Clive Charles Thomas v. Immigration and Naturalization Service

Opinion by Judge KLEINFELD; Dissent by Judge KOZINSKI.

The main issue in this case arises from breach of a cooperation agreement. Thomas, a criminal, traded information to the United States Attorney for a promise that “the government” would not oppose his application *1335 for discretionary relief from deportation. The government nevertheless did oppose his application. The Immigration and Naturalization Service argues that it was not bound by the United States Attorney’s promise. We hold that the INS was bound. The promise expressly bound the government for the particular conduct, and the United States Attorney had actual authority to bind the government. The case also requires remand for reconsideration of the motion to reopen under Butros v. INS, 990 F.2d 1142 (9th Cir.1993).

I. Facts

Thomas was brought to the United States and admitted as a lawful permanent resident as a child in 1954. Three decades later, still not a citizen, he was a narcotic's dealer. In 1983 he pleaded guilty to conspiracy to possess cocaine for sale, and was sentenced to seven years imprisonment. At the government’s urging, he was released from prison after about two years because of his cooperation in…

dissenting:

“[A]nyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays -within the bounds of his authority.” So the Supreme Court told us half a century ago in Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384 , 68 S.Ct. 1, 3 , 92 L.Ed. 10 (1947). In an opinion likely to have extremely serious and far-reaching consequences, the majority today cuts the core out of- Merrill and lays waste the principle that the government is bound by its agents only if they act within the scope of their authority.

The heart of my disagreement with the majority lies in its astounding conclusion that every Assistant U.S. Attorney in the country — and by inference every other government official as well — has implicit authority to bind the government in a large variety of matters beyond the scope of his express authority. I emphatically disagree with the notion that such a corona of implied authority surrounds every grant of power by the government to its agents. This is so radical, so sweeping a departure from existing law, its full effect is difficult to fathom. One need only consider the vacuum…

35 F.3d 1332 63 USLW 2166 Clive Charles THOMAS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Nos. 91-70750, 92-70142. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 10, 1993. Submission Withdrawn April 7, 1994. Resubmitted June 24, 1994. Decided Sept. 2, 1994. As Amended on Denial of Rehearing Nov. 23, 1994. * Cindy M. Cipriani, Gray, Cary, Ware & Freidenrich, San Diego, CA, for petitioner. Donald A. Couvillon, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, for respondent. Petition to Review a Decision of the Board of Immigration Appeals. Before: KOZINSKI, SILER, ** and KLEINFELD, Circuit Judges. Opinion by Judge KLEINFELD; Dissent by Judge KOZINSKI. KLEINFELD, Circuit Judge: 1 The main issue in this case arises from breach of a cooperation agreement. Thomas, a criminal, traded information to the United States Attorney for a promise that "the government" would not oppose his application for discretionary relief from deportation. The government nevertheless did oppose his application. The Immigration and Naturalization Service argues that it was not bound by the United States Attorney's promise. We hold…