 visa, signed by the vice consul, has a box checked indicating that Mukherjee was not subject to the two-year residence requirement of 8 U.S.C. Sec. 1182(e). Mukherjee stated in an affidavit: "Mr. Craven [the Vice Consul] made it very clear that I would not be subject to the two-year foreign residency requirement if I entered the United States as an exchange visitor."
Mukherjee and his wife entered the United States on July 10, 1977 under the J-1 visa. The INS subsequently granted Mukherjee five one-year extensions of the J-1 visa, each time informing him that he was subject to the two-year residence requirement. In the meantime, Mukherjee learned of the approval of his original third preference In 1982, Mukherjee applied for a waiver of the two-year foreign residence requirement. The INS District Director denied the waiver application, and the Regional Commissioner dismissed Mukherjee's appeal from the denial and denied a motion to reopen and reconsider. Mukherjee then filed this action in district court, seeking (1) a declaration that the INS was estopped from enforcing the two-year requirement against him, (2) a declaration that the INS abused its discretion in denying his request for waiver of the two-year requirement, and (3) an injunction granting him permanent residence.
visa and sought an adjustment of status based on that visa. The INS declined to adjust the couple's status on the ground that they were subject to the two-year requirement because they had entered this country under the J-1 visa.
Mukherjee and the INS both moved for summary judgment, and the district court denied the INS's motion and granted Mukherjee's, holding that the INS was estopped from enforcing the two-year requirement. The district court explicitly declined to reach Mukherjee's claim that denial of the waiver was an abuse of discretion. The district court also declined to grant Mukherjee permanent residence. We have jurisdiction under 28 U.S.C. Sec. 1291 (1982).
Grant or denial of summary judgment is reviewed de novo by this court. Summary judgment is appropriate if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983).
Mukherjee originally applied for and was approved an immigrant visa under 8 U.S.C. Sec. 1153(a)(3), which provides a third-priority preference for immigrant applicants who are members of the "professions." Upon being incorrectly told that his first petition was lost, Mukherjee applied for and was approved a nonimmigrant visa under 8 U.S.C. Sec. 1101(a)(15)(J), which describes nonimmigrants coming to the United States for educational purposes. Aliens entering under such J-1 visas are normally subject to the Health Professions Educational Assistance Act of 1976 (Act), which imposes restrictions on the subsequent immigration to the United States of foreign physicians who have trained in this country. Specifically, the Act provides that an individual who comes to the United States to receive graduate medical education or training is not eligible to apply for an immigrant or nonimmigrant visa or for permanent residence
until it is established that such person has resided and been physically present in the country of his nationality or his last residence for an aggregate of at least two years following departure from the United States.... 8 U.S.C. Sec. 1182(e) ().
EQUITABLE ESTOPPEL
The INS claims that Mukherjee cannot claim estoppel against the government because the government's actions do not constitute affirmative misconduct. Mukherjee claims, and the district court found, that the vice consul's assurance to Mukherjee that he was not subject to the two-year requirement and the same indication on the application approval constitute affirmative misconduct.
The appropriateness of estoppel turns on the facts of the individual case, Lavin v. Marsh, 644 F.2d 1378, 1382 n. 6 (9th Cir.1981); see also United States v. Wharton, 514 F.2d 406, 411 (9th Cir.1975). Under our de novo standard of review, we conclude that as a matter of law the government's actions in this case fall short of the affirmative misconduct necessary for estoppel. Nothing in the present case indicates a deliberate lie by the vice consul or a pattern of false promises. The vice consul here apparently mistakenly believed that Mukherjee was exempt from the two-year requirement, told him so, and indicated this on the application form. 3 This would undoubtedly constitute negligence, but it does not reach the level of misconduct required for estoppel under Supreme Court and Ninth Circuit law. "Persons dealing with the government are charged with knowing government statutes and regulations, and they assume the risk that government agents may exceed their authority and provide misinformation." Lavin, 644 F.2d at 1383. 4
Mukherjee claims support for estoppel from Corniel-Rodriguez v. INS, 532 F.2d 301 (2d Cir.1976), and Tejeda v. INS, 346 F.2d 389 (9th Cir.1965). In light of later Supreme Court and Ninth Circuit authority, these cases do not support a finding of estoppel on the facts of this case.
In summary, we find that the INS is not estopped from enforcing the two-year requirement against Mukherjee. 5 Although he may have been disserved by the INS, a review of the INS's exercise of discretion in denying a waiver...
To continue reading
Request your trial
-
S.A. v. Trump, Case No. 18-cv-03539-LB
...lie" or "a pattern of false promises." Socop-Gonzalez v. INS , 272 F.3d 1176, 1184 (9th Cir. 2001) (en banc) (citing Mukherjee v. INS , 793 F.2d 1006, 1008 (9th Cir. 1986) ). "Negligently providing misinformation to an alien does not meet this definition" and thus is insufficient to plead e......
-
Kreisner v. City of San Diego
...895 F.2d 563, 570 (9th Cir.1990). We also review de novo the decision to deny Kreisner's motion for summary judgment. Mukherjee v. INS., 793 F.2d 1006, 1008 (9th Cir.1986). Our task is to "determine, viewing the evidence in the light most favorable to the opposing party, if there is any gen......
-
Lord v. Babbitt, F94-0011 CV (JKS).
...Cir.1991); Bolt, 944 F.2d at 609; Seldovia Native Ass'n v. Lujan, 904 F.2d 1335, 1347 (9th Cir.1990); Mukherjee v. Immigration & Naturalization Serv., 793 F.2d 1006, 1008 (9th Cir.1986). A mere mistake does not rise to the level required for estoppel. Mukherjee, 793 F.2d at Lord has not sat......
-
Reich v. Youghiogheny and Ohio Coal Co.
...the former's conduct to his injury. Richmond v. Office of Personnel Management, 862 F.2d 294, 297 (Fed.Cir.1988). See also Mukherjee v. I.N.S., 793 F.2d 1006, 1008 (9th Cir.1986); S.E.C. v. Blavin, 760 F.2d 706, 712 (6th Cir.1985). However, a party asserting estoppel against the federal gov......