United States Court of Appeals

For the First Circuit

No. 21-1111

AMAURY VLADIMIR REYES-BATISTA,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

PETITON FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Barron, Chief Judge,

Howard and Gelpí, Circuit Judges.

Stuart Altman, Law Office of Stuart Altman, for petitioner.

Todd J. Cochran, Office of Immigration Litigation, Civil 

Division, United States Department of Justice, with whom Brian M. 

Boynton, Assistant Attorney General, and John S. Hogan, Assistant 

Director, Office of Immigration Litigation, were on brief, for 

respondent.

October 7, 2022
- 2 -

HOWARD, Circuit Judge. Petitioner Amaury Vladimir 

Reyes-Batista seeks review of the Board of Immigration Appeals' 

("BIA") dismissal of his appeal of an immigration judge's ("IJ")

order denying him relief from removal. Reyes-Batista argues that 

the BIA erred in denying him nunc pro tunc relief under former 

§ 212(c) of the Immigration and Nationality Act ("INA") and on

equitable estoppel grounds. Discerning no error in the agency 

decision, we deny the petition.

I.

Reyes-Batista, a citizen of the Dominican Republic, was 

granted lawful permanent resident ("LPR") status in October 1990, 

at the age of fourteen. In 1996, he was convicted in New York of 

third-degree attempted criminal sale of a controlled substance 

(heroin). As a result, the government initiated removal

proceedings against him in Oakdale, Louisiana. At his removal

hearing, Reyes-Batista sought relief under former § 212(c) of the 

INA. See 8 U.S.C. § 1182(c) (1996). Section 212(c) gave the 

Attorney General discretion to waive removal for certain LPRs, 

provided that they had established a domicile in the United States 

for seven consecutive years. An IJ found that Reyes-Batista did 

not meet the seven-year domicile requirement necessary for relief 

and ordered him removed. Reyes-Batista was removed to the 

Dominican Republic in October 1996.
- 3 -

Reyes-Batista later made his way back to the United 

States, entering without inspection. In 2015, he was charged in 

the U.S. District Court for the District of Connecticut with 

various offenses stemming from his involvement in a fraudulent tax 

scheme. See United States v. Reyes-Batista, 844 F. App'x 404, 406 

(2d. Cir. 2021). An additional charge for illegal reentry under 

8 U.S.C. § 1326(a) was dismissed before trial because the district 

court found that Reyes-Batista was prejudiced by a fundamental 

procedural error in his 1996 removal proceeding when the IJ

informed him that he was ineligible for § 212(c) relief. According 

to the district court, Reyes-Batista's mother's lawful residency 

"could be imputed" to him for purposes of establishing the sevenyear domicile period.

Reyes-Batista was convicted of the fraud-related charges 

and sentenced to time served, plus three years of supervised 

release and restitution. Reyes-Batista, 844 F. App'x at 406. In 

early 2021, the Second Circuit affirmed his convictions. Id. at 

410.

On December 9, 2019, the Department of Homeland Security

("DHS") initiated removal proceedings against Reyes-Batista by 

filing a Notice to Appear ("NTA") in Boston immigration court. 

The NTA charged Reyes-Batista with removability based on four INA 

provisions: 1) § 212(a)(2)(C) (8 U.S.C. § 1182(a)(2)(C)(i)) 

("alien who the consular officer or the Attorney General knows or 
- 4 -

has reason to believe . . . is or has been an illicit trafficker 

in any controlled substance"); 2) § 212(a)(9)(C)(i)(II) (8 U.S.C. 

§ 1182(a)(9)(C)(i)(II)) ("alien who . . . has been ordered 

removed . . . who enters or attempts to reenter the United States 

without being admitted"); 3) § 212(a)(6)(A)(i) (8 U.S.C. 

§ 1182(a)(6)(A)(i)) ("alien present in the United States without 

being admitted or paroled, or who arrives in the United States at 

any time or place other than as designated by the Attorney 

General"); and 4) § 212(a)(7)(A)(i)(I) (8 U.S.C. 

§ 1182(a)(7)(A)(i)(I)) (immigrant not in possession of "valid 

entry document[s]"). Reyes-Batista denied the charges of 

removability and argued that DHS should be equitably estopped from 

removing him, and sought cancellation of removal, nunc pro tunc

§ 212(c) relief, and voluntary departure. Following two hearings, 

the Boston IJ ultimately concluded that the evidence sufficiently 

sustained all four charges, and that Reyes-Batista was ineligible 

for relief from removal.

Reyes-Batista appealed this decision to the BIA, 

focusing on the IJ's denial of his nunc pro tunc and equitable 

estoppel claims. On January 7, 2021, the BIA dismissed the appeal.1 

Reyes-Batista's timely petition for review followed.

1 In his appeal to the BIA, Reyes-Batista also challenged the 

IJ's denial of his request for a continuance. The BIA rejected 

this claim in its decision, and Reyes-Batista has not challenged 

this portion of the BIA's decision on appeal.
- 5 -

II.

"Where, as here, the BIA adopted and affirmed the IJ's 

ruling, and discussed some of the bases for the IJ's opinion, we 

review both the BIA's and IJ's opinions." Idy v. Holder, 674 F.3d 

111, 117 (1st Cir. 2012) (citing Zheng v. Gonzales, 475 F.3d 30, 

33 (1st Cir. 2007)). "We review the BIA's and/or IJ's findings of 

fact under the substantial evidence standard, reversing only if 

'the record evidence would compel a reasonable factfinder to make 

a contrary determination.'" Stroni v. Gonzales, 454 F.3d 82, 87 

(1st Cir. 2006) (quoting Romilus v. Ashcroft, 385 F.3d 1, 5 (1st 

Cir. 2004)). "We review legal conclusions de novo, 'with 

appropriate deference to the agency's interpretation of the 

underlying statute in accordance with administrative law 

principles.'" Id. (quoting Gailius v. INS, 147 F.3d 34, 43 (1st 

Cir. 1998)).

A. Reyes-Batista is not eligible for nunc pro tunc 

relief under former § 212(c)

A noncitizen convicted of an aggravated felony after 

admission to the United States is removable. See 8 U.S.C. 

§ 1227(a)(2)(A)(iii). Former INA § 212(c) gave the Attorney 

General "relatively broad discretion to grant relief to aliens 

otherwise deemed inadmissible or removable if they had established 

a lawful, unrelinquished domicile in the United States of seven 

consecutive years." Omar v. Lynch, 814 F.3d 565, 567 (1st Cir. 

2016) (citing former § 212(c)). Although § 212(c) was repealed by 
- 6 -

§ 304(b) of the Illegal Immigration Reform and Immigrant 

Responsibility Act of 1996 ("IIRIRA"), the Supreme Court 

subsequently held that IIRIRA's repeal of former § 212(c) does not 

apply retroactively. See INS v. St. Cyr, 533 U.S. 289, 326 (2001). 

Thus, § 212(c) relief remains available to eligible persons

convicted of an offense before IIRIRA’s effective date in April 

1997. See id. at 315, 326. 

But Reyes-Batista is not presently eligible for § 212(c) 

relief. Current regulations provide that relief under former 

§ 212(c) is only available to LPRs. See 8 C.F.R. § 1212.3(f)(1). 

As the IJ noted, and Reyes-Batista does not dispute, he is not an

LPR because his 1996 removal order -- which terminated his LPR 

status -- remains valid. Therefore, his only means of obtaining 

§ 212(c) relief would be through a nunc pro tunc waiver. 

"Nunc pro tunc, . . . meaning 'now for then,' refers to 

the power of [an adjudication] to treat something done now --

typically a court order -- as effective as of an earlier date." 

Gutierrez-Castillo v. Holder, 568 F.3d 256, 261 (1st Cir. 2009) 

(quoting Mahabir v. Ashcroft, 387 F.3d 32, 33 (1st Cir. 2004)). 

In pursuing nunc pro tunc permission to reapply for relief under 

former INA § 212(c), Reyes-Batista asks to have his § 212(c) 

application adjudicated nunc pro tunc to the date of his original 

hearing in 1996, before he lost his LPR status.
- 7 -

The IJ concluded that Reyes-Batista was not entitled to 

nunc pro tunc relief, because granting it would not eliminate his 

four grounds of removability under the INA. The BIA agreed, 

explaining that "[n]unc pro tunc relief is not available unless it 

would completely dispose of the case," and Reyes-Batista "would 

still be considered an arriving alien, and inadmissible, even if 

he were granted a section 212(c) waiver nunc pro tunc." 

We agree. First, as a threshold matter, and as ReyesBatista points out, it is not clear whether nunc pro tunc relief 

is available in this circuit to correct a substantive error by a 

previous immigration court. See Fernandes Pereira v. Gonzales, 

417 F.3d 38, 47-48 (1st Cir. 2005) (declining to extend nunc pro 

tunc relief to petitioner who "was denied the opportunity to seek 

timely section 212(c) relief under a good faith legal 

interpretation of the law at the time," and noting that "we have 

stated that nunc pro tunc authority may only be used to correct 

inadvertent or clerical errors").

Nevertheless, nunc pro tunc relief under former § 212(c) 

is not an available remedy here. As the BIA has explained, its 

authority and that of "[IJs] to grant [nunc pro tunc] permission 

in deportation or exclusion proceedings . . . is 

limited . . . . [and] has been extended only to instances where 

all established grounds of deportability or inadmissibility are 

eliminated." In re Garcia-Linares, 21 I. & N. Dec. 254, 258 (BIA 
- 8 -

1996); see Trejo v. Holder, 421 F. App'x 339, 341 (5th Cir. 2011)

(per curiam) (explaining that "[t]he immigration courts have 

'discretion to allow nunc pro tunc proceedings in two well defined 

situations,'" one of which is "where the only ground of 

deportability or inadmissibility would thereby be eliminated"

(citation omitted)); Corona-Mendez v. Holder, 593 F.3d 1143, 1148 

(9th Cir. 2010) ("Because the Board does not grant nunc pro tunc

permission to reapply if the petitioner is deportable based on 

multiple grounds of inadmissibility, it was . . . properly denied 

here."); Patel v. Gonzales, 432 F.3d 685, 693 (6th Cir. 2005); 

Matter of Roman, 19 I. & N. Dec. 855, 859 (BIA 1988). Because the 

BIA's policy regarding nunc pro tunc relief is a "discretionary 

administrative practice," we "have no authority to require the 

Board to extend" it. Corona-Mendez, 593 F.3d at 1148 n.4.

Here, even were Reyes-Batista to receive retroactive 

§ 212(c) relief through a grant of nunc pro tunc permission to 

reapply, it would not "complete[ly] dispos[e] of [his] case."

Reyes-Batista would remain removable at the very least under the 

INA provision relating to his unauthorized reentry,

§ 212(a)(9)(C)(i)(II). See supra at 4. That alone renders him

ineligible for nunc pro tunc relief. See In re Garcia-Linares, 21 

I. & N. at 258. 
- 9 -

B. Equitable estoppel is not warranted 

"Estoppel requires showing that the government engaged 

in 'affirmative misconduct' that caused the petitioning individual 

to act in a way []he otherwise would not have." Westover v. Reno, 

202 F.3d 475, 481 (1st Cir. 2000) (quoting Akbarin v. INS, 669 

F.2d 839, 842-43 (1st Cir. 1982)).2 

Reyes-Batista argues that the government should be 

equitably estopped from bringing new removal proceedings against 

him because the first IJ, in Louisiana, failed to inform him at 

his 1996 hearing that he was potentially eligible for § 212(c) 

relief. According to Reyes-Batista, this eligibility stemmed from 

a 1992 Second Circuit case holding that a parent's domicile could 

be imputed to a child for purposes of § 212(c) if there was a 

significant relationship between the parties.3 Reyes-Batista 

points to the following colloquy at his 1996 removal hearing as 

2 Even where these two elements of estoppel are met, estoppel 

against the government may nevertheless be inappropriate based on 

competing policy and equitable considerations. See Akbarin, 669 

F.2d at 844. This is all the more true in immigration cases, where 

"the state of the doctrine of estoppel against the Government is 

difficult to determine." Id. at 842. 

3 Reyes-Batista does not mention the case -- Rosario v. INS, 

962 F.2d 220 (2d. Cir. 1992) -- in his brief, but instead relies 

primarily on the Connecticut district court's fundamental fairness 

analysis to support his equitable estoppel claim, which, in turn, 

relied on Rosario. Although Reyes-Batista's argument lacks 

development, we assume arguendo that it was not waived and proceed 

to the merits. 
- 10 -

evidence that the Louisiana IJ engaged in affirmative misconduct 

by misinforming him of his eligibility for § 212(c) relief:

[IJ]: Counselor, do you seek any relief 

from deportation?

Counsel for Reyes-Batista: Umm, well, we 

would . . . 212c, since the Attorney General 

has vacated Soriano, we believe that he's 

eligible, at least for the time being, until 

some new decision is made as to whether it 

pertains to cases that were, or convictions, 

that were prior to April 24th.

[IJ]: Okay[.]

Government: Your honor, the respondent 

doesn’t have the requisite 7 years for 212c 

relief. He entered this country as an 

immigrant on Oct. 12, 1990.

[IJ]: He doesn’t even have the 7 years 

counselor.

Counsel: Oh, I must have miscalculated 

when I read this then. Um, that's the only 

form that I know of your honor.

[IJ]: I understand that. I'm not aware 

of any relief, is the government aware of any 

relief?

Government: No, your honor.

. . . .

[IJ]: The respondent through counsel 

would seek 212c waiver. And there is the issue 

in the Second Circuit and how you calculate 

the time that his mother had lawful permanent 

residence and also the . . . but it doesn't 

apply here . . . and also because of the 

Antiterrorism bill, he surely does not 

have . . . he's not eligible currently for the 

212c waiver.

The Boston IJ found that the "facts of this case fall 

far short of the affirmative government misconduct standard"

because even if Reyes-Batista would have been eligible for relief 

under former § 212(c), there was "insufficient evidence that [the 

Louisiana IJ's statements were] an intentional act meant to deprive 
- 11 -

[Reyes-Batista] of his due process rights to apply from relief 

from removal." The IJ further noted that the Louisiana IJ

"consulted with and sought input from both government counsel and 

[Reyes-Batista's] counsel at the hearing." The BIA agreed, stating 

only that "[e]quitable estoppel is not appropriate because the 

record does not establish that the [IJ] in the prior deportation 

proceedings engaged in affirmative misconduct by finding the 

respondent ineligible for relief under former section 212(c)." 

We concur. The Second Circuit case that Reyes-Batista 

identifies as creating the "imputed domicile" theory under which 

he may have satisfied the seven-year requirement was not binding 

on the Louisiana immigration court in his 1996 proceeding, and no 

similar Fifth Circuit precedent existed at the time -- in fact, 

the available Fifth Circuit precedent suggested the contrary. 

Compare Rosario, 962 F.2d at 224 (holding that "the ameliorative 

purpose of § 212(c) is better served by permitting a minor to 

establish domicile through a parent with whom he had a significant 

relationship during the time in question") with Madrid-Tavarez v. 

INS, 999 F.2d 111, 111 (5th Cir. 1993) (holding "that a lawful 

permanent resident who is short of the seven year legal residence 

requirement cannot meet it by tacking time previously spent in the 

United States as an illegal alien for purposes of § 212(c)").4 

4 The Supreme Court has since affirmed the BIA’s 

interpretation that a person must meet § 1229b(a)'s (the statutory 
- 12 -

More importantly, the Louisiana IJ appears to have given the 

question of Reyes-Batista's § 212(c) eligibility adequate

consideration, and Reyes-Batista has failed to identify anything 

suggestive of "government misconduct." Westover, 202 F.3d at 481. 

Estoppel is therefore not appropriate here. Cf. Akbarin, 669 F.2d 

at 842 (explaining that "the Supreme Court [has] held that a Social 

Security Administration official's oral advice . . . that 

[plaintiff] was ineligible for certain benefits when in fact she 

was [eligible] did not estop the Government from denying her 

retroactive benefits for which she did not apply in time because 

of the oral advice"). 

III.

For the foregoing reasons, we deny Reyes-Batista's 

petition.

provision that replaced § 212(c)) duration requirements on his or 

her own, thereby overruling Rosario and the decisions of two other 

circuit courts which had previously held that "the Board should 

impute a parent's years of domicile to his or her child" when 

"determining eligibility for relief under § 212(c)." Holder v.

Martinez Gutierrez, 566 U.S. 583, 592 (2012).