Jesus Almonte-Vasquez v. Eric Holder, Jr. , 576 F. App'x 382 ( 2014 )

Case: 13-60716 Document: 00512720893 Page: 1 Date Filed: 08/04/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-60716 July 29, 2014
Summary Calendar
Lyle W. Cayce
Clerk
JESUS BIENVENIDO ALMONTE-VASQUEZ, also known as Jose Armonte,
also known as Jesos Almonte, also known as Jose Almonte,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A030 977 618
Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM: *
Jesus Bienvenido Almonte-Vasquez, proceeding pro se and in forma
pauperis, petitions for review of the Board of Immigration Appeals’ (BIA)
affirming an order of removal by an immigration judge and dismissing
Almonte’s appeal. Almonte, who entered the United States in July 1973 as a
lawful permanent resident, was ordered removed based on his conviction of an
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
Case: 13-60716 Document: 00512720893 Page: 2 Date Filed: 08/04/2014
No. 13-60716
aggravated felony: conspiracy to possess, with intent to distribute, cocaine and
marijuana, in violation of 21 U.S.C. §§ 841(a) and 846. See 8 U.S.C.
§ 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any
time after admission is deportable.”). The BIA also rejected Almonte’s
contention that the Government should be equitably estopped from deporting
him because the former Immigration and Naturalization Service (INS) violated
his due process rights by mishandling and, later, terminating his 1981
application for naturalization.
Almonte does not challenge the BIA’s determination that his drug
conspiracy conviction is an aggravated felony. Because he is removable on that
basis, we have jurisdiction only to review constitutional claims or questions of
law. See 8 U.S.C. § 1252(a)(2)(C), (D).
Almonte contends the INS committed affirmative misconduct by failing
to notify him of the time, date, and place to appear in connection with his
naturalization application. He further contends the INS failed to comply with
regulations governing the processing of applications for naturalization,
primarily by taking several years to process his application. Finally, he asserts
the INS improperly terminated his application.
On petition for review of a BIA decision, we review factual findings for
substantial evidence and questions of law de novo. E.g., Lopez-Gomez v.
Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). Whether the Government should
be estopped from bringing a removal proceeding constitutes a question of law,
reviewed de novo. See Andrade v. Gonzales, 459 F.3d 538, 542 (5th Cir. 2006).
“Courts have been exceedingly reluctant to grant equitable estoppel
against the government.” Robertson-Dewar v. Holder, 646 F.3d 226, 229 (5th
Cir. 2011). The remedy of equitable estoppel, if it is available, requires a
showing of, inter alia, affirmative misconduct on the part of the Government.
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No. 13-60716
Id. “Affirmative misconduct requires an affirmative misrepresentation or
affirmative concealment of a material fact by the government.” Id. at 229–30
(quoting Linkous v. United States, 142 F.3d 271, 278 (5th Cir. 1998)).
Almonte’s contentions, at most, amount to allegations of delay, inaction,
and negligence on the part of the INS in handling his application for
naturalization. Such action or inaction, however, does not constitute the
requisite affirmative misconduct. See id. at 229.
DENIED.
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