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U.S. v. Igbonwa

August 7, 1997

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

Before: GREENBERG, ALITO, and ROSENN, Circuit Judges.

ROSENN, Circuit Judge.

Filed August 7, 1997

Argued April 17, 1997

OPINION OF THE COURT

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 possession with intent to distribute heroin, in violation of 21 U.S.C. Section(s) 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. Section(s) 3553(e) and United States Sentencing Guideline Section(s) 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. *fn1 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 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 immigration, limited the right of judicial review of deportation orders by passing the Illegal Immigration Reform and Immigrant ...


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