Interim Decision '4:k1840 

Mama or LEVEQUE 

In Deportation Proceedings 

A-18823892 

Decided by Board February 29, 1968 

Notwithstanding respondent's statutory eligibility for adjustment of status under 

section 240, Immigration and Nationality Act, as amended, when she first 

applied for such relief in May 1985, the Service is not now estopped from 

urging ineligibility because of inability to meet the labor certification requirements of section 212(a) (14) of the Act as imposed by the Act of October 8, 

1900, where the hearing was adjourned for necessary character investigation 

and processing of the application was not completed until after the effective 

date of the amendatory act at which time she was subject to and unable to 

meet the labor certification requirement, and where there was no lack of due 

diligence by the Service in the adjudication or the application. 

CHARGE • 

Order: Act of 1052—Section 241(a) (2) (8 U.S.C. 1251 (a) (2)7—Nonimmigrant 

visitor—remained longer. 

ON Baftem. or RESVoNDZSIT: ON BEHALF ow SERUM 

Albert L Geduld*, Esquire Irving A. Appleman 

8CWilliam Street Appellate Trial Attorney 

New York, New York 10038 

Respondent appeals from a decision of the special inquiry officer, 

finding her statutorily ineligible for adjustment of status under section 245, and granting voluntary departure with an alternate order 

of deportation to Brazil and a designation of France if Brazil should 

refuse to accept her. 

Respondent is a 41-year-old divorced female alien, native and citizen of France, who was last admitted to the United States in 1962 as 

a visitor for pleasure; her stay, with extensions, expired on October 

27, 1963, and she remained beyond that date without authority. 

Respondent conceded deportability on the charge in the order to 

show cause at the first hearing and requested an adjournment to permit 

her to prepare and submit an application for adjustment of status. The 

application was submitted at the adjourned hearing on May 13, 1965, 

but because documentation was incomplete there was a further adjournment to June 16, 1965. 

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At the June hearing, respondent was questioned by the trial attorney 

on matters for the most part relevant to her eligibility for adjustment, 

with special emphasis on the facts surrounding her divorce, granted in 

France in 1962. The document evidencing it was not a court record but 

a certificate by the Mayor of the community where she and her husband 

had lived, and it stated that the divorce had been procured by the husband "for the exclusive .fault of the wife." Respondent denied that 

there had been any fault on her part, and denied any knowledge of 

what fault had been alleged, claiming that she had never been served 

with a complaint, had never appeared in the action, and did not even 

know it had taken place until some time after it was completed. It was 

agreed that counsel should attempt to obtain and submit a copy of the 

cnnit►leint in the divorce action. 

At the same hearing, it was elicited by the trial attorney that 

respondent had recently undergone a hysterectomy (Tr. p. 17) ; the 

trial attorney wished to ascertain the cause for the surgery and requested that a copy of the hospital record be submitted. Counsel 

objected, and the special inquiry officer made no definite ruling on the 

request. The hearing was adjourned to July 28, 1965 to permit, the trial 

attorney to complete his questioning of respondent, on her eligibility 

for adjustment. 

The hearing was not resumed until November 17, 1965. At that time, 

counsel stated that in spite of considerable effort he had been unable 

to obtain a copy of the complaint in the divorce action. There was then 

extensive questioning of respondent, during which , she repeatedly 

denied having had relations with other men during her marriage, 

denied that she had ever engaged in prostitution, and denied having 

had sexual relations with men after her divorce. At the close of the 

questioning, the special inquiry officer declared the hearing completed, 

with the understanding that counsel would submit a medical certificate 

concerning the surgery, which would become Exhibit 8; that 

respondent would appear for examination by the United States Public 

Health Service when notified to do so and the report thereof would be 

entered into evidence as Exhibit 9; and that the Government would 

conduct a further investigation of respondent which was to be entered 

into evidence as Exhibit 10 without a reopened hearing, provided it 

showed nothing adverse to respondent; if there was adverse material, 

the hearing would be reopened on notice. Counsel consented that if the 

special inquiry officer's decision authorized adjustment, no copy of 

it need be served upon him, and he would waive the right to appeal. 

A year and a. half later, on June 21, 1967, the hearing was reopened 

by action of the special inquiry officer, for compliance with the provisions of section 219(a) (14) of the Immigration. and Nationality 

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Interim Decision #1840 

Act, as amended by the Act of October 3, 1965. During the course of 

this hearing, the hospital record was introduced (showing that the 

operation was performed to remove a malignancy), as was a copy of 

the court clerk's minutes in the divorce action (obtained by the trial 

attorney), showing that respondent had never been served with the 

complaint, her whereabouts allegedly being unknown, and that adultery was in no way involved. Counsel requested an adjournment in 

order to attempt to obtain a labor certification or to establish that 

respondent was exempt from the requirement for it, and the hearing 

was adjourned to September 26, 1967. At this final hearing, counsel 

advised that respondent did not have- a labor certification and would 

not be able to obtain one. The special inquiry officer then rendered the 

oral decision being appealed from. ' 

Counsel urges that the Government should be estopped from denying adjustment to respondent, in spite of the absence of a labor certification, on two: grounds: first, that its lack of due diligence in 

conducting its investigation, and overzealousness in looking for nonexistent bad conduct, prevented the case from being processed to completion before the effective date *of the Act of October 3,19.65; and, 

second, 

• • • there was an obligation at the time the hearing was held on November 

13 (sic), 1965, and the special inquiry officer was obliged to suggest that a Labor 

Department certification would be necessary after December 1, 1965. Nothing 

was mentioned about that. If be had mentioned it, I perhaps would have insisted 

that this ease be granted or that a decision be made, because the lady in question is a manicurist, and she will never be able to obtain a Label. Deprtment 

certification • • *. 

Estoppel against an agency of the United States Government is 

not to be lightly undertaken (cf. Matter of Mama, Int. Dec. #1770, 

and cases cited in kiotnote 1 thereof). In any estoppel claim, there 

must be something more than a mere showing that the party seeking 

it has been damaged by a particular course of action or by a failure 

to act withina certaintime period. The action or inaction complained 

of must be inconsistent with the position initially taken by the party 

sought to be estopped, or must be shown to be a breach of some duty 

owing by that party, it must be shown that that party, by such action 

or failure to set or silence, led the other party, in reliance thereon, 

to act or fail to act in such a way as to cause loss or injury that would 

not otherwise have occurred. 

Turning to the second claimed estoppel ground, that the special 

inquiry officer at the November 17th hearing was under an obligationto advise counsel that the labor certification requirement would go 

into effect on December 1, 1965, we cannot agree that this can form 

a basis for estoppel. The Act of October 3, 1965 was a public law, 

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821-654--69-12 
Interim Decision #1840 

signed by the President of the United States at the foot of the Statue 

of Liberty. Its text was readily available. The regulations to implement the new law were first published in the Federal Register of 

November 4, 1965 (Vol. 30, No. 214, p. 13962) in the form of a Notice 

of Proposed Rule Making, and were as available to counsel as they 

were to the special inquiry officer. The information counsel claims was 

improperly not imparted to him was not something which counsel 

could obtain only from the special inquiry officer or the trial attorney. 

While it might perhaps have been helpful if the special inquiry officer 

had reminded counsel of the changes about to go into effect, he was 

under no duty to do so, and, in legal contemplation, respondent was 

not damaged by this omission. 

On the first mentioned ground, it does appear that a great deal of 

investigation was proposed, which resulted in finding none of the 

material apparently anticipated by the Government. Also, the file 

does not contain the investigative report which was stipulated to become Exhibit 10. However, we cannot, on the record before us, say 

that it was improper for the Service to attempt to learn definitely, for 

example, the real basis for the divorce, which respondent's own document had indicated to have been granted "for the exclusive fault of 

the wife". Respondent was applying for discretionary relief, and clarification of any point that would logically have a bearing on her good 

moral character was proper and justified. Nor has it been shown that 

the Service did not exercise due diligence in its processing of this 

case. It is not uncommon for special inquiry officers where. an applica: 

tion for adjustment has been made in deportation proceedings to wait 

until all of the facts on statutory eligibility and worthiness for discretionary relief have been developed, before sending the case to the 

appropriate section for the processing normally incident to an application for adjustment. In this case, the spacial inquiry officer did not 

consider the hearings completed until November 17th, 1965, thirteen 

days before the effective date of the new Act. It is doubtful that the 

case could have been processed by December 1, 1965 with even the 

most diligent effort by the Service, in view of the numerous reports, 

agency checks, medical examination, etc. that would have to be 

obtained before final approval could be given. 

Respondent, who was eligible for the relief sought when she first 

applied for it, became ineligible by virtue of the change in the law, 

and her inability to obtain a labor certification. It is well settled that 

where an application for discretionary relief has been made, and there 

is a change in the law after the application is filed, but before it has 

been granted, the new law is controlling, even if it results in a loss of 

eligibility by the applicant; see Patais v. immigration and NaturaZiea036 
Interim Decision #1840 

Von Service, 337 F. 2d 733 (8th Cir., 1964), cert. den. 360 U.S. 952 

(1965), reh. den. 381 U.S. 921 (1965) ; Foti v. Immigration and 

Naturalization Service, 332 F. 2d 424 (2d. Cir., 1961) ; Foglie v. 

Esperdy, 301 F.2d. 429 (2d Cir., 1962). 

On the record before us, we cannot hold that the failure to process 

and adjudicate respondent's application for adjustment before December 1, 1965 is attributable to any improper act or lack of due 

diligence on the part of the Service, or that it has been established 

that a sufficient basis to invoke estoppel exists. 

ORDER: It is ordered that the appeal be and the same is hereby 

dismissed. 

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