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                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-14511
                            Non-Argument Calendar
                          ________________________

                           Agency No. A090-957-775

JOSE MIGUEL MISPIRETA-CASTRO,

                                                                        Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                       Respondent.
                         ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                           ________________________

                                (April 28, 2014)

Before HULL, MARCUS and FAY, Circuit Judges.

PER CURIAM:

      Jose Miguel Mispireta-Castro, a native and citizen of Peru, seeks review of

the Board of Immigration Appeals’s (“BIA”) decision affirming the Immigration

Judge’s (“IJ”) denial of his motions to terminate proceedings and his application
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for a waiver of inadmissibility under the former Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1182(c) (“§ 212(c) waiver”). On appeal, Mispireta-Castro

argues that: (1) his removal proceedings were invalid because the Department of

Homeland Security (“DHS”) failed to rescind his lawful permanent resident

(“LPR”) status prior to placing him in removal proceedings, as required by 8

C.F.R. §§ 245a.3(o), 246.1, and 246.3; (2) the five-year statute of limitations in 8

U.S.C. § 1256 barred the government from placing him in removal proceedings

based on a purported lack of eligibility for adjustment of status; and (3) equitable

estoppel precluded his removal because the IJ and BIA erroneously concluded that

he had never been an LPR. After thorough review, we deny the petition.

      We review only the BIA’s decision, except to the extent it expressly adopts

the IJ’s opinion. Al Najjar v. Ashcroft, 

, 1284 (11th Cir. 2001). We

review questions of law de novo. De Sandoval v. U.S. Att’y Gen., 

,

1278 (11th Cir. 2006). Whether equitable estoppel applies is a legal question we

review de novo. Tovar-Alvarez v. U.S. Att’y Gen., 

, 1353 (11th Cir.

2005). Under the prior precedent rule, we must follow prior binding precedents

unless they are overruled by the Supreme Court or this Court en banc. United

States v. Vega-Castillo, 

, 1236 (11th Cir. 2008).

      First, we are unpersuaded by Mispireta-Castro’s claim that DHS was

required to rescind his LPR status prior to placing him in removal proceedings, and

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failed to do so. The provision of the INA that governs the adjustment of status of

certain aliens who entered the United States before 1982 was 8 U.S.C. § 1255a.

Under this section, the Attorney General was required to adjust an alien’s status to

that of a temporary resident if he met certain requirements, including that he be

“admissible to the United States as an immigrant.” 8 U.S.C. § 1255a(a)(4)(A).

The temporary resident’s status was then required to be adjusted to that of an alien

lawfully admitted for permanent residence if he met certain requirements,

including that he be “admissible to the United States as an immigrant” and not

convicted of any felony in the United States. 8 U.S.C. § 1255a(b)(1)(C)(i)-(ii).

“Rescission of adjustment of status under [8 U.S.C. § 1255a] shall occur under the

guidelines established in [8 U.S.C. § 1256].” 8 C.F.R. § 245a.3(o).

      Under 8 U.S.C. § 1256(a),

      [i]f, at any time within five years after the status of a person has been
      otherwise adjusted under [§ 1255]. . . or any other provision of law to that of
      an alien lawfully admitted for permanent residence, it shall appear to the
      satisfaction of the Attorney General that the person was not in fact eligible
      for such adjustment of status, the Attorney General shall rescind the action
      taken granting an adjustment of status to such person and cancelling removal
      in the case of such person if that occurred and the person shall thereupon be
      subject to all provisions of this chapter to the same extent as if the
      adjustment of status had not been made. Nothing in this subsection shall
      require the Attorney General to rescind the alien’s status prior to
      commencement of procedures to remove the alien under [§] 1229a of this
      title, and an order of removal issued by an [IJ] shall be sufficient to rescind
      the alien’s status.



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The regulations set forth the procedure for rescission proceedings brought pursuant

to § 1256(a). See 8 C.F.R. Part 246. In Alhuay v. U.S. Att’y Gen., we considered

whether the five-year statute of limitations in § 1256(a) applied to both rescission

and removal proceedings. 

, 543-46 (11th Cir. 2011). We noted that

the last sentence of § 1256(a) drew a clear line between rescission and removal,

and “unequivocally permits the Attorney General to remove an alien without first

rescinding [his] status.” 

      Here, the BIA did not err in concluding that the IJ had jurisdiction over

Mispireta-Castro’s case even though the DHS did not first rescind his permanent

resident status. Section 1256(a) undisputedly applies to Mispireta-Castro even

though his status was adjusted pursuant to § 1255a, not § 1255. See 8 U.S.C. §

1256(a) (indicating that it applied to any person who adjusted their status under §§

1255 or 1259 or “any other provision of law to that of an alien lawfully admitted

for permanent residence”); 8 C.F.R. § 245a.3(o). As we acknowledged in Alhuay,

the last sentence of § 1256(a) clearly provides that the DHS did not have to rescind

Mispireta-Castro’s permanent resident status prior to the initiation of removal

proceedings. 8 U.S.C. § 1256(a); 

. The fact that the

regulations set forth a procedure for rescission proceedings does not mean that

DHS must first conduct such proceedings before initiating removal proceedings.



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      We likewise find no merit to Mispireta-Castro’s claim that the five-year

statute of limitations in 8 U.S.C. § 1256 barred the government from placing him

in removal proceedings. In Alhuay, we joined the Fourth, Sixth, Eighth, and Ninth

Circuit in holding that § 1256(a) did not bar the government from removing an

alien merely because that alien’s status was erroneously adjusted to that of a

permanent resident more than five years 

. We noted

that the first sentence of the provision, which contained the five-year limitation,

merely mandated the rescission of adjustment of status for individuals who fell

within the prescribed category, but said nothing about beginning removal

proceedings or DHS’s power to remove any alien.          

   Again, the

provision’s last sentence supported the conclusion that the five-year statute of

limitations did not apply to removal proceedings because it drew a clear line

between rescission and removal proceedings. 

here, the BIA did not err in concluding that Mispireta-Castro’s

removal proceedings were not barred by the statute of limitations. Pursuant to

Alhuay, the five-year statute of limitations in § 1256 does not apply to removal

. Because neither this Court sitting en banc nor

the Supreme Court has overruled Alhuay, we are bound to follow its holding. See

.



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      Finally, we reject Mispireta-Castro’s claim that equitable estoppel precluded

his removal. Neither this Court nor the Supreme Court has definitively held that

the doctrine of equitable estoppel is applicable to immigration proceedings. See

Savoury v. U.S. Att’y Gen., 

, 1318-19 (11th Cir. 2006) (noting that

“it is far from clear that the doctrine of equitable estoppel may be applied against a

government agency,” and pointing out that the Supreme Court has, in several

immigration cases, specifically declined to apply estoppel against the government).

But assuming that equitable estoppel can be applied in an immigration case, a

petitioner must establish three elements in order to invoke it: “(1) words, conduct,

or acquiescence that induces reliance; (2) willfulness or negligence with regard to

the acts, conduct, or acquiescence; [and] (3) detrimental reliance.” 

(quotation omitted).      In addition, the petitioner must demonstrate that the

government engaged in affirmative misconduct -- a showing of negligence or mere

inaction is insufficient. 

we held that an alien whose status was erroneously adjusted to

that of a permanent resident because he had a prior criminal conviction that

rendered him inadmissible at the time of adjustment of status had never been

lawfully admitted to the United States for permanent residence, and thus, was not

statutorily eligible for a § 212(c) waiver. 

1317. We further determined

that, even if equitable estoppel applied in immigration proceedings, Savoury could

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not establish the elements of such a claim. 

. Savoury had not shown

that his adjustment of status was due to affirmative misconduct even though he told

the immigration officer at his adjustment interview about his pending drug charges

and, after he was convicted, but before he was granted adjustment of status,

submitted his conviction records. 

1319. He also could not show

detrimental reliance because he had received a benefit from the government’s

earlier mistake in granting him adjustment of status, rather than suffering a

detriment. 

.

      As an initial matter, Mispireta-Castro’s argument that the IJ and BIA

erroneously determined that he had never been an LPR is meritless. The fact that

his status was adjusted to that of a temporary resident does not mean that his status

was subsequently lawfully adjusted to that of a permanent resident. See 8 U.S.C. §

1255a(b)(1)(C) (providing that the Attorney General shall adjust the status of an

alien lawfully provided temporary resident status to that of a permanent resident if,

among other things, he is admissible to the United States and has not been

convicted of a felony in the United States). Based on his 1989 delivery of cocaine

conviction, Mispireta-Castro did not meet these requirements at the time of his

1992 adjustment of status. Id.; see 8 U.S.C. § 1182(a)(2)(A)(i)(II). Because

Mispireta-Castro was not statutorily eligible for adjustment of status at the time it



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was granted, he had never been lawfully admitted for permanent residence. See

.

      Even assuming that equitable estoppel can be applied against the

government in an immigration proceeding, Mispireta-Castro has failed to establish

the elements of an estoppel claim. First, he has not shown that government’s

initial decision to adjust his status to that of a permanent resident was due to

affirmative misconduct, rather than to inaction or negligence. See 

1319. In addition, Mispireta-Castro did not suffer any legal detriment as a result of

the government’s decision to admit him into the United States. See 

Thus, Mispireta-Castro’s equitable estoppel claim fails.

      PETITION DENIED.




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