Miranda v. Immigr. & Naturalization Serv., 638 F.2d 83 (9th Cir. 1980)

No. 79-7370.

Argued and Submitted June 5, 1980.

Decided Oct. 30, 1980.

Rehearing and Rehearing En Banc Denied March 24,1981.

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.

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 es-topped 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 II 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.