No. 79-7370.

638 F.2d 83 (1980)


United States Court of Appeals, Ninth Circuit.

Decided October 30, 1980.

Rehearing and Rehearing Denied March 24, 1981.

Attorney(s) appearing for the Case

Jack T. Price, Los Angeles, Cal., for petitioner.

D. Dzintra I. Janavs, Los Angeles, Cal., for respondent.

Before PREGERSON and NELSON, Circuit Judges, and WILKINS, District Judge.

Rehearing and Rehearing En Banc Denied March 24, 1981.

PHILIP C. WILKINS, District Judge.

Miranda seeks judicial review of a Board of Immigration Appeals (BIA) decision. Said decision dismissed the appeal of the order of deportation and of the denial of petitioner's application for adjustment of status or for voluntary departure. Petitioner argues that the Immigration and Naturalization Service (INS) should be estopped from denying him the status of permanent resident pursuant to the provisions of Section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255, due to its delay in processing an immediate relative visa petition filed by his then wife on his behalf. The Board found no evidence of any "affirmative misconduct" by a Service officer regarding the denial of the visa petition. We reverse.

The unexplained failure of the INS to act on the visa petition for an eighteen-month period prior to the petitioner's withdrawal following the breakup of Miranda's marriage was affirmative misconduct by the INS. See Villena v. INS, 622 F.2d 1352 (9th Cir. 1980) (en banc); Sun Il Yoo v. INS, 534 F.2d 1325 (9th Cir. 1976).

The matter will be remanded for consideration of Miranda's application for permanent residence under the circumstances as they existed at the time the INS should originally have acted. The INS must, however, in considering the application, treat the visa petition as if it were approved.

Reversed and remanded.


* Honorable Philip C. Wilkins, Chief United States District Judge for the Eastern District of California, sitting by designation.


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