Emannuel Lamptey v. ERIC H. HOLDER, Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable Robert W. Gettleman, United States District Judge for***
the Northern District of Illinois, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMANNUEL LAMPTEY,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 05-76386
Agency No. A095-615-631
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 2, 2010**
Pasadena, California
Before: KOZINSKI, Chief Judge, W. FLETCHER, Circuit Judge, and
GETTLEMAN, Senior District Judge.***
First, the BIA properly determined that Lamptey was ineligible for
adjustment of status under INA § 245(i), 8 U.S.C. § 1255(i) because his underlying
FILED
APR 09 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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visa petition was filed on October 14, 2003, long after the April 30, 2001, deadline
for establishing eligibility under the statute.
Second, Lamptey’s claim for equitable estoppel is unavailing. Lamptey
argues that DHS should be estopped from issuing a Notice to Appear against him
because his application for adjustment of status was improperly filed as a
consequence of his attorney’s reliance on misinformation from a Department of
Homeland Security (DHS) filing clerk. This claim fails because Lamptey did not
submit any evidence that the filing clerk engaged in affirmative misconduct. See
Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1184 (9th Cir. 2001)(en banc)(equitable
estoppel is available only where the government engages in “affirmative
misconduct,” which is defined “to mean a deliberate lie or a pattern of false
promises”).
Lastly, the BIA did not err in denying Lampty’s application for nunc pro
tunc permission to reapply for admission. The BIA has the authority to grant nunc
pro tunc permission to reapply for admission to the United States where such a
grant “will effect a complete disposition of the case.” Dragon v. INS, 748 F.2d
1304, 1306 n.2 (9th Cir. 1984); See Matter of Roman, 19 I&N Dec. 855 (BIA
1988). As discussed above, Lamptey was ineligible for adjustment of status under
section 1255(I), and as an alien who entered the United States without inspection

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he could not meet the prerequisites for adjustment under section 1255(a). Because
he would remain ineligible under INA § 212(a)(6)(A)(i), a grant of nunc pro tunc
permission would not result in complete disposition of Lamptey’s case.
PETITION FOR REVIEW DENIED.

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