DONG SIK KWON v. IMMIGRATION & NAT. SERV.

ALVIN B. RUBIN, Circuit Judge:

A native and national of Korea who had come to the United States for a temporary visit with a visitor's visa submitted an application for adjustment of status to the Immigration and Naturalization Service (INS). Dong Sik Kwon sought a change to permanent residence status as an investor. At the time Kwon submitted his application, no nonpreference applicants could be admitted because the numerical limitation for Korean nonpreference visas had been reached. However, the INS did not notify Kwon of this fact for two years. He contends that, had he known that no visa was available for a nonpreference immigrant, he would instead have applied for a visa as a preference immigrant, and sought adjustment of his status on the basis of a labor certification. Having since filed such an application, he seeks to have it accorded a priority date retroactive to the time when, had he received prompt advice from the INS, he could have done so. A panel of this court, considering itself bound by a prior panel decision, Suh v. Immigration and Naturalization Service, 592 F.2d 230 (5th Cir. 1979), remanded the case for a further hearing to determine whether Kwon had been prejudiced by the government's inaction. Kwon v. Immigration and Naturalization Service, 610 F.2d 353 (5th Cir. 1980). The court later granted a rehearing en banc, automatically vacating that decision. Kwon v. Immigration and Naturalization Service, 625 F.2d 1310 (5th Cir. 1980) (en banc). We now conclude that Kwon is not entitled to the relief he seeks and that the INS is not estopped to deny it to him. Therefore, we affirm the decision of the Board of Immigration Appeals.

I.

The significant facts do not take on full meaning until they are portrayed against the pattern established by the statutes and the intricate scheme of the regulations. The administration and enforcement of the immigration laws are the divided responsibility of the Attorney General, the Secretary of State, the Secretary of Labor, the Secretary of Health and Human Services, the Secretary of Education, the International Communication Agency and the Congressional immigration committees. J. Wasserman, Immigration Law and Practice 11 (3d ed. 1979). The Attorney General is charged with the enforcement of the immigration laws, 8 U.S.C. § 1103, and he has delegated this responsibility to the INS.

An alien may seek admission to the United States temporarily as a nonimmigrant under conditions prescribed by the Attorney General. 8 U.S.C. § 1184. A visa may be issued to a nonimmigrant who has a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for either business or pleasure. See 8 U.S.C. § 1101(a)(15)(B). See also 8 C.F.R. 214.2(b) (1980), 22 C.F.R. 41.25 (1980). There is no quota for such visitors.

Congress has, however, prescribed an annual quota (now called a numerical limitation) limiting to 290,000 the number of aliens who may be admitted as immigrants for permanent residence. At the time Kwon applied, admissibility was limited to 170,000 immigrants from the Eastern Hemisphere and 120,000 from the Western Hemisphere. 8 U.S.C. § 1151(a).1 Subject to statutory exceptions not here relevant, no person may receive any preference or priority because of race, sex, nationality, place of birth or place of residence, but the total number of visas made available to natives of any single foreign state may not exceed 20,000 in any fiscal year. 8 U.S.C. § 1152(a). Aliens who are subject to these numerical limitations are allotted available visas based on a series of preferences that are prescribed by statute for certain classes of immigrants. 8 U.S.C. § 1153(a)(1)-(8).2 The first two preferences are for certain classes of relatives of United States citizens. The third includes members of the professions and persons of exceptional ability in the sciences and arts whose services are sought by an employer in the United States. The fourth and fifth preferences are for other classes of relatives. The sixth preference is for persons capable of performing specified skilled or unskilled labor, not of a temporary or seasonal nature, for which a shortage of employable and willing persons exists in the United States. To secure a visa under the sixth preference, the applicant must obtain a "labor certificate" from the Secretary of Labor. 8 U.S.C. § 1182(a)(14). If all of the available visas are not used by persons entitled to a preference, they are made available to other qualified immigrants "strictly in the chronological order in which they qualify." 8 U.S.C. § 1153(a)(8). Any immigrant who wishes to enter this country under any preference category, or as a nonpreference immigrant, must secure a labor certificate or be entitled to an exemption from that requirement.

All six preference classes take precedence over investor applicants. Therefore an applicant who, like Kwon, seeks investor status is accorded no preference. Investor status merely exempts the applicant from labor certification requirements. See 8 U.S.C. § 1182(a)(14); 8 C.F.R. § 212.8(b)(4) (1980). Investors need not obtain such a certification because an investor does not compete with American workers for jobs. In fact, the present regulations involving investors require that the applicant-investor provide at least one American citizen or permanent resident alien with a job.3 8 C.F.R. 212.8(b)(4) (1980). The regulations in force at the time Kwon applied as an investor required the alien to establish that he was seeking to enter the United States to engage in an agricultural or commercial enterprise in which at least $10,000 would be invested and that he had at least a year of experience or training qualifying him to engage in such an enterprise. 8 C.F.R. § 212.8(b)(4) (1976); 22 C.F.R. § 42.91(a)(14)(ii)(d) (1976).

While the Attorney General is given final discretion to grant or refuse a visa, the Secretary of State has plenary control of the visa issuing process. 8 U.S.C. § 1104. See also 22 C.F.R. Subchapter E (1980). Pursuant to Department of State regulations, authorized by statute, visas are issued by United States Consuls.4 The State Department's regulations provide for allocation of numbers for use in connection with the issuance of immigrant visas and adjustments of status on a quarterly basis within each fiscal year. 22 C.F.R. 42.60(a), (b) (1980). See also 8 U.S.C. § 1151(a). Under this system a visa number may be allocated to a person who does not in fact use it. If this happens, for whatever reason, the nonuse of the visa must be reported to the Department so that another visa can be issued during the same fiscal year. Otherwise, that vacancy in the quota is irretrievably lost. 22 C.F.R. 42.60(c) (1980).

The status of an alien, admitted temporarily, who "was inspected and admitted or paroled into the United States may be adjusted ... to that of an alien lawfully admitted for permanent residence" by the Attorney General "in his discretion and under such regulations as he may prescribe." 8 U.S.C. § 1255. Such a change involves altering the status of an alien who is in the United States illegally or temporarily from that of visitor or illegal alien to that of lawful permanent resident. To qualify for a change of status four conditions must be met: the alien must apply for this adjustment by submitting a form I-485, must be eligible to receive an immigrant visa, must be admissible as a permanent resident and, according to the statute in effect when Mr. Kwon applied, "an immigrant visa [must be] immediately available to him at the time his application is approved." Id.5

Within the Department of Justice, such applications are handled by the INS pursuant to regulations adopted by the Attorney General in accordance with the statute. 8 U.S.C. § 1255(a); 8 C.F.R. Part 245 (1976) ("Adjustment of Status To That of Person Admitted For Permanent Residence."). The alien applies for such an adjustment by submitting Form I-485 to the INS district director having jurisdiction over his place of residence. 8 C.F.R. § 245.2(a)(1) (1976). The regulations provided that, before the application "may be considered properly filed, a visa must be immediately available." 8 C.F.R. § 245.2(a)(2) (1976).6 However, an application for adjustment of status may be filed either simultaneously with a visa petition or without a visa petition. No visa petition is required, for example, if the applicant has a priority on an American consular waiting list, has already received approval of a visa petition, or is entitled to preference as the spouse or child of a beneficiary of a visa petition or as a refugee or in certain other circumstances. See Form I-485, Part 13.

The regulations in effect at the time Mr. Kwon submitted his Form I-485 provided, "If a visa petition is submitted simultaneously with the adjustment application, the adjustment application shall be retained and processed only if the petition is found to be in order for approval upon initial review by an immigration officer, is approved, and approval makes a visa immediately available." 8 C.F.R. § 245.2(a)(2) (1976).7 The regulations also provided that an application for adjustment of status, whether or not submitted with a visa petition, should not be considered properly filed unless a visa was immediately available.8 Significantly, the regulations also explicitly stated, "A nonpreference alien for whom a visa is not immediately available may not file an application for adjustment of status, but may seek to establish a nonpreference priority date through an application for an immigrant visa at a United States consular office." 8 C.F.R. § 245.2(a)(2) (1976) (emphasis supplied). See also 8 C.F.R. § 245.2(a)(2) (1980) (identical provision retained in current regulations).

The regulations provided further that a visa would be considered immediately available if the numerical limitation for a particular preference category were not exhausted (i.e. if the State Department Bulletin showed that numbers for visa applicants in his preference category were current) or if the applicant had a "priority date" on the waiting list not more than ninety days later than a date shown in the Bulletin. 8 C.F.R. § 245.1(g)(1) (1976).9

Although the regulation specified that an adjustment application submitted simultaneously with a visa petition should be "retained and processed only if" a visa is immediately available, neither the statute nor the regulations stated what action, if any, the INS should take if it received a Form I-485 submitted without a visa petition at a time when no visa was available. No command for action was contained in the regulations other than the statement that applications should be retained only if a visa was available. The procedures to be followed were, instead, covered by Operations Instructions that the INS had issued to its personnel.

The instructions in effect in March 1976, stated that applications for adjustment of status were to be reviewed upon receipt. This review did not include a check for the availability of a visa. Each application went first to clerical personnel in the Records Administration and Information Section. An application submitted without fee or without signature was to be returned to the applicant by the personnel in this Section. Thereafter, the applications retained were to be routed to Travel Control.10 Operations Instructions (O.I.) 245.2.

Applications sent to Travel Control were to be examined to determine whether a visa was available, the application was complete, and prima facie eligibility had been established. If Travel Control determined that an application had not been properly filed because of the unavailability of a visa, and this defect did not appear to be curable by further processing, the instruction provided that a notice of rejection was to be sent to the applicant informing him that a refund of his fee was being considered. O.I. 245.2(a). Thus, it is apparent that the Operations Instructions allocated responsibility to Traffic Control for checking the availability of a visa and also drew a distinction between receipt of an application and its proper filing. Determination that an application was properly filed was made only by the Travel Control Section, some time after the application was initially received and preliminarily examined. We apply this scheme of statutes, regulations and operations instructions to the steps Kwon took to secure permanent resident status in this country.

II.

Kwon entered the United States on September 5, 1975, with a visitor's visa issued for the professed purpose of making a pleasure trip. He was authorized to remain only until October 4, but he overstayed his visit without INS permission.11 Early in 1976 he purchased two wig stores in Dallas, Texas. On March 31, 1976, he filed a Form I-485 seeking adjustment of his status from that of illegal alien to lawful permanent resident. He supported his application for status as a nonpreference immigrant by a request for a determination, that, as an investor (Form I-526), he was exempt from the labor certification requirements. Although Kwon did not possess a visa, neither the record nor his brief clearly indicates whether his submission of Forms I-485 and I-526 was intended to incorporate a simultaneous petition for a visa. As a practical matter such a distinction is rarely important. If a person does not possess a valid visa and is not entitled to any of the special exemptions, his I-485 constitutes a simultaneous submission of a visa petition. Here, however, the different procedures called for in the regulations require us to determine the exact nature of Kwon's application. Despite the confusion in the record and the briefs, we treat Kwon's application as the simultaneous submission of a visa petition and an application for adjustment of status because he did not possess a valid visa and was not entitled to any exemption.

Kwon's application for status adjustment was rejected by the District Director on January 26, 1978, on the grounds that he had withheld material facts when he applied for his original visa, and, in addition, his investment was insufficient to qualify him as an investor.12 Although unavailability of visa numbers was not relied on by the District Director, it is a matter of record that no nonpreference visa numbers were available in 1976, when the application was filed or in 1978, when it was rejected, and none have been available for Korean nationals at any time since then because the Korean numerical limitation has been reached in each year by Koreans entitled to preference status.13 Following this decision, Kwon was given permission to depart voluntarily before February 26, 1978; if he did not, deportation proceedings would be instituted.

When Kwon failed to depart voluntarily, deportation proceedings were begun. 8 U.S.C. § 1251(a). Although no administrative appeal from a denial of an application for adjustment of status is provided by the INS, the applicant may submit an application for de novo consideration at the deportation hearing. Kwon chose this course and, though conceding deportability, renewed his Section 1255 application as an investor. Electing again to proceed toward permanent residence as an investor, he did not seek classification as a sixth preference immigrant. He was represented by a lawyer and the wait for sixth preference numbers was only five months. A change in his course of action, however, would have required abandoning the investor application and would have forced him to obtain a labor certification.14

The immigration judge to whom the deportation hearing was referred concluded that Kwon did not qualify as an investor because he could show that he had invested only $2,000 in the wig business and was, in effect, merely displacing a wig salesman. The immigration judge also noted that, because of the numerical limitation for Korea, a nonpreference visa had not been available at the time Kwon submitted his adjustment application or at any time thereafter and, therefore, a visa, as required, had never been available to Kwon.15 The judge, however, did not rely explicitly on either of these conclusions. Instead, finding that Kwon was forced to subsist below the poverty level,16 that he had been an illegal alien prior to the time he filed his application for adjustment of status, that he misstated his intent originally to enter the United States as a pleasure visitor, and that he had a preconceived intent to reside in this country permanently,17 the immigration judge ruled that, even assuming that Kwon met the investor requirements, he was not entitled to a favorable exercise of discretion. See Tuan v. Immigration and Naturalization Service, 531 F.2d 1337 (5th Cir. 1976); Soo Yuen v. Immigration and Naturalization Service, 456 F.2d 1107 (9th Cir. 1972). In lieu of deportation, however, Kwon was again granted the privilege of departing voluntarily within ninety days. If he failed to depart voluntarily, he was to be deported.

Kwon appealed this deportation order and denial of his adjustment application to the Board of Immigration Appeals (BIA). The BIA, refusing to reach the merits of Kwon's investor application, chose a fourth alternative and dismissed the appeal solely on the ground that Kwon failed to meet one of the requirements of 8 U.S.C. § 1255, that a visa be immediately available, because nonpreference visas for natives of Korea had been unavailable at all times relevant to his application. Kwon was granted thirty days to depart voluntarily. He petitions for review of the BIA order.

The INS asks us to consider the facts found by the immigration judge at the deportation hearing when the ALJ reviewed de novo Kwon's adjustment of status application. The facts found by the immigration judge may, indeed, have been good reason for the BIA to order Kwon's deportation. The BIA did not, however, choose to act on that basis in the order we are now asked to review, and we are not permitted to consider reasons other than those it advanced. See Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962); Real v. Simon, 514 F.2d 738 (5th Cir. 1975); SEC v. Chenery Corp. (Chenery I), 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). Kwon concedes that the lack of available visa numbers was a permissible basis for denying his adjustment application and ordering his deportation. However, he seeks a modification of the deportation order to accord his application for sixth preference status retroactive priority, "in the interest of justice."

III.

The Supreme Court has left unanswered the question whether, in some circumstances, the government may be estopped from denying citizenship to an applicant by the affirmative misconduct of the government or its employees. See Immigration and Naturalization Service v. Hibi, 414 U.S. 5, 8, 9, 94 S.Ct. 19, 21, 38 L.Ed.2d 7, 10 (1973); Montana v. Kennedy, 366 U.S. 308, 314, 315, 81 S.Ct. 1336, 1340, 1341, 6 L.Ed.2d 313 (1961). In Hibi it observed that, as a general rule, neither laches nor neglect of duty by government officers is a defense to a suit to enforce the laws enacted by Congress. The government is not merely a private litigant dealing with another private party. 414 U.S. at 8, 94 S.Ct. at 21, 38 L.Ed.2d at 10. The INS is charged with administering an act that has limited the number of persons who may be admitted to the United States and prescribed the order in which applicants are eligible. In carrying out this function, it enforces the public policy established by Congress.

Applying these principles to the facts presented here, we conclude that mere failure by the INS to reject an application promptly upon its submission if visa numbers are not then available does not create an estoppel. Recognizing this, at oral argument, Kwon's counsel acknowledged that the facts did not give rise to an estoppel. Kwon also conceded that, because of the unavailability of current visas, he was not entitled to adjustment of status as a nonpreference immigrant.

He contends, however, that, had he been advised in 1976, when he sought investor status, that no nonpreference visas were available, he would instead have filed immediately for admission as a sixth preference applicant and would have sought a labor certificate to obtain the earliest possible priority date. He invokes the decision of a panel of this court in Suh v. Immigration and Naturalization Service, 592 F.2d 230 (5th Cir. 1979) and decisions of the Ninth Circuit Court of Appeals in Santiago v. Immigration and Naturalization Service, 526 F.2d 488, 491-92 (9th Cir. 1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976), and in Yoo v. Immigration and Naturalization Service, 534 F.2d 1325, 1329 (9th Cir. 1976).

In Santiago and Yoo the Ninth Circuit applied Immigration and Naturalization Service v. Hibi, 414 U.S. 8, 94 S.Ct. 19, 38 L.Ed.2d 10 (1973), to the facts at issue to determine whether the Immigration agent's misconduct was "affirmative." Counsel has here conceded that the retention of Kwon's application is not the type of affirmative misconduct envisioned by the Supreme Court in Hibi. Therefore, neither case supports Kwon's contention.

Our panel in Suh, however, did not rely on estoppel. Instead it accorded relief to Suh "in the interest of justice" on the basis that the INS had violated its own "regulation" in retaining an application for adjustment of status when no visa numbers were available. The panel ordered the BIA to permit the petitioner "to apply for a sixth preference visa by filing Form I-140 and a labor certificate with the benefit of a [retroactive] priority date." Suh v. Immigration and Naturalization Service, 592 F.2d at 232-33. (Emphasis supplied.) Kwon seeks the same relief. Indeed, he states he is willing to depart from the United States voluntarily under the shield of such an order, for he could with that preference and priority date now apply to the United States Consul in Korea, and obtain a visa.

We conclude that Kwon is not entitled to retroactive relief and that the retroactivity accorded Suh is not sanctioned by either the immigration statutes or the regulations. Although discretion is given to the Attorney General to admit applicants, he has no authority to act retroactively on an application. Matter of Talanoa, 13 I&N Dec. 161, 163-65 (BIA 1969) aff'd, 427 F.2d 1143 (9th Cir. 1970); Matter of Palmieri, 10 I&N Dec. 187, 188-89 (BIA 1963); cf. 8 U.S.C. § 1153(h) ("Retroactive readjustment of refugee status to that of alien lawfully admitted for permanent residence"). The statute also contains no authority under which the Department of State or the INS can grant a visa priority date retroactively, nor under which the Department of Labor can grant a labor certification retroactively.

We do not now decide whether equitable relief would be foreclosed if an applicant were to establish that he was entitled to priority at the time of his application and that the INS erroneously deprived him of a classification to which he was then entitled. See note 22, infra. However, for an applicant to be granted a retroactive priority date nunc pro tunc, it would be essential that the facts warranting priority have existed at the time his application was originally submitted, in Kwon's case, on March 31, 1976. See Matthies v. Railroad Retirement Board, 341 F.2d 243, 246 (8th Cir. 1965). Kwon did not then have an employer, or potential employer, who could seek the issuance of a labor certification and approval of a sixth preference petition in his behalf. Therefore, the granting of a priority date nunc pro tunc on the basis of acceptance and approval of a labor certification application that was never previously filed would clearly be inappropriate.

While Suh's case was somewhat different factually, because the INS stipulated that Suh qualified as an investor, the panel acted under the misapprehension that the INS had violated the regulations in accepting an application at a time when a visa was not immediately obtainable. Counsel for Kwon concedes in his brief that the regulation was not violated in Suh because the regulation did not explicitly require the rejection of applications for which visas are not immediately available. He contends, however, that the applicable Operations Instruction required the INS to send notices of rejection to all applicants for whom visas were not immediately available18 and that, therefore, the result reached by the Suh panel was correct. The INS states that it knew of the court's misunderstanding but failed nevertheless to apply for a rehearing.19

The regulations in effect in March 1976, were not violated by any affirmative misconduct. At the worst, the INS did not detect what Kwon should have learned before submitting his I-485. The regulations did not direct it to give information to the applicant. Therefore, no violation of the regulations has been shown.

This leaves one final contention, that the INS failed to follow its Operations Instructions and a retroactive priority date should be assigned to Kwon to accord him justice. It may be doubted that the INS wrought an injustice upon Kwon in allowing him to come to the United States as a visitor and to continue to remain here with his family for four and one-half years after his visitor's visa had expired. Even if the intermediate failure of the INS, however, to tell him that no visa number was available was unjust, it does not follow that a federal court is endowed by the Constitution or the immigration laws with a nationwide warrant to correct whatever it senses to be an improper action by an immigration officer.

While the Operations Instructions then in effect required the Travel and Control Section to send Kwon a notice of rejection, the applicable regulation provided that an adjustment application "shall not be considered properly filed unless the applicant establishes that ... a visa is immediately available...." 8 C.F.R. § 245.2(a)(2) (1976) (emphasis supplied). While the regulations were not clear, they implied that the burden was on the applicant to prove that a nonpreference visa number was current when he applied.20 The practice has been to place this burden on the applicant. Kaye, Adjustment of Status, 11th Annual Immigration and Naturalization Institute 209, 216 (1978). We are aware that, in practice, despite the issuance of monthly bulletins showing the availability of visa numbers, an applicant may find it difficult or impossible in fact to determine the availability of a visa number on a given day. However, in fact, no nonpreference visa numbers were available when Kwon applied and, as we have already pointed out, none are now available.

The regulations explicitly stated, "a nonpreference alien for whom a visa is not immediately available may not file an application for adjustment of status ..." 8 C.F.R. § 245.2(a)(3) (1976) (emphasis supplied). Kwon falls squarely behind this bar. It appears that the INS indeed did follow its internal operations procedures, but, even if it did not, the INS was, at the worst, guilty of inaction not misconduct. Unlike regulations, Operations Instructions, generally, do not have the force of law. They furnish only general guidance for service employees. See, e. g., Yan Wo Cheng v. Rinaldi, 389 F.Supp. 583, 588-89 (D.N.J. 1975). See also Soon Bok Yoon v. Immigration and Naturalization Service, 538 F.2d 1211 (5th Cir. 1976); But cf. Nicholas v. Immigration and Naturalization Service, 590 F.2d 802, 807 (9th Cir. 1979) (interpreting O.I. 103.1(a)(1)(ii) as conferring substantive rights). The Operations Instructions at issue here confer no substantive rights on applicants.

In its brief the INS states "the public, of course, has a right to obtain guidance from the regulations for its dealings with the Service." We devoutly hope the INS and those who draft the regulations and Operations Instructions under which it operates will take this statement to heart. Whatever guidance the regulations furnish to those cognoscenti familiar with INS procedures, this court, despite many years of legal experience, finds that they yield up meaning only grudgingly and that morsels of comprehension must be pried from mollusks of jargon. There is nothing esoteric about the subject matter. The regulations concern simple matters of great concern to human beings, most of them of limited education. They should be so written as to be comprehensible by intelligent laymen and unspecialized lawyers without the aid of both lexicon and inner-circle guide.

Considering all the facts, however, we do not have the sense that an injustice has been done to Kwon under the circumstances involved.21 To give him a visa priority date retroactively would put him ahead of other applicants for immigration who would then be required to wait behind him. The change in his status would be at the cost of other sixth preference immigrants, not at the expense of the INS. For the courts to grant such retroactive priorities would adversely affect the immigration pattern prescribed by Congress. It would accord Kwon not justice but, instead, benevolence at the expense of other innocent queue-standers.22

Kwon is in the United States unlawfully. No statute authorizes us and equity does not constrain us to protract further the four and one-half years that he has enjoyed the benefit of that visit. There is substantial basis on the record for the INS decision. Therefore, the petition for review is DENIED and the order of the Bureau of Immigration Appeals is AFFIRMED in all respects.

FAY, Circuit Judge, with whom RONEY and THOMAS A. CLARK, Circuit Judges, join, concurring in part and dissenting in part:

To the best of my understanding, the majority opinion holds that Kwon is not entitled to relief in this case because at the time Kwon applied for a visa and a change of status, there were no visas available in any of the categories in which Kwon was eligible to apply. On that basis, the majority concludes that an equitable retroactive remedy would be inappropriate. With that conclusion I totally agree. As the proposed opinion points out, the only circumstance in which it would be appropriate to grant relief nunc pro tunc is when the facts warranting such relief "existed at the time his application was originally submitted...." Majority Opinion, at 917. In Kwon's case, it is clear that the only categories for which he could have applied on March 31, 1976 were those having no available visas. For that reason, I wholeheartedly embrace the result reached by the majority.

In addition to the above discussed basis for affirming the Board of Immigration Appeal's (BIA) decision, the majority opinion sets out three additional grounds, each of which independently justifies the conclusion reached. In the initial proceeding, the INS District Director determined on January 26, 1978 that Kwon had withheld material facts when he first applied for his visa. That fact alone supports the conclusion that Kwon is not presently entitled to relief. Additionally, the District Director found that, assuming Kwon had not presented false information, he did not qualify for investor status,1 the category in which he applied. That fact also justifies denying relief now. Finally, the ALJ who held a de novo hearing found that Kwon subsisted below the poverty level, that he had been an illegal alien prior to filing his application for status adjustment, and that, contra to his statement that he intended to enter this country as a tourist, he had a preconceived intent to reside in the United States permanently. For those reasons, the ALJ determined that it was inappropriate to exercise his discretion in that instance to grant Kwon relief.

I am of the opinion that any and all of the four bases discussed above justify our affirmance of the result reached by the BIA. The majority opinion states, however, that this Court may not consider the facts found by the District Director and the ALJ as the basis for our affirmance of the BIA decision. In support of its position, the proposed opinion cites Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962); Real v. Simon, 514 F.2d 738 (5th Cir. 1975); and SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). Those cases do not support the proposition for which they are cited, nor is that proposition now or has it ever been the law. The cases cited in the majority opinion stand for the simple and justifiable proposition that an appellate court should not base its conclusion on facts or legal theories not raised with the administrative agency during that agency's review process. They do not mean, however, that the appellate court may consider only the latest pronouncement of an administrative agency in a given case. A cursory review of the decisions of this court reveals numerous cases in which we have affirmed or reversed the determination of an administrative agency on the basis of an ALJ's report as well as the intra-agency appellate review of that report. See, e. g., Abilene Sheet Metal, Inc. v. N. L. R. B., 619 F.2d 332 (5th Cir. 1980); Pigrenet v. Boland Marine & Manufacturing Co., 636 F.2d 1107 (5th Cir. 1980).

My quarrel with the proposed opinion is not, as the earlier discussion might suggest, with the exclusion of the three additional grounds for achieving the final resolution of this case. As I indicated at the outset, I agree totally with the majority's conclusion that equitable relief is inappropriate in this case. Were the disagreement only on the grounds for affirmance, I would not write this dissent. It seems to me, however, that having resolved the issue presented, the opinion should come to a close. It is a fundamental principle that the courts decide only cases or controversies and, having done so, they will not offer opinions on issues not before them. This is a most wise rule for the operation of our courts. The failure of the majority opinion to follow it in this case makes it only too clear that bad legal principles will all too often be established when courts offer resolutions for issues with which they are not confronted. Knowing the record amply supports the denial of any relief based upon the facts, it is difficult to understand why the majority opinion reaches out to decide the question of the availability of equitable relief to all cases involving immigration law, when that question is not before the Court. I do not mean to suggest that I am unappreciative of Judge Rubin's scholarly work in attempting to explain the intricate and convoluted operation of the immigration laws. My concern is that much of the information set forth would more appropriately be presented in a law review article, rather than in an opinion on which it has no bearing. I particularly object to the inclusion of such gratuitous discussion when it forms the basis for the reconsideration and reversal of an opinion of this Court which is not at issue in the case at bar and which was not reviewed by the court en banc.

Though the majority opinion had effectively resolved all issues presented in Kwon's appeal, it goes on to reconsider the decision by a panel of this Court in Suh v. Immigration and Naturalization Service, 592 F.2d 230 (5th Cir. 1979). Most astoundingly, the majority opinion overrules that decision totally with dicta. The opinion attacks Suh on the grounds that the panel erred when it determined that the INS had violated its own regulation. Accordingly, the opinion continues, it was erroneous to grant relief on the basis of the purported regulations violation. As if it were not enough to overrule the particular judgment of a case which was not at issue, the majority opinion goes on to say that, even if the panel was correct that a regulation was violated, there is no support for the legal principle on which the granting of equitable relief was based.

In addition to my belief that the majority opinion unjustifiably considered issues not before it, I am equally convinced the Suh opinion was correct on the question of the regulations violation and in applying the legal principle articulated.

Application of the majority opinion's own analytic framework demonstrates that this Court correctly decided in Suh that the INS had violated its own regulations. In Suh, Judge Ingraham concluded that the INS failed to comply with 8 C.F.R. § 245.2(a)(2) (1976)2 when it retained Suh's adjustment application at a time when no visa numbers were immediately available. The majority opinion explains that the Suh panel erred by treating the adjustment application as a visa petition and, accordingly, applied the incorrect regulation. The opinion points out that it is only when an alien submits an adjustment application and a visa petition simultaneously that the INS is required to reject the former immediately in the event that a visa number is not available. In this the proposed opinion is correct. The problem I have is that in Suh, as in this case, the alien did file both documents and, accordingly the regulation was applicable. Both Suh and Kwon submitted form I-485 to the INS at a time when neither had a valid visa. In fact, both Suh and Kwon applied for non-preference investor status. In that situation, the majority tells us, "[i]f a person does not possess a valid visa and is not entitled to any of the special exemptions, his I-485 constitutes a simultaneous submission of a visa petition." Majority Opinion, at 914. Applying the same rule, the Suh panel determined that the I-485 filed constituted both an adjustment application and a visa petition, and accordingly concluded that 8 C.F.R. § 245.2(a)(2) (1976) was applicable. Not only is this result supported by the same rule but this opinion actually reaches the identical conclusion with respect to Kwon's filing of his I-485. The majority states, "... we treat Kwon's application [form I-485] as the simultaneous submission of a visa petition and an application for adjustment of status because he did not possess a valid visa and was not entitled to any exemption." Majority Opinion, at 914. Accordingly, I am unable to understand why the majority reaches the conclusion that the same regulation found to be applicable in Suh was not violated.3

My most serious concern with the majority opinion is that it appears to hold that this Court is without power to order equitable relief of a retroactive nature to an alien whose opportunity to obtain citizenship in this country is prejudiced by the unjustified acts of the INS through its agents.4 I would make the following responses to the proposed opinion: (1) the fact that the INS may have violated its internal operating procedure rather than the regulations is without significance to this Court's power to grant equitable relief to an alien whose rights are prejudiced by that violation; (2) this Court does not depend, as the proposed opinion suggests, on a statutory or regulatory authorization in order to exercise its inherent equitable powers; and (3) the Supreme Court's decision in Immigration and Naturalization Service v. Hibi, 414 U.S. 5, 8, 94 S.Ct. 19, 21, 38 L.Ed.2d 7 (1973), does not limit the equitable power of federal courts to only those cases in which an estoppel is appropriate, so long as the right to equitable relief is based on "affirmative conduct" of the INS.

The majority opinion makes much of the fact that the "worst" the INS did in Suh was violate its own Operations Instructions. Since these instructions do not have the force of law, unlike the regulations, the majority reasons that we may not correct an unjust result arising from their violation. Assuming, arguendo, that only the Operating Instructions were violated in Suh, I conclude that such legal reasoning is wholly fallacious. It confuses that underlying jurisprudential distinction between law and equity. If regulations, having the force of law, were violated, the alien would have a right to both legal and equitable relief. When, however, an alien is prejudiced by the unjustifiable, yet not illegal acts of the INS, his only recourse is to seek equitable relief.

The majority's next position, that this Court can not grant equitable relief because it is not statutorily provided for, is equally untenable. Such an argument fails to recognize that the power of the federal courts to grant equitable relief arises out of their constitutional grant of authority under Article III, and does not depend on specific legislative authorization. Were this not the case, the power of federal courts to exercise their equitable powers would be limited to those very few situations in which Congress specifically authorized them to do so. This is clearly not the law. One need only look to Immigration and Naturalization Service v. Hibi, 414 U.S. 5, 8, 94 S.Ct. 19, 21, 38 L.Ed.2d 7 (1973), cited in the majority opinion, for proof that the Supreme Court concluded that equitable relief, although not appropriate under the facts of Hibi, was within the power of the federal courts to grant in the proper circumstances. See, Santiago v. Immigration and Naturalization Service, 526 F.2d 488 (9th Cir. 1975) (en banc), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976); Yoo v. Immigration and Naturalization Service, 534 F.2d 1325 (9th Cir. 1976).

The final point made in the proposed opinion is that if equitable relief is ever proper, Hibi limits the situations in which it should be granted to those that constitute an estoppel. There are several reasons why such an interpretation is incorrect. In the first place, as the Ninth Circuit Court of Appeals noted in Santiago, the ruling in Hibi is unique in that the Court was asked to estop the government from enforcing a broad decision of the Executive Branch made some twenty years earlier relating to post-World War II policy as it applied to a large class of people. There is a tremendous difference between seeking to estop the government when it is acting in its sovereign capacity and when it is performing a largely ministerial function. As Judge Choy said in his concurring and dissenting opinion in Santiago

526 F.2d at 496. Secondly, Hibi does not suggest that estoppel is the only type of equitable relief that may be granted. The simple reason that estoppel was discussed in Hibi is that it was the type of equitable relief that would have been appropriate to the facts of the case. As I read Hibi, we are instructed that equitable relief against the government is only appropriate if the injury complained of is caused by "affirmative misconduct" of the government agent. I see nothing in Hibi that says we may grant equitable relief only in those cases in which an estoppel is factually appropriate. Therefore, in my opinion, the suggestion, that the relief granted in Suh was inappropriate because it was not an estoppel, is simply wrong. One need only read the facts of Suh to see that there was nothing from which to estop the government. If relief was to be effective it had to be of a mandatory rather than a prohibitory nature. The final point I would make with respect to Hibi, is that whatever else the elusive term "affirmative misconduct" may mean,5 it most certainly must encompass a situation like that in Suh where the INS fails in its duty to provide the applicant alien with the information which the regulations and its own operating procedures require it to provide.

Conclusion

Being personally convinced that my most scholarly brother errs in traveling far out of his way to abolish equitable retroactive remedial relief, I would like to offer several reasons why, in the proper case, it is both appropriate and essential. One conclusion that anyone who reads the majority opinion must reach is that the INS regulations are incomprehensible. Their apparent internal inconsistencies defy comprehension by even the most learned in our society. As the majority opinion admits, "[w]hatever guidance the regulations furnish to those cognoscenti familiar with INS procedures, this Court, despite many years of legal experience, finds that they yield up meaning only grudgingly and that morsels of comprehension must be pried from mollusks of jargon." Majority Opinion, at 919. Consider further that the individuals whose responsibility it is to divine some sense from these regulations are the aliens themselves. These are not legal scholars; they often are poor, uneducated individuals, barely conversant in what to them is the foreign language of English. It seems to me that the INS regulations and internal operating rules that instruct INS agents to provide applicant aliens with certain information were created with the knowledge of these unequal positions in mind. Though the personnel within INS are being asked to perform the impossible6 in many parts of our country, the law requires them to follow the rules set down for the performance of their job. When they fail to meet this fundamental obligation, for whatever reason, and that failure operates to the prejudice of an applicant alien who otherwise is qualified for citizenship, it is the duty of this Court to use whatever equitable tools are at its disposal to restore the injured party to his or her rightful position.

We live in the greatest nation on Earth. It should come as no surprise that people of all races, creeds, and nationalities would desire to become citizens. It was the desire to live in this great nation that brought many of our ancestors to these shores in the last two centuries. To decide the propriety of granting retroactive remedial relief, one need only ask oneself how he would hope his ancestors would have been treated had the negligence of an INS officer stood as the only bar between citizenship and deportation to a hostile land.

Accordingly, I concur in the result achieved and respectfully dissent from the remainder of the proposed opinion.