NOT PRECEDENTIAL UNITED STATES COURT OF APPEAL S FOR THE THIRD CIRCUIT

_____________

No. 10

- 2528

_____________ BRODELID BRAVO CASTRO;

AHILUD BRAVO CASTRO, Petitioners

v.
ATTORNEY GENERAL OF THE UNITED STATES, Respondent

_______________ On Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals (BIA 1:A99

- 437

- 916 and BIA 1:A99

- 437

- 920) Immigration Judge: Honorable Frederic G. Leeds

_______________ Submitted Under Third Circuit LAR 34.1(a) September 15, 2011 Before: RENDELL, BARRY and JORDAN , Circuit Judges

. (Filed : September 19, 2011 )

_______________ OPINION OF TH E COURT

_______________2 JORDAN, Circuit Judge

. Ahilud and Brodelid Bravo Castro ( collectively “Petitioners”) , are brothers who seek review of a n April 28, 2010 decision by the Board of Immigration Appeals (“BIA”) that affirm ed the decision of an Immigrat ion Judge (“IJ”) order ing them remove d to Mexic o. 1

I. Background As to Ahilud, the BIA’s decision rested on its conclusion s that it lacked jurisdiction to consider his equitable estoppel claim and that, even if it had such jurisdiction , he had failed to establish the required elements of that claim . As to Brodelid, the BIA determined that , though he had sought cancellation of removal under the Immigration Nationality Act (“INA”) § 240A(b), 8 U.S.C. § 1229b(b), he had not established “exceptional and extremely unusual hardship

. ” (App. at 4.) For the reasons that follow , we wi ll deny the petition as to Ahilud and dismiss it as to Brodelid

.

Petitioners are natives of Mexico. On August 20, 2007 , their father was granted cancellation of removal pursuant to t he Nicaraguan Adjustment and Central American Relief Act (“NACARA”), Pub. L. No. 105

- 100, 111 Stat. 2160 (1997), and became a lawful permanent resident (“LPR”)

. Petitioners would have been derivative beneficiaries of their father 's application for cancellation of removal, but the each turned twenty

- one years old before their father was granted LPR status, which disqualified them for relief as derivative beneficiaries. See 8 C.F.R. § 1240.61(a)(4) (allowing for derivative

1 Ahilud and Brodelid ’s cases were consolidated before the Immigration Judge. A third brother’s case was also joined at that time. That brother did not appeal to the BIA with Ahilud and Bordelid but instead filed a sepa rate Notice of Appeal to the BIA. Thus, the BIA severed that b rother’s case from Ahilud and B r o delid’s.3 applica tions for a “child”) and 8 U.S.C. § 1101(b)(1) (defining the term “child” as “an unmarried person under twenty

- one years of age”). Of particular significance here , Ahilud turned twenty

- one, and hence “aged out” of eligibility as a derivative beneficiary, just one day before his father became an LPR. On August 30, 2007, Petitioners were
issued a Notice to Appear charging them as removable under INA § 212(a)(6)(A)(i), 8
U.S.C. § 1182(a)(6)(A)(i), as aliens present in the United States without being admitted

or paroled. They were subsequently placed in removal proceedings. Through counsel, Ahilud conceded removability. Because he could no longer qualify as a derivative beneficiary of his father’s NACARA application and had not been physically present in t he United States long enough to qualify for cancellation of r emoval under INA § 240A(b), 8 U.S.C. § 1229b(b), Ahilud sought equitable estoppel against the government , asserting that he had been misled by the government into believing that he would succeed in his derivative application when his father’s application for relief under NACARA was granted. Ahilud claimed that his case met the requirements of an equitable estoppel claim 2

2 To prevail on an equitable estoppel claim, an alien “must establish (1) a misrepresentation; (2) upon which he reasonably relied; (3) to his detrim ent; and (4) affirmative misconduct.” Mudric v. Att’y Gen. of the U.S. , 469 F.3d 94, 99 (3d Cir. 2006). for the following reasons: the government had misrepresented that his appli cation would be approved when his father’s application was approved ; he had relied on that misrepresentation t o his detriment ; and the government committed affirmative misconduct by scheduling his father’s final interview after his twenty

- first birthday.4 Brodelid , unlike his younger brother Ahilud, was eligible for cancellation of

r emoval under INA § 240 A(b) , and he applied for it

. Brodelid h ad continuously been in the United States for the required 10 years, was not a criminal, and had two qualifying

re latives, his daughter, who is a U.S. citizen , and his father. See 8 U.S.C. § 1229b(b) (1)(A)

- (C)

. To be successful, however, he need ed to establish that one of his two qualifying relatives would suffer “exceptional and extremely unusual hardship” upon his removal. 8 U.S.C. § 1229b(b) (1)(D) . Brodelid claimed that his father would suffer such hardship , and he testified before the IJ in support of that claim , detailing his father’s medical condition and need for financial support. 3
T he IJ found Petitione rs removable

. With remarkable underst atement, the IJ noted that Ahilud’s is an “unfortunate” case (App. at 147) and that, under the BIA’s decisional law , there is no agency jurisdiction allowin g the grant of equitable relief. The
IJ further stated that, even if he were permitted to consider the equitable estoppel claim, Ahilud would still be unlikely to gain relief because “mere negligence [on behalf of the government] does not seem to be enough” to establish an equitable estoppel claim. (App. at 148.) Turning to Brodelid, t he IJ held a m erits hearing on that brother’s application for cancellation of r emoval. Following the hearing, the IJ denied the application, deciding

3 Brodelid testified that his father is a recovering alcoholic, who injured his back and shoulder in 1994. He also submitted documentation to support that testimony. Brodelid testif ied and provided other evidence that his annual income was $30,000 while his father’s was $12,000. Brodelid claimed that he has provided his father with financial as sistance, and h e added that he would not make enough money in Mexico to c ontinue supporting his father.5 that the father was , based on his yearly salary and monthly rent , self

- sufficient

. The IJ ordered both Ahilud and Brodelid removed to Mexico. They then appealed to the BIA , 4 which dismissed their appeal. It affirmed the IJ’s decision denying Brodelid’s cancellation of removal application because it found that his
father was not sole ly dependent upon Brodelid for monetary and non

- monetary support and thus the al leged “hardship” fell short of the “ exceptional and extremely unusual standard” set forth in the statute. ( App

. at 4. ) The BIA also said t hat , as the IJ had observed, it lack ed jurisdiction over Ahilud’s equitable estoppel claim

. N ever theless, it addressed that claim by saying that Third Circuit precedent compelled the conclusion that Ahilud c ould not prevail because he could n ot establish that the government had, in scheduli ng his father’s final NACAR A interview the day following Ahilud’s twenty

- first birthday, engaged in “ affirmative misconduct , ” which is one of four requirements for a finding of equitable estoppel. 5

This timely petition for review followed. (App. at 5) (citing Mudric v. Att’y Gen. of the U.S. , 469 F.3d 94, 99 (3d Cir. 2006)) (emphasis original)

.

4 On June 19, 2009, the BIA remanded the case for a complete oral decision and order that would encompass the disposition of all of the claims brought by the two brothers

. On remand, the IJ issued a brief writ ten opinion clarifying the status of his prior oral decisions and orders. The IJ explained that he had issued two oral decisions and that both removal orders were issued on December 29, 2008. Subsequently, the IJ returned the case to the BIA

. 5 The BIA also rejected Petitioners’ claim that the IJ had erred in consolidating their cases because it found that an IJ can consolidate the cases of different respondents to “promote administrative efficiency” and because Petitioners’ counsel had suggested consol idation. (App. at 4.) Petitioners do not challenge that decision and therefore we will not address it.6 II . Discussion 6
When , as in this case , “the BIA issues a separate opinion ... we review the BIA’s disposition and look to the IJ’s ruling only insofar as the BIA defers to it.” Huang v. Att’y Gen. of the U.S. , 620 F.3d 372, 379 (3d Cir. 2010); Sandie v. Att’y Gen. of the U.S. , 562 F.3d 246, 250 (3d Cir. 2009) (where the BIA’s decision affirms and specifically references the IJ’s decision, we also review the r eferenced portions of the IJ’s decision); Lin v. Att’y Gen. of the U.S. , 543 F.3d 11 4, 119 (3d Cir. 2008) (same). We review factual findings for substantial evidence and treat them as “conclusive unless any reasonable adjudicator would be compelled to con clude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
We give de novo review to constitutional claims and questions of law , subject to the principles of deference established in Chevron U.S.A., Inc . v. Natural Resources Defense Council, Inc

. , 467 U.S. 837 (1 984).
A. Ahilud Ahilud argues that both the IJ and BIA erred in declining to apply the doctrine of equitable estoppel, and he asserts that the government’s scheduling of his father’s final NACARA interview the day after h is twenty

- first birthday amounted to a ffirmative misconduct

. Assuming immigration officials were free to consider equitable estoppel , however, Ahilud cannot succeed on this record. 7

6 Pursuant to 8 U.S.C. § 1252(a), we have jurisdiction to review a final decision of the BIA. See Abdulai v. Ashcroft , 239 F.3d 542, 548

- 49 (3d Cir. 2001) (concluding that the decision of the BIA is a “final order” triggering our jurisdiction). 7 The BIA’s decision in Hern an dez

- Puente , 20 I&N Dec. 335 , 339 (BIA 1991) , supports the position that neither the BIA nor the IJ could have applied the doctri ne of7 As noted earlier, supra n. 2, an alien seeking to prevail on an equitable estoppel claim “ must establish (1) a misrepresentation; (2) upon which he reasonably relied; (3) to his detriment; and (4) affirmative misconduct. ” Mudric , 469 F.3d at 99

. Importantly,

“ m e re delay does not constitute ‘ affirmative misconduct ’ on the part of the Government. ” Id. Ahilud ha s not presented evidence that the alleged delay in processing his father’s application was the product of affirmative misconduct. As Ahilud himself describes it, the conduct of immigration officials in his case was “irresponsible” and constituted “neglige nce.” (Petitioners’ B r. at 14.) Despite the terrible consequence for Ahilud, there is no foundation for believing that anything more than garden variety incompetence led to the timing of the grant of LPR status to his father . Thus, al though we truly sym pathize with Ahilud, he has failed to establish an equitable estoppel claim , and the BIA did not

err in declining to grant him r elief. 8

equitable estoppel. Rather than address that jurisdictional point, we look to the merits of the equitable estoppel argument because, as both the IJ and BIA observed, Ahilud would lose that argument even if the doctrine could be applied.
8 We not e that, while we lack the ability to grant Ahilud relief, the government has recently and very publically declared that it retains “prosecutorial discretion to ensure that the ag ency’s immigration enforcement resources are focused on the agency’s ... priorit ies,” which includes “settling or dismissing

... proceeding[s].” Memorandum from John Morton, Director of U.S. Customs and Immigration Enforcement to All Field Office Directors, Special Agents in Charge, and Chief Counsel, “Exercising Prosecutorial Discreti on Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens

. (June 17, 2011 ) . Here, Ahilud had nearly completed the NACARA application process and, but for the government’s schedulin g of his father’s final interview for the day after his twenty

- first birthday, presumably would have been granted LPR status. There is no hint in the record that Ahilud would not have received that relief. He appears to be the hapless victim of a bureauc ratic blunder, and t he consequence he has suffered is severe.8 B. Brodelid Brodelid argues that the BIA erred in finding that his father will not suffer “exceptional and extremely unus ual hardship” if Brodelid is removed to Mexico

. Brodelid thus contends that he should have been found eligible for cancellation of removal pursuant to INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1)

. However, the plain language of 8 U.S.C. § 1252(a)(2)(B) prev ents us from exercising jurisdiction “to review any judgment regarding the granting o f relief under section ... 1229b ... of this title.” That prohibition includes challenges to agency determinations of what constitutes “exceptional and extremely unusual hard ship, ” because they are “quarrels over the exercise of discretion and the correctness of factual findings.” Patel v. Att’y Gen. of the U.S. , 619 F. 3d 230, 232

- 33 (3d Cir. 2010 ) (internal quotation marks omitted). Therefore , because Brodel id’s argument at tacks a wholly discretionary determination of the BIA and not a constitutional claim or a question of law , we lack jurisdiction to review it

. IV. Conclusion For the foregoing reasons, we will deny the petition for review as it pertains to Ahilud and dism iss it as it pertains to Brodelid

.