Jose Luis Gutierrez v. Alberto R. Gonzales

1 Effective April 23, 2001, Spraker was suspended from the
practice of law for two years without automatic reinstatement. In
re Spraker, 744 N.E.2d 415 (Ind. 2001). As of the date of this
opinion, Spraker remains suspended.
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2011
J OSE L UIS G UTIERREZ ,
Petitioner,
v.
A LBERTO R. G ONZALES ,
Respondent.
____________
On Petition for Review of an Order
of the Board of Immigration Appeals.
No. A76-249-822
____________
A RGUED J ANUARY 13, 2006—D ECIDED A UGUST 16, 2006
____________
Before R IPPLE , K ANNE , and R OVNER , Circuit Judges.
K ANNE , Circuit Judge. Gary M. Spraker, an attorney,
engaged in a pattern of misconduct in immigration cases,
which, according to the Indiana Supreme Court Disciplinary
Commission, “tainted the representation of some 50 clients,
many of whom faced imminent legal consequences attaching
to their entitlement to stay in this country.” 1 Petitioner Jose
Luis Gutierrez was one of those so aggrieved when Spraker

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2 No. 05-2011
filed on his behalf a baseless application for adjustment of
status to that of a lawful permanent resident. The result of
the petition was that Gutierrez was outed as an illegal
immigrant and then ordered deported. Gutierrez now
petitions us for various forms of relief based upon his
argument that the government should be estopped from
acting on the basis of the information provided in
Gutierrez’s doomed application for permanent residency.
We deny the petition.
I. HISTORY
Around 1994, Gutierrez, who had entered the country
illegally in 1986, began hearing rumors of a new law
providing permanent residency to “aliens” who previously
could not obtain it. See 8 U.S.C. § 1101(a)(3). Like most
rumors, there was an element of truth to it. Prior to 1994,
aliens present in the United States could petition the
Attorney General for an adjustment of status to permanent
residency under 8 U.S.C. § 1255(a) if they met certain
criteria, one of which was being “eligible to receive an
immigrant visa and is admissible to the United States for
permanent residence.” But aliens here illegally like
Gutierrez were specifically prohibited by § 1255(c) from
making such a petition from within this country. Their only
recourse, assuming they met the other requirements of
§ 1255, was to return to their home country to apply
for permanent residency. See 8 U.S.C. § 1154(a)-(b).
In 1994, Congress temporarily removed the bar present in
§ 1255(c) by enacting § 1255(i),which allowed those
here illegally to apply for permanent residency from
within the United States, thereby relieving applicants of
the burden of returning first to their home country. But this
amendment did not do away with the other requirements of
§ 1255(a), which included being eligible to receive an
immigrant visa and being admissible for permanent

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No. 05-2011 3
residency. Like many of the aliens in this country illegally
in 1994, Gutierrez did not meet these other requirements.
Thus, the 1994 amendment removing the bar to applying
for permanent residency for those living in the country
illegally was of absolutely no benefit to Gutierrez and
others like him because they could not meet the section’s
other requirements.
Nevertheless, it is reasonable to assume, as Gutierrez
argues, that a “frenzy” was created in the immigrant
community by the 1994 amendment. Complex federal
statutes can give seasoned lawyers headaches, so it is no
wonder that even a limited liberalization of the applica-
tion procedures under § 1255 might filter its way down to
those not so well acquainted with the law as something
much greater than it really was. And any frenzy was
likely heightened by the fact that under the regulatory
scheme, applicants for adjustment under § 1255(a) were
routinely authorized to work legally under an employment
authorization document (“EAD”) while the application
was being processed. See 8 C.F.R. §§ 274a.12(c)(9),
274a.13(a)(1). Thus, upon filing an application under
§ 1255(a)—even applications like Gutierrez’s that would
never garner approval—the government would issue an
EAD for use while the application was being processed.
That kind of instant gratification would quite likely fuel
an application frenzy as illegal immigrants see their
peers being given authorization to work.
Attorneys like Spraker and other professionals benefitted
from this situation through either connivance or incompe-
tence. They charged fees to file baseless applications under
§ 1255(a) for immigrants like Gutierrez who were not
eligible for such relief. The result for the immigrants was a
much appreciated EAD, followed by a not-so-appreciated
Notice to Appear (“NTA”) for removal proceedings.
Gutierrez received his EAD in December of 1996, and his
NTA was dated April 21, 1998.

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4 No. 05-2011
After receiving the NTA, Gutierrez had no choice but to
appear before an immigration judge and concede that
he was removable as charged. His next step was to
move for cancellation of removal pursuant to 8 U.S.C.
§ 1229b(b),which allows the Attorney General to award
otherwise deportable persons permanent residency if
they meet certain requirements. Gutierrez requested
this relief because of the hardship his forced deportation
would have on his four U.S. citizen daughters (then ranging
in age from eight to eleven). We can assume that Gutierrez
met all the requirements but one: a sufficiently clean
criminal record, which eluded Gutierrez because of his
convictions for unlawful use of a weapon and battery. See 8
U.S.C. § 1229b(b). Thus, Gutierrez was not eligible to
petition for cancellation of removal. In this regard, it was
unfortunate for Gutierrez that the government did
not initiate removal proceedings before April 1, 1997, the
effective date of the changes in the immigration law that
made Gutierrez’s criminal record a bar to cancellation
of removal.
In 2000, the immigration judge continued Gutierrez’s
hearing to allow him to address his criminal convictions.
Gutierrez’s response was to abandon his attempt at cancel-
lation of removal and instead file a motion to terminate the
removal proceedings, which was denied by the immigration
judge. Because Gutierrez had no other basis upon which to
contest his deportation, the order denying the motion to
terminate also included an order that Gutierrez be de-
ported. The Board of Immigration Appeals affirmed without
opinion, and we are now left to decide whether the issues
Gutierrez raised in his motion to terminate, and reargued
before us, entitle him to any relief.
II. ANALYSIS
With this background in mind, we can summarize
Gutierrez’s argument on appeal: the government should

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No. 05-2011 5
be equitably estopped from deporting him because it
committed “affirmative misconduct” when it accepted his
obviously deficient application rather than returning it
unfiled without taking any notice of Gutierrez’s illegal
status. Moreover, the government then purposely waited to
initiate deportation proceedings until after April 1, 1997,
the date changes in the immigration law created a statutory
bar to Gutierrez’s petition for cancellation of removal. The
undeniable conclusion to be drawn, Gutierrez argues, is
that the government engaged in a conspiracy with attorneys
like Spraker to fish for information regarding illegal
immigrants and to wait to initiate deportation proceedings
until the new law made it impossible for aliens to contest
deportation.
Gutierrez admits that equitable estoppel is generally
not available to bar the government from enforcing the
laws. This concession, however, drastically understates the
difficulty he faces. The Supreme Court has never affirmed
a finding of estoppel against the government. And that is
not for lack of review. The Court, in fact, has “reversed
every finding of estoppel that [it has] reviewed.” Office of
Pers. Mgmt. v. Richmond, 496 U.S. 414, 422 (1990). As the
Court explained in Richmond, three of the most recent
(meaning within the last thirty years or so) of those were
summary reversals, a circumstance it admitted was
“unusual under any circumstances.” Id. Concerned that
it had not provided sufficient guidance to the courts of
appeals in this area of equitable estoppel against the
government, the Court took the opportunity in Richmond to
review its precedent. As should be clear from what we have
already said, that precedent is not favorable to Gutierrez.
Id. at 419-23. The Court also remarked, as it had before,
that the arguments made in that case for a blanket rule
that estoppel would never lie against the government were
“ ‘substantial.’ ” Id. at 423 (quoting Heckler v. Cmty. Health
Servs. of Crawford County, Inc., 467 U.S. 51, 60 (1984)).

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6 No. 05-2011
Nevertheless, the Court decided Richmond on grounds
other than estoppel, while leaving “for another day whether
an estoppel claim could ever succeed against the Govern-
ment.” Id. at 423.
Thus, the door may still be open to Gutierrez’s claim
of estoppel, but there is not enough in this record to
make the extraordinary finding that the government is
estopped from enforcing the immigration laws. Neither
party addresses the traditional elements of estoppel. See
Heckler, 467 U.S. at 60 (explaining that a “private party
surely cannot prevail [in asserting estoppel against the
government] without at least demonstrating that the
traditional elements of an estoppel are present”). Instead,
both Gutierrez and the government focus on whether the
government committed affirmative misconduct, which
would be necessary before the government could be
estopped from enforcing the law. Gibson v. West, 201 F.3d
990, 994 (7th Cir. 2000) (citation omitted); Mendoza-
Hernandez v. INS, 664 F.2d 635, 639 (7th Cir. 1981)
(citations omitted).
We can easily dispose of his argument that the timing
of his NTA amounts to affirmative misconduct. The time
between the filing of Gutierrez’s application (December
1996) and the change in the law making it impossible for
him to petition for cancellation of removal (April 1, 1997)
was at most four months. We are not sure that this can
accurately be described as a delay, given that at that
time there was what Gutierrez himself describes as a
“frenzy” of filings. In any event, it is an unexplained delay,
which quite clearly cannot form the basis of an estoppel
argument against the government. INS v. Miranda, 459
U.S. 14, 19 (1982) (“Proof only that the Government failed
to process promptly an application falls far short of estab-
lishing [affirmative misconduct].”).
We are also not swayed by Gutierrez’s core argument:
that the government committed affirmative misconduct

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No. 05-2011 7
2 The immigration judge also found that Gutierrez was not
entitled to relief under a line of cases requiring suppression of
evidence when the government violates a regulation designed to
safeguard individual interests because, among other reasons, the
regulations at issue here do not “serve a ‘purpose of benefit’ ” to
Gutierrez. See Lopez-Chavez v. Ashcroft, 383 F.3d 650, 654
(7th Cir. 2004) (explaining that certain administrative viola-
tions might require suppression) (citations omitted). Gutierrez
does not take issue with this aspect of the ruling. Instead, he
focuses his energies entirely on equitable estoppel.
when it used the information in Gutierrez’s obviously
deficient application to initiate removal proceedings against
him. Central to this argument is Gutierrez’s contention that
the government violated its own regulations, namely, 8
C.F.R. §§ 103.2(a)(7) and 245.2(a)(2)(i), by not immediately
returning his application. The immigration judge found that
there was no regulatory violation in the government’s
conduct because Gutierrez’s application did “not fall within
[the] category of applications that must be returned.” 2 We
reached the same conclusion under similar facts in Lopez-
Chavez v. Ashcroft, 383 F.3d 650, 654 (7th Cir. 2004), where
we explained that the applicable regulations only required
return of the applications submitted “simultaneously with
an immediate relative petition or a preference petition.” Id.
at 655. While Gutierrez’s application is not present in the
record, he has made clear that his application contained no
grounds for receiving a visa for permanent residency.
Therefore, his application was not one that fell within the
one circumstance requiring return. Moreover, there is no
dispute that Gutierrez’s application was one submitted by
mail. And as Lopez-Chavez again explains, the applicable
regulations and operating instructions “stated that applica-
tions received by mail for which visas were not available
were not to be returned to applicants.” Id. (emphasis in
original).

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8 No. 05-2011
3 Guttierez quotes the following language from that memo:
When a Service office has inadvertently processed the filing
fee for an application which did not meet the requirements for
(continued...)
The litigation in Ramos v. Chertoff, No. 02 C 8266 (N.D.
Ill. dismissed Aug. 12, 2005), also does not provide evi-
dence that the government violated the law in processing
Gutierrez’s application. The settlement agreement presum-
ably concluding that case, provided to us by Gutierrez,
includes the normal language noting that the government
denies any allegation it violated the law. Nor are we swayed
by Gutierrez’s argument that reading regula-
tions § 103.2(a)(7) and § 245.2(a)(2)(i) together shows a
regulatory violation. As the immigration judge found, those
regulations are at best silent on what to do with applica-
tions like Gutierrez’s that did not have a visa immediately
available. It may have been better policy for the government
to return applications that clearly would never get ap-
proved, and it may not have been, but Gutierrez has simply
not shown us any law or rule the government violated in
processing his application.
The additional information provided by Gutierrez in
his reply brief, not present in the record below and con-
sidered only for the sake of argument, does not change
our conclusion. Admittedly, that evidence includes a
memorandum written by an official from what was the
Chicago District Office of the INS indicating that applica-
tions like Gutierrez’s should have been considered
“rejectable,” and therefore returned, instead of being
considered “deniable,” in which case the application would
be kept and processed. But this one-page memorandum
written in outline format does not have the force of law, nor
does the memorandum from an INS official, which, in any
event, simply states that applications like Gutierrez’s
should not be denied. 3 It is true that his application was

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No. 05-2011 9
3 (...continued)
proper filing, e.g., as when a required immigrant visa is not
immediately available and cannot become available by the
approval of a pending visa petition, OI 245.2(a) prescribes
that the application will not be formally denied; rather, the
applicant is notified of the reason why the application is
ineligible for filing, and is advised that a refund request is
being processed.
eventually denied, but that does not mean the govern-
ment violated a law when it initiated deportation pro-
ceedings against Gutierrez based on the information in
his application. This evidence, which includes some dep-
osition testimony, shows that it might have been the
Chicago District Office and the INS’s policy to return
obviously deficient applications like Gutierrez’s. But what
this evidence does not show is that the law required it.
This brings us to the fundamental reason we are rejecting
Gutierrez’s estoppel argument: The government’s conduct
of acting on information provided voluntarily to it indicating
a violation of the immigration laws cannot constitute the
type of egregious affirmative misconduct necessary to
justify the extraordinary remedy of estoppel. This is so even
if there was a technical regulatory violation in the process-
ing of Gutierrez’s application. If there was any support
whatsoever for the hyperbolic charge that the government
was affirmatively engaged in a conspiracy to lure illegal
immigrants into a trap while lining the pockets of shysters
like Spraker, then we might be more inclined to consider
estoppel. But there is nothing in this record to support such
a charge.
The worst that we can infer from this case is that the
government, in response to what it saw as a flood of
frivolous applications, decided to use the information be-
ing provided to it to initiate deportation proceedings. It
might be said that in this situation the government should

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10 No. 05-2011
have realized that people like Gutierrez were really victims
of attorneys like Spraker. But there is no evidence the
government came to that conclusion, and even if it had, it
does not follow that equity would demand the government
be estopped from deporting those who are here without
legal permission. Equity, after all, includes the venerable
doctrine that “he who comes into equity must come with
clean hands.” Precision Instrument Mfg. Co. v. Auto. Maint.
Mach. Co., 324 U.S. 806, 814 (1945) (quotation omitted).
While the government has not raised the issue of “unclean
hands,” the undisputed fact that Gutierrez is in violation of
the law is at least relevant to our determination of whether
the government committed affirmative misconduct in
finding out about him. Equity would not be served, in our
view, to estop the government from enforcing knowing
violations of the law when it gets proof in the mail.
Whatever the burden might be in demonstrating estoppel
against the government, it cannot be met by only show-
ing that the government intentionally designed to act on
information voluntarily provided to it indicating a viola-
tion of the law. Because we find that estoppel does not lie in
this case, we need not consider Gutierrez’s various requests
for relief. Accordingly, Gutierrez’s petition for review is
D ENIED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-16-06

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