Sally George v. United States , 694 F. App'x 600 ( 2017 )

FILED
NOT FOR PUBLICATION
AUG 02 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALLY GEORGE; et al., No. 15-56684
Plaintiffs-Appellants, D.C. No.
8:14-cv-01382-PSG-JPR
v.
UNITED STATES OF AMERICA; MEMORANDUM*
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued June 8, 2017; Resubmitted July 25, 2017
Pasadena, California
Before: GRABER and MURGUIA, Circuit Judges, and BOLTON,** District
Judge.
Plaintiff Sally George, an Indian national and a nurse, on behalf of herself
and her immediate family, challenges the 2014 revocation of the 2002 approval of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
her Form I-140 Petition for Alien Worker. We have jurisdiction over this timely
appeal, Herrera v. U.S. Citizenship & Immigration Servs., 571 F.3d 881, 885 (9th
Cir. 2009), and we affirm the summary judgment in favor of the government.
1. Plaintiff’s employer filed her Form I-140 petition on May 9, 2002. This
served as her "priority date." 8 C.F.R. § 204.5(d). As relevant here, the petition
had to be accompanied by an "application for Schedule A designation," id.§ 204.5(a)(2), which in turn required (among other things) either an unrestricted
license to practice nursing where Plaintiff was employed or proof that Plaintiff had
passed a particular nursing examination, 20 C.F.R. § 656.5(a)(2). Plaintiff did not
receive the necessary license until 2003 and did not submit any evidence that she
had passed the examination before May 9, 2002. Nevertheless, USCIS approved
the petition on December 6, 2002.
Whatever our standard of review, the government did not err by revoking the
2002 approval. The approval was given in error because a petitioner must establish
eligibility for the I-140 at the time of filing. 8 C.F.R. § 103.2(b)(1). Plaintiff did
not demonstrate eligibility as of May 9, 2002. Approval of a petition may be
revoked "at any time" for what the Secretary of Homeland Security "deems to be
good and sufficient cause." 8 U.S.C. § 1155. Failure to demonstrate eligibility as
of the filing date is such a cause. Herrera, 571 F.3d at 886.
2
2. Equitable estoppel does not apply. "The doctrine of equitable estoppel
applies against the government only if it engages in affirmative misconduct going
beyond mere negligence." Sulit v. Schiltgen, 213 F.3d 449, 454 (9th Cir. 2000).
Neither negligence nor a failure to inform an alien of her legal rights constitutes
affirmative misconduct. Id.; accord Socop-Gonzalez v. INS, 272 F.3d 1176, 1184
(9th Cir. 2001) (en banc).1 The record contains no affirmative statement from the
government confirming the validity of Plaintiff’s I-140 after its negligent approval,
nor any affirmative statement from the government assuring Plaintiff that she need
not petition anew after acquiring the required credentials.
AFFIRMED.
1
Watkins v. United States Army, 875 F.2d 699, 701–02 (9th Cir. 1989) (en
banc), on which Plaintiff relies, is distinguishable. For example, there, Watkins
made clear that he was not qualified to reenlist, but the Army reenlisted him
anyway; here, Plaintiff claimed that she was qualified.
3