1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-7-1997

United States v. Igbonwa

Precedential or Non-Precedential:

Docket 96-1848

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Recommended Citation

"United States v. Igbonwa" (1997). 1997 Decisions. Paper 185.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/185
iled August 7, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-1848 / 97-1054 

UNITED STATES OF AMERICA, 

Appellant No. 96-1848 

v. 

FRANKLIN UZO IGBONWA 

a/k/a Franklin Uzowa 

a/k/a Francis Igwe 

a/k/a Laz Igbonwa 

UNITED STATES OF AMERICA, 

v. 

FRANKLIN UZO IGBONWA 

a/k/a Franklin Uzowa 

a/k/a Francis Igwe 

a/k/a Laz Igbonwa 

Franklin Igbonwa, 

Appellant No. 97-1054 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

D.C. No.: 90-cr-00375 

Argued April 17, 1997 

Before: GREENBERG, ALITO, and ROSENN, 

Circuit Judges. 

(Opinion Filed August 7, 1997) 
Michael R. Stiles, 

 United States Attorney, Eastern 

District of Pennsylvania 

Walter S. Batty, Jr., 

 Assistant United States Attorney, 

Chief of Appeals 

Mark J. Ehlers, 

 Assistant United States Attorney 

615 Chestnut Street, Suite 1250 

Philadelphia, PA 19606 

Frank W. Hunger, 

 Assistant Attorney General, 

Civil Division 

Francesco Isgro, 

 Senior Litigation Counsel, 

Office of Immigration Litigation 

Karen Ann Hunold (argued), 

 Office of Immigration Litigation, 

Civil Division, 

United States Department of Justice 

P.O. Box 878, Ben Franklin Station 

Washington, D.C. 20044 

Counsel for Appellant/Cross-Appellee 

R. David Walk, Jr. (argued) 

Hoyle, Morris, & Kerr 

One Liberty Place, Suite 4900 

1650 Market Street 

Philadelphia, PA 19103 

Counsel for Appellee/Cross-Appellant 

 2 
OPINION OF THE COURT 

ROSENN, Circuit Judge. 

This appeal stems from an unusual order of the United 

States District Court for the Eastern District of 

Pennsylvania, directing the "United States of America [to] 

take steps to prevent [Franklin Uzo Igbonwa's] deportation 

to Nigeria." Igbonwa, a Nigerian citizen who initially entered 

the United States in 1986 as a non-immigrant visitor for 

pleasure, was indicted by a federal grand jury and 

convicted in 1990 for drug violations. In a habeas corpus 

proceeding brought by Igbonwa in 1996, the district court 

found that despite a written plea agreement which made no 

reference whatsoever to his deportation, the Assistant 

United States Attorney (AUSA) orally promised, as part of 

the plea bargain, that Igbonwa would not be deported. The 

court directed that the United States take measures to 

prevent Igbonwa's deportation. The Government timely 

appealed. We reverse the order prohibiting deportation, but 

affirm the district court's denial of the defendant's motion 

for release on his own recognizance pending this appeal. 

I. 

Franklin Uzo Igbonwa is a Nigerian citizen who entered 

the United States in 1986 as a "non-immigrant visitor for 

pleasure." Immigration & Naturalization Service (INS) 

adjusted Igbonwa's status to that of conditional permanent 

resident in 1987 following his marriage to a United States 

citizen. In 1989, Igbonwa petitioned to remove the 

conditional element of his immigration status. INS denied 

his petition on November 29, 1989, when the agency 

determined that his marriage was a sham marriage entered 

into solely for the purpose of securing Igbonwa permanent 

resident status. INS began proceedings to terminate his 

conditional permanent resident status in 1990, but these 

proceedings were administratively halted on March 8, 1990, 

due to Igbonwa's incarceration on narcotics offenses. 

In 1990, a federal grand jury indicted Igbonwa in the 

Eastern District of Pennsylvania on two counts of 

 3 
possession with intent to distribute heroin, in violation of 

21 U.S.C. § 841(a)(1). He negotiated a plea agreement with 

the United States Attorney's Office in Philadelphia. The 

agreement stated that Igbonwa would plead guilty to the 

two counts of the indictment and cooperate with the

Government in future criminal investigations, in exchange 

for which the Government would file a motion 

recommending a downward departure under 18 U.S.C. 

§ 3553(e) and United States Sentencing Guideline § 5K1.1 if 

it deemed Igbonwa's cooperation satisfactory. The plea 

agreement further provided that "no additional promises, 

agreements or conditions have been entered into other than 

those set forth in this document and that none will be 

entered into unless in writing and signed by all parties." 

The plea agreement made no references relating to 

deportation. 

In accordance with the plea agreement, Igbonwa pled

guilty on November 20, 1990. During his plea colloquy, 

Igbonwa averred that no additional representations or 

promises had been made and that he had not been induced 

to enter into the plea agreement by any promises beyond 

those in the written agreement. The court sentenced

Igbonwa to nine years in prison on each count, the two 

sentences to run concurrently, and ten years of supervised 

release.1 In 1994, the Governmentfiled a Rule 35(b) motion 

recommending a reduction in Igbonwa's prison sentence for 

his cooperation and testimony in a criminal investigation 

conducted in the District of Maryland. The district court 

granted the motion and reduced Igbonwa's imprisonment 

by three years. 

On August 5, 1993, INS began an investigation to 

determine whether Igbonwa was subject to deportation and 

served a detainer notice on the warden of the prison where 

Igbonwa was incarcerated. In August of 1995, INS initiated 

_________________________________________________________________ 

1. At the time of his arrest, Igbonwa had previously been convicted in the 

Eastern District of Pennsylvania of conspiracy to commit offenses against 

the United States, false statements, and false use of a social security 

number. This previous conviction was relied upon in determining 

Igbonwa's criminal history for purposes of sentencing under the United 

States Sentencing Guidelines but is not a deportable offense under 8 

U.S.C. § 1251. 

 4 
deportation hearings against Igbonwa, and an immigration 

judge issued an order of deportation on October 5, 1995. 

Igbonwa finished serving his criminal sentence in 

December, 1995, and has remained in prison pending his 

deportation pursuant to the INS detainer notice. 

In February, 1996, Igbonwa filed a motion in the district 

court for return of seized property, and at this time raised 

the issue of a promise allegedly made by AUSA Ronald 

Jarvis during the course of the plea agreement negotiations. 

Igbonwa asserted that the AUSA promised him the 

Government would not deport him if he cooperated in other 

heroin trafficking investigations. Igbonwa further asserted 

that he relied on AUSA Jarvis' promise when he agreed to 

enter into the plea agreement. Igbonwa further stated that 

an INS agent, Jim Martinelli, attended one of these plea 

negotiations between Jarvis and Igbonwa and, according to 

Igbonwa, basically stated that if the Government agreed not 

to deport Igbonwa, then INS would concur in that decision. 

After conducting hearings on the issue, the district court 

found that the promise had been made, that the promise 

was enforceable, and that it must be enforced. Thus, the 

district court granted Igbonwa's motion for specific 

performance of the plea agreement entered into between the 

two parties and directed that the "United States of America 

shall take steps to prevent the defendant's deportation to 

Nigeria." The United States appealed from that order. 

Igbonwa filed a cross-appeal from the January 15, 1997 

order of the district court denying his motion to be released 

on his own recognizance pending resolution of the 

deportation proceedings. 

II. 

A. 

As a threshold matter, the Government contends that

this court has no jurisdiction to hear this appeal and that 

the district court had no power to hear Igbonwa's motion in 

light of recent legislation designed to restrict the habeas 

corpus rights of an alien subject to an order of deportation. 

Congress, in accordance with its broad powers in matters of 

 5 
immigration, limited the right of judicial review of 

deportation orders by passing the Illegal Immigration 

Reform and Immigrant Responsibility Act ("IIRIRA"), P.L. 

104-208, 110 Stat. 3009 (1996). The IIRIRA, which became 

effective on April 1, 1997, states: 

Except as provided in this section and notwithstanding 

any other provision of law, no court shall have 

jurisdiction to hear any cause or claim by or on behalf 

of any alien arising from a decision or action by the 

Attorney General to commence proceedings, adjudicate 

cases, or execute removal orders against any alien 

under this Act. 

IIRIRA, § 306(a) (to be codified at 8 U.S.C.§ 1252(g)). This 

provision applies "without limitation to claims arising from 

all past, pending, or future exclusion, deportation, or 

removal proceedings under such Act." IIRIRA,§ 306(c)(1). 

Courts reviewing this statute have determined that"the 

IIRIRA removed the jurisdiction of the [federal courts] to 

hear habeas claims under all other federal statutes." See

Charan v. Schiltgen, No. C 96-3061 FMS, 1997 WL 135938, 

at *3 (N.D. Cal. Mar. 18, 1997). Thus, the Government 

argues strenuously that this law abrogates the order of the 

district court and divests all federal courts, including this 

court, of current and future jurisdiction over Igbonwa's 

§ 2255 motion. 

In the alternative, the Government argues that the 

district court lacked subject-matter jurisdiction over 

Igbonwa's petition for habeas corpus relief because Igbonwa 

failed to exhaust his administrative remedies prior to the 

filing of this petition, as required by 8 U.S.C.§ 1105(a). The 

district court found that Igbonwa was not required to 

exhaust these remedies under Massieu v. Reno, 91 F.3d 

416 (3d Cir. 1996), which permits judicial consideration of 

claims "that are not of the type intended to be reviewed 

under [the administrative scheme], especially if such claims 

could not otherwise receive meaningful review." Massieu, 91 

F.3d at 422 (citing Thunder Basin Coal Co. v. Reich, 510 

U.S. 200, 212 (1994)). These are claims which are"wholly 

collateral" to the administrative review process. Id. The 

Government argues that Igbonwa's challenge to the 

deportation order goes to the heart of the order-- the 

 6 
authority of INS to issue this order -- and therefore this 

claim is not "wholly collateral" to administrative review. 

Thus, the Government asserts that the district court also 

lacked jurisdiction over Igbonwa's § 2255 motion because of 

his failure to exhaust all adminstrative remedies. 

With due regard to the Government's argument, we need 

not resolve issues unnecessary to the disposition of this 

case. "[A] court need not reach difficult questions of 

jurisdiction when the case can be resolved on some other 

ground in favor of the same party." Georgine v. Amchem

Products, Inc., 83 F.3d 610, 623 (3d Cir. 1996), aff 'd, 65 

U.S.L.W. 4635 (June 25, 1997). In the present matter, we 

resolve the merits of the appeal in favor of the Government, 

who had raised the matter of jurisdiction. Therefore, we 

decline to address the jurisdictional issues raised by the 

Government in this case2 and proceed to an analysis of the 

district court's decision. 

B. 

A district court's factual findings are subject to the 

clearly erroneous standard of review. Fed. R. Civ. P. 52(a). 

Under this standard, a finding is "clearly erroneous when 

_________________________________________________________________ 

2. This case presents an unusual circumstance because we reverse the 

district court's order pertaining to deportation. Usually when we decide 

the merits of an appeal without reaching a jurisdictional issue, we affirm 

the district court's order. See, e.g. , United States v. Eyer, 113 F.3d 470, 

474-75 (3d Cir. 1997). Thus, it could be said that in assuming 

jurisdiction we are not acting in favor of the party to whose benefit the 

objection to jurisdicition would redound. Id. at 474. After all, if we 

dismissed the appeal we would benefit Igbonwa if the dismissal meant 

that the district court's order would stand. 

The foregoing analysis, however, is inapplicable here because the 

Government certainly does not contend that we should dismiss the 

appeal but allow the district court's order to remain. Rather, it contends 

that the federal courts have no jurisdiction over this case, an argument 

which, if accepted, would result in the district court order being vacated. 

Clearly, it is not in Igbonwa's interest that we take that position. Thus, 

we cannot view the jurisdictional issue as being limited to appellate 

jurisdiction. Accordingly, viewing the challenge to jurisdiction to relate to 

both the district court and this court, we are acting in Igbonwa's interest 

by taking jurisdiction or, at worst, not prejudicing him. 

 7 
`the reviewing court on the entire evidence is left with the 

definite and firm conviction that a mistake has been 

committed.' " United States v. Bogusz, 43 F.3d 82, 85 (3d 

Cir. 1994) (quoting United States v. United States Gypsum

Co., 333 U.S. 364, 395 (1948)), cert. denied sub nom.

O'Rourke v. United States, 115 S. Ct. 1812 (1995). This 

standard does not permit the reviewing court to conduct a 

de novo review of the evidence, but it does allow the court 

to consider whether there is enough evidence in the record 

to support the factual findings of the district court. Cooper

v. Tard, 855 F.2d 125, 126 (3d Cir. 1988). This review is 

more deferential with respect to determinations about the 

credibility of witnesses, and when the district court's 

decision is based on testimony that is coherent and

plausible, not internally inconsistent and not contradicted 

by external evidence, there can almost never be afinding of 

clear error. Anderson v. City of Bessemer City, N.C., 470 

U.S. 564, 575, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985). 

On this record, there is only one source of evidence that 

the alleged promise existed: Igbonwa. Only Igbonwa's 

testimony supports the existence of the alleged agreement; 

the district court relied on no other evidence. The court 

found that this promise had been made after determining 

that Igbonwa was an "intelligent, articulate man" who gave 

credible testimony. However, the same court had previously 

sentenced Igbonwa to a year above the recommended 

sentence after concluding that Igbonwa had not been

candid with the court. In fact, at one earlier hearing, the 

court referred to Igbonwa as a "prevaricating, polygraphflunking putative perjurer." 

Additionally, Igbonwa's own testimony in this proceeding 

is marred by inconsistencies with prior assertions he made 

pertaining to this agreement and other matters related to 

his deportation. Igbonwa now asserts that the alleged 

promise was made during meetings he had alone with 

AUSA Jarvis, without the presence of counsel. However, 

Igbonwa sued his former counsel for legal malpractice in 

1995, charging that his attorney conducted the plea

negotiations without Igbonwa's knowledge or presence and 

that Igbonwa was not a party to the negotiations in any 

meaningful way. Additionally, at every point up until the 

 8 
deportation order was executed, Igbonwa continued to 

acknowledge that the only terms of the plea agreement were 

those contained within the written document and that there 

were no additional terms. 

The district court concluded that "Mr. Igbonwa's 

testimony is not a recent fabrication in the face of a 

deportation order." United States v. Igbonwa , No. 90-375, 

slip. op. at 9 (E.D. Pa. Aug. 26, 1996). The court noted that 

Igbonwa had "presented the same testimony at a Rule 35 

hearing in January, 1994, and again at a hearing on his 

petition for a writ of habeas corpus in February, 1995, long 

before the INS began deportation proceedings." Id. Thus, 

the court found as facts that Igbonwa had expressed

concerns regarding his deportation to Jarvis, that Jarvis 

responded to these concerns with a promise that the

"United States would take steps to prevent Mr. Igbonwa's 

deportation, and that Igbonwa reasonably relied on this 

promise before agreeing to plead guilty." Id . 

The record, however, does not support many of the 

indicia of reliability and credibility that the district court 

accepted in evaluating Igbonwa's testimony. First, the 

investigation into the deportation proceeding actually began 

in 1993, as evidenced by the detainer notice sent to the 

warden of FCI-Oakdale on August 5, 1993. Thus, although 

it is correct, as the district court found, that Igbonwa's 

claim arose before the official "deportation proceedings" had 

begun, the investigation had been progressing for some 

time when Igbonwa first raised this alleged promise. 

Additionally, a similar investigation had been initiated as 

early as 1989, but was halted when the criminal 

proceedings against Igbonwa commenced. Thus, it is likely 

that Igbonwa was aware of the investigation into his 

deportability long before the official deportation proceedings 

began in late 1995. 

Additionally, it is unclear when Igbonwafirst raised this 

alleged promise. The district court found that Igbonwa first 

raised this promise at a January 1994 hearing. The record 

reflects that Igbonwa did not state at this hearing that any 

promise not to deport him was made. Specifically, Igbonwa 

said that he turned down the Government's offer to place 

him in the Witness Protection Program, because the threat 

 9 
to his safety was in Nigeria, not in the United States. But 

he did not assert that the United States Attorney's Office 

had promised him that he would not be deported by any 

branch of the United States Government. 

At the February 1995 hearing on Igbonwa's § 2255 

motion, Igbonwa first stated that he had not been permitted 

to participate in any of the negotiations related to the plea 

agreement. Later, Igbonwa asserted that the nondeportation promise was made to him in the larger context 

of discussions regarding the Witness Protection Program. 

However, Igbonwa also acknowledged that Jarvis told him 

that United States Attorney's Office would not be able to 

prevent his deportation, stating: "I said for the record that 

[Jarvis] told me Franklin, we cannot be able to save you 

against deportation. . . . He said Franklin, we the United 

States Attorney's Office cannot be able to save you from 

being deported by the INS." Igbonwa's claim that an INS 

agent, Jim Martinelli, echoed Jarvis' promise was not raised 

in his initial § 2255 motion and Igbonwa only raised it after

Jarvis testified that Martinelli was one of the INS agents 

who communicated with Igbonwa during the proffer 

sessions.3 Thus, the evidence relied upon by the district 

court is simply insufficient to support the finding that 

AUSA Jarvis had promised Igbonwa that the Government 

would not deport him. 

Moreover, all other evidence in the case establishes that 

this alleged promise of non-deportation was never made. 

The written plea agreement does not include the alleged 

_________________________________________________________________ 

3. Even the language that Igbonwa attributes to Jarvis regarding the 

non-deportation promise -- "we can work with that" -- is language he 

previously attributed to Jarvis on a sentencing issue. In a letter to his 

former attorney, Daniel Alva, Igbonwa wrote: 

"Then I asked openly what I stand to gain if I go to the Grand Jury. 

Then Mr. Jarvis asked me what I would want and you (Alva) gave 

me go ahead to say what I want. I then said that I would want "time 

served", and Mr. Jarvis said "at worst?", and I said "or a three yr. 

sentence". Mr. Jarvis indeed nodded in agreement and further 

stated "we can work with that". 

Nowhere in the letter does Igbonwa refer to any alleged promises made 

pertaining to deportation. 

 10 
promise; on the contrary, it contains a specific provision 

establishing that all promises made in connection with the 

agreement are within the four corners of the document and 

that no additional promises would be entered into"unless 

in writing and signed by all parties." Both Jarvis and 

Igbonwa's attorney testified that the alleged promise was 

never made during any of the proffer sessions. The district 

court's finding that Igbonwa feared deportation and that he 

mentioned those fears to Jarvis does not establish that the 

promise was made.4 Thus, the great weight of the evidence 

supports the conclusion that no such promise was made, 

and the district court's factual finding that the promise was 

made in the face of all the evidence to the contrary is 

clearly erroneous. 

C. 

The Government further argues that the district court 

erred when it found that the AUSA who allegedly made this 

promise regarding deportation to Igbonwa had the authority 

to bind other branches of the United States Government, 

specifically INS. This issue raises a question of law and 

accordingly our review is plenary. Graham v. Immigration &

Naturalization Service, 998 F.2d 194, 194 (3d Cir. 1993). 

The authority of a federal prosecuting attorney 

peremptorily to bind another department of the 

Government presents an issue of first impression in our 

court. The courts which have addressed this issue have 

split on the question of whether a United States Attorney or 

_________________________________________________________________ 

4. The dissent expresses the fear that the majority "condemns [appellant] 

to a substantial risk of death resulting directly from his cooperation with 

the United States government." Dissent op. at 19 n.6. This is a highly 

speculative conclusion, attributable solely to Igbonwa's self-serving 

testimony to escape deportation. Moreover, the United States does not 

and cannot serve as a safe-haven for every deportable alien who alleges 

that he may be killed if he is returned to his native country as a result 

of his criminal activity. If Igbonwa truly fears for his safety upon his 

return to Nigeria, we suggest that Igbonwa request that the Attorney 

General deport him to another country that would afford him greater 

protection from these alleged threats. See generally 8 U.S.C. § 1253 

(Supp. 1997) (governing country to which alien will be deported). 

 11 
his or her assistant can make a promise regarding 

deportation matters which will be binding on the entire 

United States Government. The Eighth and Ninth Circuits 

have both ruled that a federal prosecuting attorney who 

makes a promise of non-deportation during the course of a 

plea agreement has authority to bind INS and that this 

promise is enforceable against INS. See Margalli-Olvera v.

Immigration & Naturalization Service, 43 F.3d 345, 354 (8th 

Cir. 1994); Thomas v. Immigration & Naturalization Service, 

35 F.3d 1332, 1343 (9th Cir. 1994). The Eleventh Circuit, 

however, has ruled that an AUSA does not have the 

authority to make a non-deportation promise as part of 

plea agreement. See San Pedro v. Immigration &

Naturalization Service, 79 F.3d 1065, 1072 (11th Cir.), cert.

denied, 117 S. Ct. 431 (1996).5 

In Thomas, the alien entered into a plea agreement with 

a United States Attorney which specifically stated that "the 

United States of America (hereafter "Government," which 

term includes its departments, officers, agents and

agencies) . . . will not oppose any motions made by your 

counsel for reduction of sentence, modification or relief 

from deportation to the Court, parole commission and U.S. 

Immigration Service." 35 F.3d at 1335 n.1. The alien sought 

specific performance of this plea agreement, and INS 

argued that it was not bound by this promise made by a 

United States Attorney. 35 F.3d at 1135. The Ninth Circuit 

first noted that actual authority, either express or implied, 

is necessary to bind the United States Government; 

estoppel and apparent authority generally will not suffice. 

Id. at 1336. The court acknowledged that the United States 

Attorney had statutory authority to "prosecute for all 

offenses against the United States." Id. at 1338-39. From 

this express grant of authority, the court held that, under 

_________________________________________________________________ 

5. It is perhaps worth noting that all three of these cases are 

distinguishable from the case sub judice in that written promises were 

included in the plea agreement. See San Pedro , 79 F.3d at 1067 n.1 

("United States agrees . . . not to prosecute[alien] for any other 

offenses"); Margalli-Olvera, 43 F.3d at 348 ("United States will 

recommend against deportation"); Thomas, 35 F.3d at 1335-36 n.1 

("Government will not oppose any motions made . .. [for] relief from 

deportation"). 

 12 
principles of agency law, this granted the United States 

Attorney the "implied authority" to enter plea agreements, 

and that this implied authority bound the Government as 

a whole. Id. at 1340. Additionally, the court considered its 

conclusion bolstered by the Attorney General's supervisory 

power over both agencies. Id. at 1340-41. 

In Margalli-Olvera, the alien entered a plea agreement 

which stated, in pertinent part, that "if the defendant 

participates fully and truthfully in a debriefing,. . . the 

United States will recommend against deportation. 

Otherwise, the United States will remain silent regarding 

deportation." 43 F.3d at 348. The Board of Immigration 

Appeals (BIA) affirmed the immigration judge's refusal to 

enforce this promise and upheld the order of deportation. 

Id. at 349. Upon petition for review, the Eighth Circuit held 

"that, if unambiguous, the term `United States' is a 

reference to the entire United States government and all the 

agencies thereof." Id. at 352. The court then followed the 

reasoning of Thomas and agreed that "the express grant of 

`authority to "prosecute" implies the power to make plea 

agreements incidental to the prosecution.' " Id. at 353 

(quoting Thomas, 35 F.3d at 1339). Accordingly, the court 

held that "an Assistant United States Attorney has actual 

authority to bind the INS." Id. at 354. 

Most recently, in San Pedro, an alien sought specific 

performance of a promise in the plea agreement not to 

prosecute the alien for any other offenses, which he 

asserted included a promise not to deport him. 79 F.3d at 

1067. The district court found that this promise did not 

bind INS and thus was not enforceable. Id. at 1068. On 

appeal, the Eleventh Circuit agreed with Thomas and 

Margalli-Olvera that only actual authority would bind the 

Government. Id. at 1068. However, the Ninth Circuit found 

that the United States Attorney's Office did not have actual 

authority to bind the INS. Id. at 1071. The Eleventh Circuit 

considered the specific delegations of power to the United 

States Attorney's Office and to INS, and concluded that the 

United States Attorney's Office would only have the power 

to bind INS if the Attorney General specifically delegated 

that power. Id. at 1070. The court found no such delegation 

of this power, and held that a United States Attorney did 

 13 

not have the authority to bind INS by a promise of nondeportation made in a plea agreement. Id. at 1072. 

After careful consideration, this court finds the reasoning 

of San Pedro, which considered the specific nature of the 

statutes delegating immigration matters to INS and criminal 

matters to the United States Attorney's Office, more 

persuasive than that of Thomas and Margalli-Olvera, which 

considered the general power the Attorney General has over 
both these agencies. To hold otherwise would grant United 

States Attorneys the power to bind any and every 

governmental agency under the supervision of the Attorney 

General through promises made in the plea agreement. We 

hold that this result does not adhere under either statutory 

law or through application of the ordinary principles of 

agency law, and that a promise made by the United States 

Attorney's Office relating to deportation does not bind the 

INS without explicit authority from the INS. 

Bolstering our conclusion, the Eighth Circuit recently 

returned to this issue in United States v. Camacho-Bordes, 

94 F.3d 1168 (8th Cir. 1996). In that case, the plea 

agreement stated that the Government would recommend 

against deportation to the INS. The Eighth Circuit 

concluded that, unlike Margalli-Olvera, which referred to 

the "United States" in the plea agreement and did not 

distinguish between the different agencies involved, the 

distinction between the Government (meaning the United 

States Attorney's Office) and the INS was clearly drawn. 

Camacho-Bordes, 94 F.3d at 1175. Thus, any agreement on 

the part of the Government obviously did not bind INS. Id. 

This is analogous to the present matter, in which even 

Igbonwa acknowledged that he knew AUSA Jarvis was 

speaking only for the United States Attorney's Office and 

not for INS. At the hearing on the § 2255 motion, Igbonwa 

testified: "[Jarvis] said Franklin, we the United States 

Attorney's Office cannot be able to save you from being 

deported by the INS." United States v. Igbonwa, No. 90-375, 

Feb. 8, 1995 Hearing Transcript at 91. Accordingly, we hold 

that the United States Attorney's Office lacks the authority 

to make a promise pertaining to deportation in the 

prosecution of a criminal matter that will bind INS without 

its express authorization. With formal authorization from 

 14 
the INS, the United States Attorney might be able to 

promise non-deportation. These circumstances do not exist 

here because of the informal verbal nature of the alleged 

promise and Igbonwa's admission that AUSA Jarvis was 

speaking only for the U.S. attorney's office. 

III. 

The decision of a district court to refuse a motion for 

release on a defendant's own recognizance is reviewed 

under an extremely deferential standard. The district 

court's decision is presumed correct, and that presumption 

can only be overcome by special circumstances. Hilton v.

Braunskill, 481 U.S. 770, 774, 107 S. Ct. 2113, 95 L. Ed. 

2d 724 (1987) (citing Fed. R. App. P. 23(d)). No such special 

circumstances are present in this case, and the district 

court's order denying Igbonwa's motion for release on his 

own recognizance pending final resolution of this matter 

will be affirmed. 

IV. 

For the foregoing reasons, the order of the district court 

granting Igbonwa's motion and ordering the United States 

to specifically perform an alleged promise not to deport 

Igbonwa will be reversed. The order denying Igbonwa's 

motion for release pending resolution of these proceedings 

will be affirmed. 

 15 
ALITO, Circuit Judge, dissenting. 

I dissent for two reasons. First, I cannot agree with the 

majority that the district court committed clear error when 

it credited Igbonwa's testimony that he was promised that 

the United States would "take steps to prevent" his

deportation to Nigeria. See App. 650a. Second, without 

clarification from the district court regarding the precise 

nature of its finding, I am unwilling to conclude that the 

Assistant United States Attorney in question lacked the 

authority to make the promise that the district court found 

was made. Specifically, if, as the government itself suggests 

(see Govt. Br. at 36 n.18), the Assistant United States

Attorney merely promised that his office would make its 

best effort to prevent Igbonwa's deportation, it is by no 

means clear to me that the Assistant United States 

Attorney exceeded his authority in making the promise that 

he did. 

1. Before addressing these questions, however, I will 

briefly discuss what the government characterizes as a 

threshold jurisdictional argument, i.e., that section 306(g) 

of the Illegal Immigration Reform and Immigrant 

Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 

Div. C. Title III, § 306(g), 110 Stat. 3009, codified as 8 

U.S.C. § 1252(g), retroactively divested the district court of 

jurisdiction and therefore requires reversal here. Section 

306(g) provides: 

Except as provided in this section and notwithstanding 

any other provision of law, no court shall have 

jurisdiction to hear any cause or claim by or on behalf 

of any alien arising from the decision or action by the 

Attorney General to commence proceedings, adjudicate 

cases, or execute removal orders against any alien 

under this chapter. 

8 U.S.C. § 1252(g)(emphasis added). Section 306(c) of the 

IIRIRA states that section 306(g) "shall apply without 

limitation to claims arising from all past, pending, or future 

exclusion, deportation, or removal proceedings under the 

Act" (emphasis added). 

These provisions might assist the government were it not 

for the fact that the district court's final order was signed 

 16 
on August 26, 1996, more than a month before the IIRIRA 

was enacted on September 30, 1996.1 Both of the statutory 

provisions quoted above used the future tense ("shall have" 

and "shall apply"). Thus, they at most affect the jurisdiction 

of the courts beginning the moment after the IIRIRA

became law. Consequently, the statutory language does not 

support -- on the contrary, it undermines -- the 

government's contention that the IIRIRA retroactively 

divested the district court of jurisdiction over a proceeding 

that was already completed at the district court level. 

The government contends that the IIRIRA prospectively 

divested us of jurisdiction to hear this appeal. See Reply Br. 

at 8 ("this Court has no jurisdiction over this case"). 

However, merely showing that this court was prospectively 

divested of jurisdiction (as opposed to showing that the 

district court was retroactively divested of jurisdiction) 

would not help the government, since the government is the 

party that has appealed from and seeks reversal of the 

district court's order directing the United States to "take 

steps" to prevent Igbonwa's deportation to Nigeria. (In any 

event, the language of section 306(g) affects only appeals 

brought "by or on behalf of [an] alien."). 

Even if section 306(g) did not evidence a clear 

congressional intent not to divest the courts retroactively of 

jurisdiction over actions in which they had already entered 

final orders, the presumption of non-retroactivity leads to 

the same conclusion. See Landgraf v. USI Film Products, 

511 U.S. 244, 293 (1994) (Scalia, J., concurring in

judgments) ("applying a jurisdiction-eliminating statute to 

undo past judicial action would be applying it retroactively").2 

2. I cannot agree with the majority that the district 

court committed clear error in finding that the prosecutor 

promised Igbonwa that "the United States would take steps 

to prevent his deportation." App. 650a. Igbonwa gave 

testimony to this effect, and the district court expressly 

_________________________________________________________________ 

1. The government also filed its notice of appeal (on September 24, 1996) 

prior to the enactment of the IIRIRA. 

2. The government itself quotes and relies on this very passage. See

Govt. Br. at 22 n.12. 

 17 
found his testimony to be "credible."3 Id. In making this 

finding, the district court judge relied on the knowledge he 

had gained by virtue of his "six-year oversight of these 

proceedings" (id.), which included numerous opportunities 

to speak with and observe Igbonwa personally. There is no 

doubt that the printed record contains evidence that 

supports a contrary finding, and if I had been the district 

court judge, I am not at all sure that I would have believed 

Igbonwa's testimony. But I cannot say that the district 

court's finding, which rests heavily on a credibility 

determination, was clearly erroneous. 

3. While I accept the district court's finding, I view it as 

ambiguous in a way that may have important legal 

implications. As noted, the district court found that "the 

United States [promised that it] would take steps to prevent

[Igbonwa's] deportation." App. 650a (emphasis added). 

Similarly, the district court ordered the United States to 

"take steps to prevent the defendant's deportation." App. 

661a (emphasis added). 

One possible interpretation of the district court'sfinding 

is that the United States promised to take whatever

administrative steps were necessary to prevent Igbonwa's 

deportation. If this is the correct interpretation, then we 

might be required to confront4 the government's arguments 

(a) that under 8 U.S.C. § 1105a(c), the district court was 

precluded from entertaining Igbonwa's motion because he 

had not exhausted his administrative remedies and (b) that 

the Assistant United States Attorney who allegedly made 

_________________________________________________________________ 

3. In a nutshell, Igbonwa's story is that he feared that his cooperation 

with the United States, in its prosecution of the members of a Nigerian 

drug ring, would put him in danger of "violent reprisal" should he ever 

have to return to Nigeria. Id. at 648-650. Given these fears, Igbonwa 

claims that he requested the United States government to grant him -- 

in exchange for his cooperation -- a promise that they would protect him 

from deportation to Nigeria. 

4. Igbonwa argues that we should not consider the government's legal 

arguments because they were not presented to the district court. I 

express no view at this time regarding this question. 

 18 
the promise to Igbonwa lacked the authority to make a 

binding commitment regarding deportation.5 

Another possible interpretation of the district court's 

finding is that the Assistant United States Attorney simply 

promised that his office would make its best effort to 

persuade those having the decisionmaking authority that 

Igbonwa should not be deported to Nigeria. Under this 

interpretation, the Assistant United States Attorney's 

promise would be similar to a promise to recommend a 

sentence to a sentencing judge who is then free to impose 

whatever lawful sentence the judge finds appropriate. 

Under this interpretation, I am not at all sure that either of 

the legal arguments noted above would be implicated, and 

in any event, the issues might be significantly altered. 

Accordingly, before confronting those difficult issues, I 

would remand for the district court to clarify itsfinding. 

For these reasons, I cannot join the decision of the 

majority, and must respectfully dissent.6 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________ 

5. Igbonwa contends that, even if the Assistant United States Attorney 

lacked authority to make such a promise, an Immigration and 

Naturalization Service agent who attended one of the critical meetings 

with Igbonwa possessed such authority. 

6. The stakes here are high. If the district court was correct in finding 

Igbonwa credible, then the majority's reversal condemns him to a 

substantial risk of death resulting directly from his cooperation with the 

government. I reiterate, therefore, that I would not reverse the district 

court, but, instead, vacate its order and remand the case for 

clarification. 

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