United States Court of Appeals

For the First Circuit

No. 03-1059

ROSITA MAHABIR, ET AL.,

Petitioner,

v.

JOHN ASHCROFT, Attorney General,

Respondent.

PETITION FOR REVIEW OF THE FINAL ORDER OF REMOVAL

BY THE BOARD OF IMMIGRATION APPEALS

Before

 Selya, Lynch, and Lipez, Circuit Judges.

Jose A. Espinosa on brief for petitioner.

Paul Fiorino, Attorney, Office of Immigration Litigation,

Department of Justice, Peter D. Keisler, Assistant Attorney

General, Civil Division, and Richard M. Evans, Assistant Director,

on brief for respondent.

October 22, 2004
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LYNCH, Circuit Judge. Petitioner Rosita Mahabir, a

citizen of Trinidad and Tobago, entered the United States on June

13, 1989 on a visitor's visa. She later obtained an employment

visa through a sponsoring employer, Anna Zarren, for whom Mahabir

worked as a home attendant from January 1990 to November 1997.

Through Zarren, in late 1995 Mahabir applied for adjustment of

status to that of lawful permanent resident. Mahabir was then

eligible to apply because she was currently employed pursuant to an

employment visa. See 8 U.S.C. § 1255(a). Because of a mixup at

the Immigration and Naturalization Service (INS) with her

paperwork, her application was not acted upon for years, and in the

intervening time her sponsoring employer died.

Upon learning of Zarren's death, the INS on October 28,

1999, denied Mahabir's application for adjustment of status and

issued her a notice to appear on November 3, 1999, charging her

with being removable from the United States. The INS reasoned that

the death of her sponsoring employer automatically invalidated her

employment visa, and so she was no longer eligible for adjustment

of status. See 8 C.F.R. § 1205.1(a)(3)(iii)(B); see also 8 U.S.C.

§ 1255(a).

At her removal hearing before the Immigration Judge (IJ),

Mahabir's counsel moved to terminate the removal proceedings and

asked the IJ to adjudicate her claim for adjustment of status nunc

pro tunc. "Nunc pro tunc," which means "now for then," applies to
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actions taken by a court through its inherent legal power after the

time in which the actions should have been taken, with retroactive

effect. See Black's Law Dictionary 1100 (8th ed. 2004).

On November 28, 2000, the IJ found that, although the

delay in adjudicating Mahabir's adjustment of status was the fault

of the INS, the death of her sponsoring employer prior to the

adjudication of her petition automatically revoked her employment

visa under 8 C.F.R. § 1205.1(a)(3)(iii)(B). That regulation

provides: 

(a) Reasons for automatic revocation. The

approval of a petition or self-petition made

under section 204 of the Act and in accordance

with part 204 of 8 CFR chapter I is revoked as

of the date of approval: 

. . .

(3) If any of the following circumstances

occur . . . before the decision on

[petitioner's] adjustment application becomes

final:

. . . 

(iii) Petitions under section 203(b), other

than special immigrant juvenile petitions.

. . .

(B) Upon the death of the petitioner or

beneficiary. 

Id. This, the IJ reasoned, left the IJ without power to grant the

requested relief. She thus pretermitted the petitioner's

application for adjustment of status and granted her voluntary

departure from the United States. 

Mahabir appealed to the Board of Immigration Appeals

(BIA), arguing that the BIA should show compassion and exercise

"independent judgment and discretion." Id. § 1003.1(d)(1)(ii).
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She referred to the BIA's "inherent authority" to do equity. The

BIA affirmed the decision of the IJ in whole on December 13, 2002

in a simple order, adding only: "Neither this Board nor the

Immigration Judges have the authority to grant relief nunc pro

tunc." 

Mahabir filed a motion requesting that the BIA reconsider

its decision. For the first time she raised the argument that she

was entitled to equitable tolling from the effects of the INS's

unreasonable delay in processing her application for adjustment of

status. The BIA denied the motion to reconsider, stating: 

The respondents request that this Board reopen

proceedings sua sponte to avoid manifest

injustice or exercise jurisdiction on the

basis of equitable tolling. While this Board

has power to reopen or reconsider cases sua

sponte in exceptional circumstances, sua

sponte reopening is not meant to cure filing

defects or circumvent the regulations, where

enforcing them might result in hardship.

Matter of J-J-, 21 I&N Dec. 976 (BIA 1997).

Although we are sympathetic to the

respondents' situation, neither this Board nor

the Immigration Judge has any authority to

grant the respondents' application for

adjustment of status after the lead

respondent's approved visa petition was

automatically revoked by the death of the

petitioner pursuant to 8 C.F.R.

§ 1205.1(a)(3)(iii)(B). Matter of United

Airlines Flight UA802, 22 I&N Dec. 777 (BIA

1999) (stating that our jurisdiction is

defined by regulation and that we have no

jurisdiction unless it is affirmatively

granted by the regulations). Unlike the

provisions regarding immediate relative and

family sponsored petitions at 8 C.F.R.

§ 1205.1(a)(3)(i)(C), which provides the

Attorney General with discretion regarding
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revocation of a visa petition upon the death

of a petitioner, the regulations relating to

employment visa petitions do not provide any

discretion regarding revocation when the

petitioner dies. Therefore, we do not think

that sua sponte reopening is warranted in the

instant case. Id. We further find that the

doctrine of equitable tolling does not apply

to the instant case. David v. Hall, 318 F.3d

343, 345 (1st Cir. 2003) (stating that

"equitable tolling" does not apply where the

statute of limitation is jurisdictional). As

we are denying the respondents' motion, we

will deny the respondents' motion to stay

removal.

Mahabir timely appealed from the initial BIA affirmance of the IJ's

decision, and did not appeal the denial of reconsideration. We now

affirm the initial December 13, 2002 BIA order.

I.

We summarize the evidence presented by Mahabir at her

removal proceedings.

Mahabir came to the United States from Trinidad and

Tobago in 1989 on a visitor's visa. Soon after her arrival, she

began working as a home attendant for an elderly woman, Anna

Zarren. In January of 1990, Zarren filed an Application for Alien

Employment Certification on behalf of Mahabir, which was approved

by the Department of Labor on January 24, 1990. Zarren then filed

for an employment visa for Mahabir, which was approved on April 8,
1 This appeal includes the claims of Mahabir's three

children, Larry, Marsha, and Gershia. The children arrived in the

United States on June 15, 1993 as non-immigrant visitors for

pleasure with permission to remain for six months. They have

remained in the country since that time. Their request for relief

is completely dependent upon Mahabir being granted adjustment of

status to that of lawful permanent resident. Thus, while the

opinion will refer exclusively to Mahabir, the disposition of the

case will apply to the children's claims as well.

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1991, effective the date of employment certification, January 24,

1990.1

Although Mahabir became eligible to apply for adjustment

of status to that of lawful permanent resident immediately upon the

approval of her employment visa, 8 C.F.R. § 1245.2, she did not

apply for adjustment of status until November 1995, some four and

a half years later. In early 1996, Mahabir had an interview with

INS officials concerning her adjustment of status. Soon after the

interview, on March 6, 1996, the INS requested documentation from

Zarren concerning Mahabir's continued employment. Counsel sent the

documentation to the INS; it was received on June 4, 1996. Mahabir

heard nothing from the INS until April 11, 1997, when the INS sent

her a letter indicating that it had not received the requested

information from Zarren, and so her petition for adjustment of

status had been terminated due to lack of prosecution. This was

not correct: the INS had received the documents. Three days later,

Zarren's counsel resent the requested information, along with proof

that the information had been sent the previous June and had been
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received by the INS, and requested that the INS act upon her

petition.

In November 1997, Zarren passed away. In October 1998,

the INS, responding to requests by Mahabir's new counsel that it

act upon her petition, replied that the materials it requested had

still not made it to her file. Mahabir's counsel resent the

information, again explaining that it had already been sent and

received twice by the INS. Counsel also apparently informed the

INS that Zarren had passed away. In October 1999, the INS notified

Mahabir that her application for adjustment of status was denied

because the death of her sponsoring employer automatically

terminated her employment visa, 8 C.F.R. § 1205.1(a)(3)(iii)(B),

rendering her ineligible for adjustment of status under 8 U.S.C.

§ 1255(a). The INS further issued Mahabir a notice to appear for

removal proceedings. The subsequent procedural history before the

agency is recounted above.

II.

On appeal, Mahabir argues that the BIA abused its

discretion by not applying the doctrine of equitable tolling as a

basis to hear her application for an adjustment of status,

regardless of the change in eligibility based on the death of her

sponsor. Further, Mahabir argues that the INS engaged in

affirmative acts of misconduct and bad faith that should estop it

from being able to deny her request for equitable relief.
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Concerned about the equities of this matter, we requested

and received helpful additional briefing from both sides on whether

the doctrine of equitable tolling was available to Mahabir.

As the respondent correctly points out, the issues of

whether the automatic revocation of an employment visa under 8

C.F.R. § 1205.1(a)(3)(iii)(B) is subject to equitable tolling and

whether the agency is equitably estopped in these circumstances

were not preserved by presenting them first to the IJ and BIA. See

Mendes v. INS, 197 F.3d 6, 12 (1st Cir. 1999). Petitioners are

required to exhaust their remedies before the agency and we do not

hear arguments ab initio. Bernal-Vallejo v. INS, 195 F.3d 56, 64

(1st Cir. 1999). While Mahabir made a general plea to the IJ and

in her appeal to the BIA to grant her equitable relief, she did not

raise the claim that equitable tolling should apply until her

motion to reconsider (which is not before us), and did not raise

the claim that equitable estoppel should apply until this appeal.

Both of these arguments were available to Mahabir but were not

articulated or briefed earlier.

We review the BIA's determination that Mahabir was not

eligible for adjustment of status for abuse of discretion. See

Afful v. Ashcroft, 380 F.3d 1, 8 (1st Cir. 2004). The respondent's

position, helpfully clarified in its supplemental filing, is that

it may entertain applications for adjustment of status only when it

has been authorized to do so by regulation. It has authority to do
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so in the case of an alien whose application is based on present

employment status sponsored by an employer. Nonetheless, under 8

C.F.R. § 1205.1(a)(3)(iii)(B), the BIA may not waive the

requirement of a living sponsor for a visa petition. This is in

marked contrast to the authority given in 8 C.F.R.

§ 1205.1(a)(3)(i)(C), which provides "humanitarian" discretion in

the Attorney General to grant an adjustment upon the death of a

relative where the petition for adjustment is based on relative

status. This means, argues respondent, that the situation of

someone in petitioner's position was considered in the regulations,

a deliberate distinction was drawn, and the decision was made not

to permit humanitarian concerns to alter the eligibility rule in

the situation of employment-based petitions. Such a decision is

not arbitrary, particularly given the deference agencies are

granted in the interpretation of their own rules. 

We also cannot say it is an abuse of discretion for the

BIA to have failed to grant relief on grounds which were not argued

to it--equitable estoppel and equitable tolling--nor is there any

possible claim of arbitrariness arising out of inconsistency. See

INS v. Miranda, 459 U.S. 14, 18 (1982) (holding that INS delay in

processing application for adjustment of status, even if negligent,

does not prevent it from denying application of petitioner who

becomes statutorily ineligible during period of delay); Matter of

Hernandez-Puente, 20 I. & N. Dec. 335 (BIA 1991) (holding that,
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despite INS mistakes resulting in the failure of petitioner to

obtain visa, the INS has no authority to grant adjustment of status

nunc pro tunc). 

We add one brief note. There are certainly inequities in

this situation, raising sympathy for Mahabir. On the other side,

it is far from clear that, even had the INS properly processed the

requested information it received on June 4, 1996, it would have

adjudicated her case before Zarren's death in November 1997.

Further, the grant of adjustment of status is entirely within the

discretion of the Attorney General. See 8 U.S.C. § 1255(a) ("The

status of an alien who was inspected and admitted or paroled into

the United States may be adjusted by the Attorney General, in his

discretion and under such regulations as he may prescribe, to that

of an alien lawfully admitted for permanent residence if . . . ."

(emphasis added)). There is no guarantee that had Mahabir's

petition been adjudicated before Zarren's death, she would have

been granted the status requested. Also, the INS's initial

decision on October 28, 1999 informed Mahabir that she could renew

her application for adjustment of status in her deportation

proceeding. This would have required obtaining a valid visa,

either through a new labor certification and subsequent employment

visa, or in some other fashion. Apparently Mahabir elected not to

do so, relying instead on the INS to grant her equitable relief

from its normal rules. It has now been almost seven years since
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the death of Mahabir's sponsor, and five years since the INS denied

her application for adjustment of status based on her lack of a

valid visa, and Mahabir has not secured a new employment-based

visa.

Accordingly, we affirm the decision of the BIA.