* Of the District Puerto Rico, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 00-1611

JUAN FRANCISCO ROJAS-REYNOSO,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

 

ON PETITION FOR REVIEW OF AN ORDER OF DEPORTATION

 

Before

Torruella, Chief Judge,

Lynch, Circuit Judge,

and Garcia-Gregory, District Judge.

*

 

José Guillermo Gonzalez for petitioner.

Ann Carroll Varnon, with whom David W. Ogden, Assistant

Attorney General, Civil Division, and Margaret J. Perry, Senior

Litigation Counsel, were on brief for respondent.

 

December 21, 2000

 
2

LYNCH, Circuit Judge. Juan Francisco Rojas-Reynoso, a

citizen of the Dominican Republic, petitions for review of the

April 20, 2000 decision of the Board of Immigration Appeals

dismissing his appeal from the denial of his motion to reopen his

deportation proceedings. We affirm that dismissal. 

I.

In 1991, Rojas-Reynoso illegally entered the United

States. On December 4, 1993, he married a United States citizen.

On May 20, 1994, his wife applied for a visa petition on his

behalf so that he could seek adjustment of immigration status

within the United States from non-immigrant to permanent resident

alien. On September 17, 1994, she was notified that the

application had been approved. 

On May 23, 1995, the INS issued Rojas-Reynoso an Order to

Show Cause, charging him with entry without inspection in

violation of section 241(a)(1)(B) of the Immigration and

Nationality Act. At his August 15, 1995 deportation hearing,

Rojas-Reynoso admitted the allegations in the OSC and conceded

deportability. He requested extended voluntary departure until

February 15, 1996, in place of deportation. That request was

granted, and an alternate order of deportation to the Dominican

Republic was entered. The immigration judge, Rafael B. OrtizSegura, orally instructed Rojas-Reynoso that any request he made

before that time to have the voluntary departure date extended

was within the sole discretion of the local INS district
1 Subject to [receiving written and oral notice of the

consequences of remaining in the United States after

the scheduled day of departure], any alien allowed to

depart voluntarily under section 1254(e)(1) of this

title . . . who remains in the United States after the

scheduled date of departure, other than because of

exceptional circumstances, shall not be eligible for

relief [including, inter alia, adjustment of status]

for a period of 5 years after the scheduled date of

departure or the date of unlawful reentry,

respectively.

INA § 242B(e)(2)(A), 8 U.S.C. § 1252b(e)(2)(A) (repealed 1996).

3

director. Furthermore, the immigration judge warned RojasReynoso that if he failed to timely depart, he would be

statutorily ineligible for five years from the scheduled date of

departure for various forms of relief, including adjustment of

immigration status.1 To avoid the application of this five-year

bar, an alien must demonstrate "exceptional circumstances,"

defined as "exceptional circumstances (such as serious illness of

the alien or death of an immediate relative of the alien, but not

including less compelling circumstances) beyond the control of

the alien." INA § 242B(f)(2), 8 U.S.C. § 1252b(f)(2) (repealed

1996); Shaar v. INS, 141 F.3d 953, 956-58 (9th Cir. 1998)

(discussing the narrow definition of "exceptional circumstances"

adopted by Congress). Nonetheless, Rojas-Reynoso took no steps

to seek adjustment of status, despite his knowledge since

September 17, 1994, that he could do so.

Rojas-Reynoso failed to depart by the scheduled date.

On March 18, 1996, over a month after his voluntary departure

date had passed, Rojas-Reynoso filed a written motion to reopen

his deportation proceedings to apply for an adjustment of status
4

based on the approved visa petition filed by his United States

citizen spouse. Although the governing regulations provided that

"a request by an alien for . . . an extension of time within

which to depart voluntarily shall be filed with the district

director having jurisdiction over the alien's place of

residence," 8 C.F.R. § 240.57 (emphasis added), Rojas-Reynoso

instead claimed he had appeared in person before the INS to

request an extension of the voluntary departure date. On April

3, 1996, the immigration judge issued an order granting reopening

and scheduling a hearing. 

The INS then filed an interlocutory appeal with the BIA

challenging the reopening on the ground that Rojas-Reynoso was

statutorily ineligible for adjustment of status because he had

failed to comply with scheduled voluntary departure date. On

January 16, 1997, the BIA declined to consider the interlocutory

appeal until the proceedings were completed and remanded to the

immigration judge. 

On April 10, 1997, the INS filed a motion for

reconsideration of the reopening. A continued hearing was held

on March 31, 1998, before a different immigration judge, Nancy R.

McCormack. At the hearing, Rojas-Reynoso's counsel represented

that she and Rojas-Reynoso had appeared before the INS on

February 8, 1996, to request an extension of the February 15,

1996 voluntary departure date. Rojas-Reynoso's counsel also

claimed that on February 26, 1996, approximately eleven days

after the voluntary departure date had passed, she met with a
5

deportation officer to discuss Rojas-Reynoso's case and his

requests for extension of the voluntary departure date. Counsel

further contended that since no answer to the oral requests for

an extension had been given, she wrote a letter to the INS on

February 29, 1996, approximately fourteen days after the

voluntary departure date had passed, asserting that a timely

request for voluntary departure had been made and that she

considered that request to be pending.

When asked what "exceptional circumstances" prevented

Rojas-Reynoso from departing within the voluntary departure date,

counsel replied that her client had not departed because he

believed he could remain in the country until the district

director responded in writing to the oral requests for an

extension. Counsel also noted that in late February or March

1996 she attended a meeting of the American Immigration Lawyers'

Association. Counsel alleged that at that meeting, the INS

district director indicated that an alien who had timely

requested an extension of voluntary departure could remain in the

United States without any adverse consequences until the request

was decided. Counsel conceded that Rojas-Reynoso neither

received an extension of the voluntary departure date nor

departed before that date had expired.

The immigration judge terminated the reopened

proceedings, finding they were barred by statute, and reinstated

the August 15, 1995 alternate order of deportation. 

Specifically, the immigration judge found that Rojas-Reynoso had
2 Under Heckler, an individual seeking to estop the U.S.

Government must show, at a minimum, that the Government or its

agents engaged in affirmative misconduct, that the individual

reasonably relied on the Government's act or representation, and

that the individual was prejudiced by that reliance. See 467

6

been advised orally and in writing of the consequences of his

failure to depart by the voluntary departure date. The

immigration judge also noted that Rojas-Reynoso did not file his

motion to reopen until over one month after the period for

voluntary departure had expired and that he had never been

granted an extension of the voluntary departure date. She

further concluded that the alleged statements of the district

director at the 1996 AILA meeting were made after Rojas-Reynoso's

voluntary departure date had passed and that Rojas-Reynoso's

alleged excuse for his failure to depart timely did not

constitute the "exceptional circumstances" required under the INA

to excuse the failure to depart by a voluntary departure date. 

Rojas-Reynoso appealed the decision to the BIA. The

BIA affirmed the immigration judge's denial of the motion to

reopen and for adjustment of status. The BIA reasoned that (1)

there were no "exceptional circumstances" as it had previously

defined the term in In re Shaar, Interim Decision No. 3290, 1996

WL 426889 (BIA July 11, 1996), aff'd 141 F.3d 953 (9th Cir.

1998), and (2) Rojas-Reynoso's argument was basically one of

equitable estoppel. Assuming arguendo that the equitable

estoppel doctrine applied to the government in immigration cases,

the BIA utilized the three-part test of Heckler v. Community

Health Servs., 467 U.S. 51 (1984),2 and focused on whether Rojas-
U.S. at 59-61.

7

Reynoso's reliance was reasonable. The BIA found that RojasReynoso had not established reasonable reliance because: (1) he

knew his petition would likely be denied as he acknowledged in

his March 19, 1996 motion to reopen his deportation proceedings

and as confirmed by the minutes of a later AILA meeting on August

27, 1997, stating that extensions "were not being granted in most

cases"; (2) Rojas-Reynoso produced no evidence he was ready to

depart as ordered, but for the district director's statements;

(3) the written request for an extension was not filed until

after the voluntary departure date; (4) other than the minutes

from the August 21, 1997 AILA meeting, held approximately

seventeen months after the passage of Rojas-Reynoso's voluntary

departure date, Rojas-Reynoso produced no evidence that the

district director had made the alleged statements prior to RojasReynoso's voluntary departure date; and (5) Rojas-Reynoso himself

claimed that the district director first made the alleged

statements "on or about late February or the beginning of March

of 1996," and therefore after the expiration of the voluntary

departure period. Accordingly, the BIA dismissed Rojas-Reynoso's

appeal.

II.

We review the BIA's dismissal of a denial of a motion

to reopen for abuse of discretion. INS v. Doherty, 502 U.S. 314,

323 (1992). We review the BIA's legal conclusions de novo, with
3 Thus, the mere request for an extension of a voluntary

departure date, even if made in writing as required, does not

itself constitute "exceptional circumstances" and thereby extend

such date. See Mardones v. McElroy, 197 F.3d 619, 624 (2d Cir.

1999). Similarly, the mere filing of a motion to reopen

deportation proceedings does not itself constitute "exceptional

circumstances." Shaar, 141 F.3d at 957; Stewart v. INS, 181 F.3d

587, 596 (4th Cir. 1999).

8

appropriate deference to the agency's interpretation of the

underlying statute in accordance with administrative law

principles. Gailius v. INS, 147 F.3d 34, 43 (1st Cir. 1998). 

At the heart of this case are two questions: whether RojasReynoso fell within the "exceptional circumstances" set forth

under the INA; or whether, nonetheless, the INS is equitably

estopped from denying his motion.

A. "Exceptional Circumstances"

In his appeal to this court, Rojas-Reynoso does not

argue, as he did before the BIA, that he met the "exceptional

circumstances" test. Although the argument is therefore waived,

we note again that the term "exceptional circumstances" refers to

"exceptional circumstances (such as serious illness of the alien

or death of an immediate relative of the alien, but not including

less compelling circumstances) beyond the control of the alien." 

Shaar, 141 F.3d at 957 (citing 8 U.S.C. § 1252b(f)(2)).3 RojasReynoso presents no such "exceptional circumstances," and we

conclude, as did the BIA, that he fails that test. 

B. Equitable Estoppel
4 That same provision provides that any request for

extension of the time for voluntary departure shall be filed with

the district director.

5 In Akbarin, we stated that "the soundest method for

analyzing a claim of estoppel against the Government in an

immigration case is to make two principal inquiries: whether the

Government's action was error, and, if the complaining party

reacted to the error, whether the action was intended to or could

reasonably have been intended to induce reliance." 669 F.2d at

843.

9

Rojas-Reynoso now says that this case is not properly

analyzed under the "exceptional circumstances" test because his

voluntary departure date was extended as a result of the policy

of the INS district director to extend voluntary departure dates

upon oral request until there was a written decision declining

such request. Further, he says the district director had sole

jurisdiction to extend the voluntary departure deadline, and that

any such decision is not reviewable. See 8 C.F.R. § 240.57.4

We assume arguendo the equitable estoppel doctrine

applies with respect to an alien's reasonable reliance on the

"affirmative misconduct" of the Government in its enforcement of

the immigration laws. See Akbarin v. INS, 669 F.2d 839, 842-44

(1st Cir. 1982) (discussing the application of estoppel

principles to the Government).5 As the agency applied the

correct test and the attack is on the decision reached, we review

for abuse of discretion, and find there was none. Also, RojasReynoso did not make the argument before the BIA in the terms

that he now makes: that the voluntary departure deadline was

extended by the supposed oral policy of the district director to

extend departure deadlines upon oral request until the request
5 If the district director did later make a statement

that a voluntary departure deadline could be extended by a mere

oral request until the office acted on the request, and if aliens

relied to their detriment on such a statement, that would be a

matter of considerable concern. This case does not, however,

present that issue.

6 Moreover, the minutes of the August 17, 1997 AILA

meeting held long after Rojas-Reynoso's voluntary departure date

state that extensions "were not being granted in most cases."

7 Rojas-Reynoso also argues that the BIA erred in not

accepting the findings of fact of Judge Ortiz-Segura, the

immigration judge who initially reopened the proceedings on the

ground that the motion to reopen was "timely and reasonable."

However, Judge Ortiz-Segura did not make any specific findings as

to the only material facts in issue -- the existence, nature, and

time-frame of the district director's purported policy of

extending voluntary departure dates upon oral request. Indeed,

Rojas-Reynoso concedes that what prompted Judge Ortiz-Segura to

grant his motion to reopen "is only conjecture." Thereafter,

the second immigration judge, Nancy R. McCormack, properly found

that Rojas-Reynoso was ineligible for relief. 

10

was acted on. Assuming dubitante the argument is preserved by

Rojas-Reynoso's vague equitable argument before the agency, it

still fails. The immigration judge found that the departure date

was not extended and that the supposed statement by the district

director, if made at all,5 was not made before the date of RojasReynoso's required departure.6 Petitioner's vague claims that

there was a "policy" in effect at the local INS office before his

February 15, 1996 voluntary departure date is unsupported by any

statement from the district director and does not controvert

those specific findings. Those findings doom his petition, and

the petition is denied.7