Ahmed v. Holder, 2010 U.S. App. LEXIS 22100

Ahmed, a Yemeni citizen, obtained an immigrant visa as the unmarried son of a U.S. citizen and entered the U.S. in 1991.
Ahmed married in Yemen in 1991 before entering the United States, which later affected his admissibility based on marriage-related grounds.
In 1997, the government issued a Notice to Appear alleging visa fraud and inadmissibility, later dropping the fraud charge.
Ahmed applied for a § 237(a)(1)(H) waiver; the IJ denied it, and the BIA remanded to consider eligibility for a § 212(k) waiver.
The government reinstated the fraud charge in 2003, and the IJ denied § 212(k) relief in 2004; the BIA affirmed in 2009.
This Court remanded in 2007 and Ahmed sought review in 2009; the petition was filed October 14, 2009.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court has jurisdiction to review the BIA's discretionary denial of a § 237(a)(1)(H) waiver	Ahmed asserts the BIA denial is reviewable as a legal/constitutional claim.	Holder argues § 1252(a)(2)(B)(ii) bars review of discretionary waivers, including § 237(a)(1)(H).	Court lacks jurisdiction to review discretionary denial.
Whether the BIA abused its discretion by denying Ahmed's equitable estoppel claim	Ahmed should be estopped from removal due to government missteps at consular interview.	Government contends no affirmative misconduct or likelihood of manifest injustice shown; estoppel unwarranted.	BIA did not abuse discretion; estoppel claim rejected on merits.
Whether the IJ should have held a third evidentiary hearing on remand	Remand stipulated possible additional evidence and hearings; third hearing warranted.	Remand did not require another hearing; substantial evidence in record sufficed.	No abuse; no mandatory third hearing required.

Zajanckauskas v. Holder, 611 F.3d 87 (1st Cir. 2010) (review of discretionary waivers limited by § 1252(a)(2)(B)(ii))
Singh v. Gonzales, 451 F.3d 400 (6th Cir. 2006) (no jurisdiction over discretionary waivers)
San Pedro v. Ashcroft, 395 F.3d 1156 (9th Cir. 2005) (no jurisdiction over discretionary waivers)
Avendano-Espejo v. Dep't of Homeland Sec., 448 F.3d 503 (2d Cir. 2006) (no jurisdiction over discretionary denials of waivers like §212(c))
Saloum v. U.S.C.I.S., 437 F.3d 238 (2d Cir. 2006) (no jurisdiction over discretionary waivers like §212(d)(11))
Xiao Ji Chen v. U.S. Dep't of Justice, 434 F.3d 144 (2d Cir. 2006) (REAL ID Act limits review to constitutional or legal questions)
Corniel-Rodriguez v. INS, 532 F.2d 301 (2d Cir. 1976) (historic equitable estoppel against government for manifest injustice)
Drozd v. INS, 155 F.3d 81 (2d Cir. 1998) (estoppel against government is narrow and cautious)
Bugayong v. INS, 442 F.3d 67 (2d Cir. 2006) (limits on jurisdiction where only discretionary relief is at issue)
INS v. Miranda, 459 U.S. 14 (Supreme Court 1982) (negligent conduct not a basis for government estoppel)
Adelphia Bus. Solutions, Inc. v. Abnos, 482 F.3d 602 (2d Cir. 2007) (abuse of discretion standard for appellate review)
Mahabir v. Ashcroft, 387 F.3d 32 (1st Cir. 2004) (applicant's evidence in estoppel context must be compelling)