CA5, 2-1, Orders Removal of CCA Age-Out Client Despite Clear Govt Error: Gutierrez v. Lynch

Gutierrez v. Lynch, July 18, 2016 - "We must therefore decide whether Gutierrez became a lawful permanent resident in 2000, when the INS officer signed the I-89 Form certifying that Gutierrez was eligible for a permanent resident card, or in 2004, when USCIS formally approved his application and actually issued the card. ... INS committed various bureaucratic errors when processing his fingerprint and criminal history checks, which needlessly exacerbated the delay. Gutierrez and his parents diligently followed up with INS regarding the status of his adjustment application, yet INS nevertheless failed to timely approve his application. We are sympathetic to Gutierrez’s plight. The United States’s unreasonable delay cost Gutierrez the opportunity to obtain citizenship under the CCA and thereby avoid removal. However, we cannot estop the United States on the facts of this case."

Graves, Circuit Judge, dissenting: "...I would conclude that in a case such as this where the government provided a time-frame, repeatedly instructed Gutierrez to wait and provided numerous excuses despite the diligent effort of the Gutierrez family, the unreasonableness of the delay combined with the affirmative misrepresentations and concealment of the actual reason for the delay warrant the application of equitable estoppel. For these reasons, I would grant the petition for review and I respectfully dissent."

[Let's hope the Circuit, en banc, rehears and reverses.]