While in the United States after the expiration of his temporary
visitor's visa, respondent alien married a United States citizen.
His wife filed a petition with the Immigration and Naturalization
Service (INS), requesting that he be granted an immigrant visa as
her spouse, and respondent simultaneously applied to the INS for
adjustment of his status to that of a permanent resident alien. The
wife's petition, if approved, would have satisfied § 245(a) of the
Immigration and Nationality Act of 1952, which conditions the
granting of permanent resident status to an alien on the immediate
availability of an immigrant visa. The INS did not act on either
the wife's petition or respondent's application for 18 months, and
when the marriage broke up, the wife withdrew her petition. The INS
then denied respondent's application because an immigrant visa was
not immediately available to him. In subsequent administrative
deportation proceedings, the INS rejected respondent's claims that
his previous marriage was sufficient to support his application for
permanent resident status, and that the INS was estopped from
denying his application because of its "unreasonable delay."
Respondent sought review of the administrative decision in the
Court of Appeals, which ultimately reversed, holding that the INS's
unexplained 18-month delay in processing respondent's application
was "affirmative misconduct" that estopped the Government from
denying the application.
Regardless of whether or not even "affirmative
misconduct" will estop the Government from enforcing the
immigration laws, the evidence here did not rise to that level.
Respondent showed only that the Government failed to process his
application promptly. Even if the INS arguably was negligent in not
acting more expeditiously, neither such conduct nor the harm to
respondent was sufficient to estop the Government. Cf. Montana
v. Kennedy, 366 U. S. 308
INS v. Hibi, 414 U. S. 5
Schweiker v. Hansen, 450 U. S. 785
Certiorari granted; 673 F.2d 1105, reversed.
Respondent Horacio Miranda, a citizen of the Philippines,
entered the United States in 1971 on a temporary visitor's
Page 459 U. S. 15
visa. After his visa expired, he stayed in this country,
eventually marrying Linda Milligan, a citizen of the United States,
on May 26, 1976. Shortly thereafter, Milligan filed a visa petition
with the Immigration and Naturalization Service (INS) on
respondent's behalf. She requested that he be granted an immigrant
visa as her spouse. [Footnote
] Respondent simultaneously filed an application requesting
the INS to adjust his status to that of a permanent resident alien.
Section 245(a) of the Immigration and Nationality Act of 1952
conditions the granting of permanent resident status to an alien on
the immediate availability of an immigrant visa. [Footnote 2
] Milligan's petition, if approved,
would have satisfied this condition.
The INS did not act on either Milligan's petition or
respondent's application for 18 months. Following the breakup of
her marriage with respondent, Milligan withdrew her petition in
December, 1977. At that point, the INS denied respondent's
application for permanent residence because he had not shown that
an immigrant visa was immediately available to him. The INS also
issued an order to show cause why he should not be deported.
At a deportation hearing, respondent conceded his deportability,
but renewed his application for permanent resident status because
of his marriage to Milligan. Although the marriage had ended, he
claimed that a previous marriage was sufficient to support his
application. The Immigration Judge rejected this claim, concluding
that the immediate availability
Page 459 U. S. 16
of an immigrant visa was a necessary condition to respondent's
application. Since Milligan had withdrawn her petition for an
immigrant visa before the INS had acted on it, respondent was
ineligible for permanent resident status.
Respondent appealed the decision to the Board of Immigration
Appeals. For the first time, he raised the claim that the INS was
estopped from denying his application because of its "unreasonable
delay." He argued that the "failure to act was not only
unreasonable, unfair and unjust, but also an abuse of governmental
process if the delay was deliberate." Record 44. The Board rejected
respondent's claim. It found "no evidence of any affirmative
misconduct,'" and no basis for an equitable estoppel. Id.
Respondent sought review of the Board's decision in the Court of
Appeals for the Ninth Circuit. The Court of Appeals reversed,
"[t]he unexplained failure of the INS to act on the visa
petition for an eighteen-month period prior to the petitioner's
withdrawal . . . was affirmative misconduct by the INS."
Miranda v. INS,
638 F.2d 83, 84 (1980). We granted
certiorari, vacated the judgment of the Court of Appeals, and
remanded the case for further consideration in light of
Schweiker v. Hansen, 450 U. S. 785
(1981). 454 U.S. 808 (1981).
On remand, the Court of Appeals adhered to its earlier decision.
673 F.2d 1105 (1982) (per curiam). It found Hansen
inapplicable for three reasons. First, the Government's conduct in
had not risen to the level of affirmative
misconduct. In this case, however, affirmative misconduct was
established by the INS's unexplained delay in processing
respondent's application. Second, although the private party in
subsequently had been able to correct the
Government's error, the INS's error here inflicted irrevocable harm
on respondent. Finally, unlike the private party in Hansen
who sought to recover from the public treasury, respondent was
seeking only to become a permanent resident -- a result that would
entail no burden on the public
Page 459 U. S. 17
fisc. The Court of Appeals determined that "the Supreme Court's
conclusion that the government was not estopped in Hansen
neither compels nor suggests the same conclusion here." 673 F.2d at
we did not consider whether estoppel will
lie against the Government when there is evidence of affirmative
misconduct. We found that a Government official's misstatement to
an applicant for federal insurance benefits, conceded to be less
than affirmative misconduct, did not justify allowing the applicant
to collect retroactive benefits from the public treasury.
450 U.S. at 450 U. S.
-789. Although Hansen
involved estoppel in
the context of a claim against the public treasury, we observed
"[i]n two cases involving denial of citizenship, the Court has
declined to decide whether even 'affirmative misconduct' would
estop the Government from denying citizenship, for in neither case
was 'affirmative misconduct' involved."
at 450 U. S.
The Court of Appeals thus correctly considered whether, as an
initial matter, there was a showing of affirmative misconduct.
See INS v. Hibi, 414 U. S. 5
414 U. S. 8
(1973) (per curiam); Montana v. Kennedy, 366 U.
, 366 U. S.
-315 (1961). Hibi
indicate, however, that the Court of Appeals erred in determining
that the evidence in this case established affirmative misconduct.
a Government official had incorrectly informed
the petitioner's mother that she was unable to return to the United
States because she was pregnant. The Court found that the
official's misstatement "falls far short of misconduct such as
might prevent the United States from relying on petitioner's
foreign birth" as a basis for denying him citizenship. 366 U.S. at
366 U. S.
-315. In Hibi,
Congress had exempted aliens
serving in the United States Armed Forces from certain requirements
normally imposed on persons seeking naturalization. We found that
neither the Government's failure to publicize fully the rights
accorded by Congress nor its failure to make an
Page 459 U. S. 18
authorized naturalization representative available to aliens
serving outside of the United States estopped the Government from
rejecting respondent's untimely application for naturalization.
414 U.S. at 414 U. S. 9
Government's error was clear, the evidence that the Government
failed to fulfill its duty in this case is, at best, questionable.
The only indication of negligence is the length of time that the
INS took to process respondent's application. Although the time was
indeed long, we cannot say, in the absence of evidence to the
contrary, that the delay was unwarranted. [Footnote 3
] Cf. Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U. S. 402
401 U. S. 415
(1971) (presumption of regularity supports official act of public
officer); United States v. Chemical Foundation, Inc.,
272 U. S. 1
272 U. S. 115
(1926) (same). Both the number of the applications received by the
INS and the need to investigate their validity may make it
difficult for the agency to process an application as promptly as
may be desirable. [Footnote 4
Even if the INS arguably was negligent in not acting more
expeditiously, its conduct was not significantly different from
that in Montana
Nor is the harm to
respondent different. Montana
that neither the Government's conduct nor the harm to the
respondent is sufficient to estop the Government from enforcing the
conditions imposed by Congress for residency in this country.
Page 459 U. S. 19
The final distinction drawn by the Court of Appeals between this
case and Hansen
is unpersuasive. It is true that
relied on a line of cases involving claims against
the public treasury. But there was no indication that the
Government would be estopped in the absence of the potential burden
on the fisc. An increasingly important interest, implicating
matters of broad public concern, is involved in cases of this kind.
Enforcing the immigration laws, and the conditions for residency in
this country, is becoming more difficult. See n
Moreover, the INS
is the agency primarily charged by Congress to implement the public
policy underlying these laws. See, e.g., INS v. Jong Ha
Wang, 450 U. S. 139
450 U. S.
-145 (1981) (per curiam); Hibi, supra,
414 U. S. 8
Appropriate deference must be accorded its decisions.
This case does not require us to reach the question we reserved
whether affirmative misconduct in a particular
case would estop the Government from enforcing the immigration
laws. Proof only that the Government failed to process promptly an
application falls far short of establishing such conduct.
Accordingly, we grant the petition for certiorari and reverse the
judgment of the Court of Appeals.
It is so ordered.
Section 201(b) of the Immigration and Nationality Act of 1952
provides for the admission of immigrants who are immediate
relatives of United States citizens. 66 Stat. 175, as amended, 8
U.S.C. § 1151(b).
Section 245(a) provides that the status of an alien who was
admitted into the United States
"may be adjusted by the Attorney General, in his discretion and
under such regulations as he may prescribe, to that of an alien
lawfully admitted for permanent residence if (1) the alien makes an
application for such adjustment, (2) the alien is eligible to
receive an immigrant visa and is admissible to the United States
for permanent residence, and (3) an immigrant visa is immediately
available to him at the time his application is filed."
66 Stat. 217, as amended, 8 U.S.C. § 1255(a).
The INS has maintained consistently that the 18-month delay was
reasonable because of the need to investigate the validity of
respondent's marriage. Because the issue of estoppel was raised
initially on appeal, the parties were unable to develop any factual
record on the issue.
In 1976, the year in which Milligan filed her petition on behalf
of respondent, some 206,319 immediate-relative petitions were
INS Ann.Rep. 11 (1976). The Service has
"In dealing with these petitions, an inordinate amount of fraud,
particularly in relation to claimed marriages, has been uncovered.
. . . For a fee, partners are provided and marriages contracted to
establish eligibility under the statutes for visa issuance
We cannot discount the need for careful
investigation by the INS that these petitions demand.
JUSTICE MARSHALL, dissenting.
I dissent from the Court's summary reversal of the Court of
Appeals. The Court concedes that the INS's 18-month delay in
processing respondent's application "was indeed long," but
concludes that it "cannot say, in the absence of evidence to the
contrary, that the delay was unwarranted." Ante
459 U. S. 18
The Court relies on a presumption of regularity which it says
attends the official acts of public officers. Ibid.
view of the unusual delay in the processing of respondent's
application, I do not agree that this case should be summarily
disposed of on the basis of this convenient presumption. If the
Court believes, as I do not, that this case raises an issue of
sufficient importance to justify the exercise of our certiorari
Page 459 U. S. 20
jurisdiction, and if the Court also believes that oral argument
should be dispensed with, I would at least notify the parties that
the Court is considering a summary disposition, so that they may
have an opportunity to submit briefs on the merits.