Hing Sum v. Holder

Marie Kayal and Martin Avila Robles, Immigration Practice Group, San Francisco, CA, for the petitioner.

Blair O'Connor, United States Department of Justice, Civil Division/Office of Immigration Litigation, Washington, D.C., for the respondent.

Before J. CLIFFORD WALLACE, SUSAN P. GRABER, and M. MARGARET McKEOWN, Circuit Judges.

Opinion by Judge MCKEOWN; Concurrence by Judge GRABER.

McKEOWN, Circuit Judge:

We consider a non-citizen's eligibility for a waiver of inadmissibility under § 212(h) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182 (h), where he has been convicted of an aggravated felony after his admission for permanent residence. Section 212(h), also referred to as the "§ 212(h) waiver" or "§ 212(h) relief," expressly bars from relief a non-citizen who has "previously been admitted to the United States as an alien lawfully admitted for permanent residence" and later is convicted of an aggravated felony. Id. Yin Hing Sum, a native of Hong Kong and citizen of China, was denied a § 212(h) waiver because he was convicted of a qualifying offense after his admission as a lawful permanent resident ("LPR").

Sum advances a curious position on appeal: namely,…

Opinion by Judge MCKEOWN; Concurrence by Judge GRABER.

We consider a non-citizen’s eligibility for a waiver of inadmissibility under § 212(h) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182 (h), where he has been convicted of an aggravated felony after his admission for permanent residence. Section 212(h), also referred to as the “ § 212(h) waiver” or “ § 212(h) relief,” expressly bars from relief a non-citizen who has “previously been admitted to the United States as an alien lawfully admitted for permanent residence” and later is convicted of an aggravated felony. Id. Yin Hing Sum, a native of Hong Kong and citizen of China, was denied a § 212(h) waiver because he was convicted of a qualifying offense after his admission as a lawful permanent resident (“LPR”).

Sum advances a curious position on appeal: namely, that because he was never legally admitted for permanent residence in the first place, but rather procured his admission by fraud or misrepresentation, the bar on § 212(h) relief does not apply. In other words, he argues that his initial fraud should save him now. We are not persuaded by this change-of-heart approach and deny the petition for review.…

concurring:

I concur in the majority opinion but write separately to suggest that this situation also lends itself to application of the traditional notion of equitable estoppel.

In immigration cases, we have applied the principle of equitable estoppel against the government when the government has engaged in affirmative misconduct, such as a deliberate lie. Socop-Gonzalez v. INS, 272 F.3d 1176, 1184 (9th Cir.2001) (en banc). The party asserting estoppel must establish these traditional elements: (1) the party to be estopped knows the facts, (2) the party intends that his conduct be acted on, (3) the other party is ignorant of the facts, and (4) the other party relies detrimentally on the conduct of the party to be estopped. Salgado-Diaz v. Gonzales, 395 F.3d 1158, 1166 (9th Cir.2005). And the party asserting estoppel must show that the public interest would not be burdened by estoppel. Id.; cf. New Hampshire v. Maine, 532 U.S. 742 , 121 S.Ct. 1808 , 149 L.Ed.2d 968 (2001) (discussing elements of judicial estoppel).

In my view, these principles should apply to the goose as well as the gander in the circumstances here. When Sum sought LPR status, he knew the fact of his previous…