                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             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Precedential or Non-Precedential: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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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, polygraph-
flunking 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 non-
deportation 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 non-
deportation 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

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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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