IMG
- 076 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 10

- 2536

___________ JUAN CARLOS FLORES PERALTA , Petitioner

v. ATTORNEY GENERAL OF THE UNITED STATES , Respondent

________________________________ ____ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A077

- 027

- 664 ) Immigration Judge: Honorable Annie S. Garcy

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

April 1, 2011 Before: AMBRO, GREENAWAY, JR. AND GREENBERG , Circuit Judges

(Opinion filed : April 13, 2011 )

___________ OPINION

___________ PER CURIAM Juan Carlos Flores Peralta, a native and citizen of Mexico, seeks review of an April 28, 2010 decision of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) order of removal . For the f ollowing reasons, we will deny the2

petition for review

. I.
Peralta fi rst entered the United States without inspection in May 1995. In 1997, he filed for adjustment of status based on a petition filed by his wife, a United States citizen.
Whi le that application was pending , Peralta went to Mexico without having obtained
ad vance parole, and was apprehended on May 12, 1998, upon returning to the United
States. In an attempt to avoid detection by immigration officials , Peralta pro vided
authorities with an alias

. Accordingly, the government instituted removal proceedings agai nst Peralta under the name David Arrellano

- Diaz

. Peralta, using that alias, pled guilty to entering the U nited States without inspection and stipulated to removal without a hearing. He was ordered removed to Mexico on May 28, 1998

. Peralta subsequently r ee ntered the country illegally and, o n December 16, 1998 , appeared for an interview in connection with his applic ation for adjustment of status

. During that interview, Peralta signed his application, representing that he had never been
arrested or deported , and that he had never sought to procure an immigration benefit “by fraud or willful misrepresentation of a material fact.” (R. 181.) O n January 4, 1999, Peralta was granted lawful permanent resident status

. In 2005 , Peralta filed a naturalization appli cation . While processing that application, the government learned of
Peralta’s 1998 deportation under his alias, and denied the application because of Peralta’s prior misrepresentations

. O n November 20, 2007, Peralta was charged as being removable on tw o grounds:3

(1) he procured an adjustment of status “by fraud or by willfully misrepresenting a
material fact ,” namely, failing to disclose that he had been deported under an alias (R. 213) ; and (2) the former Immigration and Naturalization Service lacked j urisdiction to adjust Peralta’s status in 1999 because he did not have a valid e ntry document at the time
of the adjustment. See 8 U.S.C. § § 1182(a)(6)(C)(i) , (7)(A)(i)(I) & 1227(a)(1)(A). Peralta filed a motion to terminate the removal proceedings, argu ing that the government ’s failure to discover the 1998 deportation order and its con sequent mistaken adjustment of his status without jurisdiction should equitably estop the government from removing him almost nine years later.
The IJ found Peralta rem ovable on both grounds and denied the motion to
terminate

. Upon Peralta’s concession that no further relief was available to him, the IJ
ordered him removed to Mexico. On appeal to the BIA , Peralta again contended that equitable estoppel should apply bas ed on the government’s alleged misconduct in failing to discover the 1998 deportation prior to adjusting his status

. Peralta also contended that
he had not been fully advised of his rights before stipulating to removal in 1998. After adopting the IJ’s fi ndings, the BIA concluded that DHS did not engage in any affirmative
misconduct and that no evidence supported Peralta’s contention that he had not been

a dequately advised of his rights

. Peralta filed a timely petition for review with our Court.
II.
Peral ta challenges the BIA’s legal conclusion that the government did not engage4

in affirmative misconduct and asserts that equitable estoppel should prevent his removal

. 1

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D)

. The IJ ’s findings of fact ,

w hich the BIA adopted, are conclusive so long as they are su pported by substantial
evidence. Paripovic v. Gonzales , 418 F.3d 240, 243

- 44 (3d Cir. 2005) ; see also Abdulai
v. Ashcroft , 239 F.3d 542, 549 n.2 (3d Cir. 2001) (“ When the BIA defers to an IJ, a

r eviewing court must, as a matter of logic, review the IJ’ s dec ision to assess whether the
BIA’ s decision to defer was appropriate. ”)

. The BIA’s legal conclusions , however, are subject to de novo review. Paripovic , 418 F.3d at 244

. To prevail on his eq uitable estoppel claim , Peralta must establish “(1) a misrepresentation; (2) upon which he reasonably relied; (3) to his detriment; and (4)
affirmative misconduct.” Mu d r ic v. Att’y Gen. , 469 F.3d 94, 99 (3d Cir. 2006); see also Yang v. INS , 574 F.2d 171, 175 (3d Cir. 1978) (“[E]stoppel requires proof of affirmative misconduct on the part of the Government, a burden not easily met.”) (citation omitted).
Peralta contends that the government’s failure to discover the 1998 proceedings via a background check u sing his fingerprints , and its subsequent adjustment of his status without jurisdiction “arguably” constitute s affirmative misconduct

. (Pet’r’s Br. 8, 10.) Application of equitable estoppel is therefore warranted, according to Peralta, because his
relia nce on the validity of the government’s adjustment prevented him from investigating

1 We will not address Peralta’s challenge to the denial of his naturalization application, to the extent he raises such a challenge, given his failure to ex haust the issue during administrative proceedings. See 8 U.S.C. § 1252(d)(1); Bonhometre v. Gonzales , 414 F.3d 442, 447 (3d Cir. 2005).5

other forms of relief that might have been available to him in 1999 that are now no longer
available. 2 We conclude , however, that the government’s failure to learn of the 1998 proceedings at most constitutes negligence, which cannot support application of equitable estoppel. See Mu d r ic , 469 F.3d at 99; see also INS v. Hibi , 414 U.S. 5, 8 (1973) (“As a general rule laches or neglect of duty on the part of officers of the Go vernment is no defense to a suit by it to enforce a public right or protect a public interest.”) (quotations omitted).
Peralta also contends that he stipulated to removal in 1998 without a full understanding of his rights. H aving reviewed the record, in cluding the detailed stipulated
order and waiver of hearing, which is written in English and Spanish and sig ned by Peralta under his alias, we agree with the BIA that Peralta’s assertion is unsupported

. (R.
169

- 73.) Furthermore, given Peralta’s concessio n that he used a false name in connection with the 1998 removal proceedings to conceal his true identity from the government , his suggestion that he should have be en informed of the effect of those proceedings on his adjustment application , w hich was filed under his real name, is disingenuous. Accordingly, we will deny Peralta’s petition for review.

2 Peralta and his wife divorced in 2004.