Interim Decision #2416 

MATTER OF MORALES 

In Deportation Proceedings 

A--30794500 

Decided fry Board July 28, 1975 

(1) Respondent was admitted for permanent residence in possession of an immigrant visa 

issued to him as the spouse of a United States citizen upon the basis of a visa petition 

approved by the Service subsequent to the commencement, and prior to the conclusion, 

of deportation proceedings instituted against his wife which resulted in a determination, 

ultimately sustained by the U. S. Court of Appeals, that she was not in fact a citizen of 

the United States. Notwithstanding the visa petition approval may have been an 

erroneous act, there was no "affirmative misconduct" and the Service is not estopped in 

subsequent deportation proceedings agiiinst respondent from showing that his wife was 

not a citizen. The fact a formal decision was made on the visa petition does not, by itself, 

give substantial weight to respondent's equitable estoppel argument; the approval of 

the petition was by no means a final determination of the citizenship claim of respondent's wife. 

(2) Respondent, who is deportable under section 241(a)(1) of the Immigration and Nationality Act based on excludability at entry under section 212(a)(20), is ineligible for 

the benefits of section 241(f) of the Act (Matter of Montetnayor, 15 I. & N. Dec. 

353). 

CHARGE: 

Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time of 

entry under section 212(a)(20) [8 U.S.C. 1182(a)(20)]–

immigrant not in possession of valid immigrant visa 

OE BEHALF OF RESPONOENT: ON BEHALF or SERVICE: 

Alex R. Gonzalez, Esquire William E. Weinert. 

122 North Main Street Thal Attorney 

P. 0. Box 1726 

Fort Stockton, Texas 79735 

In a decision dated April 13, 1973, we dismissed the respondent's 

appeal from an order of an immigration judge in these deportation 

proceedings. The respondent has submitted a motion seeking a reopening of his case. The motion will be denied. 

The respondent is a native and citizen of Mexico who was admitted to 

the United States as an immigrant in July of 1970. His eligibility for 

admission as a lawful permanent resident was in part based on his 

marriage to an alleged United States citizen. In proceedings commenced 

prior to the respondent's admission, and concluded after his arrival, it 

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Interim Dechion #2416 

was determined that the respondent's wife was not in fact a citizen of 

the United States. 

The respondent does not presently contend that his wife is a citizen of 

the United States. However, he moves to reopen the proceedings, 

arguing both that the Service should be estopped from showing that his 

wife has never been a citizen, and that, in any event, his deportation is 

precluded by virtue of section 241(f) of the Immigration and Nationality 

Act. 

The record :.ndicates that the respondent's wife filed a visa petition in 

his behalf in 1969. Thereafter, in January of 1970, the Service instituted 

deportation proceedings against the respondent's wife. Those proceedings were ordered terminated by an immigration judge after he found 

that the Service had not shown that the respondent's wife was an alien. 

The Service took an appeal to this Board from the immigration judge's 

order. Our decision on the Service's appeal, of which we take administrative notice, shows that the immigration judge's order terminating 

proceedings in favor of the respondent's wife was entered on March 26, 

1970. The Service, which until then had not acted on the wife's visa 

petition, approved that petition on March 30, 1970, only four days after 

the immigration judge had ruled in favor of the respondent's wife_ 

The record does not disclose the date on which the Service took its 

appeal from the immigration judge's order terminating the wife's deportation proceedings. The appeal, however, was sustained, and we remanded the record for further proceedings. Nevertheless, during the 

pendency of that appeal the respondent was admitted to the United 

States on the basis of his claim to being the spouse of a citizen. 

The finding of deportability against the respondent's wife was ultimately sustained by the United States Court of Appeals for the Fifth 

Circuit. The respondent, however, contends that the Service should be 

estopped from showing that his wife was not a citizen. This would 

effectively preclude the Serviee from demonstrating that the respondent's immigrant visa was invalid. 

There have been several court eases indicating that, under certain 

circumstances, the doctrine of equitable estoppel is applicable to the 

Federal government, even when acting in a "sovereign" capacity. See 

e.g. United States v. Lazy PC Ranch, 481 F.2d 985 (C.A. 9, 1973); 

Gestuvo v. district director, 337 F. Rupp. 1093 (C.D. Cal. 1971). However, we know of no Supreme.Court decision specifically endorsing this 

view. Moser v. United States, 341 U.S. 41 (1951), relied upon by 

counsel, does not purport to be an estoppel case. Furthermore, in INS 

v. Hibi, 414 U.S. 5 (1973), the Supreme Court indicated that, if applicable at all, estoppel in the area of citizenship could only arise after 

"affirmative misconduct" on the part of the government. - 

in this case, the Service approved the visa petition almost im412 
Interim Decision #2416 

mediately after an immigration judge had adjudicated the claim to 

citizenship in favor of the respondent's wife, and well before our reversal of the immigration judge on appeal. While there may have been an 

erroneous action taken, there was no "affirmative misconduct" as we 

interpret that phrase. The law as enacted by Congress cannot be 

changed by the mere erroneous act of a government official. See Federal 

Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947); United States v. City & 

County of San Francisco, 310 U.S. 16 (1940), Utah Power & Light Co. 

v. United States, 243 U.S. 389 (1917); Matter of Polanco, 14 I. & N. 

Dec. 488 (BIA 1973); Matter of Khan, 14 I. & N. Dec. 397 (BIA 1973). 

The fact that there was a formal decision made with respect to the 

visa petition does not, by itself, give substantial weight to the respondent's equitable estoppel argument. The approval of the petition was by 

no means a final determination of the citizenship claim of the respondent's wife. Cf. Pearson v. Williams, 202 U.S. 281 (1906). In addition, 

the respondent should have been well aware that the Service was not 

conceding the citizenship of his wife, because at the time of the respondent's admission to the United States Hs wife's case was still on appeal. 

The immigration judge properly refused to estop the Service from 

presenting its case with respect to the citizenship of the respondent's 

wife. 

The respondent also argues that he cannot be deported on the charge 

specified in the order to show cause by virtue of section 241(f) of the Act. 

However, in Matter of Montemayor, 151. & N. Dec. 353 (BIA 1975), we 

held that the construction of section 241(f) adopted by the Supreme 

Court in Reid v. INS, 420 'U.S. 619, 95 S. Ct. 1164 (1975), precluded the 

application of section 241(f) to a section 241(a)(1) charge of deportability 

based on section 212(a)(20). See Guel-Perales v. INS, 519 F.2d 1372, 

(C.A. 9, 1975). This is the precise charge against the respondent. 

We can perceive no useful purpose that would be served by reopening 

these proceedings. The motion will be denied. 

ORDER: The motion is denied. 

Theodore P. Jakaboski, Alternate Member, Dissenting: 

I respectfully dissent. 

The issue in this acae is not whether the Immigration and Naturalization Service should be estopped from showing that the respondent's wife 

has never been a citizen. As the Trial Attorney correctly noted in his 

brief, the issue actually is quite different i.e., whether the Service is 

estopped from denying the validity of the respondent's immigrant visa 

as an immediate relative of a United States citizen. 

In this case the respondent, a native and citizen of Mexico, entered 

the United States as an alien admitted for lawful permanent resident on 

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Interim Decision #2416 

July 17, 1970. At that time he was admitted on the strength of an 

immigrant visa issued to him on the basis of his purported status as the 

immediate relative (spouse) of a United States citizen. He received this 

status on March 30, 1970, when the district director approved the 

petition to classify his status filed by his wife on April 15, 1969. 

The reason an order to show cause has been filed in the respondent's 

case is that the Immigration and Naturalization Service subsequently 

established that the respondent's wife was not a citizen of the United 

States. That determination was upheld Chacon-Ramierez v. INS, 468 

F.2d 950 (C.A. 5, 1972). Now the Service takes the position that the 

respondent is deportable because his visa was improperly issued to him 

because he was not in fact the husband of a United States citizen. 

The district director had approved the petition to classify status just 

four days after an immigration judge of the Immigration and Naturalization Service had rendered a decision terminating deportation proceedings bnught against this respondent's wife on the ground that the 

Service had failed to carry its burden of establishing the wife's alienage. 

The Service's action in approving the petition to classify status occurred 

before the Service appealed the immigration judge's opinion on April 6, 

1970. That -appeal was sustained by the Board. In reopened proceedings 

the immigration judge found the respondent's wife not to be a citizen 

and ordered her deportation. That decision was sustained upon judicial 

review. 

An order to show cause was not issued in connection with the respondent until July 19, 1972, a few days more than two years after he was 

admitted as the immediate relative of a United States citizen. 

On this set of facts the majority declines to make a finding that the 

Service should be estopped. I do not agree with their finding that there 

has been no "affirmative misconduct" in the present case. Granted, no 

illegal act has been committed against the respondent.. I do not believe 

one is required. The respondent, however, did rely, obviously much to 

his detriment, on the district director's approval of his status as the 

spouse of a Jnited States citizen. After all, the respondent's spouse had 

applied for immediate relative status for him back in April 15, 1969, 

more than three years before the issuance of an order to show cause. 

During this time the respondent could have pursued a visa in his own 

right witho at relying upon the fact of marriage to a United States 

citizen. As a native of Mexico he is a "special immigrant" as that term is 

defined in section 101(a)(27)(A) of the Act. At the time the waiting list 

for special immigrants was slightly under two years. 

The Immigration Service had two opportunities of preventing the 

respondent's predicament. First, the Service should have known on 

March 30, 1970 whether or not it intended to appeal the immigration 

judge's decision of March 26, 1970 which found the respondent's wife not 

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to be an alien..Next, the Service had a quarter of a year between April 

6, 1970, when it filed its appeal, and July 19, 1970, when the respondent 

was admitted, to revoke the approval granted on Maxch 80, 1970. It did 

nothing. 

The respondent entered on July 19, 1970, almost as if he had fallen 

into a trap set by the Service. It seems too much to suggest that the 

respondent should have known better. How could he have known? All 

the while he had in his hands an unrevoked document attesting to the 

fact that the Immigration and Naturalization Service had approved the 

status he needed for obtaining an immigration visa. If knowledge is to 

be imputed to anyone, it should be imputed to the Service. Consequently, it would be unconscionable to permit the Service at this late 

date to turn around and charge the respondent with deportability on the 

ground that his visa was defective. Would it be fair play to deport the 

respondent, who, after all, would not have been admitted to this country 

except for the Service's error which was of several month's duration? I 

think not. In my opinion the Service should be estopped from bringing 

proceedings against this respondent. I therefore, would grant the motion to reopen to raise the bar of equitable estoppel. 

415