[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-14511

Non-Argument Calendar

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Agency No. A090-957-775

JOSE MIGUEL MISPIRETA-CASTRO,

 Petitioner,

versus

U.S. ATTORNEY GENERAL,

 Respondent.

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Petition for Review of a Decision of the

Board of Immigration Appeals

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(April 28, 2014)

Before HULL, MARCUS and FAY, Circuit Judges.

PER CURIAM:

Jose Miguel Mispireta-Castro, a native and citizen of Peru, seeks review of 

the Board of Immigration Appeals’s (“BIA”) decision affirming the Immigration 

Judge’s (“IJ”) denial of his motions to terminate proceedings and his application 

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for a waiver of inadmissibility under the former Immigration and Nationality Act 

(“INA”), 8 U.S.C. § 1182(c) (“§ 212(c) waiver”). On appeal, Mispireta-Castro 

argues that: (1) his removal proceedings were invalid because the Department of 

Homeland Security (“DHS”) failed to rescind his lawful permanent resident 

(“LPR”) status prior to placing him in removal proceedings, as required by 8 

C.F.R. §§ 245a.3(o), 246.1, and 246.3; (2) the five-year statute of limitations in 8 

U.S.C. § 1256 barred the government from placing him in removal proceedings 

based on a purported lack of eligibility for adjustment of status; and (3) equitable 

estoppel precluded his removal because the IJ and BIA erroneously concluded that 

he had never been an LPR. After thorough review, we deny the petition.

We review only the BIA’s decision, except to the extent it expressly adopts 

the IJ’s opinion. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We 

review questions of law de novo. De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 

1278 (11th Cir. 2006). Whether equitable estoppel applies is a legal question we 

review de novo. Tovar-Alvarez v. U.S. Att’y Gen., 427 F.3d 1350, 1353 (11th Cir. 

2005). Under the prior precedent rule, we must follow prior binding precedents 

unless they are overruled by the Supreme Court or this Court en banc. United 

States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008). 

First, we are unpersuaded by Mispireta-Castro’s claim that DHS was 

required to rescind his LPR status prior to placing him in removal proceedings, and 

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failed to do so. The provision of the INA that governs the adjustment of status of 

certain aliens who entered the United States before 1982 was 8 U.S.C. § 1255a. 

Under this section, the Attorney General was required to adjust an alien’s status to 

that of a temporary resident if he met certain requirements, including that he be 

“admissible to the United States as an immigrant.” 8 U.S.C. § 1255a(a)(4)(A). 

The temporary resident’s status was then required to be adjusted to that of an alien 

lawfully admitted for permanent residence if he met certain requirements, 

including that he be “admissible to the United States as an immigrant” and not 

convicted of any felony in the United States. 8 U.S.C. § 1255a(b)(1)(C)(i)-(ii). 

“Rescission of adjustment of status under [8 U.S.C. § 1255a] shall occur under the 

guidelines established in [8 U.S.C. § 1256].” 8 C.F.R. § 245a.3(o). 

Under 8 U.S.C. § 1256(a),

[i]f, at any time within five years after the status of a person has been 

otherwise adjusted under [§ 1255]. . . or any other provision of law to that of 

an alien lawfully admitted for permanent residence, it shall appear to the 

satisfaction of the Attorney General that the person was not in fact eligible 

for such adjustment of status, the Attorney General shall rescind the action 

taken granting an adjustment of status to such person and cancelling removal 

in the case of such person if that occurred and the person shall thereupon be 

subject to all provisions of this chapter to the same extent as if the 

adjustment of status had not been made. Nothing in this subsection shall 

require the Attorney General to rescind the alien’s status prior to 

commencement of procedures to remove the alien under [§] 1229a of this 

title, and an order of removal issued by an [IJ] shall be sufficient to rescind 

the alien’s status.

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The regulations set forth the procedure for rescission proceedings brought pursuant 

to § 1256(a). See 8 C.F.R. Part 246. In Alhuay v. U.S. Att’y Gen., we considered 

whether the five-year statute of limitations in § 1256(a) applied to both rescission 

and removal proceedings. 661 F.3d 534, 543-46 (11th Cir. 2011). We noted that 

the last sentence of § 1256(a) drew a clear line between rescission and removal, 

and “unequivocally permits the Attorney General to remove an alien without first 

rescinding [his] status.” Id. at 545-46. 

Here, the BIA did not err in concluding that the IJ had jurisdiction over 

Mispireta-Castro’s case even though the DHS did not first rescind his permanent 

resident status. Section 1256(a) undisputedly applies to Mispireta-Castro even 

though his status was adjusted pursuant to § 1255a, not § 1255. See 8 U.S.C. § 

1256(a) (indicating that it applied to any person who adjusted their status under §§ 

1255 or 1259 or “any other provision of law to that of an alien lawfully admitted 

for permanent residence”); 8 C.F.R. § 245a.3(o). As we acknowledged in Alhuay, 

the last sentence of § 1256(a) clearly provides that the DHS did not have to rescind 

Mispireta-Castro’s permanent resident status prior to the initiation of removal 

proceedings. 8 U.S.C. § 1256(a); Alhuay, 661 F.3d at 545-46. The fact that the 

regulations set forth a procedure for rescission proceedings does not mean that 

DHS must first conduct such proceedings before initiating removal proceedings. 

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We likewise find no merit to Mispireta-Castro’s claim that the five-year 

statute of limitations in 8 U.S.C. § 1256 barred the government from placing him 

in removal proceedings. In Alhuay, we joined the Fourth, Sixth, Eighth, and Ninth 

Circuit in holding that § 1256(a) did not bar the government from removing an 

alien merely because that alien’s status was erroneously adjusted to that of a 

permanent resident more than five years earlier. 661 F.3d at 544-45. We noted 

that the first sentence of the provision, which contained the five-year limitation, 

merely mandated the rescission of adjustment of status for individuals who fell 

within the prescribed category, but said nothing about beginning removal 

proceedings or DHS’s power to remove any alien. Id. at 545. Again, the 

provision’s last sentence supported the conclusion that the five-year statute of 

limitations did not apply to removal proceedings because it drew a clear line 

between rescission and removal proceedings. Id. 

As applied here, the BIA did not err in concluding that Mispireta-Castro’s 

removal proceedings were not barred by the statute of limitations. Pursuant to 

Alhuay, the five-year statute of limitations in § 1256 does not apply to removal 

proceedings. 661 F.3d at 544-45. Because neither this Court sitting en banc nor 

the Supreme Court has overruled Alhuay, we are bound to follow its holding. See

Vega-Castillo, 540 F.3d at 1236. 

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Finally, we reject Mispireta-Castro’s claim that equitable estoppel precluded 

his removal. Neither this Court nor the Supreme Court has definitively held that 

the doctrine of equitable estoppel is applicable to immigration proceedings. See

Savoury v. U.S. Att’y Gen., 449 F.3d 1307, 1318-19 (11th Cir. 2006) (noting that 

“it is far from clear that the doctrine of equitable estoppel may be applied against a 

government agency,” and pointing out that the Supreme Court has, in several 

immigration cases, specifically declined to apply estoppel against the government). 

But assuming that equitable estoppel can be applied in an immigration case, a 

petitioner must establish three elements in order to invoke it: “(1) words, conduct, 

or acquiescence that induces reliance; (2) willfulness or negligence with regard to 

the acts, conduct, or acquiescence; [and] (3) detrimental reliance.” Id. at 1319 

(quotation omitted). In addition, the petitioner must demonstrate that the 

government engaged in affirmative misconduct -- a showing of negligence or mere 

inaction is insufficient. Id.

In Savoury, we held that an alien whose status was erroneously adjusted to 

that of a permanent resident because he had a prior criminal conviction that 

rendered him inadmissible at the time of adjustment of status had never been 

lawfully admitted to the United States for permanent residence, and thus, was not 

statutorily eligible for a § 212(c) waiver. Id. at 1313, 1317. We further determined 

that, even if equitable estoppel applied in immigration proceedings, Savoury could 

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not establish the elements of such a claim. Id. at 1319. Savoury had not shown 

that his adjustment of status was due to affirmative misconduct even though he told 

the immigration officer at his adjustment interview about his pending drug charges 

and, after he was convicted, but before he was granted adjustment of status, 

submitted his conviction records. Id. at 1310, 1319. He also could not show 

detrimental reliance because he had received a benefit from the government’s 

earlier mistake in granting him adjustment of status, rather than suffering a 

detriment. Id. at 1319. 

As an initial matter, Mispireta-Castro’s argument that the IJ and BIA 

erroneously determined that he had never been an LPR is meritless. The fact that 

his status was adjusted to that of a temporary resident does not mean that his status 

was subsequently lawfully adjusted to that of a permanent resident. See 8 U.S.C. § 

1255a(b)(1)(C) (providing that the Attorney General shall adjust the status of an 

alien lawfully provided temporary resident status to that of a permanent resident if, 

among other things, he is admissible to the United States and has not been 

convicted of a felony in the United States). Based on his 1989 delivery of cocaine 

conviction, Mispireta-Castro did not meet these requirements at the time of his 

1992 adjustment of status. Id.; see 8 U.S.C. § 1182(a)(2)(A)(i)(II). Because 

Mispireta-Castro was not statutorily eligible for adjustment of status at the time it 

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was granted, he had never been lawfully admitted for permanent residence. See

Savoury, 449 F.3d at 1317. 

Even assuming that equitable estoppel can be applied against the 

government in an immigration proceeding, Mispireta-Castro has failed to establish 

the elements of an estoppel claim. First, he has not shown that government’s 

initial decision to adjust his status to that of a permanent resident was due to 

affirmative misconduct, rather than to inaction or negligence. See id. at 1310, 

1319. In addition, Mispireta-Castro did not suffer any legal detriment as a result of 

the government’s decision to admit him into the United States. See id. at 1319. 

Thus, Mispireta-Castro’s equitable estoppel claim fails. 

PETITION DENIED.

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