Respondent Horacio Miranda, a citizen of the Philippines, entered the United States in 1971 on a temporary visitor's
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
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., at 4.
Respondent sought review of the Board's decision in the Court of Appeals for the Ninth Circuit. The Court of Appeals reversed, holding that "[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 Hansen 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 Hansen 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
In Hansen, 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. See 450 U. S., at 788-789. Although Hansen involved estoppel in the context of a claim against the public treasury, we observed that "[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." Id., at 788.
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, 8-9 (1973) (per curiam); Montana v. Kennedy, 366 U.S. 308, 314-315 (1961). Hibi and Montana indicate, however, that the Court of Appeals erred in determining that the evidence in this case established affirmative misconduct. In Montana, 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 314-315. 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
Unlike Montana and Hibi, where the 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.
This case does not require us to reach the question we reserved in Hibi, 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.
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, at 18. The Court relies on a presumption of regularity which it says attends the official acts of public officers. Ibid. In 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