TALANOA

Interim Decision #1770

MATZ= OP TALANOA

In Deportation Proceedings

A-18550300

Decided by Board August 11, 1967

Where the Service applied prematurely for a quota number for respondent and

had to return it unused to the Department of State because processing of rile

section 245 application for adjustment of status had not been completed and as

a result of the subsequent amendment of section 212(a) (14) of the Act by

P.L. 89-236 respondent was subject to the labor certification requirement in

order to qualify for adjustment of status, the Service is not now estopped from

requiring him to present a labor certification in conjunction with his adjust-

ment application since there is no evidence the Service was remiss in its actual

processing of his case and he was given all reasonable opportunity to qualify

for such relief both before and after the amendment of section 212(a) (14),

and he was, in fact, granted such relief but he now finds himself without that

status and ineligible for it as a result of his own actions.

ONARGE :

Order : Act of 1952—Section 241(a) (9) [9 1251(a) (9)3—Nonimmi•

grant—Failed to comply with conditions of status.

ON BEHALF or RESPONDENT ON BETIALTI or 5n Brow

Donald L. Ungar, Esquire Irving A. Appleman

Phelan, Simmons & Ungar Appellate Trial Attorney

517 Washington Street (Oral argument)

Ren Frnnelnee, Calif. 94111

StephenAL Sunln

(Oral argument) Trial Attorney

(Brief submitted)

Deportability on the charge contained in the order to show cause

was conceded by respondent at the first hearing held in these proceed-

ings and has never been in issue. Respondent appeals from the special

inquiry officer's decision of April 27, 1967, finding him to be subject

to the labor certification provisions of section 212(a) (14) and, because

he has not presented a labor certification, holding him statutorily

ineligible for adjustment under section 20. The prior grant of volun-

tary departure has been renewed by the special inquiry officer.

Respondent, a native of Tonga, applied for adjustment at a deporta-

tion hearing in February, 1964. Under existing State Department de-

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Interim Decision #1770

terminations, Tonga was then considered a colony or dependency of

Great Britain located within the Asia-Pacific Triangle, and a person

born therein was statutorily chargeable to the Asia Pacific quota

-

(former section 202 (b) (3), Immigration and Nationality Act). There

were no nonpreference Asia-Pacific quota numbers available and re-

spondent could not establish the quota availability necessary under

section 245. No appeal was taken from the special inquiry officer's

decision denying adjustment and granting voluntary departure.

On October 12, 1964, respondent moved to reopen the proceedings

on the ground that Tonga had been recognized by the Department of

State as a separate quota area. The special inquiry officer denied the

motion on November 19, 1964 and we dismissed the appeal on Jan-

uary 29, 1965 because, although Tonga had its separate (pinta, non-

preference numbers under that quota were available to persons with

a registration priority of January 1, 1961, which respondent did not

have.

On March 9, 1965, respondent and several other Tonganese moved

to reopen their cases because the quota for Tonga had become cur-

rent. The Board granted the motion on March 23, 1965 and ordered the

hearings reopened, but even before the Board's decision, the Service

on March 15, 1965 had requested quota numbers of the Department of

State for respondent. and the other Tonganese applicants. Such quota

numbers were allocated for use during the month of May, 1965, but

were returned by the Service because they could not be used during

that month, since the cases had not yet been completely processed and

reopened hearings could' not be held during the month of May.

Respondent's reopened hearing was held on June 22, 1965, and his

application for section 245 adjustment was renewed. The special in-

quiry officer specifically asked the trial attorney whether the adjust-

ment application had been completely processed, and the trial attor-

ney answered that it had not been (Tr. p. 18). Both sides then entered

into the usual stipulation that documents in connection with that

processing might be made a part of the record, without a reopening

of the hearing, unless they contained adverse information, and the

hearing was closed.

In or about August, 1965, respondent moved from Hawaii to San

Francisco, California, and it was there that a reopened hearing was

held on January 13, 1966. Prior to the hearing, Public Law 89-236

had been enacted, containing the changes in section 212(a) (14) which

required the presentation of a labor certification by a nonpreference

immigrant coming to the United States to perform skilled or un-

skilled labor. Prior to the hearing, the Service had, by letter, sug-

gested to counsel that respondent obtain a labor certification, and

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Interim Decision. #1770

counsel, also by letter, had taken the position that respondent, who

was self-employed as a gardener, was not coining to the United States

for the purposes stated in section 212(a) (14) and did not require a

certification. At the hearing, both sides maintained the positions

initially taken, with the Service adding that the State Department

would not allocate a quota number unless advised by the Service that

the labor certification had been obtained, and counsel contending that

it would be required to issue a number if advised by the Service that

respondent was exempt from the certification requirement. The spe-

cial inquiry officer then ruled that in the situation before him, it was

his function to make the decision as to whether a certification was

necessary (Tr. pp. 29-31), and the hearing proceeded, its focus being

the nature, size, scope, etc. of respondent's claimed business opera-

tion. At the close of the hearing, the special inquiry officer rendered

an oral decision, declaring the issue to be whether, under the terms

of section 212(a) (14), respondent required a certification from the

Secretary of Labor, and reasoning as follows :

• • • As I read the statute, the test is whether the nonexempt alien is seeking

to enter the U.S. to work, not the form of the legal entity under which he will

operate. If the alien's purpose in seeking admission is to perform skilled or un-

skilled labor, that is, to work, whether it be with band or mind, for self, for or

as part of a partnership, or for a corporation, he is within section 212(a) (14),

unless he is in one of the exempt classes.

Evaluating the testimony, he found that respondent's earnings de-

rived principally from his own toil rather than his capitalinvestment,

that he therefore was coming to perform labor, and that he came

within the certification provisions. Not having presented a certifica-

tion, respondent was found to be statutorily ineligible for adjustment,

and was granted voluntary departure in the exercise of discretion.

On appeal, counsel argued his contention that because respondent

was self-employed he did not come within the certification require-

ment, and he raised the claim that the Government was estopped from

requiring a labor certification of respondent because it had allegedly

failed to act with due diligence to arrange for a hearing On respond-

ent's application in May, 1965, when it had a quota number .for him

and before the'llaw had been amended to require a lahor certification.

The appeal was dismissed on May 17, 1966, the Board being in sub-

stantial agreement with the special inquiry officer's finding that

respondent was closer to a day laborer than an independent contractor,

that there was virtually no investment in the business, and that a

certification was required. The estoppel contention was not readied.

Respondent moved for reconsideration on June 16, 1966, alleging

changed circumstances; he no longer performed the labor, having

373

Interim Decision #1770

hired an American citizen employee for that purpose, and the busi-

ness had been enlarged to include the sale of nursery products, re-

spondent's function being to purchase the nursery products and find

the customers for them. The estoppel contention was repeated. On

July 12, 1966, the case was reopened and remanded for consideration

of both issues. At the reopened hearing on September 21, 1966, on the

basis of the evidence presented, the special inquiry officer found that

respondent was not seeking to enter for the purpose of performing

skilled or unskilled labor, and did not require a labor certification;

all other aspects of eligibility having been established, the special

inquiry officer granted adjustment in the exercise of discretion upon

condition that a quota number be allocated to respondent by the

-Department of State.

The Service appealed, urging that the special inquiry officer had

erred in finding a certification was not required, and further, that even

if eligibility had been established, respondent did not merit the favor-

able exercise of discretion. Counsel supported the special inquiry offi-

cer's finding as to the labor certification, urged again his estoppel

argument, and presented the further one that respondent was exempted

from the labor certification requirement under the newly enacted P.L.

89432 because his application for adjustment had been filed before

December 1, 1965. Oral argument was held on December 12, 1966, and

on February 10, 1967 the Board affirmed the special inquiry officer's

decision and dismissed the Government's appeal.

On March 13, 1967, the Service moved for reconsideration and re-

opening, presenting material to show that respondent's American citi-

zen employee no longer worked for him, respondent no longer had

a business at the address given by him, respondent's business

telephone service had been discontinued in November, 1966, and

that respondent, as of December 12, 1966 (the date of oral argument)

had been working full time for Pan American Airways as a fleet

service man, loading and unloading cargo. In his reply brief, counsel

conceded the truth of these allegations, but argued that respondent

had already met the burden of showing he was not engaged in skilled

or unskilled labor at the time of his adjustment application and should

not be required to meet that burden again. By order dated April 17,

1967, we granted the Service motion and reopened proceedings, holding

that since the cessation of business was reasonably contemporaneous

with the hearing at which respondent had the burden of establishing

his good faith intention of carrying on such business and his ability to

do so, there was sound basis for reconsideration of his eligibility for

adjustment. We also held that Public Law 89432, by its terms, related

only to natives of Western Hemisphere countries who had filed appli-

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Interim Decision #1770

cations for adjustment before December 1, 1965, citing Matter of Hoeft,

Int. Dec. No. 1723.

At the reopened hearing on April 27, 1967, no new evidence of re-

spondent's eligibility for adjustment under section 245 was offered.

Counsel specifically withdrew the previous contention that respondent

did not require a labor certification because he had been self-employed.

Total reliance was placed upon the claim that the Government, under

the circumstances in this particular case, was estopped from requiring

a labor certification of respondent. Counsel stated for the record that

if the administrative decision should be unfavorable, it was intended

to take the case to court for judicial review on the estoppel question.

He asked for, and received, clarification on the record that in May of

1965 the Service had had a quota number for respondent. The bulk of

the hearing was then taken up with questioning of respondent by the

trial attorney on factors relevant to whether respondent merited the

favorable exercise of administrative discretion.

The decision now before us was rendered by the special inquiry offi-

cer at the close of the hearing on April 27, 1967. In it, he held that re-

spondent was subject to the changed requirements of the law, amended

while his ease was pending (citing Patsis v. Immigration and Natu-

ralization Service, 837 F. 2d 733 (8th Cir., 1964), cert. den. 860 U.S.

952 (1965), reh. den. 381 U.S. 921 (1965) ; and I? oti v. Immigration

and Naturalization Service, 332 F. 2d 424 (2d Cir., 1964), which relied

on Fos-ilia v. Eeperdy, 301 F. 2d 429 (2d Cir., 1982) ) , unless the estop-

pel contention was valid. He summarized the relevant facts surround-

ing the receipt and disposition of the quota number in May, 1965 and

the processing of respondent's application. He pointed out that all

quota numbers assigned for section 245 applications were required to

be used during a specified month, and must be returned to the State

Department if not used during that month; and although the Service

normally made every effort to schedule a hearing during the specified

month it might on occasion, despite diligent efforts, become necessary

to return a quota number to the State Department. He discussed and

rejected counsel's contention that the Service should have advised

counsel of the arrival of the quota number and was remiss for not doing

so. He stated:

* * * Assuming that counsel for the respondent had intended to arrange for

the respondent to come to the mainland for h hearing in May 1965 had be been

informed of the assignment of a quota number for the respondent's use during

May, it is unreasonable in the light of Service practice, counsel's familiarity

therewith, and his silence to have expected the Honolulu office to have divined

his unmentioned intention and sua spode to have informed him the respondent's

ease was ready for hearing and that a quota number had been assigned for use

in Hay, but that hearing could not be held In Hawaii that month, to give counsel

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Interim Decision #1770

an opportunity to arrange for a hearing outside the Hawaii district • • •

(Decision, p. 8.)

He found nothing in the conduct of the case to warrant an estoppel

and held that since respondent required a labor certification and had

not presented one, he was ineligible for adjustment of status under

section 245. Voluntary departure was granted.

Estoppel is closely related to fraud (ef. p. 80, Handbook on the

Principle.? of Equity, Henry L. McClintock, Second Edition,

Hornbook Series, 1948).

• * * The vital principal is, that be who, by his language or conduct, leads

another to do what he would not otherwise have done, shall not subject such

person to loss or injury by disappointing the expectations upon which he acted.

Such a change of position is sternly forbidden. It involves fraud and falsehood.

and the law abhors both. * * * Dickerson 1. Colgrove, 100 U.S. 578, at p. 580.

Here, search as we may, we can find nothing in the record to indicate

that the Service, by its language or conduct, led respondent to any

course of action which he would not otherwise have taken, or led him

to change his situation in any way, whether to his detriment or other-

wise. Counsel is apparently urging, as the mainstay of his estoppel

claim, that the Service was remiss in failing to advise him that it had

a, quota number available in May, 1965 and that it would not be able

to hold a hearing on respondent's application in Hawaii in May. But

silence of itself will not raise an estoppel.

* * * TO constitute an estoppel by silence there must be something more than

an opportunity to speak. There must be an obligation. * * * Wiser v. Lawler,

189 US. 250. at p. 270.

The record is bare of any showing that it is incumbent upon the Serv-

ice to advise an applicant or his counsel of the receipt of a quota num-

ber allocated for the use of that applicant, or to advise him that it will

not be able to schedule his hearing at a particular time.

There is nothing in the file, and counsel alleges nothing, which would

justify the estoppel counsel seeks? What appears is that the Service,

acting with perhaps excessive diligence, obtained a quota number for

respondent prematurely, before it had reached the point in the proc-

essing and hearing of his case at which the quota number could be

used; realizing this, it returned the quota number at a time when

neither it, respondent, counsel, nor the State Department could say

with any certainty that another number would not be available when

1 Whether the doctrine of estoppel may be raised against the united Stakes is

not entirely clear. See Sims Motor Transport Lines, Inc v. United States, et al.,

9 Ad. L. 2d 931 (N.D. D1.4959) ; Mannerfrid v. Brownell, 145 F. Supp. 55; Cole v.

Railroad Retirement Board, 289 F. 2d 65, etc. ; 31 Corpus Juris Secundum 291,

675; etc.

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Interim Decision #1770

the procegsing was completed, or had any idea that the Immigration

and Nationality Act would be amended to require° a labor certifica-

tion of respondent when a quota number again became available. Coun-

sel's allegations now as to what he would have done then if he had

known the Service had the quota number for use during the month of

May, 1985, come within the category of hindsight.

The cases cited by counsel are clearly distinguishable from the in-

stant case. In McLeod v. Peterson, 283 F. 2d 180, the alien was given

incorrect advice by a Service officer as to his eligibility for suspension

of deportation, and was assured that his wife would be assisted by the

Service in petitioning for preference quota status for him so that he

could return from abroad with a visa. In reliance on the statement

and assurances, respondent forbore to appeal and left the United

States, thereby breaking the continuity of his physical presence here.

This action was clearly to his damage, because the Service took no ac-

tion on its promise to assist his wife with the preference petition and

she died without filing a Petition; respondent then found himself out-

side of the United States without anyone who could petition for pref-

erence status for him, with a United States citizen child of tender years

dependent upon him for support, and with no prospect for a visa,. He

reentered the United States without a visa and during deportation pro-

ceedings applied for suspension of deportation. It was denied to him

upon the ground that because of his departure, he had broken the con-

tinuity of his physical presence and thus could not show the seven

years of continuous presence necessary for statutory eligibility. The

Court there held that a fundamental error had been committed by the

Government in (the information it had given to respondent; respondent

had been induced to leave the United States on the basis of that in-

formation; to permit the Government to assert the departure which it

had induced es an obstacle to the relief which respondent had applied

for before his departure and for which he had then been eligible would

result in a gross miscarriage of justice. It went on to rule that the

continuity of the alien's residence had not been broken by the absence

thus brought about. (No mention of estoppel was made, although many

of the elements were present; instead, the court acted 'to prevent a

gross miscarriage of justice.)

The second case, Tejeda v. Immigration. and Naturalization Serv-

ice, 346 F.2d 389, involved the claim by an alien that he had been

given demonstrably erroneous information by an American Govern-

ment official and that because of his reliance thereon, he was prevented

from obtaining the necessary documentation to return to the United

States on a nonquota visa during the period when such admission was

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Interim Decision #1770

possible, thereby changing his situation to his damage. The Court,

finding respondent had definitely been qualified for such a nonquota

visa, and relying on the reasoning of McLeod, supra, and Moser V.

United States, 341 'U.S. 41, remanded the case for further exploration

of the facts, stating:

• va, hold that petitioner would be eligible for relief under at least one

set of findings, viz., if it is shown that he was actually and reasonably misled

by the affirmative acts and misstatements of the American Oonsni. To bold to the

contrary if this is in fact what transpired, and deny any form of relief from the

order of deportation, would result in the punishment of a poorly-educated alien

for his reliance on the advice of a presumptively well-informed official of the

United States Government. This we would deem improper.

The two other cases referred to by counsel, Petition of T =lidos, 155

F. Supp. 427, and Application of Martini, 184 F. Supp. 895, both in-

volved naturalization under special eligibility provisions, which peti-

tioners had met at the time when their applications were filed. In each

instance, the provisions had a statutory limitation on their period

of effeetivenes, and the date of expiration was specifically set by the

statute. In each case there was indication that the Service had not

proceeded with due diligence to fulfill its responsibility in processing

these cases after a timely filing of the applications. On a showing of

the above facts, the court in each case held that the applicant's rights

had been preserved by a timely filing of his application.

In the case before us, even assuming arguendo that counsel's state-

ment is correct and respondent's application had been completely proc-

essed by the time the quota number was allocated (but see Tr. p. 18,

and the trial attorney's statement, on June 22, 1965, that as of that date

the file had not been completely processed) there was no indication.

whatever of any deadline for any phase of eligibility. The adjustment

section is a continuing provision of the Immigration and Nationality

Act; respondent had a registration priority date on the Tonga non-

preference quota two years earlier than the date of the quota number

allocation (see counsel's statement at Tr. p. 96, about anticipated

quota availability) ; and only a clairvoyant could have known that

the law -would be changed four or five months later to require a labor

certification. There was no reason to think of having a special inquiry

officer make a special trip from the Mainland to hear respondent's

case, or to suggest to counsel that he might wish to have respondent

take a trip to the Mainland for a hearing there. There is no showing

that other than normal processing of the case was indicated, and no

showing that the Service was in any way remiss in its actual process-

ing of the case.

To warrant an estoppel, the fact situation must be a glaring and

obvious one in which, to permit the party against whom estoppel is

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Interim Decision #1770

sought to assert as a bar the position that it has induced the claimant

to assume would be to countenance a gross miscarriage of justice. This

is hardly the picture before us. Respondent was given all reasonable

opportunity to qualify for adjustment, both before and after the

changes in section 212(a) (14), and in fact was granted an adjustment

of status by the special inquiry officer. That he now finds himself with-

out that status and ineligible for it Is due to his own actions and not

to those of the Service.

We hold, as did the special inquiry officer, that the estoppel claim,

is without sound basis. The elements necessary for estoppel are not

present. In addition, there has been no miscarriage of justice, gross

or otherwise; there has been no showing that the Service was remiss

in any duty it may have had to this applicant. On the contrary, the

respondent has been permitted to remain in the United States for

more than four years to await the outcome of the various phases of

these proceedings; he has been accorded every opportunity to estab-

lish eligibility for adjustment of status; and when he was finally able

to establish such eligibility and was granted adjustment, that grant

was upheld by this Board until evidence was presented to show that

respondent himself had undercut the basis on which he had estab-

lished eligibility.

The special inquiry officer's decision is a correct one, proper and

just in the circumstances, and it will be sustained.

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

hereby dismiesed.

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821-661-49-28