United States Court of Appeals

For the First Circuit

No. 03-1692

LUIS HUMBERTO ESTRADA-CANALES, et al.,

Petitioners,

v.

ALBERTO R. GONZALES, 

Attorney General of the United States,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

 Lynch, Circuit Judge,

Bowman,* Senior Circuit Judge, 

and Howard, Circuit Judge.

Roberto Gonzalez, with whom Audette, Bazar, Berren & Gonzalez,

Inc. was on brief, for petitioners.

Jennifer L. Lightbody, Attorney, Office of Immigration

Litigation, Civil Division, United States Department of Justice,

with whom Peter D. Keisler, Assistant Attorney General, Civil

Division, and Mark C. Walters, Assistant Director, were on brief,

for respondent.

February 21, 2006

* Of the Eighth Circuit, sitting by designation.
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LYNCH, Circuit Judge. The lead petitioner in this

immigration case is Luis Humberto Estrada-Canales ("Estrada"); the

six others are his children. The case involves aspects of the ABC

Agreement, concerning special procedures for certain Salvadorans

and Guatemalans who enter the United States. See Am. Baptist

Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991). It

raises one legal issue about interpretation of 8 U.S.C. § 1155

(1994).

The petitioners are natives and citizens of Guatemala,

who entered the United States illegally. The Immigration Judge

ordered them excluded and deported, deemed their applications for

asylum and withholding of deportation abandoned, and determined

that they were ineligible for waivers of inadmissibility and

suspension of deportation. The Board of Immigration Appeals denied

petitioners' appeal from that decision. This is a petition for

review of that order of the BIA.

This case raises two sets of issues. One set arises over

the question of whether the petitioners are eligible for benefits

under the ABC Agreement. The government denies this court has

jurisdiction over such claims. We do not decide those

jurisdictional issues. Rather, we find petitioners have waived

their claim by strategic decisions on their part. 

As to the second set of issues, the usual petition for

review claims (pertaining to petitioners' excludability as charged
 On March 1, 2003, the relevant functions of the INS were 1

transferred to the Department of Homeland Security, and the INS

subsequently ceased to exist. See Homeland Security Act of 2002,

Pub. L. No. 107-296, § 471(a), 116 Stat. 2135, 2205 (codified at 6

U.S.C. § 291(a)). For the sake of simplicity, we use the term

"INS" throughout the opinion.

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and to asylum), the respondent agrees that this court has

jurisdiction. We deny the petition for review. In doing so, we

also uphold the interpretation by the BIA and the IJ of 8 U.S.C.

§ 1155 (1994) that aliens who present themselves at a point of

entry in the United States based on visa petitions fraudulently

obtained in circumstances such as these are inadmissible and not

entitled to entry.

I.

The basic facts of this case are not in dispute. Estrada

first entered the United States without inspection in 1985. On

October 9, 1985, Estrada became an employee of P&B Manufacturing

("P&B") in Rhode Island; he worked as a jewelry polisher. In 1989,

P&B filed with the Department of Labor, on Estrada's behalf, an

Application for Alien Employment Certification. Later, P&B also

filed with the INS a Petition for Prospective Immigrant Employee 1

(Form I-140). This petition was approved on April 26, 1993. By

then, in fact since August 9, 1991, Estrada had been laid off, but

he did not notify the INS. After being laid off, Estrada did not

work at P&B other than as a subcontractor.
 The asylum application lists only five children (Brenda, 2

Beatriz, Lazaro, Luis, and Kimberly), omitting Silvia. The

exclusion proceedings involved all six of Estrada's children.

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Meanwhile, in July 1991, Estrada filed a form with the

INS in order to register as a class member under the ABC Agreement.

The ABC Agreement is a class action settlement agreement that was

approved in American Baptist Churches, 760 F. Supp. 796. "The ABC

litigation arose out of systemic challenges by certain Salvadorans

and Guatemalans in the United States to the processing of asylum

claims filed under . . . 8 U.S.C. § 1158(a)." Matter of Morales,

21 I. & N. Dec. 130, 132 (BIA 1996). The ABC agreement

"contemplates a special procedure under which alien class members

are entitled, under certain specified conditions, to new

proceedings before the [INS] to determine their right to asylum or

any other rights and benefits established under the agreement."

Id. The ABC Agreement provides that during those special new

proceedings, the pending case before the IJ is to be

administratively closed. Id. at 134.

In March 1992, Estrada applied for asylum, listing his

children on the application. 

2

In June 1995, Estrada went to Guatemala. He says his

trip "was taken solely to bring his children" back to the United

States, and that claim does not seem to be in dispute. Estrada

went to the United States Consulate in Guatemala City to obtain his

immigrant visa. There, he presented a forged letter, purportedly
 Estrada was the lead applicant for relief. The IJ and the 3

BIA, as well as the parties, have treated the claims of Estrada and

his children collectively, focusing primarily on Estrada himself.

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from P&B, indicating that he continued to be employed full-time by

P&B. Of course, Estrada had not been so employed since 1991.

Unaware of the fraud, the consulate issued the visa on September

12, 1995, on the basis of an approved labor certification. Estrada

and his children then attempted to enter the United States on

October 1, 1995, but the INS detained them because the INS

inspector could not find an approved labor certification among the

documents. The INS paroled Estrada and his children into the

United States for deferred inspection by the INS office in

Providence, Rhode Island.

On October 24, 1995, an immigration inspector sent a

letter to P&B, requesting, inter alia, information regarding

Estrada's employment. A representative of P&B replied with a

letter stating that the letter Estrada had presented to the

consulate was a forgery, and that Estrada had not been employed by

P&B since 1991. On November 8, 1995, P&B withdrew the Petition for

Prospective Immigrant Employee (Form I-140) that it had previously

filed on Estrada's behalf. A week later, on November 15, 1995, the

INS placed the Estradas in exclusion proceedings.3

There was an initial hearing before an IJ on October 1,

1996. The INS alleged that the Estradas were excludable on two

grounds: first, they lacked a valid labor certification, see 8
-6-

U.S.C. § 1182(a)(5)(A)(i); and second, they were immigrants without

valid unexpired immigrant visas, see id. § 1182(a)(7)(A)(i)(I).

The Estradas denied that they were excludable as charged, and they

indicated that they sought the opportunity to apply for admission

as lawful permanent residents, termination of the proceedings,

asylum, withholding of deportation, suspension of deportation, and

waivers of excludability under § 212(d)(3) and (k) of the

Immigration and Nationality Act (INA), 8 U.S.C. § 1182(d)(3), (k).

At a hearing on January 7, 1997, before a second IJ, the

parties agreed to stipulate to the historical facts just described.

The IJ noted that in addition to the question of excludability on

the grounds charged, there was a question of whether the

proceedings should be administratively closed pursuant to the ABC

Agreement, as the Estradas had requested. The IJ reset the

proceedings on the latter question, and on other issues not

pertinent here, for a later date.

On February 4, 1997, an INS asylum office director sent

a letter to Estrada. The letter stated:

Information submitted to this office by

INS Litigation Unit, Boston reflects that you

attempted to enter the United States at Miami

International Airport on October 1, 1995,

without valid immigration documents.

The Settlement Agreement in American

Baptist Churches v. Thornburgh, 760 F. Supp.

796 (N.D. Cal. 1991) (ABC), provides that

class members apprehended at the time of entry

after December 19, 1990, shall not be eligible

for its benefits. See Paragraph 2 of the

Settlement Agreement. Based on the above
The IJ also held that pursuant to § 244 of the INA, 8 U.S.C. 4

§ 1254 (1994) (repealed 1996), the Estradas were statutorily

ineligible for suspension of deportation, a ruling she reiterated

in later proceedings. Also in later proceedings, the IJ found that

waivers of inadmissibility under INA § 212(d)(3) and (k) did not

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facts, it is determined that you are

ineligible for benefits under the ABC

Settlement Agreement.

That is, the INS' position was that while Estrada may have

originally been within the ABC class, he was not "eligible for its

benefits."

On March 4, 1997, Estrada brought an action in the

District Court for Rhode Island. He sought a declaration that he

was entitled to ABC benefits, and he sought an injunction against

continuation of the regular exclusion proceedings until his rights

under the agreement were honored.

On September 2, 1997, the IJ issued a written decision

resolving several of the issues in the case. She held that

exclusion proceedings were appropriate and that the Estradas were

excludable as charged; in so holding, she rejected the Estradas'

argument that, because they had already begun their journey to the

United States when the visa petition was withdrawn, they had valid

visas, they were entitled to enter the United States, and they were

entitled to lawful permanent resident status. The IJ also held

that the family was not entitled to administrative closure of the

case before her under the ABC Agreement so that a special ABC

Agreement hearing could be held.4
apply. The BIA affirmed the IJ's decisions on these points. In

their petition for review of the BIA's decision, the Estradas do

not discuss suspension of deportation or waivers of

inadmissibility, so they have waived any argument they might have

made as to these forms of relief.

-8-

The IJ held that the Estradas were properly in exclusion

proceedings because "[o]nce the [INS] determined that the validity

of [Estrada's] underlying labor certification was at issue, it had

the right to deny [the Estradas] entrance to the United States and

place [them] in exclusion proceedings." P&B did not withdraw the

petition it had earlier filed on Estrada's behalf until after

Estrada had already commenced his journey to the United States, and

therefore, the IJ reasoned, the withdrawal did not serve to

automatically revoke Estrada's employment-based visa. See 8 C.F.R.

§ 205.1(3). Nonetheless, the IJ found that the withdrawal by the

employer was still "significant." The mere fact that there was no

automatic revocation did not mean that the Estradas' visas were in

fact valid and that the family was in fact entitled to seek lawful

permanent resident status. The IJ noted that under former INA

§ 221(h), 8 U.S.C. § 1201(h) (1994), nothing in the Immigration and

Nationality Act entitled an alien, even one who had an approved

visa at the time he commenced his journey, to enter the United

States, if upon arrival, he is found inadmissible.

The IJ sustained the two charges of excludability.

First, the IJ analyzed the validity of Estrada's visa, taking into

account the underlying visa petition and the employment
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relationship on which it depended. The IJ noted that the visa was

based on an approved labor certification purportedly filed by P&B,

and that as part of that process, Estrada submitted to the

consulate a forged letter stating that he was a full-time employee

of P&B. The IJ also noted that P&B's representative had, in fact,

refused to write for Estrada a letter stating that Estrada was

still employed by P&B, and had instead written a letter explaining

that Estrada had been laid off on August 9, 1991, and the IJ found

that "[i]f such a letter had been submitted in support of the labor

certification and the employment-based visa, . . . neither would

have been granted." The IJ concluded that P&B was unwilling to

serve as petitioner on Estrada's behalf, that Estrada "was not

entitled to the status accorded to him by the visa petition," and

that "the labor certification was improvidently issued." The IJ

held that "the visa issued to [the Estradas] was invalid and . . .

[they are] excludable" as charged.

As for administrative closure under the ABC Agreement,

the IJ noted that neither she nor the BIA had jurisdiction to

review the INS' determination of an alien's eligibility for

benefits under the ABC agreement. Here, the INS had already

determined that the Estradas were not entitled to benefits under

the agreement, as shown in the February 4, 1997 letter. In light

of that determination, the IJ concluded that administrative closure

was not appropriate. The IJ noted that, aside from the ABC
 On January 9, 1998, the Estradas requested a continuance, 5

in part because the Rhode Island district court had not yet decided

Estrada's case, and "should [it] decide [the issue of eligibility

for benefits under the ABC Agreement] in favor of [Estrada] then

Exclusion Proceedings should be administratively closed." The

government opposed the continuance, and the IJ denied the

continuance on January 14, 1998.

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agreement, the Estradas could still pursue applications for asylum

and withholding of deportation before the Immigration Court.

The IJ's September 2, 1997 decision concluded with two

orders: (1) the charges of excludability were sustained, and (2)

the motion to administratively close the proceedings was denied.

The exclusion proceedings resumed on September 25, 1997.

During that proceeding, the IJ orally incorporated her September 2

written decision. She gave the Estradas until January 12, 1998 to

either apply for asylum or advise the Immigration Court that they

were not seeking such relief.

The final proceedings before the IJ occurred on January

22, 1998. Counsel for the Estradas informed the IJ that the 5

Estradas were not going to file applications for asylum because

they felt that to do so "would be giving up procedural due process

rights that they have to an administrative political asylum hearing

as they are registered ABC class members." The IJ concluded the

January 22 proceedings by issuing oral rulings resolving the

remaining issues in the case: she incorporated her prior written

decision of September 2 and her oral decision of September 25; she

deemed the Estradas' applications for asylum and withholding of
 On January 22, 1998, the IJ issued for each petitioner a 6

written order summarizing her final oral decision. Each written

order stated that the IJ's final oral decision was the official

opinion in the case.

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deportation abandoned; and she ordered the Estradas excluded as

charged and deported. That same day, the IJ's final oral decision

was also embodied in written form.6

The Estradas appealed the IJ's orders to the BIA. They

argued that they were not excludable because the visa petition was

withdrawn after they arrived in the United States, and the

withdrawal was consequently not valid and did not work a revocation

of the visa petition underlying their visas. "[I]t follows [that

the Estradas] have valid visa petitions and they should therefore

be admitted as . . . lawful permanent residents." 

The Estradas also argued that Estrada was a registered

ABC class member who was entitled to administrative closure of the

proceedings before the IJ in favor of the ABC Agreement special

proceedings. Citing Matter of Morales, 21 I. & N. Dec. 130, they

argued that Estrada's departure from the country and his

apprehension upon reentry did not divest him of his rights under

the ABC Agreement. They added that the asylum office's

determination of Estrada's ineligibility for ABC benefits had been

made without a hearing or other "due process safeguards." The

Estradas mentioned the ABC-related action they had brought in the

federal district court, but they stated that that court had not yet
-12-

decided the matter. The Estradas' brief on appeal to the BIA was

dated August 31, 1998.

The Estradas also argued that the IJ erred in deeming

their applications for asylum and withholding of deportation

abandoned, because being forced to apply for such relief in

exclusion proceedings would have violated their rights under the

ABC Agreement.

On September 16, 1999, during the pendency of the

Estradas' appeal to the BIA, the district court decided the case

Estrada had earlier filed. The government had moved to dismiss

Estrada's claim for injunctive relief and moved for summary

judgment on Estrada's claim for declaratory relief. The court

granted the government's motion to dismiss with respect to

Estrada's claim for injunctive relief, finding that 8 U.S.C.

§ 1252(g) had divested the court of jurisdiction to enjoin the

exclusion proceeding. The government conceded the court had

jurisdiction over the declaratory judgment part of the case. The

court, however, noted that it had discretion whether to issue a

declaratory judgment. The court declined to exercise its

jurisdiction, noting that "adjudicating Estrada's claim for a

declaratory judgment . . . would result in parallel litigation in

which issues arising from a single dispute would be litigated in

different fora, thereby resulting in duplication of effort and

either piecemeal litigation or the possibility of inconsistent
-13-

results or both." The court denied the government's motion for

summary judgment with respect to Estrada's claim for declaratory

relief, and it gave Estrada twenty days to show cause as to why his

claim for declaratory judgment should not be dismissed without

prejudice. On October 14, 1999, the court dismissed Estrada's

complaint without prejudice, stating that he had failed to show

cause. Estrada had not filed anything in the district court after

the September 16 order, nor did he file anything after October 14,

1999.

Nothing in the certified administrative record indicates

that the Estradas ever brought the district court's decision to the

attention of the BIA, even though their appeal was still pending

before the BIA.

On April 15, 2003, the BIA dismissed the Estradas' appeal

from the IJ's decision. The BIA agreed with the IJ on the

appropriateness of exclusion proceedings and on excludability as

charged, for essentially the same reasons as those cited by the IJ.

The BIA stated that administrative closure under the ABC Agreement

would not have been appropriate, because the INS had already made

a determination that Estrada had no right to benefits under the

agreement. The BIA did not mention Estrada's suit in the district

court, which had been brought to the BIA's attention, or the

district court's ultimate decision, which had not. Finally, the

BIA noted that the IJ gave Estrada numerous opportunities to apply
-14-

for asylum and withholding, but he refused to apply, and held that

the IJ did not err in determining that those applications were

abandoned. This petition for review followed.

The issues are whether, in light of the standards of

review, the BIA erred in refusing to allow administrative closure

of the exclusion proceedings, whether it erred in determining that

the Estradas were excludable as charged, and whether it erred in

deeming the asylum applications abandoned. We deny the petition.

II.

A. Standard of Review

A deferential standard of review applies in this case.

"[A] decision that an alien is not eligible for admission to the

United States is conclusive unless manifestly contrary to law." 8

U.S.C. § 1252(b)(4)(C). Moreover, the BIA's "interpretations of

the statutes and regulations it administers are accorded

substantial deference"; where a statute is "silent or ambiguous,"

we uphold the BIA's interpretation, so long as it is "'reasonable'

and consistent with the statute." Elien v. Ashcroft, 364 F.3d 392,

396-97 (1st Cir. 2004).

Finally, in a petition for review of a final order of

removal, the "administrative findings of fact are conclusive unless

any reasonable adjudicator would be compelled to conclude to the

contrary." 8 U.S.C. § 1252(b)(4)(B). This standard of review as

to factual questions is commonly known as the "substantial evidence
 The REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 7

302-23, does not affect our analysis of the issues in this petition

for review. At oral argument, the government agreed that in

general, district courts can review the question of entitlement to

benefits under the ABC Agreement, and that this was unchanged by

the REAL ID Act. The government argues that in the particular

context of this case, transfer of the ABC issue to the district

court would be improper, because under 8 U.S.C. § 1252, as amended

by the REAL ID Act of 2005, district courts lack jurisdiction over

petitions for review. We do not reach this jurisdictional

question, and the REAL ID Act does not affect any other issues in

this case.

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test," and substantial evidence exists where the decision is

"supported by reasonable, substantial, and probative evidence on

the record considered as a whole." Katebi v. Ashcroft, 396 F.3d

463, 466 (1st Cir. 2005) (internal quotation marks omitted)

(quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).7

B. Administrative Closure under the ABC Agreement

The Estradas' first challenge to the exclusion and

deportation order is that the exclusion proceedings should not even

have been allowed to continue: they say that they were eligible ABC

class members entitled to administrative closure of their

immigration proceedings, and that the proceedings should only have

been reopened once it was determined at a "hearing conducted in

accordance with the mandates of the ABC agreement" that they were

not entitled to ABC benefits. 

Under Paragraph 1 of the ABC Agreement, the settlement

class includes only "all Salvadorans in the United States as of

September 19, 1990," and "all Guatemalans in the United States as
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of October 1, 1990." Am. Baptist Churches, 760 F. Supp. at 799.

Paragraph 2 states which class members are eligible for a "de novo,

unappealable asylum adjudication before an Asylum Officer,

including a new interview." Id. First, the class member must not

have been convicted of an aggravated felony as defined in the INA.

Id. Second, for Guatemalans, the class members must "indicate to

the INS in writing their intent to apply for a de novo asylum

adjudication before an Asylum Officer, or otherwise to receive the

benefits of this agreement, within the period of time commencing

July 1, 1991 and ending on December 31, 1991." Id. at 800.

Finally, "[c]lass members apprehended at time of entry after the

date of preliminary approval of this agreement shall not be

eligible for the benefits hereunder." Id. The district court

provisionally approved the agreement on December 19, 1990. Id. at

797.

Paragraph 17 of the Agreement states that "[t]he INS may

only detain class members, eligible for relief under paragraph 2,

who are otherwise subject to detention under current law and who:

(1) have been convicted of a crime involving moral turpitude for

which the sentence actually imposed exceeded a term of imprisonment

in excess of six months; or (2) pose a national security risk; or

(3) pose a threat to public safety." Id. at 804.

Paragraph 19 provides for administrative closure pending

the new asylum adjudication. It states, in pertinent part:
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[A]ny class member whose deportation

proceeding . . . was commenced after November

30, 1990 . . . may ask the Immigration Court

or the BIA to administratively close his or

her case and the case will be administratively

closed unless the class member has been

convicted of an aggravated felony or is

subject to detention under paragraph 17.

Id. at 805. Under Paragraph 20, "[i]f the asylum application is

finally denied under the procedures set forth in this agreement,"

a case pending before an IJ shall, upon notice from the INS, be

recalendared. Id. at 806.

Under Paragraph 35,

[i]f an individual class member who has sought

the benefits or rights of this agreement

raises any claim regarding the denial of any

such right or benefit (including a dispute

over membership in the class) . . . , such

individual is entitled to seek enforcement of

the provisions hereof by initiating a separate

proceeding in any federal district court, and

the Defendants will not contest the

jurisdiction of such court to hear any such

claim . . . . 

Id. at 809-10.

The crux of the Estradas' complaint is that they were not

afforded a hearing before an asylum officer or otherwise given a

chance to make their case for continued eligibility for benefits

under the ABC Agreement. They say they were deprived of due

process, because the INS reached the determination in its letter of

February 4, 1997, without giving the family notice or an

opportunity to present evidence. Because the INS' determination

that Estrada was not entitled to ABC benefits was procedurally
 The government argues in the alternative that if we have 8

jurisdiction over the issue of the Estradas' eligibility for ABC

benefits, we should find the Estradas ineligible, because they were

"apprehended at time of entry" after the cut-off date.

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unsound, it amounted, the Estradas say, to "nothing" -- essentially

no determination at all -- and the IJ and BIA erred in refusing to

allow administrative closure.

The Estradas stress that none of the Paragraph 17

disqualifiers apply. Their case for eligibility is that the

"apprehended at time of entry after" December 19, 1990 provision

does not apply to them: once Estrada registered and filed an asylum

request which listed his children, they say, their "rights under

the ABC agreement were vested." In the Estradas' view, once their

rights vested, nothing in the ABC Agreement provides for the loss

of their rights simply because Estrada departed and the family

subsequently came to the United States. 

The government responds that the INS determined that

Estrada was ineligible for ABC benefits, that this determination

was not reviewable by the IJ or by the BIA, see Matter of Morales,

21 I. & N. Dec. at 134-35, and that this court has no jurisdiction

to consider any of the Estradas' ABC-related challenges.8

The government says the ABC Agreement "specifically

provides for determination of [eligibility for ABC benefits] in a

district court, not pursuant to a petition for review in a court of

appeals." In the government's view, jurisdiction once existed in
-19-

the district court, but Estrada squandered his chance there by

failing to respond to the show-cause order and/or to appeal the

district court's decision. The government also stresses that the

Estradas never advised the BIA of the district court's decision,

and that they never moved to reopen while the case was pending.

The government says that in the posture of this case -- a petition

for review of the BIA's decision, and not an appeal from the

district court -- this court lacks jurisdiction to consider the

Estradas' eligibility for ABC benefits.

At oral argument, this court raised the possibility of

transferring the present ABC issue to the District Court for the

District of Rhode Island. The government opposes such a transfer

on two grounds. First, it says, the petition for review of the BIA

decision could not have been brought in the district court in the

first instance, so transfer is improper under 28 U.S.C. § 1631,

which states:

Whenever a civil action is filed in a court

. . . or an appeal, including a petition for

review of administrative action, is noticed

for or filed with . . . a court and that court

finds that there is a want of jurisdiction,

the court shall, if it is in the interest of

justice, transfer such action or appeal to any

other such court in which the action or appeal

could have been brought at the time it was

filed or noticed . . . .

28 U.S.C. § 1631 (emphasis added). The government's second

argument is that it is not "in the interest of justice" to transfer

this issue to the district court, because Estrada failed to respond
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to the show-cause order, did not appeal the district court's

decision, and did not even advise the BIA of the district court's

decision. The Estradas counter that jurisdiction in the district

court would be proper, and that transfer would be in the interest

of justice; they say they "have raised and preserved the ABC issue

throughout the course of the litigation."

We do not delve into the merits of the government's

various jurisdictional challenges on the ABC issues. Instead, we

rest on the ground that, on these facts, the petitioners have

waived consideration of the ABC issue by this court or by the

district court (even assuming a transfer). 

Estrada never showed cause to the district court as to

why his case based on a claim for ABC benefits should not be

dismissed, and he never appealed the decision of the district

court. The Estradas argued before the BIA that they were entitled

to administrative closure under the ABC Agreement, noted that they

had not received a hearing before an asylum officer on the matter,

and alerted the BIA to the fact that Estrada had filed a case in

the district court. But they never told the BIA how that case was

decided or that the district court could have been viewed as

deferring the ABC issue back to the agency. They had ample

opportunity to do so. 

The district court issued its memorandum and show-cause

order on September 16, 1999, and it dismissed Estrada's complaint
-21-

for failure to show cause on October 14, 1999, but the BIA did not

decide the Estradas' appeal from the IJ's decision until April 15,

2003. The BIA did not address the proper response to the district

court's decision because it was not asked to. Cf. Xu v. Gonzales,

424 F.3d 45, 48-49 (1st Cir. 2005) (where point was not argued in

appeal from IJ's decision, BIA was under no obligation to address

point, and issue was waived and would not be considered by this

court). Rather, the Estradas chose to cause delay, which

benefitted them by keeping them in the United States. The

dismissal of Estrada's action in the district court was more than

six years ago. Estrada is not entitled to reopen it now. Taken

together, the various omissions amount to waiver, and we will

neither consider the ABC issue nor transfer it to the district

court for further proceedings.

C. Conventional Petition for Review Claims

1. Excludability as Charged

The Estradas' second line of attack goes to the IJ/BIA

determination that they were in fact excludable as charged: they

say that Estrada was not attempting a new entry and that the

government did not properly revoke their immigrant visas before

they commenced their journey to the United States. This presents

the mixed standard of review: the factual determinations are

reviewed under the substantial evidence test, see Ang v. Gonzales,
-22-

430 F.3d 50, 54-55 (1st Cir. 2005); the BIA's interpretations of

law are reviewed with deference, see Elien, 364 F.3d at 396-97.

a. New Entry

As to the "new entry" issue, the Estradas say that once

Estrada was "accorded protected registered class status under the

ABC agreement after his initial entry in 1985, he kept that status

intact when entering the United States subsequent to the ABC

agreement preliminary approval date of December 19, 1990." The

Estradas say that in light of Estrada's status as a registered ABC

class member, his "first and only entry" was in October 1985, his

1995 arrival should not have been deemed a new entry, and the

children's status is the same. They say their situation involved

merely an "innocent, casual, and brief" departure. Rosenberg v.

Fleuti, 374 U.S. 449, 462 (1963). Whatever the merits of this

argument, the government points out that it was not raised before

the BIA. Although the Estradas clearly invoked the ABC Agreement

before the BIA, they did so only as to administrative closure, and

they did not articulate an "innocent, casual, and brief" argument

before the BIA. The argument is therefore waived. See Chen v.

Gonzales, 415 F.3d 151, 154 (1st Cir. 2005).

b. Timing of Withdrawal of Visa Petition

The Estradas also argue that because their visas were not

revoked prior to the commencement of their journey to the United

States, they should have been allowed entry, and the BIA erred in
 The Estradas' argument on excludability is based on the 9

statutory scheme in effect before the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No.

104-208, Div. C, 110 Stat. 3009, 3009-546 (1996). We use the preIIRIRA versions of the statutes. See id. § 309(c)(1), 110 Stat. at

3009-625, amended by Act of Oct. 11, 1997, § 2, Pub. L. No.

104-302, 110 Stat. 3656, 3657; Goncalves v. Reno, 144 F.3d 110, 116

(1st Cir. 1998).

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holding them excludable as charged. They say that once the 9

government discovered that the letter presented to the consulate

was a forgery, the appropriate response was to put the family in

deportation proceedings; they also say this would have made them

eligible for relief that was not available in exclusion

proceedings.

i. Appropriateness of Exclusion Proceedings

The Estradas base their argument on former INA § 205,

which, before the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C,

110 Stat. 3009, 3009-546 (1996), provided that revocation of the

approval of any visa petition will not have effect unless there is

notice prior to the petition beneficiary's commencement of travel

to the United States. See 8 U.S.C. § 1155 (1994). Their argument

is that the fact that withdrawal of the visa petition occurred

after their journey had commenced (and indeed, not until well after

they had been paroled into the United States) means that the

withdrawal was not valid and did not result in revocation of the
 Both the BIA and the IJ cited the BIA's decision in Matter 10

of Alarcon, 17 I. &. N. Dec. 574 (BIA 1980). In that case, an

alien was held to be excludable at entry where she entered the

United States with an immigrant visa "accorded to her as the

unmarried daughter of a lawful permanent resident," although in

fact she had been married before she entered the United States.

Id. at 575. The BIA, interpreting § 1155, dismissed her appeal.

The BIA stated that "if revocation was not effective and the

beneficiary applies for admission, his admissibility is to be

determined in exclusion proceedings," id. at 576, and that

"excludability was appropriately charged," id. at 577.

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approval of their visa petition, and that they should have been put

into deportation proceedings.

The Estradas' conclusion is contrary to the BIA's

reasonable interpretation of the statutory text. The last 10

sentence of § 1155 then provided that "[i]f notice of revocation is

not so given, and the beneficiary applies for admission to the

United States, his admissibility shall be determined in the manner

provided for by sections 1225 and 1226 of this title." Id. The

pre-IIRIRA versions of §§ 1225 and 1226 dealt with exclusion, not

deportation, procedures. See 8 U.S.C. §§ 1225, 1226 (1994). It

was reasonable for the BIA to conclude that the only consequence of

failure to notify before travel was that the right to admission

would be adjudicated in exclusion proceedings.

Furthermore, INA § 221(h) provided at the time that

"[n]othing in this chapter shall be construed to entitle any alien,

to whom a visa or other documentation has been issued, to enter the

United States, if, upon arrival . . . he is found to be

inadmissible." 8 U.S.C. § 1201(h) (1994). The IJ found that this
 This section then provided that "[a]ny alien who seeks to 11

enter the United States for the purpose of performing skilled or

unskilled labor is excludable," absent a labor certification. 8

U.S.C. § 1182(a)(5)(A)(i) (1994).

 This section then provided that, "[e]xcept as otherwise 12

specifically provided in this chapter," an immigrant who at the

time of application for admission "is not in possession of a valid

unexpired immigrant visa . . . or other valid entry document

required by this chapter, and a valid unexpired passport, or other

suitable travel document, or document of identity and nationality

if such document is required [under certain regulations]," is

excludable. 8 U.S.C. § 1182(a)(7)(A)(i)(I) (1994).

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is what happened here, and quoted this exact language. The BIA

agreed with the IJ. We see no reason for overturning the BIA's

decision that exclusion proceedings were proper.

ii. Grounds of Excludability

The BIA's ultimate determination that the Estradas were

excludable was, far from being "manifestly contrary to law," based

on reasonable statutory interpretations and ample factual support.

The charged grounds of excludability were 8 U.S.C.

§ 1182(a)(5)(A)(i) and (a)(7)(A)(i)(I). The BIA reasonably 11 12

interpreted § 1155 and concluded that nothing about the timing of

P&B's withdrawal of the petition rendered the Estradas' labor

certifications or immigrant visas automatically valid. The BIA

cited its decision in Matter of Alarcon, 17 I. &. N. Dec. 574,

which rejected the argument that "since [the alien] was not

notified that her visa petition was revoked before she came to this

country, her visa petition and, therefore, her visa were still

valid." Id. at 575. Instead, the BIA said, the IJ should
-26-

"examine[] the applicant's visa to determine its validity,"

reaching a decision "inherently involv[ing] scrutiny of the

underlying visa petition and the relationship on which it depends."

Id. at 576. "If [the IJ] determines that a flaw exists in that

relationship such that the alien was not actually entitled to the

status which was accorded to him by the visa petition, the [IJ] may

conclude that the visa is invalid." Id. This can hardly be said

to be an unreasonable interpretation of the immigration statutes.

The Estradas fare no better with respect to the BIA's

factual findings and application of law to facts. The BIA agreed

with the IJ that the visas, visa petition, and labor certification

were based on fraudulent information and were invalid. Estrada

conceded that he forged the letter from P&B stating that he was

employed, and the IJ found that if the true information about

Estrada's employment situation had been submitted to the consulate,

neither the labor certification nor the employment-based visas

would have issued. We are hardly "compelled to conclude to the

contrary" on this record, and we see no basis for saying that the

decision that the Estradas were ineligible for admission to the

United States was "manifestly contrary to law." The Estradas'

theory implies that one whose fraud goes undetected for a short

while is entitled, simply because the INS did not detect the matter

right away, to enter the United States and stay here indefinitely
-27-

with an unrevokable visa, whatever its actual invalidity. We

reject this theory.

2. Denial of Various Forms of Relief

Finally, the Estradas say that they did not voluntarily

waive their right to apply for "non-ABC" asylum, and they seek

leave to apply for this relief now. They say there is a difference

between a "defensive" asylum claim raised before an IJ and an ABC

asylum claim, and that if had they filed claims for defensive

asylum before the IJ, they "would have certainly acquiesced in the

IJ's ruling" on administrative closure and would have been waiving

their ABC claim. We see no basis for the argument.

Whether or not "defensive" asylum is different from ABC

asylum, the INS had determined that Estrada was ineligible for

benefits under the ABC Agreement, and the IJ had decided that

administrative closure was improper, in deference to the INS'

determination. The Estradas were required to seek from the IJ

whatever relief they hoped to get. Indeed, they did seek

suspension of deportation and waivers of inadmissibility. Those

forms of relief are clearly different from what the Estradas call

"ABC asylum," and it is not clear how seeking "defensive asylum,"

which the Estradas say is also different, would have been any more

of a waiver of their rights under the ABC Agreement. As the

Estradas concede, they were provided numerous opportunities to

continue to apply for asylum after they indicated at the
 By expressly telling the IJ that he would not be pursuing 13

an asylum application, Estrada also effectively withdrew the

application for asylum he had filed in 1992.

In the September 25, 1997 proceeding before the IJ, counsel 14

for the petitioners also expressed hesitation in filing an asylum

application in light of the penalties for frivolous applications.

The Estradas make no argument in their petition for review as

to withholding of removal, so any such argument is waived, and in

any case fails for the abandonment reason discussed above. As

already stated, the Estradas have also waived any argument they

might have had as to suspension of deportation and waivers of

inadmissibility.

-28-

commencement of their exclusion proceedings that they would be

seeking such relief, and they refused to do so. It was not error 13

for the BIA to deem the applications for asylum abandoned.14

III.

The petition for review is denied.