F I L E D

United States Court of Appeals

Tenth Circuit

FEB 16 2005

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ELOY RIOS,

Plaintiff-Appellant,

v. No. 04-3009

JAMES ZIGLAR, COMMISSIONER

OF BUREAU OF CITIZENSHIP 

AND IMMIGRATION SERVICES,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. No. 02-CV-1226)

James S. Phillips, Jr., Wichita, Kansas, for Plaintiff-Appellant.

Eric F. Melgren, United States Attorney, and Laurie K. Kahrs, Assistant United

States Attorney, for the United States.

Before McCONNELL , HOLLOWAY , and TYMKOVICH , Circuit Judges.

McCONNELL , Circuit Judge.

We abated oral argument in this appeal after Plaintiff-Appellant’s counsel

was disbarred. Upon notification from Plaintiff-Appellant that he will not seek
2

replacement counsel and that he wishes to have his appeal considered on the

record, we ordered this matter submitted for disposition on the briefs. See Fed. R.

App. P. 34(a)(2); 10th Cir. R. 34.1(G).

Plaintiff-Appellant Eloy Rios appeals the district court’s dismissal of his

petition for writ of mandamus for lack of subject-matter jurisdiction and the

dismissal of his claim for declaratory and injunctive relief for failure to state a

claim. We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

I.

Eloy Rios is a native of Nicaragua. The Nicaraguan Adjustment and Central

American Relief Act (NACARA), Pub. L. 105-100, 111 Stat. 2160, 2193 (1997)

(amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997)), permitted

undocumented Nicaraguan nationals to adjust their status to that of lawful

permanent residents. Regulations promulgated under NACARA required that

proper applications to adjust status be received before April 1, 2000. 8 C.F.R. §

245.13(g). Mr. Rios and his family applied for adjustment of status under

NACARA. On March 27, 2000, the INS Mesquite, Texas Servicing Center

received and date-stamped three Form I-485 applications to register permanent

residence or adjust status under NACARA for Mr. Rios, his wife, and his

nineteen-year-old son. A check written by Mr. Rios’s wife for $580.00 was 
1

 Mr. Rios submits that the correct fee for an applicant over the age of

fourteen was $245.00, plus $50.00 for fingerprinting. Both parties cite a copy of

Mr. Rios’s wife’s I-485 form, which is partially obscured by her check for

$580.00, which is itself partially obscured by a piece of paper with her address

typed in the upper left-hand corner, which partially obscures a receipt with three

entries of $245.00, one illegible entry that appears to be for $245.00, one entry of

$150.00, and an entry of $1,385.00. The last figure is circled in pen and

accompanied by a note reading, “Total Amount Required.” Aplt. App. 53. 

Neither Mr. Rios nor the government explains how they reached the total fee of

$1,385.00.

3

attached to the applications. The correct fee was $1,385.00.1

Because the applications did not include a correct filing fee, the INS sent

Mr. Rios a notice of rejection, dated April 13, 2000, which reads in its entirety:

The above application or petition, along with any check or other form

of fee payment, is attached. The application or petition cannot be

accepted because the proper fee of $245.00 U.S. is not attached. 

Since the case is not properly filed, a priority or processing date

cannot be assigned.

Please attach a check or money order for this amount and resubmit

this entire package to the address listed below. To speed processing,

please leave this notice on top.

Notice of Action (April 13, 2000), Aplt. App. 58. Mr. Rios resubmitted his

application on September 9, 2000. The INS rejected this application because it

was filed after the March 31, 2000 deadline. Mr. Rios submitted a third

application on August 14, 2001. On August 23, 2001, the INS rejected the

application for the same reason. On November 7, 2001, Mr. Rios submitted his

application again as part of a motion to reopen. The INS denied his motion to

reopen on November 30, explaining that his application had not been denied. Mr.
2

 The Complaint also stated a claim that the INS unreasonably delayed

processing of his application for political asylum. The parties settled this claim,

and the government is currently processing Mr. Rios’s application for asylum.

3

 On the last page of his brief, Mr. Rios states, “The right to pursue a legal

remedy is a right protected by the due process [clause] of the Fifth Amendment.” 

Appellant’s Br. 8. Plaintiff cites no legal authority and advances no argument in

support of a Fifth Amendment due process claim. To make a sufficient argument

on appeal, a party must advance a reasoned argument concerning each ground of

the appeal, Am. Airlines v. Christensen, 967 F.2d 410, 415 n.8 (10th Cir. 1992),

and it must support its argument with legal authority. Phillips v. Calhoun, 956

(continued...)

4

Rios did not apply for, and the INS did not grant, a waiver of the filing fee for his

application for adjustment of status under NACARA. On June 30, 2002, Mr. Rios

filed a complaint in the United States District Court for the District of Kansas

seeking a writ of mandamus, declaratory relief, and a mandatory injunction

directing the INS to process his NACARA application.

2

 The government filed a

motion to dismiss for lack of subject matter jurisdiction and failure to state a claim

or, in the alternative, for summary judgment. The district court granted the

government’s motion, dismissing the petition for writ of mandamus for lack of

subject matter jurisdiction and dismissing his claim for injunctive relief for failure

to state a claim. Order at 3–4. We review the district court’s grant of a motion to

dismiss de novo. U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir.

1999).

II.

Mr. Rios advances two principal arguments on appeal.

3

 First, he claims that
3

(...continued)

F.2d 949, 953–54 (10th Cir. 1992). Mr. Rios has not made a cognizable due

process argument.

4

 Mr. Rios argues, under a separate heading, that the INS “waived any

objection to the filing of the plaintiff’s NACARA application when it extended the

time for plaintiff to file for adjustment of status or admission to the United

States.” Appellant’s Br. 7. We agree with the government that Mr. Rios’s waiver

claim merely restates his equitable estoppel claim. We consider the arguments

regarding waiver as arguments for equitable estoppel. 

5

the district court erred in dismissing his petition for writ of mandamus because he

raised a genuine issue of fact concerning his right to relief. He argues that

NACARA and its accompanying regulations permit an applicant to correct defects

in his application after the filing deadline provided that the application was

submitted before the deadline. He also argues that he included sufficient funds for

his own application in the original submission on March 27, 2000. Second, Mr.

Rios claims that the court erred in dismissing his claim for declaratory and

injunctive relief because the government was estopped from claiming that his

application was untimely.4 He maintains that the government’s rejection notice

led him to believe that he could resubmit his application with the correct

application fee after the filing deadline. He also suggests that the government

took conflicting positions regarding his application. Both of these claims lack

merit.

A. Subject-Matter Jurisdiction over the Petition for Writ of Mandamus

Mr. Rios concedes that the filing fee attached to the March 27, 2000
6

applications was insufficient. He argues, nonetheless, that he has a right to a

protected filing date of March 27, 2000, and he seeks a writ of mandamus

directing the INS to process his NACARA application. The district court

dismissed Mr. Rios’s petition for writ of mandamus for lack of subject matter

jurisdiction, finding that Mr. Rios had not established a clear right to relief. Op.

3. We affirm the dismissal of Mr. Rios’s petition on other grounds.

The Mandamus Act provides, “The district courts shall have original

jurisdiction of any action in the nature of mandamus to compel an officer or

employee of the United States or any agency thereof to perform a duty owed to the

plaintiff.” 28 U.S.C. § 1361. To be eligible for mandamus relief, the petitioner

must establish (1) that he has a clear right to relief, (2) that the respondent’s duty

to perform the act in question is plainly defined and peremptory, and (3) that he

has no other adequate remedy. Johnson v. Rogers, 917 F.2d 1283, 1285 (10th Cir.

1990). Once the petitioner has established the prerequisites of mandamus relief,

the court may exercise its discretion to grant the writ. Marquez-Ramos v. Reno,

69 F.3d 477, 479 (10th Cir. 1995). The determination whether the mandamus

factors are met is reviewed de novo; the exercise of discretion is reviewed for

abuse of discretion. Id.

The court’s jurisdiction over a mandamus petition depends on the character

of the government’s duty to the petitioner. Id. (“[T]he question of whether a
7

particular act is discretionary or ministerial rises to the jurisdictional level.”). 

“The test for jurisdiction is whether mandamus would be an appropriate means of

relief.” Carpet, Linoleum & Resilient Tile Layers v. Brown, 656 F.2d 564, 567

(10th Cir. 1981). If the duty is “ministerial, clearly defined and peremptory,”

mandamus is appropriate. Id. at 566 (quoting Schulke v. United States, 544 F.2d

453, 455 (10th Cir. 1976)). 

In Mr. Rios’s case, mandamus is an appropriate form of relief. Mr. Rios

alleges that the INS improperly refused to process his application to adjust status

under NACARA. The government does not contend that processing applications

is a discretionary function. It argues that Mr. Rios failed to file a proper

application. For purposes of mandamus jurisdiction, however, the petitioner’s

allegations, “unless patently frivolous, are taken as true to avoid tackling the

merits under the ruse of assessing jurisdiction.” See id., quoted in Ahmed v. Dep’t

of Homeland Security, 328 F.3d 383, 386 (7th Cir. 2003). Because Mr. Rios

alleged that the INS failed to carry out a ministerial task, the court had jurisdiction

over his mandamus petition.

Mr. Rios’s petition was properly dismissed, however, because he cannot

establish the prerequisites of mandamus relief. NACARA permitted Nicaraguan

and Cuban nationals to apply for adjustment to lawful permanent resident status if

they met certain eligibility criteria. 8 C.F.R. § 245.13(a). The regulations enacted
8

under NACARA required that all aliens “properly file an application for

adjustment of status before April 1, 2000.” 8 C.F.R. § 245.13(g). INS regulations

provided that an application was properly filed when (1) the application was datestamped by the INS, (2) the applicant signed and executed the application, and (3)

the applicant attached the required filing fee or the INS granted a waiver of the

fee. 8 C.F.R. § 103.2(a)(7)(i).

Mr. Rios concedes that his family’s applications were not accompanied by a

proper filing fee, but he maintains that their applications should have received a

priority filing date, allowing the applications to be considered timely filed if the

correct filing fee was submitted after the deadline. Mr. Rios did not request or

receive a fee waiver. The regulations specifically provide that “[a]n application or

petition which is not properly signed or is submitted with the wrong filing fee

shall be rejected as improperly filed. Rejected applications . . . will not retain a

filing date.” 8 C.F.R. § 103.2(a)(7)(i) (emphasis added). Mr. Rios’s application

did not retain a filing date because it was not accompanied by a proper filing fee.

Mr. Rios argues that although his family’s original submission did not

include a sufficient filing fee for all of the applications, the check for $580.00 was

sufficient to cover the filing fee for his own application. He also maintains that

the original check was sufficient for his and his wife’s applications. Reply Br. 3. 

Accordingly, he argues, the INS was required to do one of two things: (1) process
9

his application and refund the difference; or (2) give his application a priority

filing date.

There are at least two problems with this argument. First, the steps urged

by Mr. Rios are not consistent with standard INS procedure. The records

custodian for the Mesquite, Texas Service Center stated in his affidavit that “[i]f

multiple I-485 applications are submitted together with a single payment, the

payment must be for the exact fee required for all applications or the applications

will be rejected in total.” Affidavit of Marvin Cervenka (June 26, 2003), Aplt.

App. 63. Second, Mr. Rios does not indicate why or how the INS should have

selected his application rather than one of his family members’. The check was

written by his wife, Gloria Delgado Martinez. Before the district court, Mr. Rios

stated that he and his son each paid $245.00, but his wife did not include a

sufficient amount for herself—“She had submitted fees for the two other

applicants.” Brief in Response to Defendant’s Motion to Dismiss 3–4, Aplt. App.

75–76. On appeal, he asserts that “[t]he amount for plaintiff and his wife was

correct and sufficient.” Reply Br. 3. He argues that since he was the “principal

applicant and lead person in the matter,” Id. at 2, his application should have been

accepted as properly filed, but he does not provide any support for the theory that

the INS must apportion a single check submitted with multiple applications in any

particular way.
10

Finally, Mr. Rios claims that material issues of fact existed on the question

whether the government considered his case closed. Aplt. Br. 7. He relies on the

government’s response to his motion to reopen, which stated that his application

had not been denied. Mr. Rios reads this statement as an indication that a motion

to reopen could still be filed. See Aplt. Br. 7. This argument mistakenly conflates

denial of an application and rejection of an application. The INS does not deny an

application until it has been processed. Because Mr. Rios’s application was

rejected, it was never processed, and there were no proceedings for the INS to

reopen. See 8 C.F.R. § 103.2. His applications had not been denied because they

had not been accepted. The government did not consider his case closed because

it had never been opened. Mr. Rios did not raise a genuine issue of material fact

regarding his motion to reopen.

To secure mandamus relief, the petitioner must show a “clear and

indisputable” right to the writ. Johnson, 917 F.2d at 1285 (quoting Mallard v.

United States Dist. Ct., 490 U.S. 296, 309 (1989)). Because he failed to submit a

proper application by the deadline, Mr. Rios cannot show a clear right to relief

under NACARA. Even Mr. Rios’s best argument—that the initial filing included

at least one adequate filing fee—leaves material questions unanswered, foremost

among them why the INS was compelled to select Mr. Rios’s application rather

than his family members’ applications. Since Mr. Rios failed to establish a clear
11

right to relief, he failed to state a claim upon which relief may be granted.

B. Equitable Estoppel

To state a claim of estoppel against a private party, a litigant must establish

four elements: 

(1) the party to be estopped must know the facts; (2) the party to be

estopped must intend that his conduct will be acted upon or must so

act that the party asserting the estoppel has the right to believe that it

was so intended; (3) the party asserting the estoppel must be ignorant

of the true facts; and (4) the party asserting the estoppel must rely on

the other party’s conduct to his injury.

Kowalczyk v. INS, 245 F.3d 1143, 1149 (10th Cir. 2001). A claim of estoppel

against the government requires an additional element: the party asserting estoppel

must show that the government has engaged in “affirmative misconduct.” See id.;

see also Office of Personnel Mgmt. v. Richmond, 496 U.S. 414, 421–23 (1990);

INS v. Hibi, 414 U.S. 5, 8 (1973) (per curiam). Equitable estoppel against the

government requires a particularly strong showing in the immigration context. 

Kowalczyk, 245 F.3d at 1150. The district court dismissed Mr. Rios’s claim for

injunctive relief because Mr. Rios failed to establish any affirmative misconduct

by the government. Op. 4. 

Mr. Rios advances several factual theories of government malfeasance. 

First, he argues that the INS engaged in affirmative misconduct by failing to

inform him of the defect in his application before the March 31, 2001 filing

deadline. He does not produce any legal authority to support his claim that
12

responding to an application sixteen days after submission constitutes affirmative

misconduct. More importantly, Mr. Rios raises this argument for the first time on

appeal. Failure to raise an issue in the district court generally constitutes waiver. 

See Tele-Communications, Inc. v. CIR, 104 F.3d 1229, 1232–33 (10th Cir. 1997). 

Even if he had preserved the issue for appeal, however, the timing of the

INS’s rejection of Mr. Rios’s initial application is not an adequate ground for

equitable estoppel. The INS’s failure to notify Mr. Rios immediately that his

filing fee was inadequate is evidence of negligence, at most. See Lewis v.

Washington, 300 F.3d 829, 834 (10th Cir. 2002) (“[O]missions amount only to

ordinary negligence.”). Negligence does not constitute affirmative misconduct. 

See Gibson v. West, 201 F.3d 990, 994 (7th Cir. 2000) (explaining that the

government’s failure to act is not an affirmative act and therefore cannot establish

affirmative misconduct). In any case, a single processing center’s inability to

provide immediate notice of defects in every application does not fall below the

reasonable standard of care owed by a government agency.

Mr. Rios claims that the government engaged in affirmative misconduct by

suggesting that he resubmit his application when it knew that the deadline had

passed. He argues that the original rejection letter of April 13, 2000 implied that

if he resubmitted his application with the proper fee, he would retain the March

27, 2000 filing date. The very document that he cites for support defeats his
13

claim. The rejection notice specifically states, “The application or petition cannot

be accepted because the proper fee of $245.00 U.S. is not attached. Since the case

is not properly filed, a priority or processing date cannot be assigned.” Supp.

App. 59 (emphasis added). The plain language of the rejection notice made clear

that Mr. Rios’s application would not receive a priority filing date. This should

have been sufficient to defeat any implication that subsequent applications would

be deemed filed on March 27, 2000. Even if the slight implication that he could

resubmit his application constituted affirmative misconduct, Mr. Rios cannot show

that the INS intended that he rely on the suggestion or that he suffered injury

because of his reliance. See Kowalczyk, 245 at 1149. Because the NACARA

deadline had passed by the time he resubmitted his application, he had no right to

relief.

Mr. Rios claims that the government engaged in affirmative misconduct by

failing to keep him informed about the progress of his application. He complains

that the INS did not send a final rejection of his claim until October, 2001, leading

him to delay his application for asylum. In a letter dated October 26, 2001, the

INS acknowledged that it held Mr. Rios’s application because it believed that

Congress would extend the filing deadline for NACARA applications. Mr. Rios

does not explain how his pending NACARA application prejudiced his right to

apply for asylum. In his Opening Brief, Mr. Rios indicates that his application for
14

political asylum is now pending. Br. 3. 

Mr. Rios’s final allegation of affirmative misconduct is that the INS

improperly cashed the check submitted with his August 14, 2001 application. Mr.

Rios did not raise this issue before the district court, and it therefore ordinarily

would be waived. See Tele-Communications, Inc., 104 F.3d at 1232–33. In this

case, however, we exercise our discretion to consider a matter raised for the first

time on appeal. See Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1222 (10th

Cir. 1996) (exercising discretion to consider an issue on appeal where the factual

basis was before the district court, the issue was briefed on appeal, and no factual

findings were necessary to resolve it). On August 31, 2004, the Kansas Supreme

Court accepted Mr. Rios’s attorney’s voluntary surrender of his law license. See

In re Phillips, 97 P.3d 492 (Kan. 2004). At the time he surrendered his license,

Mr. Rios’s attorney was under review for failure to represent clients competently

in immigration matters and failure to keep clients reasonably informed about their

cases, among other charges. Id. The events that left Mr. Rios twisting in the wind

suggest that his claims were not advanced in the most competent manner. These

circumstances warrant an exercise of discretion to consider Mr. Rios’s claim.

Even with the Court’s solicitude, however, Mr. Rios cannot prevail on his

estoppel claim. He may have suffered economic injury by the wrongful acceptance

of his check, but this resulted from the fact that the check was cashed, not his
5

 In this action, Mr. Rios does not seek return of his payment, and this

Court has no authority to order it. We hope and expect, however, that if Mr. Rios

is correct that his check was wrongfully cashed, appropriate authorities within INS

will correct this error and refund his money.

15

reliance on the government’s conduct. The cashing of the check does not affect

his claim for adjustment of status.5 Therefore, even assuming (without deciding)

that the INS engaged in affirmative misconduct by cashing his check, his estoppel

claim fails.

III.

The district court had jurisdiction over Mr. Rios’s petition for writ of

mandamus, but Mr. Rios failed to state a claim for relief. The district court

properly dismissed his claim for injunctive relief because Mr. Rios’s allegations

did not support a claim of estoppel against the INS. The district court’s judgment

is AFFIRMED.