Bolivar Dexta v. Eric Holder, Jr. ( 2014 )

Case: 13-60815 Document: 00512770763 Page: 1 Date Filed: 09/16/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60815
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
September 16, 2014
BOLIVAR ENRIQUE DEXTA, also known as Bolivar Dexta,
Lyle W. Cayce
Clerk
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. A044 641 763
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
Bolivar Enrique Dexta petitions for review of an order of the Board of
Immigration Appeals (BIA) dismissing his appeal from an Immigration Judge’s
(IJ) order of removal. Dexta entered the United States as a lawful permanent
resident in 1994 and was ordered removed after having been convicted of an
aggravated felony. In its order dismissing Dexta’s appeal, the BIA rejected
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-60815
Dexta’s assertion that the Government should be equitably estopped from
removing him.
Dexta asserts that the Department of Homeland Security (DHS)
committed affirmative misconduct by failing to warn him that he could be
removed for an aggravated felony conviction despite his status as a lawful
permanent resident. He contends that this failure to warn him prevented him
from seeking naturalization and argues that he is entitled to equitable estoppel
of his removal. Dexta does not challenge the determination that his federal
drug conspiracy conviction is an aggravated felony. Thus, the issue is
abandoned. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
On petition for review of a BIA decision, this court reviews factual
findings for substantial evidence and questions of law de novo. 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
that is reviewed de novo. Robertson-Dewar v. Holder, 646 F.3d 226, 229 (5th
Cir. 2011).
Even assuming arguendo that equitable estoppel is a viable argument in
these types of cases, 1 Dexta fails to show that the Government affirmatively
misrepresented a fact or affirmatively concealed a fact. See id. The statute
providing for removal of an alien based on an aggravated felony conviction is
available to the public and was not concealed by the Government. See 8 U.S.C.
§ 1227(a)(2)(A)(iii). Additionally, Dexta points to no affirmative duty by DHS
to inform him of the possibility of removal based on an aggravated felony
conviction. 2
1In Robertson-Dewar, we noted that “we are not called upon to decide whether a court
can ever grant equitable estoppel against the government.” Id. The same is true here.
2 Dexta relies upon the Second Circuit’s decision in Corniel-Rodriguez v. INS, 532
F.2d 301 (2d Cir. 1976), for the proposition that a failure to warn of matters that can impact
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No. 13-60815
Because Dexta has not established that the Government engaged in
affirmative misconduct, he could not possibly be entitled to equitable estoppel.
See Robertson-Dewar, 646 F.3d at 229-30. The petition for review is DENIED.
immigration status supports estoppel against the government. The Second Circuit itself has
explained that “[t]he doctrine of equitable estoppel against the government has narrowed
substantially since Corniel-Rodriguez.” Ahmed v. Holder, 624 F.3d 150, 155 (2d Cir. 2010).
Further, Corniel-Rodriguez involved a situation where there was a State Department
regulation requiring a specific warning that was not given. 532 F.3d at 303-04. Here, Dexta
points to no such requirement. Finally, Corniel-Rodriguez involved a change in status
stemming from an “innocent violation of the [immigration] Act” in the form of the petitioner
marrying her high school sweetheart (therefore rendering her ineligible for a status involving
only unmarried people). Id. at 306. Her case is nothing like Dexta’s, whose act of distributing
methamphetamine can hardly be termed “innocent.” Whatever its continuing viability,
Corniel-Rodriguez is wholly inapposite to this case.
3