On petition for review of an order of The Board of Immigration Appeals.
Adams and Weis, Circuit Judges, and Coolahan, Senior District Judge.*fn*
COOLAHAN, Senior District Judge.
Jung-Nam Yang and her husband, Seung-Han Yang, petition for review of an order of the Board of Immigration Appeals (herein "the Board") dismissing their appeal from an order of an Immigration Judge finding them deportable under the Immigration and Nationality Act § 241(a)(2), 8 U.S.C. § 1251 (Supp. 1977).*fn1 Petitioners, both natives and citizens of Korea, entered the United States as non-immigrant visitors for pleasure in February and March 1974, with authorizations to remain until no later than May 1974. About a year later, on April 29, 1975, a prospective employer for Mrs. Yang applied for a labor certification for her as a live-in domestic. After the certification was approved, a petition was filed on August 14, 1975, with the Immigration and Naturalization Service (herein "INS") to accord Mrs. Yang an unskilled-labor Sixth Preference visa status under 8 U.S.C. § 1153(a)(6) (1970), as amended (Supp. 1977).*fn2 The visa petition was not approved until some 20 months later, on April 4, 1977. However, during the interim the INS issued orders to show cause, and on June 10, 1976, a deportation hearing was held before an Immigration Judge and the Yangs were found deportable.
Petitioners argue, and the INS concedes, that the Yangs would not have been subject to deportation proceedings if an application for adjustment of status to resident alien had been filed and was being processed before the order to show cause was issued.*fn3 Petitioners contend that because of INS misconduct, petitioners missed an opportunity to file their application during several months prior to the deportation hearing when visas were available for Korean natives in the Sixth Preference category. Because the total number of visas available to Korean natives is allocated in order of preference categories, visas for applicants in the Sixth Preference are available only if demand in the higher categories has been satisfied and the quota has not been exhausted.*fn4 According to quota eligibility lists maintained by the State Department for use by the INS,*fn5 visas for Korean natives in the Sixth Preference category became available shortly before the deportation hearing in February, March, and April 1976. (P.Br.Ex.B.) However, at that time petitioners erroneously believed that under the INS regulations*fn6 an application for adjustment of status could not be filed until a visa petition was approved. As their petition had not been approved, they consequently believed that they were not eligible to apply for adjustment of status during those months prior to the deportation hearing when visas were available in their preference category.
Apparently the INS itself has recognized that many INS offices were not aware that simultaneous filings were permissible. On appeal, petitioners produced two INS memoranda dated June 27 and July 18, 1977, which state that, because numerous applicants were improperly discouraged or misled by incomplete information from filing applications for adjustments prior to approval of their visa petitions, remedial filings would be allowed in certain instances.*fn7 At oral argument, counsel for the INS indicated that the Yangs' case would not be within the scope of the new policy because the record did not show deliberate Government misconduct. The INS took this position notwithstanding the provision in the memorandum of June 27, 1977, granting relief to aliens who were erroneously advised or given incomplete information.
Whether the INS policy evidenced by the memoranda will apply to the Yangs is important to them now not only because it may allow them to file their application, but also because it may ameliorate the detrimental effect of a change in the statutory requirements for adjustment of status. At oral argument petitioners' counsel informed the Court that Sixth Preference visa numbers had become available in January 1978 for the first time since the deportation hearing in June 1976 and that an application would be submitted. While petitioners now have an approved visa petition and visa numbers are available, the statute, 8 U.S.C. § 1255(c) (Supp. 1977), was amended, effective January 1, 1977, to preclude adjustment of status of any alien otherwise eligible who accepts or continues in unauthorized employment prior to filing an application for adjustment. It is possible, therefore, that without the benefit of the new INS policy, petitioners may now be ineligible for adjustment of status because of Mrs. Yang's employment prior to petitioners having filed an application for adjustment. However, if the INS policy applies to petitioners, they would not be considered statutorily ineligible because permission to accept employment would be considered as having been granted nunc pro tunc as of the date of filing of the visa petition.*fn8
Petitioners argue that whether or not the INS chooses to accord them relief under its remedial policy, they are entitled to relief in the form of an estoppel because of INS misconduct, the same misconduct, they argue, that is recognized in the INS memoranda. Had the Yangs known from the regulations or been advised when they obtained the application that simultaneous filing was permitted, they could have filed their application prior to the deportation hearing during the months when visa numbers were available, and this suit would not have arisen. It is a salutary principle that a reviewing court should look with disfavor upon actions by a federal agency in violation of its own regulations. See Mendez v. Immigration & Naturalization Serv., 563 F.2d 956 (9th Cir. 1977). On the other hand, estoppel requires proof of affirmative misconduct on the part of the Government, Immigration & Naturalization Serv. v. Hibi, 414 U.S. 5, 38 L. Ed. 2d 7, 94 S. Ct. 19 (1973), a burden not easily met. Compare Santiago v. Immigration & Naturalization Serv., 526 F.2d 488 (9th Cir. 1975), cert. denied, 425 U.S. 971, 48 L. Ed. 2d 794, 96 S. Ct. 2167 (1976) (failure to inform of immigration requirements insufficient), with Yoo v. Immigration & Naturalization Serv., 534 F.2d 1325 (9th Cir. 1976) (delay in determining visa eligibility sufficient). However, it is not appropriate for the Court to decide the estoppel issue at this time.
The context of petitioners' claim for an estoppel is markedly different from that which existed at the time the Board affirmed the order of deportation. Many of the facts which would be significant in deciding petitioners' claim of estoppel developed subsequent to the appeal to the Board. The INS memoranda, which admit that simultaneous filing was permitted under the regulations but not always in practice, has put petitioners' failure to file an application in an altogether different light. While petitioners now have an approved visa petition for which visa numbers are currently available, the effect of the statutory prohibition on unauthorized employment has not been considered. Although it appears that petitioners may well be within the INS policy as expressed in the memoranda, the agency has not formally and fully considered petitioners' case.*fn9
Under the circumstances, petitioners' alternative request for relief, a motion to remand to the Board, is appropriate and will be granted insofar as it requests that the Board be instructed to reopen the proceedings. We do not decide at this time whether petitioners are entitled, under estoppel principles, to be relieved of their failure to file the application prior to the deportation hearing or whether the application can be granted despite the statutory work prohibition. INS regulations provide that a party may request that the Board reopen or reconsider any case when material evidence was not available and could not have been discovered or presented at the former hearing. 8 C.F.R. § 3.2 (1977). The Board should be accorded an opportunity to consider the several material changes in fact and law that have been noted, and in particular whether the INS remedial filing policy applies in petitioners' case. Should the Board, after considering petitioners' application, decide that they are not entitled to file or have an adjustment of status, petitioners may then institute a new appeal.
In accordance with the foregoing, the matter will be remanded to the Board with instructions to reopen the proceedings in order to permit petitioners to request that the new INS policy relating to the filing of petitions ...