ONAL
(2) Where the Immigration and Naturalization Service instituted rescission proceedings against the respondent within the statutory 5 year period after his adjustment of status occurred, the subsequent delay in holding the rescission hearing was not shown to be unreasonable or prejudicial, nor is it the type of delay against which the doctrine of estoppel by laches will protect.
BEFORE THE BOARD
(October 15, 1981)
This matter is before the Board on appeal from the immigration judge‘s decision of January 22, 1981, rescinding the respondent‘s adjustment of status to that of an alien lawfully admitted for permanent residence pursuant to section 246 of the Immigration and Nationality Act,
The respondent is a 44-year-old native and citizen of Turkey who entered the United States in May 1972, as a nonimmigrant visitor. On February 16, 1973, a labor certification was issued on his behalf as a foreign food specialty cook. Based upon this approved labor certification, the respondent‘s status was adjusted to that of an alien lawfully admitted for permanent residence into the United States under section 245 of the Act,
On appeal, the respondent argues, “The fact that [my] labor certification was withdrawn [revoked] by the Labor Department on March 5, 1974, has no effect on the proceedings. [I] was granted permanent residence in the United States on October 24, 1973. The efficacy of that document was ended when [I] was granted permanent residence based thereon.” This argument is unpersuasive. First, it ignores the fact that the Department of Labor invalidated the labor certification because the respondent was not eligible therefor at the time it was originally issued, which indicates that the labor certification was invalid ab initio, and so of no effect at any time. Moreover, section 246 of the Act specifically contemplates a reexamination of the facts and circumstances existing at the time of the alien‘s adjustment of status in order to determine whether that adjustment was properly accorded. Thus, whether the Department of Labor‘s action is viewed as an actual nunc pro tunc invalidation of the labor certification or, instead, as an authorized and expert determination that the respondent was not in fact qualified and eligible to receive the labor certification, the result is the same; the respondent did not qualify for a valid labor certification, and, consequently, the entire basis upon which he obtained his adjustment of status simply did not exist.
Finally, the respondent contends that because of the delay in holding the hearing only some 3 years after service of the “Notice of Intent to Rescind,” rescission should be precluded under the doctrine of estoppel by laches. Estoppel by laches is an affirmative defense in which the party must establish that he changed his position to his detriment and prejudice through reliance upon the unreasonable delay in instituting actions against him. See Akers v. State Marine Lines, Inc., 344 F.2d 217 (5th Cir. 1965); Van Bourg v. Nitze, 388 F.2d 557 (D.C. Cir. 1967); Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973). Here, there is no evidence to show that the respondent changed his position in any way, or that he was prejudiced or misled by the 3-year delay in commencing the rescission hearing. In any event, estoppel by laches only protects against prejudice caused by unreasonable delay in bringing an action, not against problems created by the pendency of the action after it is instituted. Boone v. Mechanical Specialties Co., 609 F.2d 956, 958 (9th Cir. 1979). The District Director instituted these rescission proceedings against the respondent on May 23, 1977, well within the statutorily prescribed 5 year period following the respondent‘s adjustment of status to permanent resident. Thus, the subsequent delay
ORDER: The appeal is dismissed.
BEFORE THE BOARD
(November 22, 1983)
The Immigration and Naturalization Service moves this Board to reconsider our decision of October 15, 1981, wherein we dismissed the respondent‘s appeal from a decision of an immigration judge rescinding his adjustment of status pursuant to section 246 of the Immigration and Nationality Act,
Our decision of October 15, 1981, referenced the Department of Labor‘s action (under long since superseded regulations) invalidating the respondent‘s labor certification upon which he had obtained his adjustment of status. Therein, we stated that “the Department of Labor invalidated the labor certification because the respondent was not eligible therefore at the time it was issued.” We similarly referred to the Department of Labor‘s “determination that the respondent was not in fact qualified and eligible to receive the labor certification.” The word “qualified” was used merely as a synonymous adjunct to the word “eligible,” and then only with reference to the overall issuance of the labor certification. This language was not intended to suggest that the invalidation was based on an assessment by the Department of Labor of the alien‘s particular qualifications to adequately perform the duties of a specialty cook. In fact, as the decision of the Department of Labor was not specific as to its reasons, our decision was equally vague as to that Department‘s rationale for invalidating the petition.1
ORDER: The motion to reconsider is granted.
FURTHER ORDER: The decision of October 15, 1981, is reaffirmed as clarified above.
Notes
The Department of Labor considers several factors in determining whether or not to issue a labor certification under the provisions of section 212(a)(14) of the Act,Certifications issued pursuant to this part are invalid if the representations upon which they are based are materially incorrect. Materially incorrect, for the purposes of this paragraph, means that if the correct facts had been known a certification could not have been issued pursuant to the requirements set forth at section 212(a)(14) of the Immigration and Nationality Act.