Rosita Mahabir v. JOHN ASHCROFT, Attorney General

United States Court of Appeals
For the First Circuit
No. 03-1059
ROSITA MAHABIR, ET AL.,
Petitioner,
v.
JOHN ASHCROFT, Attorney General,
Respondent.
PETITION FOR REVIEW OF THE FINAL ORDER OF REMOVAL
BY THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Lynch, and Lipez, Circuit Judges.
Jose A. Espinosa on brief for petitioner.
Paul Fiorino, Attorney, Office of Immigration Litigation,
Department of Justice, Peter D. Keisler, Assistant Attorney
General, Civil Division, and Richard M. Evans, Assistant Director,
on brief for respondent.
October 22, 2004

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LYNCH, Circuit Judge. Petitioner Rosita Mahabir, a
citizen of Trinidad and Tobago, entered the United States on June
13, 1989 on a visitor's visa. She later obtained an employment
visa through a sponsoring employer, Anna Zarren, for whom Mahabir
worked as a home attendant from January 1990 to November 1997.
Through Zarren, in late 1995 Mahabir applied for adjustment of
status to that of lawful permanent resident. Mahabir was then
eligible to apply because she was currently employed pursuant to an
employment visa. See 8 U.S.C. § 1255(a). Because of a mixup at
the Immigration and Naturalization Service (INS) with her
paperwork, her application was not acted upon for years, and in the
intervening time her sponsoring employer died.
Upon learning of Zarren's death, the INS on October 28,
1999, denied Mahabir's application for adjustment of status and
issued her a notice to appear on November 3, 1999, charging her
with being removable from the United States. The INS reasoned that
the death of her sponsoring employer automatically invalidated her
employment visa, and so she was no longer eligible for adjustment
of status. See 8 C.F.R. § 1205.1(a)(3)(iii)(B); see also 8 U.S.C.
§ 1255(a).
At her removal hearing before the Immigration Judge (IJ),
Mahabir's counsel moved to terminate the removal proceedings and
asked the IJ to adjudicate her claim for adjustment of status nunc
pro tunc. "Nunc pro tunc," which means "now for then," applies to

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actions taken by a court through its inherent legal power after the
time in which the actions should have been taken, with retroactive
effect. See Black's Law Dictionary 1100 (8th ed. 2004).
On November 28, 2000, the IJ found that, although the
delay in adjudicating Mahabir's adjustment of status was the fault
of the INS, the death of her sponsoring employer prior to the
adjudication of her petition automatically revoked her employment
visa under 8 C.F.R. § 1205.1(a)(3)(iii)(B). That regulation
provides:
(a) Reasons for automatic revocation. The
approval of a petition or self-petition made
under section 204 of the Act and in accordance
with part 204 of 8 CFR chapter I is revoked as
of the date of approval:
. . .
(3) If any of the following circumstances
occur . . . before the decision on
[petitioner's] adjustment application becomes
final:
. . .
(iii) Petitions under section 203(b), other
than special immigrant juvenile petitions.
. . .
(B) Upon the death of the petitioner or
beneficiary.
Id. This, the IJ reasoned, left the IJ without power to grant the
requested relief. She thus pretermitted the petitioner's
application for adjustment of status and granted her voluntary
departure from the United States.
Mahabir appealed to the Board of Immigration Appeals
(BIA), arguing that the BIA should show compassion and exercise
"independent judgment and discretion." Id. § 1003.1(d)(1)(ii).

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She referred to the BIA's "inherent authority" to do equity. The
BIA affirmed the decision of the IJ in whole on December 13, 2002
in a simple order, adding only: "Neither this Board nor the
Immigration Judges have the authority to grant relief nunc pro
tunc."
Mahabir filed a motion requesting that the BIA reconsider
its decision. For the first time she raised the argument that she
was entitled to equitable tolling from the effects of the INS's
unreasonable delay in processing her application for adjustment of
status. The BIA denied the motion to reconsider, stating:
The respondents request that this Board reopen
proceedings sua sponte to avoid manifest
injustice or exercise jurisdiction on the
basis of equitable tolling. While this Board
has power to reopen or reconsider cases sua
sponte in exceptional circumstances, sua
sponte reopening is not meant to cure filing
defects or circumvent the regulations, where
enforcing them might result in hardship.
Matter of J-J-, 21 I&N Dec. 976 (BIA 1997).
Although we are sympathetic to the
respondents' situation, neither this Board nor
the Immigration Judge has any authority to
grant the respondents' application for
adjustment of status after the lead
respondent's approved visa petition was
automatically revoked by the death of the
petitioner pursuant to 8 C.F.R.
§ 1205.1(a)(3)(iii)(B). Matter of United
Airlines Flight UA802, 22 I&N Dec. 777 (BIA
1999) (stating that our jurisdiction is
defined by regulation and that we have no
jurisdiction unless it is affirmatively
granted by the regulations). Unlike the
provisions regarding immediate relative and
family sponsored petitions at 8 C.F.R.
§ 1205.1(a)(3)(i)(C), which provides the
Attorney General with discretion regarding

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revocation of a visa petition upon the death
of a petitioner, the regulations relating to
employment visa petitions do not provide any
discretion regarding revocation when the
petitioner dies. Therefore, we do not think
that sua sponte reopening is warranted in the
instant case. Id. We further find that the
doctrine of equitable tolling does not apply
to the instant case. David v. Hall, 318 F.3d
343, 345 (1st Cir. 2003) (stating that
"equitable tolling" does not apply where the
statute of limitation is jurisdictional). As
we are denying the respondents' motion, we
will deny the respondents' motion to stay
removal.
Mahabir timely appealed from the initial BIA affirmance of the IJ's
decision, and did not appeal the denial of reconsideration. We now
affirm the initial December 13, 2002 BIA order.
I.
We summarize the evidence presented by Mahabir at her
removal proceedings.
Mahabir came to the United States from Trinidad and
Tobago in 1989 on a visitor's visa. Soon after her arrival, she
began working as a home attendant for an elderly woman, Anna
Zarren. In January of 1990, Zarren filed an Application for Alien
Employment Certification on behalf of Mahabir, which was approved
by the Department of Labor on January 24, 1990. Zarren then filed
for an employment visa for Mahabir, which was approved on April 8,

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1 This appeal includes the claims of Mahabir's three
children, Larry, Marsha, and Gershia. The children arrived in the
United States on June 15, 1993 as non-immigrant visitors for
pleasure with permission to remain for six months. They have
remained in the country since that time. Their request for relief
is completely dependent upon Mahabir being granted adjustment of
status to that of lawful permanent resident. Thus, while the
opinion will refer exclusively to Mahabir, the disposition of the
case will apply to the children's claims as well.
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1991, effective the date of employment certification, January 24,
1990.1
Although Mahabir became eligible to apply for adjustment
of status to that of lawful permanent resident immediately upon the
approval of her employment visa, 8 C.F.R. § 1245.2, she did not
apply for adjustment of status until November 1995, some four and
a half years later. In early 1996, Mahabir had an interview with
INS officials concerning her adjustment of status. Soon after the
interview, on March 6, 1996, the INS requested documentation from
Zarren concerning Mahabir's continued employment. Counsel sent the
documentation to the INS; it was received on June 4, 1996. Mahabir
heard nothing from the INS until April 11, 1997, when the INS sent
her a letter indicating that it had not received the requested
information from Zarren, and so her petition for adjustment of
status had been terminated due to lack of prosecution. This was
not correct: the INS had received the documents. Three days later,
Zarren's counsel resent the requested information, along with proof
that the information had been sent the previous June and had been

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received by the INS, and requested that the INS act upon her
petition.
In November 1997, Zarren passed away. In October 1998,
the INS, responding to requests by Mahabir's new counsel that it
act upon her petition, replied that the materials it requested had
still not made it to her file. Mahabir's counsel resent the
information, again explaining that it had already been sent and
received twice by the INS. Counsel also apparently informed the
INS that Zarren had passed away. In October 1999, the INS notified
Mahabir that her application for adjustment of status was denied
because the death of her sponsoring employer automatically
terminated her employment visa, 8 C.F.R. § 1205.1(a)(3)(iii)(B),
rendering her ineligible for adjustment of status under 8 U.S.C.
§ 1255(a). The INS further issued Mahabir a notice to appear for
removal proceedings. The subsequent procedural history before the
agency is recounted above.
II.
On appeal, Mahabir argues that the BIA abused its
discretion by not applying the doctrine of equitable tolling as a
basis to hear her application for an adjustment of status,
regardless of the change in eligibility based on the death of her
sponsor. Further, Mahabir argues that the INS engaged in
affirmative acts of misconduct and bad faith that should estop it
from being able to deny her request for equitable relief.

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Concerned about the equities of this matter, we requested
and received helpful additional briefing from both sides on whether
the doctrine of equitable tolling was available to Mahabir.
As the respondent correctly points out, the issues of
whether the automatic revocation of an employment visa under 8
C.F.R. § 1205.1(a)(3)(iii)(B) is subject to equitable tolling and
whether the agency is equitably estopped in these circumstances
were not preserved by presenting them first to the IJ and BIA. See
Mendes v. INS, 197 F.3d 6, 12 (1st Cir. 1999). Petitioners are
required to exhaust their remedies before the agency and we do not
hear arguments ab initio. Bernal-Vallejo v. INS, 195 F.3d 56, 64
(1st Cir. 1999). While Mahabir made a general plea to the IJ and
in her appeal to the BIA to grant her equitable relief, she did not
raise the claim that equitable tolling should apply until her
motion to reconsider (which is not before us), and did not raise
the claim that equitable estoppel should apply until this appeal.
Both of these arguments were available to Mahabir but were not
articulated or briefed earlier.
We review the BIA's determination that Mahabir was not
eligible for adjustment of status for abuse of discretion. See
Afful v. Ashcroft, 380 F.3d 1, 8 (1st Cir. 2004). The respondent's
position, helpfully clarified in its supplemental filing, is that
it may entertain applications for adjustment of status only when it
has been authorized to do so by regulation. It has authority to do

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so in the case of an alien whose application is based on present
employment status sponsored by an employer. Nonetheless, under 8
C.F.R. § 1205.1(a)(3)(iii)(B), the BIA may not waive the
requirement of a living sponsor for a visa petition. This is in
marked contrast to the authority given in 8 C.F.R.
§ 1205.1(a)(3)(i)(C), which provides "humanitarian" discretion in
the Attorney General to grant an adjustment upon the death of a
relative where the petition for adjustment is based on relative
status. This means, argues respondent, that the situation of
someone in petitioner's position was considered in the regulations,
a deliberate distinction was drawn, and the decision was made not
to permit humanitarian concerns to alter the eligibility rule in
the situation of employment-based petitions. Such a decision is
not arbitrary, particularly given the deference agencies are
granted in the interpretation of their own rules.
We also cannot say it is an abuse of discretion for the
BIA to have failed to grant relief on grounds which were not argued
to it--equitable estoppel and equitable tolling--nor is there any
possible claim of arbitrariness arising out of inconsistency. See
INS v. Miranda, 459 U.S. 14, 18 (1982) (holding that INS delay in
processing application for adjustment of status, even if negligent,
does not prevent it from denying application of petitioner who
becomes statutorily ineligible during period of delay); Matter of
Hernandez-Puente, 20 I. & N. Dec. 335 (BIA 1991) (holding that,

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despite INS mistakes resulting in the failure of petitioner to
obtain visa, the INS has no authority to grant adjustment of status
nunc pro tunc).
We add one brief note. There are certainly inequities in
this situation, raising sympathy for Mahabir. On the other side,
it is far from clear that, even had the INS properly processed the
requested information it received on June 4, 1996, it would have
adjudicated her case before Zarren's death in November 1997.
Further, the grant of adjustment of status is entirely within the
discretion of the Attorney General. See 8 U.S.C. § 1255(a) ("The
status of an alien who was inspected and admitted or paroled into
the United States may be adjusted by the Attorney General, in his
discretion and under such regulations as he may prescribe, to that
of an alien lawfully admitted for permanent residence if . . . ."
(emphasis added)). There is no guarantee that had Mahabir's
petition been adjudicated before Zarren's death, she would have
been granted the status requested. Also, the INS's initial
decision on October 28, 1999 informed Mahabir that she could renew
her application for adjustment of status in her deportation
proceeding. This would have required obtaining a valid visa,
either through a new labor certification and subsequent employment
visa, or in some other fashion. Apparently Mahabir elected not to
do so, relying instead on the INS to grant her equitable relief
from its normal rules. It has now been almost seven years since

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the death of Mahabir's sponsor, and five years since the INS denied
her application for adjustment of status based on her lack of a
valid visa, and Mahabir has not secured a new employment-based
visa.
Accordingly, we affirm the decision of the BIA.

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