Sun Il Yoo v. Immigration and Naturalization Service

• Decision Date: 02 February 1976
• Docket Number: No. 74-2716,74-2716
• Citation: 534 F.2d 1325
• Parties: SUN IL YOO, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1325

534 F.2d 1325

SUN IL YOO, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 74-2716.

United States Court of Appeals Ninth Circuit.

Feb. 2, 1976.

Rehearing and Rehearing En Banc Denied June 9, 1976.

Ruth Shamir, Los Angeles, Cal., and Bert Greenberg, Beverly Hills, Cal., for petitioner.

William D. Keller, U. S. Atty., Los Angeles, Cal., for respondent.

OPINION

Before ELY and WRIGHT, Circuit Judges, and EAST, ^* District Judge.

ELY, Circuit Judge:

This is a Petition for Review which seeks to reverse the decision of the Board of Immigration Appeals denying petitioner's application for an adjustment of status and ordering him deported. For the reasons stated herein, we have concluded that the Petition is well taken.

Petitioner entered this country as a non-immigrant student in June, 1968. In October, 1969, a visa petition was filed in his behalf by Mil-Fast, Inc., seeking his classification as a sixth-preference immigrant by virtue of his occupation as a machinist. Because that occupation was then listed by the Labor Department as pre-certified under Schedule C of 29 CFR § 60, Yoo could have obtained visa preference without showing that he had a specific job offer. Under Immigration and Naturalization (INS) regulations, ¹ any alien whose occupation and potential employment area were covered by Schedule C would be considered by the INS as having obtained the labor certification required by 8 U.S.C. § 1182(a)(14). Yoo qualified on both counts and thus was entitled to be certified by the INS once it found that he met the requirements.

In his application, Yoo stated that he had been employed by the Seoul Electric and Motors Manufacturing Company as a machinist. When the INS investigated this claim, its agents were told by a representative of the company, Mr. Sung Ho Kim, that Yoo had never been employed there. This information was included in an INS report dated February 27, 1970. On March 23, 1970, petitioner's counsel wrote the Service, reporting that the Service had received inaccurate information. Enclosed with the letter was a statement by Mr. Jong Hwan Kim, the former representative of the company, to the effect that Yoo had been employed by Seoul Electric during the periods stated in his application, a fact that was unknown to the original representative who had been contacted by American consular officials.

Nevertheless, ten months later, in January, 1971, the INS denied Yoo's application on the ground that he had given false information regarding his prior employment. Yoo appealed, and again called attention to the statement of Jong Hwan Kim. The Service then agreed to reconsider the visa application if the appeal were dropped.

In September, 1971, the INS again denied Yoo's application. The Service contended that because the Labor Department had withdrawn Schedule C in February, 1970, ² Yoo could not obtain labor certification in the fall of 1971 without showing the existence of a job offer. He was unable to do so because Mil-Fast was no longer in existence. Yoo then filed an application pursuant to 8 U.S.C. § 1255 ³ for adjustment of his status to that of a permanent resident. After a hearing, the Immigration Law Judge denied the application, finding Yoo was not eligible for an immigrant visa since he was unable to comply with the labor certification requirements of 8 U.S.C. § 1182(a)(14). Yoo appealed to the Board of Immigration Appeals, but the Board dismissed the appeal in March, 1974, on the grounds that Yoo had never received labor certification from the Secretary of Labor nor been the beneficiary of an approved sixth-preference visa petition. Yoo then filed his Petition in our court.

Yoo contends that he is eligible for relief under 8 U.S.C. § 1255 because he had a right to labor certification pursuant to Schedule C when Mil-Fast applied for visa preference in his behalf in October, 1969, and was prevented from obtaining it only because of the INS's unjustified delay in recognizing that Yoo had given correct information in his application. The INS argues that under our decision in Guinto v. Rosenberg, 446 F.2d 11 (9th Cir. 1971), the Service's procrastination does not estop the Government from denying Yoo the benefit of pre-certification in the consideration of his application for permanent residence. We indicated in that case that only "willful or oppressive" delay by the Service would entitle an alien to relief from changing economic conditions.

But the situation in Guinto was substantially different from that here. In Guinto, a delay of a few months in determining the petitioner's eligibility for third-preference visa status was occasioned by the Government's understandable need to obtain extensions of time in order to decide whether to proceed with an appeal. In this case, there was a one-year delay (from the original filing of Jong Hwan Kim's letter to the time of the decision by the INS to reconsider) for which the Service gave no explanation. As far as the record shows, the INS acquired no new data between the time of its receipt of the Kim statement and its decision to reconsider that affected Yoo's credibility. There is, in short, no apparent justification for the Service's unreasonable delay in recognizing the bona fides of Yoo's petition. Such conduct, it seems to us, fully merits the characterization of "oppressive".

Neither does INS v. Hibi, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973), nor our recent decision in Santiago v. INS, 9 Cir., 526 F.2d 488, No. 73-2497 (Oct. 31, 1975) (en banc), support the Government's argument. ⁴ In both of those cases, it was held that the failure to inform an alien of his rights or the requirements of his immigration status was not such "affirmative misconduct" as to give rise to an estoppel against the Government. But in Santiago, we reiterated our belief "that estoppel is available . . . where the particular facts warrant it." (At p. 492). We have no doubt that this is such a case. While the failure of INS officials in Santiago to inform immigrants of the conditions of their entry into the United States may have been due to inadvertence or simple negligence resulting from the hectic atmosphere surrounding the processing and admitting of large numbers of aliens, no such plausible explanation can be made for the failure of the INS to perform its plain duty in this case. INS officials had much more than adequate time to make a reasoned determination of petitioner's eligibility for a sixth-preference visa; nevertheless, they have not even attempted to offer any explanation for having ignored significant, and apparently undeniable, evidence corroborating Yoo's application.

In our view, this is the kind of "affirmative misconduct" on the Government's part that cannot be employed to penalize an alien who appears to have always acted in good faith. Immigration agents may have no duty to inform aliens of matters which the aliens themselves have primary responsibility for knowing and could discover through the application of due diligence, but once an alien has gathered and supplied all relevant information and has fulfilled all requirements, INS officials are under a duty to accord to him within a reasonable time the status to which he is entitled by law. By its maneuvers here, the INS has ensnared petitioner in a "Catch-22" predicament; the Service's conduct is analogous to the entrapment of a criminal defendant and, as such, cannot be countenanced.

As the Supreme Court has often emphasized, deportation is a drastic measure that may inflict "the equivalent of banishment or exile," Barber v. Gonzales, 347 U.S. 637, 642-43, 74 S.Ct. 822, 825, 98 L.Ed. 1009; Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433 (1948); Delgadillo v. Carmichael, 332 U.S. 388, 391, 68 S.Ct. 10, 92 L.Ed. 17 (1947), and " result in the loss 'of all that makes life worth living.' " Bridges v. Wixon,326 U.S. 135, 147, 65 S.Ct. 1443, 1449, 89 L.Ed. 2103 (1945). When such serious injury may be caused by INS decisions, its officials must be held to the highest standards in the diligent performance of their duties. Here, their duty was clear. Unlike the immigrants in Santiago, who had no right to enter the United States when they did, Yoo had an absolute right to a labor certification under the INS's own regulation. INS officials, by their affirmative inaction, deprived petitioner of that right without justification. We have stated that "a person might sustain such a profound and unconscionable injury in reliance on (an official's) action as to require, in accordance with any sense of justice and fair play, that (he) not be allowed to inflict the injury." Schuster v. CIR, 312 F.2d 311, 317 (9th Cir. 1962). Justice and fair play can only be achieved in this case by holding, as we do, that the Government is estopped from denying petitioner the benefit of pre-certification in seeking an adjustment of his status under 8 U.S.C. § 1255.

The cause is remanded so that Yoo may be given an opportunity to reapply for adjustment of status under the same circumstances as if the Service had certified petitioner within a reasonable time after receiving the statement of Jong Hwan Kim on March 23, 1970.

Reversed and remanded.

EUGENE A. WRIGHT, Circuit Judge, dissenting:

I must respectfully dissent.

The majority recognizes that for the government to be estopped from denying petitioner the benefit of pre-certification in the consideration of his application for permanent residence, we must find "affirmative misconduct" on its part. I do not believe that an unexplained ten-month delay in processing constitutes the requisite showing under the test we recently approved in Santiago v. INS, 526 F.2d 488 (9th Cir. 1975) (en banc).

The substance of the misconduct condemned by the majority consists of a period from March 23, 1970 to January 8, 1971 during which petitioner's application was not acted upon. ¹ Despite the absence of facts on the record...