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No estoppel in 9th cir 11 23-2011 and no double-dipping in 5th cir  regarding 212h waivers 8-30-2011
No estoppel in 9th cir 11 23-2011 and no double-dipping in 5th cir  regarding 212h waivers 8-30-2011
No estoppel in 9th cir 11 23-2011 and no double-dipping in 5th cir  regarding 212h waivers 8-30-2011
No estoppel in 9th cir 11 23-2011 and no double-dipping in 5th cir  regarding 212h waivers 8-30-2011
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No estoppel in 9th cir 11 23-2011 and no double-dipping in 5th cir regarding 212h waivers 8-30-2011

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  • 1. The Ninth Circuit has issued a Precedent Precedent about INA § 212(h) [8USC § 1182(h)] waiver for a single offense of possession of 30 grams or less ofmarijuana. In short, “no estoppel” for an error in prior proceedings that didnot amount to affirmative misconduct beyond mere negligence, as required byWatkins v. U.S. Army, 875 F.2d 699, 707 (9th Cir. 1989) (en banc).Perez-Mejia v. Holder1, No. 07-70118 (9th Cir. 10/23/2011) states in pertinentparts: “B. Estoppel Perez-Mejia also argues that the government is estopped from using his 1997 conviction as a basis for removal because DHS knew about the conviction when it granted him LPR status in 2003. This contention is incorrect. [7] It is well settled . . . that the government may not be estopped on the same terms as a private litigant.” Watkins, 875 F.2d at 706. “A party seeking to raise estoppel against the government must establish affirmative misconduct going beyond mere negligence; even then, estoppel will only apply where the government’s wrongful act will cause a serious injustice, and the public’s interest will not suffer undue damage by imposition of the liability.” Morgan v. Gonzales, 495 F.3d 1084, 1092 (9th Cir. 2007) (quoting Watkins, 875 F.2d at 707). Moreover, a party cannot obtain estoppel against the government if he did not lose any rights to which he was entitled. Id. “There is no single test for detecting the presence of affirmative misconduct; each case must be decided on its own particular facts and circumstances. Affirmative misconduct does require an affirmative misrepresentation or affirmative concealment of a material fact by the government, although it does not require that the government intend to mislead a party.” Watkins, 875 F.2d at 707 (citations omitted).1 Found at: http://www.ca9.uscourts.gov/datastore/opinions/2011/11/23/07-70118.pdf
  • 2. If a litigant survives this initial inquiry, the court considersfour elements to determine if the government is estopped: “(1) the party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former’s conduct to his injury.”Morgan, 495 F.3d at 1092 (quoting Watkins, 875 F.2d at 709). [8] Both the IJ and the BIA characterized the decision byDHS to grant Perez-Mejia LPR status in 2003 as a “mistake.”This was not an erroneous conclusion. It was Perez-Mejia’sburden to prove that the decision to grant him LPR status wasaffirmative misconduct by DHS. See id. Perez-Mejia offeredno evidence of such misconduct, but rather relied on the factthat he obtained LPR status when he should have been deniedit. He now points to nothing in the record that suggests thatDHS engaged in any “affirmative misrepresentation or affir-mative concealment.” Watkins, 875 F.2d at 707. “[T]he negligentprovision of misinformation” by immigration officialsdoes not constitute affirmative misconduct. Sulit v. Schiltgen,213 F.3d 449, 454 (9th Cir. 2000). The evidence suggests nomore than such negligence in this case. Moreover, Perez-Mejia “lost no rights to which [he] wasentitled under the immigration laws.” Santiago v. INS, 526F.2d 488, 493 (9th Cir. 1975) (en banc). Perez-Mejia concedesthat he was ineligible for LPR status when he appliedfor it and does not contend that obtaining it deprived him ofany rights. See id. at 491-93 (failure to inform aliens that theirentry into United States was unlawful did not deprive them ofopportunity to depart and attempt to return lawfully). [9] In essence, the evidence only indicates that the governmentwas negligent in improperly granting Perez-Mejia LPRstatus. Perez-Mejia benefitted from that error. The government
  • 3. was not estopped from correcting the mistake when it was discovered.12” Footnote in original: __________________________________________________________________________________________________ “12 Perez-Mejia asserts that the record is limited on whether DHS engaged in affirmative misconduct because he was not allowed to pursue his estoppel argument before the IJ. This contention is incorrect. The record demonstrates that the IJ expressed his tentative ruling and invited Perez-Mejia to argue estoppel. Perez-Mejia neither proposed to offer any evidence nor made any further argument regarding estoppel.” At pp. 20416- 20418 ***** “III. CONCLUSION By admitting at the pleading stage that he was convicted of possessing cocaine for sale and conceding that he was, therefore, removable, Perez-Mejia relieved the government of its burden of offering further evidence to prove that he was removable. The government is not estopped by its error in granting Perez-Mejia LPR status from correcting its mistake and ordering his removal. Perez-Mejia’s admission to the cocaine offense made him ineligible for a waiver of removability under § 1182(h). Therefore, the petition for review is unmeritorious. DENIED.” At p. 20420The Fifth Circuit has issued a Precedent about INA § 212(h) [8 USC §1182(h)] waiver for a single offense of possession of 30 grams or less ofmarijuana. In short, “no double-dipping” on these waivers!Rana v. Holder2, No. 10-60539 (5th Cir. 8/30/2011) states in part:2 Found at: http://www.ca5.uscourts.gov/opinions/pub/10/10-60539-CV0.wpd.pdf
  • 4. “Rana’s interpretation of § 1182(h) requires a tortured rendering ofthe word “single.” Instead of reading the term “single offense” to allow awaiver of one offense of simple possession of 30 grams or less ofmarihuana, as is most natural, Rana interprets it to allow a potentiallyinfinite number of waivers of a potentially infinite number of offenses, butonly as long as the waivers were granted for one offense at a time. Such aninterpretation would yield a counterintuitive result: The Attorney Generalwould have the power to grant waivers ad infinitum to an alien who appliedfor them seriatim after each simple possession offense of 30 grams or less ofmarihuana, but an alien who applied for a waiver of two simple possessionoffenses at the same time would be inadmissible. It is unlikely that Congresswanted to give the Attorney General great discretion in the former case butnone in the latter. It is much more likely that when Congress indicated thatwaivers must be limited to “a single offense of simple possession of 30grams or less of marijuana,” it meant the total number of offenses, not thenumber sought to be waived each time an alien asks.” At pp. 5-6 ***** “In sum, based on the plain language of § 1182(h), the implausibilityof Rana’s reading, and prior BIA and Fifth Circuit precedent, an alien whohas been convicted of two or more offenses of simple possession of 30grams or less of marihuana is ineligible for a § 1182(h) waiver, regardless ofwhether he previously received a § 1182(h) waiver related to one of hisoffenses. The petition for review is DENIED.” At p. 7

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