Juan Peralta v. Atty Gen USA

• Court: Court of Appeals for the Third Circuit
• Decided: April 13, 2011
• Docket: 10-2536
• Status: Unpublished

Opinion

IMG-076 NOT PRECEDENTIAL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 following reasons, we will deny the petition for review.

I.

Peralta first 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.

While that application was pending, Peralta went to Mexico without having obtained

advance parole, and was apprehended on May 12, 1998, upon returning to the United

States. In an attempt to avoid detection by immigration officials, Peralta provided

authorities with an alias. Accordingly, the government instituted removal proceedings

against Peralta under the name David Arrellano-Diaz. Peralta, using that alias, pled

guilty to entering the United States without inspection and stipulated to removal without

a hearing. He was ordered removed to Mexico on May 28, 1998.

Peralta subsequently reentered the country illegally and, on December 16, 1998,

appeared for an interview in connection with his application 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.) On January 4, 1999,

Peralta was granted lawful permanent resident status. In 2005, Peralta filed a

naturalization application. 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.

On November 20, 2007, Peralta was charged as being removable on two grounds: 2 (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 jurisdiction to

adjust Peralta’s status in 1999 because he did not have a valid entry 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, arguing that the

government’s failure to discover the 1998 deportation order and its consequent mistaken

adjustment of his status without jurisdiction should equitably estop the government from

removing him almost nine years later.

The IJ found Peralta removable 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 based 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 findings, 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

adequately advised of his rights. Peralta filed a timely petition for review with our Court.

II.

Peralta challenges the BIA’s legal conclusion that the government did not engage

3 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,

which the BIA adopted, are conclusive so long as they are supported 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

reviewing court must, as a matter of logic, review the IJ’s decision 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 equitable estoppel claim, Peralta must establish “(1) a

misrepresentation; (2) upon which he reasonably relied; (3) to his detriment; and (4)

affirmative misconduct.” Mudric 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 using his fingerprints, and its subsequent adjustment of his status

without jurisdiction “arguably” constitutes affirmative misconduct. (Pet’r’s Br. 8, 10.)

Application of equitable estoppel is therefore warranted, according to Peralta, because his

reliance 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 exhaust the issue during administrative proceedings. See 8 U.S.C. § 1252(d)(1); Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir. 2005). 4 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 Mudric, 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 Government 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. Having reviewed the record, including the detailed stipulated

order and waiver of hearing, which is written in English and Spanish and signed by

Peralta under his alias, we agree with the BIA that Peralta’s assertion is unsupported. (R.

169-73.) Furthermore, given Peralta’s concession 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 been informed of the effect of those proceedings on his

adjustment application, which 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. 5