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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

EL WELI OULD ETGHANA, et al.
PLAINTIFFS

v.                  CIVIL ACTION NO. 3:02-CV-102-S

JOHN ASHCROFT, United States Attorney General, et al.
DEFENDANTS

MEMORANDUM OPINION

This matter is before the court on petition of the plaintiffs, El Weli Ould Etghana and Saadbough Ould Ghoudouss, (hereinafter collectively, "plaintiffs"), for writs of habeas corpus filed in conjunction with their complaint. They seek release from incarceration, and an injunction against the United States Immigration and Naturalization Service ("INS") deporting them to their native country, Mauritania. The United States has filed a cross-motion to dismiss the action.

The court heard evidence and argument of counsel on February 28, 2002. At the conclusion of the hearing, the parties requested time for briefing to address the legal issues. Without objection, the court entered an order prohibiting the INS from transferring the plaintiffs or taking further steps in the removal process until the court had an opportunity to consider the issues presented. The plaintiffs remain in custody in this jurisdiction.

The following chronology of events is undisputed:

  1. The plaintiffs entered the United States, Ghoudouss in 1998 and Etghana in 1999.

  2. The plaintiffs filed applications for asylum ("I-589 applications") with the Chicago Asylum Office, and were subsequently placed in removal proceedings.

  3. The plaintiffs married United States citizens.

  4. Their wives filed petitions for alien relatives ("I-130 applications") on the plaintiffs' behalf.

  5. The plaintiffs requested that the immigration court grant them voluntary departure. In so doing they:

    • Withdrew their pending asylum applications.

    • Admitted deportability.

    • Agreed to voluntarily depart the United States by the date ordered, or be subject to an alternate order of removal for failing to depart.

  6. The immigration court entered an order of voluntary departure coupled with an alternate order of removal for each plaintiff, setting a date certain by which each was to depart the United States.

  7. After the time for appeal of the immigration court's orders, but before the expiration of the period for voluntary departure, the plaintiffs and their wives presented second I-130 applications and Applications for Permanent Residence or Adjustment of Status ("I-485 applications") to the Louisville INS Subdistrict Office (hereinafter "Louisville Office"). The applications, filing fees, and attachments were accepted by the information officer and the plaintiffs were issued employment authorization documents.

  8. A policy was then in effect that I-485 applications were accepted from individuals who were under orders of voluntary departure if the applications were filed after the time for appeal but before the end of the voluntary departure period. Under this policy, the Louisville Office did not enforce alternate orders of removal against these individuals after the time for their voluntary departure expired.

  9. Subsequent to the plaintiffs' filing of their I-485 applications, the policy of the Louisville Office regarding the acceptance and treatment of these applications was changed, and individuals under orders of voluntary departure were deemed ineligible to file.

  10. In February 2002, after the period for their voluntary departure had passed, the plaintiffs came to the Louisville Office to inquire as to the status of their applications for employment authorization. The INS arrested them, denied their I-485 applications on the ground of ineligibility to file, took them into custody and began proceedings to execute the alternate orders of removal.
I.

The orders of the immigration court put the plaintiffs on notice that:

You have been granted voluntary departure from the United States pursuant to section 240B of the Immigration and Nationality Act. Remaining in the United States beyond the authorized date will result in your being found ineligible for certain forms of relief under the Immigration and Nationality Act (see Section A below) for a period of ten (10) years from the date of scheduled departure...

A. THE FORMS OF RELIEF FROM REMOVAL FOR WHICH YOU WILL BE INELIGIBLE ARE:
...3) Adjustment of status or change of status as provided for in section 245, 248 or 249 of the Immigration and Nationality Act.

This notice tracks the provisions of 8 United States Code ("USC") 1229c and 1255. After the expiration of the voluntary departure period during which the plaintiffs did not depart the country, the self-executing alternate orders of removal became operative. The plaintiffs were thus subject to removal under the orders of the immigration court at any time.

The plaintiffs contend that they were eligible to file I-485 applications upon issuance of the voluntary departure orders and could thereby remain in the United States. They argue that once filed, the applications tolled the period for voluntary departure until they were reviewed and acted upon.

INS Regulation 245.1 states that any arriving alien who is in removal proceedings is ineligible to file an I-485 application. 245.1(a) and 245.1(c)(8). It further states that the period during which the alien is in removal proceedings terminates when proceedings are terminated by the immigration judge or Board of Immigration Appeals ("BIA") 245.1(c)(9)(ii)(D).

The plaintiffs propose that the issuance of the immigration judges' orders of voluntary departure (from which they waived appeal) constituted "termination" under (c)(9)(ii)(D), citing In re Goolcharan, Interim Decision 3442 (BIA 2001). They contend that upon this "termination," they were no longer in removal proceedings and thus no longer ineligible at the time of filing.

The Goolcharan decision addressed the question of when an order of deportation became final for purposes of calculating the filing deadline for a motion to reopen the proceeding. The decision did not consider whether the issuance of a voluntary departure order constituted "termination" of a proceeding under 245.1(c)(9)(ii)(D).

The court finds that "termination" is a distinct and different procedure from the issuance of a decision and order by the immigration court.

If the respondent's position is that the removal proceedings never should have been brought, or that removability has not been proven...the appropriate motion and remedy is termination...More commonly, Motions to Terminate lie at the conclusion of a hearing when the respondent alleges that the Service has not met its burden of proving removability.
14.1 Termination, Steel on Immigration Law, 2d, Richard D. Steel (West 2001 rel.).

There was no request for termination of the proceedings. Rather, the plaintiffs moved for voluntary departure, conceding deportability. There was no termination of proceedings by the immigration judge. Therefore they did not become eligible to file their applications.

The argument regarding eligibility to file is ineffectual, in any event, as the plaintiffs have failed to establish that, once filed, an I-485 application invalidates, overrides or otherwise affects an order of the immigration court.

In seeking to show that the filing of their I-485 applications operated to forestall the running of the time for voluntary departure, the plaintiffs cited Singh v. Quarantillo, 92 F.Supp.2d 386 ((D.N.J. 2000). We find this case to be neither binding nor persuasive. The facts in the Singh case differ in a number of significant respects from those before us. We therefore find the case to be inapplicable.

In Singh, the question of whether Singh's time for voluntary departure was tolled was addressed within the context of a motion to reopen his deportation proceedings. He had not moved for voluntary departure, as the plaintiffs did here. He appealed the denial of his petition for asylum and for withholding of deportation to the Board of Immigration Appeals ("BIA"). While his appeal was pending, he married and then sought to change his status. When his appeal concerning his asylum petition was denied, he sought to reopen the deportation proceedings in the immigration court. Thus the immigration court was given the opportunity to consider Singh's applications and the efficacy of its own order.

Here, the plaintiffs married during the pendency of the removal proceedings. They moved for voluntary departure and concomitantly withdrew their asylum applications, admitted deportability, waived appeal of the departure orders and agreed to depart within the time specified by the court. After having been granted the relief they sought from the immigration court, they filed I-130 and I-485 applications in the Louisville Office and did not depart the country, apparently believeing that the INS would not enforce the alternate orders of removal against them. We find no similarities between the facts in the Singh case and those before us, save the fact that the plaintiffs were subject to voluntary departure orders of the immigration court, but sought to alter their status due to their marriages to U.S. citizens.

Additionally, the issue of staying Singh's period of voluntary departure did not have the jurisdictional overlay that is present here. That is, the court in Singh was not concerned with plaintiffs who admitted deportability and agreed to depart, but subsequently sought to avoid their obligation by seeking relief from the District Director, a procedure that appears to be without a jurisdictional basis.

In certain circumstances, respondents in removal proceedings may apply for adjustment to permanent resident status. The discussion at Chapter 7, supra, and the law concerning adjustment of status are fully applicable in this context. The regulations provide that jurisdiction to consider an application for adjustment of status of a person against whom a Notice to Appear has been issued lies with the Immigration Judge. It is common practice, however, that if the adjustment of status appears routine and is not to be contested by the Immigration and Naturalization Service, the application is referred to the District Director through termination of the proceedings or other procedural devices. It has been held that such action by an Immigration Judge is not proper, at least if one of the parties objects, since the regulations confer exclusive jurisdiction of the situation on the Immigration Judge. [citing, Matter of Roussis, 18 I. & N.Dec. 256, Interim Decision #2908 (BIA 1982)]. Whether the procedure is appropriate even without objection may be questionable, but is unlikely to be litigated.
14.18 Adjustment of Status, Steel on Immigration Law, 2d, supra.
It is evident then that the immigration judge is charged by regulation, which has the force of law, with the responsibility of accepting and adjudicating an application for section 245 relief if that application is submitted by an alien in deportation proceedings. The immigration judge acknowledges that 8 C.F.R. 245.2(a)(1) vests the immigration judge with exclusive jurisdiction to entertain adjustment applications, once an Order to Show Cause has been issued...[W]e find that the immigration judge's decision to grant the respondent's motion to remand [and enter a conditional order of termination] and thereby divest herself of jurisdiction over his adjustment application is in clear derogation of the carefully defined jurisdictional scheme set out in the regulations pertaining to section 245. While an alien is given the right to submit an application for relief under section 245, no authority of which we are aware suggests he also has the right to dictate the procedures whereby his application is adjudicated.
Matter of Roussis, supra., at 257-58.

Additionally, we note that the tolling issue arises only if the plaintiffs were in fact eligible to file their applications. In the Singh case eligibility to file was not in issue. We have determined here, however, that the plaintiffs have not established eligibility to file as a matter of law. The court concludes that the plaintiffs have not shown that they were eligible to file their I-485 applications or that the period for voluntary departure was tolled.

II.

The plaintiffs contend that they sought voluntary orders of departure from the immigration court because of the policy of the Louisville Office of accepting I-485 applications from those under such orders, and of then foregoing enforcement of alternate orders of removal against those individuals. The policy was then changed without notice to them. The plaintiffs urge that the INS should be equitably estopped from now enforcing the alternate orders of removal.

Ordinarily the United States is not estopped by acts of individual officers and agents. United States v. River Coal Company, Inc., 748 F.2d 1103, 1108 (6th Cir. 1984), citing, Utah Power & Light Co. v. United States, 243 U.S. 389, 37 S.Ct. 387, 61 L.Ed. 10 (1917); Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947). In order to establish an entitlement to estoppel against the government, the plaintiffs must offer proof of affirmative misconduct:

At a minimum, estoppel will never be allowed as a defense against the federal government unless the private party demonstrates the presence of the traditional elements of an estoppel...and that the government engaged in 'affirmative misconduct.'" Green, 775 F.2d at 970 (quoting, INS v. Miranda, 459 U.S. 14, 103 S.Ct. 281, 74 L.Ed.2d 12 (1982)(per curiam). See also, Mukherjee, 793 F.2d at 1008 ("estoppel against the government must rest on affirmative misconduct going beyond mere negligence"). Reich v. Youghiogheny and Ohio Coal Co., 858 F.Supp. 1381, 1387 (S.D.Ohio 1994).

The plaintiffs have not established that the government engaged in "affirmative misconduct." They have not shown that the policy upon which they purportedly relied was grounded in law. They have not presented any authority for the proposition that the filing of I-485 applications tolled their obligations to depart the country under the voluntary departure orders. The fact that others avoided removal under a former policy is of no legal significance. "Persons dealing with the government are charged with knowing government statutes and regulations, and they assume the risk that government agents may exceed their authority and provide misinformation." Lavin v. Marsh, 644 F.2d 1378, 1383 (9th Cir. 1981).

There has been no misconduct by the government. The plaintiffs have failed to comply with a lawful order of the immigration court. The alternate orders of removal became automatically effective when the plaintiffs failed to depart the United States by the end of the departure period. While the circumstance giving rise to the arrest and impending deportation of the plaintiffs appears harsh, the procedures followed by the INS were proper under orders of voluntary departure for which the plaintiffs themselves moved in the immigration court. There is no basis upon which to premise an estoppel.

When a motion to dismiss is made, the court must take the allegations of the complaint as true and grant dismissal only when it is beyond doubt that the plaintiffs can prove no set of facts entitling them to relief. Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). For the reasons set forth hereinabove, the court concludes that the plaintiffs have failed to state a claim upon which relief may be granted, and the complaint must be dismissed. A separate order will be entered herein in accordance with this opinion.

This _____ day of ____________________, 2002.

__________________________________________
CHARLES R. SIMPSON III, JUDGE
UNITED STATES DISTRICT COURT

cc: Counsel of Record


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