News From The Courts

Andrzej Markowski v. John Ashcroft

United States Court of Appeals for the Third Circuit

Andrzej Markowski, a Polish citizen, appealed a Board of Immigration Appeals’ decision denying his application for adjustment of status under the Diversity Visa program, and ordering him removed from the United States. Markowski argues that the removal proceedings should be equitably estopped based on affirmative misconduct by Immigration and Naturalization Service (INS) officials. The court denied the petition for review.

In 1996, the INS failed to process Markowski’s initial adjustment of status application in a timely fashion and failed to notify him of his eligibility for adjustment of status despite having his correct address on file throughout the matter. In 1997, Markowski filed a second adjustment of status application that was filed prior to the expiration of DV-97, but the INS did not schedule an interview with Markowski until the available visa numbers had expired. Markowski was no longer eligible to adjust his status by receiving a visa. In 1999, INS served Markowski with a Notice to Appear, charging him with being removable from the United States.

The Immigration Judge rejected Markowski’s argument that the INS’s denial of his adjustment of status was the result of malfeasance. The IJ ruled that because there were no longer visa numbers available she could not grant Markowski’s application for adjustment of status. The BIA determined that it had no authority to apply the doctrine of equitable estoppel to order the INS to adjust his status. The BIA dismissed Markowski’s appeal.

Estoppel is an equitable doctrine applied in order to avoid injustice. Fredericks v. Commissioner of Internal Revenue, 126 F.3d 433, 438 (3d Cir. 1997). A party seeking estoppel against the government bears the burden of showing that a government official engaged in affirmative misconduct. Id. The court held that while Markowski had certainly demonstrated that INS officials were negligent in their handling of his applications, he has not provided evidence of affirmative misconduct.

The court further held that even if the court were to apply equitable estoppel in this matter, the problem of fashioning an appropriate remedy would remain. The visas under DV-95 and Illegal Immigration Reform and Immigrant Responsibility Act § 637 are no longer available and the court has no authority to order the INS to grant a nonexistent visa. See e.g., Iddir v. INS, 301 F.3d 492, 501 (7^th Cir. 2002). The court explained that the INS’s failure to process the visa application did not extend the “statutorily-limited period of eligibility for diversity visa.” Nyaga v. Ashcroft, 323 F.3d 906, 914 (11^th Cir. 2003).

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In re: ______________

Decision of the Board of Immigration Appeals

The Respondent appealed the decision denying his application for relief from removal. The Respondent claimed that the Immigration Judge made several errors when issuing his decision. The Board held that on remand the IJ should address Respondent’s claim both as to his eligibility for asylum and withholding of removal.

The Board found that the IJ failed to specifically address the respondent’s claim pertaining to his treatment as an orphan; based on a theory of his membership in a particular social group. The Board instructed the IJ to specifically consider whether this past treatment amounted to torture as defined in the Convention Against Torture (CAT). The IJ’s analysis of the Respondent’s religion-based-claim was deficient.

The Board further held that the IJ’s adverse credibility finding was not based on any material inconsistencies in the record. See Matter of S-A-, 22 I & N Dec. 1328. The Board reasoned that the IJ found, without any particular basis, that the Respondent’s explanation for his failure to timely file his application for asylum was not plausible and rendered an adverse credibility finding despite the consistency and plausibility of the main basis of his claim.