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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

2OPINION OF THE COURT

ROSENN, Circuit Judge

.

This appeal stems from an unusual order of the Unit ed
States District Court for the Eastern District of Pennsylvania, directing the "United States of Ameri ca [to] take steps to prevent [Franklin Uzo Igbonwa's] depo rtation to Nigeria." Igbonwa, a Nigerian citizen who initia lly entered the United States in 1986 as a non-immigrant visito r 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 m ade no reference whatsoever to his deportation, the Assist ant United States Attorney (AUSA) orally promised, as p art of the plea bargain, that Igbonwa would not be deporte d. The
court directed that the United States take measures to prevent Igbonwa's deportation. The Government timel y appealed. We reverse the order prohibiting deportat ion, but
affirm the district court's denial of the defendant 's motion for release on his own recognizance pending this ap peal.

I.

Franklin Uzo Igbonwa is a Nigerian citizen who ente red the United States in 1986 as a "non-immigrant visit or for pleasure." Immigration & Naturalization Service (IN S) adjusted Igbonwa's status to that of conditional pe rmanent 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 en tered into solely for the purpose of securing Igbonwa per manent 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 offense s.

In 1990, a federal grand jury indicted Igbonwa in t he Eastern District of Pennsylvania on two counts of

3possession with intent to distribute heroin, in vio lation of

21 U.S.C. § 841(a)(1). He negotiated a plea agreeme nt 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 ex change
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 p lea agreement further provided that "no additional prom ises, agreements or conditions have been entered into oth er than
those set forth in this document and that none will be entered into unless in writing and signed by all pa rties." 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 colloq uy, Igbonwa averred that no additional representations or promises had been made and that he had not been ind uced to enter into the plea agreement by any promises be yond 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 sup ervised release.1 In 1994, the Governmentfiled a Rule 35(b) motion recommending a reduction in Igbonwa's prison senten ce for his cooperation and testimony in a criminal investi gation conducted in the District of Maryland. The district court granted the motion and reduced Igbonwa's imprisonme nt by three years.

On August 5, 1993, INS began an investigation to determine whether Igbonwa was subject to deportatio n and served a detainer notice on the warden of the priso n where Igbonwa was incarcerated. In August of 1995, INS in itiated

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1. At the time of his arrest, Igbonwa had previousl y been convicted in the Eastern District of Pennsylvania of conspiracy to c ommit 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 sentenci ng under the United States Sentencing Guidelines but is not a deportabl e offense under 8
U.S.C. § 1251.

4deportation hearings against Igbonwa, and an immigr ation

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 di strict court for return of seized property, and at this ti me raised the issue of a promise allegedly made by AUSA Ronal d Jarvis during the course of the plea agreement nego tiations. 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 agre ed to enter into the plea agreement. Igbonwa further stat ed that an INS agent, Jim Martinelli, attended one of these plea negotiations between Jarvis and Igbonwa and, accord ing to Igbonwa, basically stated that if the Government ag reed not to deport Igbonwa, then INS would concur in that de cision.

After conducting hearings on the issue, the distric t court found that the promise had been made, that the prom ise was enforceable, and that it must be enforced. Thus , the district court granted Igbonwa's motion for specifi c performance of the plea agreement entered into betw een the two parties and directed that the "United States of America shall take steps to prevent the defendant's deporta tion to Nigeria." The United States appealed from that orde r. Igbonwa filed a cross-appeal from the January 15, 1 997 order of the district court denying his motion to b e 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 m otion in light of recent legislation designed to restrict th e habeas corpus rights of an alien subject to an order of de portation. Congress, in accordance with its broad powers in ma tters of

5immigration, limited the right of judicial review o f

deportation orders by passing the Illegal Immigrati on Reform and Immigrant Responsibility Act ("IIRIRA"), P.L. 104-208, 110 Stat. 3009 (1996). The IIRIRA, which b ecame effective on April 1, 1997, states:

Except as provided in this section and notwithstand ing any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on be half of any alien arising from a decision or action by t he Attorney General to commence proceedings, adjudicat e 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 ari sing 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 cou rts] 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 Governme nt argues strenuously that this law abrogates the orde r of the district court and divests all federal courts, incl uding this court, of current and future jurisdiction over Igbo nwa's § 2255 motion.

In the alternative, the Government argues that the district court lacked subject-matter jurisdiction o ver 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.§ 1 105(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 consider ation of claims "that are not of the type intended to be rev iewed under [the administrative scheme], especially if su ch claims could not otherwise receive meaningful review." Mas sieu , 91 F.3d at 422 (citing Thunder Basin Coal Co. v. Reich , 510 U.S. 200, 212 (1994)). These are claims which are"w holly collateral" to the administrative review process. I d . The Government argues that Igbonwa's challenge to the deportation order goes to the heart of the order-- the

6authority of INS to issue this order -- and therefo re this

claim is not "wholly collateral" to administrative review. Thus, the Government asserts that the district cour t also lacked jurisdiction over Igbonwa's § 2255 motion be cause of
his failure to exhaust all adminstrative remedies.

With due regard to the Government's argument, we ne ed not resolve issues unnecessary to the disposition o f 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. Amc hem Products, Inc. , 83 F.3d 610, 623 (3d Cir. 1996), aff 'd , 65 U.S.L.W. 4635 (June 25, 1997). In the present matte r, we resolve the merits of the appeal in favor of the Go vernment, who had raised the matter of jurisdiction. Therefor e, 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 erroneou s when

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2. This case presents an unusual circumstance becau se we reverse the district court's order pertaining to deportation. U sually when we decide the merits of an appeal without reaching a jurisdic tional 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 part y to whose benefit the objection to jurisdicition would redound. Id. at 474. After all, if we dismissed the appeal we would benefit Igbonwa if th e dismissal meant
that the district court's order would stand.

The foregoing analysis, however, is inapplicable he re because the Government certainly does not contend that we shoul d dismiss the appeal but allow the district court's order to rema in. Rather, it contends that the federal courts have no jurisdiction over t his case, an argument which, if accepted, would result in the district co urt order being vacated. Clearly, it is not in Igbonwa's interest that we ta ke that position. Thus, we cannot view the jurisdictional issue as being li mited to appellate jurisdiction. Accordingly, viewing the challenge to jurisdiction to relate to both the district court and this court, we are acti ng in Igbonwa's interest by taking jurisdiction or, at worst, not prejudicin g him.

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

definite and firm conviction that a mistake has bee n 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 con duct a
de novo review of the evidence, but it does allow the cour t to consider whether there is enough evidence in the record to support the factual findings of the district cou rt. Cooper
v. Tard , 855 F.2d 125, 126 (3d Cir. 1988). This review is more deferential with respect to determinations abo ut the credibility of witnesses, and when the district cou rt's decision is based on testimony that is coherent and plausible, not internally inconsistent and not cont radicted by external evidence, there can almost never be afi nding 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 (1 985).

On this record, there is only one source of evidenc e that the alleged promise existed: Igbonwa. Only Igbonwa' s testimony supports the existence of the alleged agr eement;
the district court relied on no other evidence. The court found that this promise had been made after determi ning that Igbonwa was an "intelligent, articulate man" w ho gave credible testimony. However, the same court had pre viously 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 hear ing, the court referred to Igbonwa as a "prevaricating, poly graphflunking putative perjurer."

Additionally, Igbonwa's own testimony in this proce eding is marred by inconsistencies with prior assertions he made pertaining to this agreement and other matters rela ted to his deportation. Igbonwa now asserts that the alleg ed promise was made during meetings he had alone with AUSA Jarvis, without the presence of counsel. Howev er, Igbonwa sued his former counsel for legal malpracti ce in 1995, charging that his attorney conducted the plea negotiations without Igbonwa's knowledge or presenc e and that Igbonwa was not a party to the negotiations in any meaningful way. Additionally, at every point up unt il the

8deportation order was executed, Igbonwa continued t o

acknowledge that the only terms of the plea agreeme nt were
those contained within the written document and tha t there
were no additional terms.

The district court concluded that "Mr. Igbonwa's testimony is not a recent fabrication in the face o f 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, 1 995, 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. Igbo nwa'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 dis trict court accepted in evaluating Igbonwa's testimony. First, the investigation into the deportation proceeding actua lly began in 1993, as evidenced by the detainer notice sent t o the warden of FCI-Oakdale on August 5, 1993. Thus, alth ough it is correct, as the district court found, that Ig bonwa's claim arose before the official "deportation procee dings" had begun, the investigation had been progressing for s ome time when Igbonwa first raised this alleged promise

. Additionally, a similar investigation had been init iated 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 hi s 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 Igbo nwa 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, I gbonwa
said that he turned down the Government's offer to place him in the Witness Protection Program, because the threat

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

he did not assert that the United States Attorney's Office had promised him that he would not be deported by a ny branch of the United States Government.

At the February 1995 hearing on Igbonwa's § 2255 motion, Igbonwa first stated that he had not been p ermitted to participate in any of the negotiations related t o the pleaagreement. Later, Igbonwa asserted that the nondeportation promise was made to him in the larger c ontext of discussions regarding the Witness Protection Pro gram. However, Igbonwa also acknowledged that Jarvis told him that United States Attorney's Office would not be a ble to prevent his deportation, stating: "I said for the r ecord that [Jarvis] told me Franklin, we cannot be able to sav e 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 n ot raised in his initial § 2255 motion and Igbonwa only raise d 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 di strict court is simply insufficient to support the finding that AUSA Jarvis had promised Igbonwa that the Governmen t would not deport him.

Moreover, all other evidence in the case establishe s that this alleged promise of non-deportation was never m ade. The written plea agreement does not include the all eged

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3. Even the language that Igbonwa attributes to Jar vis regarding the non-deportation promise -- "we can work with that" -- is language he previously attributed to Jarvis on a sentencing iss ue. In a letter to his former attorney, Daniel Alva, Igbonwa wrote:

"Then I asked openly what I stand to gain if I go t o 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 sai d "or a three yr. sentence". Mr. Jarvis indeed nodded in agreement an d further
stated "we can work with that".

Nowhere in the letter does Igbonwa refer to any all eged promises made pertaining to deportation.

10promise; on the contrary, it contains a specific pr ovision

establishing that all promises made in connection w ith the agreement are within the four corners of the docume nt and that no additional promises would be entered into"u nless in writing and signed by all parties." Both Jarvis and Igbonwa's attorney testified that the alleged promi se 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 ev idence supports the conclusion that no such promise was ma de, and the district court's factual finding that the p romise was
made in the face of all the evidence to the contrar y is clearly erroneous.

C.

The Government further argues that the district cou rt erred when it found that the AUSA who allegedly mad e this promise regarding deportation to Igbonwa had the au thority
to bind other branches of the United States Governm ent, specifically INS. This issue raises a question of l aw and accordingly our review is plenary. Graham v. Immigr ation &
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 h ave split on the question of whether a United States At torney or

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4. The dissent expresses the fear that the majority "condemns [appellant] to a substantial risk of death resulting directly f rom his cooperation with the United States government." Dissent op. at 19 n. 6. This is a highly speculative conclusion, attributable solely to Igbo nwa's self-serving testimony to escape deportation. Moreover, the Unit ed States does not and cannot serve as a safe-haven for every deportab le alien who alleges that he may be killed if he is returned to his nati ve country as a result of his criminal activity. If Igbonwa truly fears fo r his safety upon his return to Nigeria, we suggest that Igbonwa request that the Attorney General deport him to another country that would af ford him greater protection from these alleged threats. See generall y 8 U.S.C. § 1253 (Supp. 1997) (governing country to which alien will be deported).

11his or her assistant can make a promise regarding

deportation matters which will be binding on the en tire United States Government. The Eighth and Ninth Circ uits have both ruled that a federal prosecuting attorney who makes a promise of non-deportation during the cours e of a plea agreement has authority to bind INS and that t his promise is enforceable against INS. See Margalli-Ol vera 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 Ci rcuit, 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," w hich 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 an d U.S. Immigration Service." 35 F.3d at 1335 n.1. The alie n sought specific performance of this plea agreement, and IN S argued that it was not bound by this promise made b y a United States Attorney. 35 F.3d at 1135. The Ninth Circuit first noted that actual authority, either express o r 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 S tates 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 tha t, under

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5. It is perhaps worth noting that all three of the se 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").

12principles of agency law, this granted the United S tates

Attorney the "implied authority" to enter plea agre ements, and that this implied authority bound the Governmen t as
a whole. Id . at 1340. Additionally, the court considered its conclusion bolstered by the Attorney General's supe rvisory 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 defen dant participates fully and truthfully in a debriefing,. . . the United States will recommend against deportation. Otherwise, the United States will remain silent reg arding deportation." 43 F.3d at 348. The Board of Immigrat ion Appeals (BIA) affirmed the immigration judge's refu sal to enforce this promise and upheld the order of deport ation.

Id . at 349. Upon petition for review, the Eighth Circ uit held "that, if unambiguous, the term `United States' is a reference to the entire United States government an d 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 h e asserted included a promise not to deport him. 79 F .3d at 1067. The district court found that this promise di d 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 ha ve 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 de legated that power. Id . at 1070. The court found no such delegation of this power, and held that a United States Attorn ey 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 r easoning

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, mor e persuasive than that of Thomas and Margalli-Olvera , which considered the general power the Attorney General h as overboth these agencies. To hold otherwise would grant United

States Attorneys the power to bind any and every governmental agency under the supervision of the At torney 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 principl es of agency law, and that a promise made by the United S tates Attorney's Office relating to deportation does not bind the INS without explicit authority from the INS.

Bolstering our conclusion, the Eighth Circuit recen tly
returned to this issue in United States v. Camacho- Bordes , 94 F.3d 1168 (8th Cir. 1996). In that case, the ple a agreement stated that the Government would recommen d 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 n ot distinguish between the different agencies involved , the distinction between the Government (meaning the Uni ted States Attorney's Office) and the INS was clearly d rawn. Camacho-Bordes , 94 F.3d at 1175. Thus, any agreement on the part of the Government obviously did not bind I NS. Id

. This is analogous to the present matter, in which e ven Igbonwa acknowledged that he knew AUSA Jarvis was speaking only for the United States Attorney's Offi ce and not for INS. At the hearing on the § 2255 motion, I gbonwa testified: "[Jarvis] said Franklin, we the United S tates Attorney's Office cannot be able to save you from b eing 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 authorizatio n from

14the INS, the United States Attorney might be able t o

promise non-deportation. These circumstances do not exist
here because of the informal verbal nature of the a lleged promise and Igbonwa's admission that AUSA Jarvis wa s 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 review ed under an extremely deferential standard. The distri ct court's decision is presumed correct, and that pres umption can only be overcome by special circumstances. Hilt on 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 su ch special circumstances are present in this case, and the dis trict court's order denying Igbonwa's motion for release on his own recognizance pending final resolution of this m atter
will be affirmed.

IV.

For the foregoing reasons, the order of the distric t court granting Igbonwa's motion and ordering the United S tates to specifically perform an alleged promise not to d eport Igbonwa will be reversed. The order denying Igbonwa 's motion for release pending resolution of these proc eedings
will be affirmed.

15ALITO, Circuit Judge , dissenting.

I dissent for two reasons. First, I cannot agree wi th the majority that the district court committed clear er ror when it credited Igbonwa's testimony that he was promise d 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 t hat the Assistant United States Attorney in question lacked the authority to make the promise that the district cou rt found was made. Specifically, if, as the government itsel f 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 promi se that
he did.

1. Before addressing these questions, however, I wi ll briefly discuss what the government characterizes a s a threshold jurisdictional argument, i.e., that secti on 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, codifi ed as 8 U.S.C. § 1252(g), retroactively divested the distri ct court of jurisdiction and therefore requires reversal here. Section 306(g) provides:

Except as provided in this section and notwithstand ing any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on be half of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicat e 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 unde r the Act" (emphasis added).

These provisions might assist the government were i t not
for the fact that the district court's final order was signed

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

was enacted on September 30, 1996.1 Both of the sta tutory provisions quoted above used the future tense ("sha ll have" and "shall apply"). Thus, they at most affect the j urisdiction of the courts beginning the moment after the IIRIRA became law. Consequently, the statutory language do es not support -- on the contrary, it undermines -- the government's contention that the IIRIRA retroactive ly divested the district court of jurisdiction over a proceeding that was already completed at the district court le vel.

The government contends that the IIRIRA prospective ly divested us of jurisdiction to hear this appeal. Se e Reply Br. at 8 ("this Court has no jurisdiction over this cas e"). However, merely showing that this court was prospec tively divested of jurisdiction (as opposed to showing tha t the district court was retroactively divested of jurisd iction) 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 retro actively 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 Produ cts , 511 U.S. 244, 293 (1994) (Scalia, J., concurring in judgments) ("applying a jurisdiction-eliminating st atute to undo past judicial action would be applying it retr oactively").2

2. I cannot agree with the majority that the distri ct court committed clear error in finding that the pro secutor promised Igbonwa that "the United States would take steps to prevent his deportation." App. 650a. Igbonwa gav e testimony to this effect, and the district court ex pressly

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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.

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

finding, the district court judge relied on the kno wledge 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 tha t 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 dist rict court's finding, which rests heavily on a credibili ty determination, was clearly erroneous.

3. While I accept the district court's finding, I v iew it as ambiguous in a way that may have important legal implications. As noted, the district court found th at "the United States [promised that it] would take steps t o prevent [Igbonwa's] deportation." App. 650a (emphasis added ). Similarly, the district court ordered the United St ates to "take steps to prevent the defendant's deportation." App. 661a (emphasis added).

One possible interpretation of the district court's finding is that the United States promised to take whatever administrative steps were necessary to prevent Igbo nwa's deportation. If this is the correct interpretation, then we might be required to confront4 the government's arg uments (a) that under 8 U.S.C. § 1105a(c), the district co urt was precluded from entertaining Igbonwa's motion becaus e he had not exhausted his administrative remedies and ( b) that the Assistant United States Attorney who allegedly made

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3. In a nutshell, Igbonwa's story is that he feared that his cooperation with the United States, in its prosecution of the m embers of a Nigerian drug ring, would put him in danger of "violent repr isal" should he ever have to return to Nigeria. Id. at 648-650. Given these fears, Igbonwa claims that he requested the United States governme nt to grant him -- in exchange for his cooperation -- a promise that t hey would protect him from deportation to Nigeria.

4. Igbonwa argues that we should not consider the g overnment's legal arguments because they were not presented to the di strict court. I express no view at this time regarding this questio n.

18the promise to Igbonwa lacked the authority to make a

binding commitment regarding deportation.5

Another possible interpretation of the district cou rt's finding is that the Assistant United States Attorne y 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 th is interpretation, the Assistant United States Attorne y'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 appropriat e. Under this interpretation, I am not at all sure tha t either of the legal arguments noted above would be implicated , and in any event, the issues might be significantly alt ered. Accordingly, before confronting those difficult iss ues, I would remand for the district court to clarify itsf inding.

For these reasons, I cannot join the decision of th e majority, and must respectfully dissent.6

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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5. Igbonwa contends that, even if the Assistant Uni ted States Attorney lacked authority to make such a promise, an Immigra tion and Naturalization Service agent who attended one of th e 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 cond emns him to a substantial risk of death resulting directly from h is cooperation with the government. I reiterate, therefore, that I would no t reverse the district court, but, instead, vacate its order and remand th e case for
clarification.

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