HERNANDEZ-PUENTE

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MATTER OF HERNANDEZ-PUENTE
In Rescission Proceedings Under Section 246
\- of the Immigration and Nationality Act
A-22918876
Decided by Board June 20, 1991

(1) The Board of Immigration Appeals and the immigration judges are without authority
to apply the doctrine of equitable estoppel against the Immigration and Naturalization
Service so as to preclude it from undertaking a lawful course of action that it is
empowered to pursue by statute and regulation.

(2) The Service has no authority to grant an application for adjustment of status nunc
pro tunc under section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255
(1988).

(3) As the Board has no jurisdiction, according to 8 C.F.R. § 245.2(a)(5) (1991), to
review a district director's decision to deny adjustment of status, it follows that the
Board also lacks jurisdiction to review or remedy a failure of the Service to act on the
application.

ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Pete Magaro, Esquire

Claire W. Matecko

Anderson Executive Building

General Attorney

1017 North Main Avenue, Suite 101

San Antonio, Texas 78212

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

\-

In a decision dated February 12, 1988, an immigration judge
rescinded the respondent's prior grant of adjustment of status to that
of a lawful permanent resident. The respondent has appealed from that
decision. The appeal will be dismissed.

The facts in this case are elicited from trial briefs submitted by the
Immigration and Naturalization Service and the respondent in the
record before the immigration judge in lieu of an evidentiary hearing.
The immigration judge permitted this on the basis that the facts were
not in dispute and the case only involved issues of law.

The respondent, a 30-year-old native and citizen of Mexico, entered
the United States as a nonimmigrant visitor in September 1977 with
his mother, on the basis of his mother's Nonresident Alien Mexican
Border Crossing Card (Form I-186). On November 14, 1977, he
acquired derivative fifth-preference classification as the unmarried
child of a sister of a United States citizen after a visa petition was filed
on his mother's behalf. See sections 203(a)(5), (8) of the Immigration

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and Nationality Act, 8 U.S.C. §§ 1153(a)(5), (8) (1976); 8 C.F.R.
§ 204.1(a) (1977). The visa petition was approved on December 6,
1977, and the respondent, his two brothers, and his mother filed
applications for adjustment of status pursuant to section 245 of the
Act, 8 U.S.C. § 1255 (1976), on April 24, 1978. They all appeared for
personal interviews and were informed that their adjustment applica-
tions were approved and that each would receive an Alien Registration
Receipt Card (Form I-551) in the mail. Subsequently, the respondent's
mother and his two brothers received their cards, but the respondent
did not. Reportedly, inquiries were made with the Service, and each
time the respondent was assured that everything was in order and that
his application had been granted. However, in fact, no action had been
taken on the respondent's application.

The respondent was married on January 11, 1980, and on April 29,
1982, he was paroled into the United States by the Service. However,
upon reviewing his prior adjustment application, the Service terminat-
ed his parole status on August 19, 1982, concluding that he was no
longer eligible for derivative preference classification through his
mother, since he was over the age of 21 and married, and, thus, was no
longer a "child." See sections 101(b)(1), 203(a)(8) of the Act, 8 U.S.C.
§§ 1101(b)(1), 1153(a)(8) (1982); 8 C.F.R. § 204.1(a) (1982). The
Service then informed the respondent in a letter dated June 21, 1985,
that his application for adjustment of status was denied and gave him
until July 21, 1985, to voluntarily depart from the United States.
However, on September 9, 1985, the Service granted his application
for adjustment of status nunc pro tunc, effective as of August 15, 1978.
Apparently, the respondent subsequently lost the Alien Registration
Receipt Card issued to him in conjunction with the grant of his
application. When he applied for a replacement, these rescission
proceedings were instituted when the district director, on March 6,
1987, issued a notice of intent to rescind the respondent's prior
adjustment of status on the basis that there existed no authority to
approve the application for adjustment of status nunc pro tunc. On
March 18, 1987, the respondent requested a hearing before an
immigration judge.

In his decision to rescind the adjustment of the respondent's status,
the immigration judge concluded that there existed no authority to
grant adjustment of status on a nunc pro tunc basis, and that the
Service was not estopped from seeking rescission. Accordingly, the
immigration judge ruled that rescission was warranted, given that at
the time of the respondent's adjustment of status on September 9,
1985, he was ineligible for derivative status in view of his age and
marriage.

Section 246(a) of the Act, 8 U.S.C. § 1256(a) (1988), provides in
pertinent part:

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If, at any time within five years after the status of a person has been otherwise
adjusted under the provisions of section 245 or 249 of this Act or any other provision
of law to that of an alien lawfully admitted for permanent residence, it shall appear to
the satisfaction of the Attorney General that the person was not in fact eligible for
such adjustment of status, the Attorney General shall rescind the action taken
granting an adjustment of status to such person and cancelling deportation in the
case of such person if that occurred and the person shall thereupon be subject to all
provisions of this Act to the same extent as if the adjustment of status had not been
made.

In rescission proceedings, the Government bears the burden of
proving ineligibility for adjustment of status by clear, unequivocal,
and convincing evidence. Waziri v. INS, 392 F.2d 55 (9th Cir. 1968);
Matter of Pereira, 19 I&N Dec. 169 (BIA 1984).

On appeal, the respondent contends through counsel that in the
absence of any statute or regulation prohibiting such action, the
Service has the inherent power to grant adjustment of status nunc pro
tunc. He further asserts that the action of the Service in separating his
administrative file from those of his other family members amounts to
affirmative misconduct, as a result of which it should be estopped
from seeking to rescind the prior grant of adjustment of status.

The Service contends on appeal that it has no authority to grant
applications for adjustment of status on a nunc pro tunc basis. In the
Service's view, its actions in this case do not rise to the level of
affirmative misconduct so as to establish a case for equitable estoppel.

Turning first to the Service's grant of adjustment of status on
September 9, 1985, we agree that the Service had no authority to grant
that relief on a retroactive or nunc pro tunc basis. Since a nonimmi-
grant alien is assimilated to the position of an applicant for entry when
applying for adjustment of status, he must be eligible, at the time his
application is acted on, for the preference category relied on when the
application was filed. Pei-Chi Tien v. INS, 638 F.2d 1324 (5th Cir.
1981); Yui Sing Tse v. INS, 596 F.2d 831 (9th Cir. 1979); see also
section 204(e) of the Act, 8 U.S.C. § 1154(e) (1988). Although
discretion is given to the Attorney General to admit applicants, he has
no authority to act retroactively on an application. Dong Sik Kwon v.
INS, 646 F.2d 909 (5th Cir. 1981); Matter of Talanoa, 13 I&N Dec.
161 (BIA 1969), affd, 427 F.2d 1143 (9th Cir. 1970).

Given that the Service had no authority to grant the application for
adjustment of status nunc pro tunc, we find that the grant was in error.
The respondent was seeking immigrant status under section 203(a)(8)
of the Act, which allows a "child," as defined by sections 101(b)(1)(A)-
(E), if not otherwise entitled to an immigrant status and the immediate
issuance of a visa, to be entitled to the same status as that afforded to
his parent if accompanying or following to join that parent. See also 8
C.F.R. § 204.1(a)(5) (1991). Section 101(b)(1) defines a "child" to
mean an unmarried person under 21 years of age. As noted above, at

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the time his application for derivative status was granted on Septem-
ber 9, 1985, the respondent was both married and over the age of 21.
Therefore, the Service has demonstrated by clear, unequivocal, and
convincing evidence that the respondent was ineligible for adjustment
of status at the time it was granted.

The respondent seeks to estop the Service from rescinding his prior
adjustment of status on the basis of its conduct in this case. In two
nationality cases, INS v. Hibi, 414 U.S. 5 (1973), and Montana v.
Kennedy, 366 U.S. 308 (1961), the United States Supreme Court
opened the possibility that the doctrine of equitable estoppel might be
applied against the Government in a case where it is established that
its agents engaged in "affirmative misconduct." See also INS v.
Pangilinan, 486 U.S. 875 (1988) (neither by application of estoppel
doctrine, nor by invocation of equitable powers, nor by any other
means does a court have the power to confer citizenship to Filipino
nationals). However, the Supreme Court has not yet decided whether
even "affirmative misconduct" is sufficient to estop the Government
from enforcing the immigration laws. INS v. Miranda, 459 U.S. 14
(1982); see also Matter of Tuakot, 19 I&N Dec. 341 (BIA 1985); Mutter
of M/V "Solemn Judge," 18 I&N Dec. 186 (BIA 1982). Some federal
courts have found "affirmative misconduct" and applied estoppel
against the Government. See, e.g., Corniel-Rodriguez v. INS. 532 F.2d
301 (2d Cir. 1976). By implication, the United States Court of Appeals
for the Fifth Circuit, within whose jurisdiction this case falls, has
found that the doctrine of equitable estoppel may be applied against
the Service where affirmative misconduct is demonstrated. Fano v.
O'Neill, 806 F.2d 1262 (5th Cir. 1987). Acting on an appeal from a
lower court's grant of summary judgment for the Service, the court
found that the alien's claims against the Service were broad enough to
encompass the type of conduct sufficient for estoppel. In the court's
view, there existed a material issue of fact precluding summary
judgment, and it accordingly reversed and remanded. In that case,
summary judgment would still have been proper notwithstanding the
factual issue, if, as a matter of law, equitable estoppel was not available
against the Service. As the court nevertheless found it necessary to
reverse and remand the case, it would appear that the court has
accepted the principle that estoppel is available upon a showing of
affirmative misconduct.

However, although the Fifth Circuit may have accepted the
availability of estoppel against the Service, the Board itself and the
immigration judges are without authority to apply the doctrine of
equitable estoppel against the Service so as to preclude it from
undertaking a lawful course of action that it is empowered to pursue by
statute and regulation. Equitable estoppel is a judicially devised
doctrine which precludes a party to a lawsuit, because of some

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improper conduct on that party's part, from asserting a claim or a
defense, regardless of its substantive validity. M.D. Phelps v. Fed.
Emergency Management Agency, 785 F.2d 13 (1st Cir. 1986). Estoppel
is an equitable form of action and only equitable rights are recognized.
Keado v. United States, 853 F.2d 1209 (5th Cir. 1988). By contrast, this
Board, in considering and determining cases before it, can only
exercise such discretion and authority conferred upon the Attorney
General by law. 8 C.F.R. § 3.1(d)(1) (1991). Our jurisdiction is
defined by the regulations and we have no jurisdiction unless it is
affirmatively granted by the regulations. Matter of Sano, 19 I&N Dec.
299 (BIA 1985); Matter of Zaidan, 19 I&N Dec. 297 (BIA 1985).

Of course, this Board is empowered to find that a violation of the
statutes or regulations has infringed upon an alien's procedural rights,
which may in turn affect determinations regarding deportability,
exclusion, relief from deportation or exclusion, or other benefits under
the immigration laws. However, this authority exists only to the extent
that it is encompassed by our appellate jurisdiction, as delineated by 8
C.F.R. § 3.1(b) (1991). As we have no jurisdiction to review a district
director's decision to deny adjustment of status according to 8 C.F.R.
§ 245.2(a)(5) (1991), it follows that we have no jurisdiction to review
or remedy a failure to act on the application. As in this case, we do
review the decision of the immigration judge in rescission proceedings,
but the matter before us over which we have jurisdiction is whether the
Service has met its burden of proving that the alien was ineligible at
the time adjustment of status was granted, and not whether the failure
to previously grant adjustment of status and the circumstances
surrounding that failure constitute affirmative misconduct so as to
justify granting adjustment of status as an equitable remedy in the face
of the alien's clear ineligibility.

It is well settled that it is not within the province of this Board to
pass on the validity of the statutes and regulations we administer.
Matter of Patel, 19 I&N Dec. 774 (BIA 1988); Matter of Valdovinos, 18
I&N Dec. 343 (BIA 1982); Matter of Bogart, 15 I&N Dec. 552 (BIA
1975, 1976; A.G. 1976); Matter of Chavarri-Alva, 14 I&N Dec. 298
(BIA 1973). It follows that if the Service, pursuant to those statutes
and regulations, properly seeks to rescind a prior grant of adjustment
of status and establishes by clear, unequivocal, and convincing
evidence that the alien was ineligible when adjustment of status was
granted, the rescission must be upheld by the Board.

Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.