Perlito Capili Sulit; Estella Gonzalez Sulit, Petitioners-appellants, v. Thomas J. Schiltgen, District Director, Immigration Naturalization Service, and Respondent-appellee, 213 F.3d 449 (9th Cir. 2000)

Perlito Capili Sulit and Estella Gonzales Sulit, natives andcitizens of the Philippines, appeal the district court's denial of their complaint for declaratory and injunctive relief and peti-tion for writ of habeas corpus to prevent their deportation. Weconclude that their due process and equitable estoppel claimsare without merit, and affirm the judgment of the district court.

* The Sulits entered the United States as visitors from the Philippines on September 22, 1990, and October 13, 1990,respectively, with authorization to remain here for one year.On April 7, 1993, the Immigration and Naturalization Service("INS") issued an order to show cause charging the Sulits with deportability under 8 U.S.C. S 1251(a) (1) (B) (1993) asaliens who have remained in the country longer than permit-ted. The Sulits conceded deportability, but requested asylum and withholding of deportation based on abuse they had suf-fered at the hands of the New People's Army. An immigration judge ("IJ") granted the Sulits' request for asylum and with-holding of deportation.

On June 24, 1994, the INS appealed the IJ decision to the Board of Immigration Appeals ("BIA"), claiming generally that the Sulits "failed to demonstrate a well-founded fear of persecution on any of the statutory grounds," and more specif-ically, that the Sulits were not members of a cognizable socialgroup. During the pendency of the deportation proceedings,the Sulits filed an application for adjustment of status based on the IJ's grant of asylum. Despite the pending appeal before the BIA, the Sulits denied in their application that they were"now in exclusion or deportation proceedings."

In an order issued on March 26, 1996, the BIA reversed the IJ's determination that the Sulits had been persecuted based on either political opinion or membership in a social group and vacated the IJ order granting asylum and withholding of deportation. It further ordered the Sulits deported and allowed them thirty days to voluntarily depart.

On May 29, 1996, the Sulits appeared for their adjustment of status interview with the INS, but did not inform the inter-viewing officer of the BIA decision. On October 1, 1996, fail-ing to realize that the BIA had denied the Sulits' asylum applications, the INS approved their adjustment of status applications.

The Sulits subsequently appealed the BIA decision denying their asylum application to this Court, which affirmed the BIA decision in a memorandum disposition. Sulit v. INS, 114 F.3d 1195 (9th Cir. 1997) (table). Based on our affirmance of the BIA decision, the INS issued a warrant of deportation to the Sulits.

The Sulits then filed a petition for writ of habeas corpus pursuant to 28 U.S.C. S 2241, and for an order enjoining their deportation, in the district court alleging that the INS had vio-lated their due process rights and that it was estopped from deporting them because their adjustment of status applications had already been approved. They asserted jurisdiction under S 2241, 28 U.S.C. S 1331, and several other jurisdictional pro-visions. The district court denied their petition and this timely appeal followed.

II

Because the BIA issued its final order of deportation on March 26, 1996, pre-IIRIRA law applies to the Sulits' case.See Hose v. INS, 180 F.3d 992, 994-95 (9th Cir. 1999) (enbanc). Applying pre-IIRIRA immigration law, it is clear thatin part the Sulits simply seek the review already afforded them on direct appeal. See 8 U.S.C. S 1105a(c) (1995). To that extent, we cannot consider the Sulits' contention that the INS's notice of appeal to the BIA failed to place them on notice that it was appealing the IJ's finding of past or future persecution based on both membership in a social group and political opinion. See Rashtabadi v. INS, 23 F.3d 1562, 1567(9th Cir. 1994) (quoting Reid v. Engen, 765 F.2d 1457, 1461(9th Cir. 1985)) (petitioner cannot obtain review of procedural errors in administrative process that were not raised beforeINS "merely by alleging that every such error violates due process.").

However, the Sulits' remaining due process claims are not foreclosed.¹  IIRIRA did not repeal the statutory habeas corpus remedy available via 28 U.S.C. S 2241 and such review extends both to constitutional and statutory questions.See Magana-Pizano v. INS, 200 F.3d 603, 609 (9th Cir. 2000). Moreover, the Sulits' remaining due process claims implicate none of the "decisions or actions" of the INS to"commence proceedings, adjudicate cases, or execute removal orders" precluded from our jurisdictional scope by S 1252(g). See Reno v. American-Arab Anti-Discrimination Committee,525 U.S. 471, 477-78 (1999).

The district court also had jurisdiction over the Sulits'equitable estoppel claim under 28 U.S.C. S 2241.²  Section 2241 makes habeas review available to petitioners who are in custody only "in violation of the Constitution or laws or trea-ties of the United States." Because "the INS is the agency pri-marily charged by Congress to implement the public policy underlying" the immigration laws, see INS v. Miranda, 459 U.S. 14, 19 (1982), and equitable estoppel is an element of federal common law, see Greany v. Western Farm Bureau Life Ins. Co., 973 F.2d 812, 821 (9th Cir. 1992), the Sulits'equitable estoppel claim is based on a violation of the "laws"of the United States. See Johnson v. Williford, 682 F.2d 868,871 (9th Cir. 1982) (federal prisoners filing S 2255 habeas petitions may obtain relief under the doctrine of equitable estoppel); see also Weaver v. Maass, 53 F.3d 956, 961 (9thCir. 1995) (relief under doctrine of equitable estoppel not available to state prisoners filing federal habeas petitions);O'Bremski v. Maass, 915 F.2d 418, 423 (9th Cir. 1990).

III

The Sulits maintain that the INS violated their due pro-cess rights by seizing their "green cards" without providing a rescission hearing pursuant to 8 U.S.C. S 1256 and issuing a warrant of deportation despite their adjustment of status.³  "It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings." Reno v. Flo-res, 507 U.S. 292, 306 (1993). The INS failed to properly notify the Sulits of its intent to rescind their adjustment of sta-tus, see 8 U.S.C. S 1256, or to conduct a hearing as required by the INS regulations, see 8 C.F.R. S 246.1, prior to seizing their "green cards." The INS therefore clearly failed to follow its own procedural rules to the extent that it sought to "seize"the Sulits' green cards.

Although this violation of applicable regulations by the INS might pose an impediment to deportation under pre-IIRIRA law, see Choe v. INS, 11 F.3d 925, 928 n.4 (9th Cir. 1993),⁴  we conclude the regulatory violations do not require us to grant relief under the facts of this case. The Sulits were already subject to a final order of deportation and were not eligible for adjustment of status at the time it was granted.Thus, the INS's failure to rescind the Sulits' adjustment of status does not, under the facts of this case, preclude its ability to deport them pursuant to the BIA's final order of deporta-tion. See 8 U.S.C. S 1255(a) (1995); Choe, 11 F.3d at 928;Monet v. INS, 791 F.2d 752, 754 (9th Cir. 1986); Oloteo v.INS, 643 F.2d 679, 683 (9th Cir. 1981).

In short, under the facts of the case, the INS's failure to fol-low its own procedural rules for rescinding an individual's adjustment of status does not preclude deportation.

IV

The government is not estopped from deporting the Sulits. The doctrine of equitable estoppel applies against the government only if it engages in affirmative misconduct going beyond mere negligence. See Socop-Gonzalez v. INS, 208 F.3d 838, 842 & n.4 (9th Cir. Mar. 27,2000). The Sulits contend that the INS should be estopped from deporting them because (1) upon inquiry two INS infor-mation officers told them that they could "file " an application for adjustment of status, and that providing such advice constitutes affirmative misconduct; and (2) they have acted in reliance on the grant of their application for adjustment of status.

Neither the failure to inform an individual of his or her legal rights nor the negligent provision of misinformation constitute affirmative misconduct. See Socop-Gonzalez, 208 F.3d at 843 (no evidence of a "deliberate lie" or "pattern offalse promises" sufficient to constitute affirmative misconduct); see also Mukherjee v. INS, 793 F.2d 1006, 1009 (9th Cir. 1986) (no affirmative misconduct where consular officer failed to inform petitioner that his visa was approved and misinformed petitioner that he was not subject to a two-year residency requirement). In any event, estoppel against the government is unavailable where petitioners have not lost any rights to which they were entitled. See Santiago v. INS, 526 F.2d 488, 493 (9th Cir. 1975) (en banc) (no affirmative misconduct where immigration officer admitted an otherwise excludable alien).

V

In sum, although the district court had jurisdiction to entertain the Sulits' claims of due process violations and equitable estoppel, the claims fail on their merits.

AFFIRMED.