Thomas v. I.N.S., s. 91-70750
| Decision Date | 23 November 1994 |
| Docket Number | Nos. 91-70750,92-70142,s. 91-70750 |
| Citation | 35 F.3d 1332 |
| Parties | Clive Charles THOMAS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Cindy M. Cipriani, Gray, Cary, Ware & Freidenrich, San Diego, CA, for petitioner.
Donald A. Couvillon, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, for respondent.
Petition to Review a Decision of the Board of Immigration Appeals.
Before: KOZINSKI, SILER, ** and KLEINFELD, Circuit Judges.
Opinion by Judge KLEINFELD; Dissent by Judge KOZINSKI.
The main issue in this case arises from breach of a cooperation agreement. Thomas, a criminal, traded information to the United States Attorney for a promise that "the government" would not oppose his application for discretionary relief from deportation. The government nevertheless did oppose his application. The Immigration and Naturalization Service argues that it was not bound by the United States Attorney's promise. We hold that the INS was bound. The promise expressly bound the government for the particular conduct, and the United States Attorney had actual authority to bind the government. The case also requires remand for reconsideration of the motion to reopen under Butros v. INS, 990 F.2d 1142 (9th Cir.1993).
Thomas was brought to the United States and admitted as a lawful permanent resident as a child in 1954. Three decades later, still not a citizen, he was a narcotics dealer. In 1983 he pleaded guilty to conspiracy to possess cocaine for sale, and was sentenced to seven years imprisonment. At the government's urging, he was released from prison after about two years because of his cooperation in a major narcotics investigation.
Thomas and an Assistant United States Attorney entered into a cooperation agreement that consisted of a formal "letter of agreement" on the letterhead of the "United States Attorney--Mountain States Drug Task Force." It was signed by Thomas, two DEA agents, a Narcotics Task Force Agent, and the Assistant United States Attorney on behalf of the United States Attorney. Basically, Thomas promised to give the government a sworn statement about his narcotics trafficking, and work as a cooperating witness for two years. In return, the government agreed to advise the Parole Commission of his cooperation, and promised not to oppose motions made by Thomas's attorney for reduction of sentence or relief from deportation. Under the agreement, if the United States Attorney decided that Thomas had lied, the government could terminate the agreement and do nothing it had promised. Before the government terminated, however, Thomas was entitled to confront his accusers and explain himself. 1 After his conviction, the INS issued an order to show cause why Thomas should not be deported. Thomas requested discretionary relief under Section 212(c), 8 U.S.C. Sec. 1182(c) (1988). The day before his hearing, Thomas moved for a continuance. He claimed a continuance was warranted because the cooperation agreement was still under seal in district court pending completion of proceedings against other narcotics dealers, and Thomas sought the testimony of individuals regarding the extent and value of his cooperation. The motion for continuance was denied.
The INS opposed Thomas's request for relief from deportation, despite the express promise of "The Government" not to oppose that very motion. At the hearing, the INS called two witnesses who testified to Thomas's bad character and criminal activities. Thomas testified about his reformed attitudes and the extent of his cooperation under the agreement. Although he could not introduce a copy of the cooperation agreement into evidence, the Immigration Judge was made aware that he had cooperated extensively pursuant to an agreement. Thomas lost, appealed, and lost again before the Board of Immigration Appeals (BIA).
While Thomas's appeal was pending before the BIA, his cooperation agreement was unsealed, so his attorney provided the BIA with a copy. The INS attorney, in response, provided the BIA with a letter from a United States Attorney. The United States Attorney urged that the INS was not "completely" bound by the agreement, although he noted the text of the agreement "may suggest that." He also claimed Thomas breached the agreement, which released the government from its obligations. 2
Thomas subsequently moved to reopen his deportation proceedings because of new equities--marriage, birth of a son, and successful completion of probation. The BIA denied the motion, on the ground that the final deportation order ended his lawful residency, and so ended his eligibility for discretionary relief from deportation.
We have jurisdiction to review a decision of the BIA under the Immigration and Nationality Act, 8 U.S.C. Sec. 1105a (1988). We must remand on the motion to reopen because of a change in the law subsequent to the BIA's decision. That does not end the matter, though. Thomas has appealed the BIA decision on his initial appeal, as well as its decision on his motion to reopen. The denial of the motion to reopen, and the motion itself, involve different issues from the BIA decision on Thomas's appeal of the Immigration Judge's order denying him Section 212(c) relief. We therefore must address the petition for review of the appeal to the BIA. Even if the BIA decides that the new equities asserted in the motion are insufficient to change the result, the government's breach of its agreement requires that Thomas's Section 212(c) proceeding be conducted again, unopposed by the government.
The BIA denied the motion to reopen on a ground which later became invalid in this circuit. It relied on our decision in Gonzales v. INS, 921 F.2d 236 (9th Cir.1990), for the proposition that once the Immigration Judge's order of deportation was upheld by the BIA, the deportee was ineligible for Section 212(c) relief. But our subsequent en banc decision, Butros v. INS, 990 F.2d 1142, 1144 (9th Cir.1993), holds to the contrary. Because Thomas has not actually departed from the United States, the statute and regulation thereunder do not bar his motion to reopen. Id. We must therefore remand to the BIA so it can consider Thomas's motion to reopen.
Thomas argues that the government violated the agreement pursuant to which he waived his constitutional right to silence and provided the government with information and testimony. He claims that this violation breached his constitutional right to due process of law. We review de novo. Barraza Rivera v. INS, 913 F.2d 1443, 1448 (9th Cir.1990). We reverse, with directions that Thomas have a new proceeding in which the government does not oppose his motion for 212(c) relief.
It has long been the law that the government's failure to keep a commitment which induces a guilty plea requires that judgment be vacated and the case remanded. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498-99, 30 L.Ed.2d 427 (1971). A cooperation agreement is analogous to a plea agreement. United States v. Carrillo, 709 F.2d 35, 36 (9th Cir.1983). The government is held to the literal terms of the agreement, and ordinarily must bear responsibility for any lack of clarity. United States v. Anderson, 970 F.2d 602, 607 (9th Cir.1992). Enforcement of the agreement requires that the person making the promise be authorized, and that the promisee rely on the promise to his detriment. Johnson v. Lumpkin, 769 F.2d 630, 633 (9th Cir.1985).
The INS argues that "the Service was not a party to the agreement, nor is it bound by the agreement, nor does the agreement specify that INS would not oppose the alien's request." The INS correctly points out that the record does not show the INS was ever consulted about whether the government should make the agreement, or even advised that the agreement existed. The INS also argues that the United States Attorney lacked authority to enter into an agreement on its behalf.
We sympathize with the INS's concern that it may be bound by an agreement made without its participation, and that a deportation order may be vacated because of an agreement of which the INS was not informed. The INS did not knowingly do anything unfair to Thomas, so far as the record shows. The INS trial attorney may be justifiably annoyed at spending considerable time and effort opposing a motion for relief from deportation, only to have the effort wasted if the United States Attorney promised that the motion would not be opposed and did not advise the INS of the promise. Any unfairness to the Service apparently results from the failure of the United States Attorney to keep the INS informed.
Nevertheless, Thomas was entitled to performance by the government of its promise. Santobello, 404 U.S. at 262, 92 S.Ct. at 499. The United States Attorney should have written to whomever in the Department of Justice would be responsible for seeing that the promise he made on the government's behalf would be performed by the INS. The BIA should have reversed and remanded for a new hearing in which the government would not oppose Thomas's motion for relief from deportation.
The agreement plainly and unambiguously spoke to the issue of deportation and expressly bound the INS. In the first paragraph, the agreement says that "Government," designated as the promisor, "includes its departments, officers, agents, and agencies." See supra note 1 (). The eighth...
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