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 within a 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 obligation- to 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 NaturaZiea-
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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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