The opinion of the court was delivered by: RICHEY
UNITED STATES DISTRICT COURT JUDGE
Before the Court is the defendants' Motion to Dismiss for lack of subject matter jurisdiction, filed on December 8, 1995 in the above-captioned case, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. The plaintiff filed an Opposition thereto on December 22, 1995, to which the Defendants Replied on January 5, 1996.
Upon careful consideration of the pleadings, the entire record herein, the law applicable thereto, and for the reasons set forth below, the Court shall deny the defendants' Motion to Dismiss. Furthermore, the Court shall set a schedule for the expeditious resolution of this case.
The Deportation Proceedings
The plaintiff in the above-captioned case is Marlena Ramallo Kent Cooke, a native and citizen of Bolivia. She initially entered the United States in 1972 as a nonimmigrant visitor, and became a lawful permanent resident in 1978. See In re Cooke, No. A20 619 534 (Bd. Imm. App. Mar. 10, 1994), at 1.
On August 1, 1986, the plaintiff pled guilty to the offense of conspiracy to distribute less than one kilogram of cocaine in violation of 21 U.S.C. § 963. In return for a reduced sentence, she agreed to cooperate with federal authorities in their investigation of a related drug-smuggling operation. The plaintiff was initially sentenced to serve 18 months incarceration, but her term was later modified, and she served 5-1/2 months in prison with a 2 year period of probation. Id.
In November 1986, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause in the plaintiff's case, charging her with deportability under section 241(a)(11) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1251(a)(11),
as a result of her criminal conviction. Id. At a deportation hearing in April 1988, the plaintiff conceded deportability and applied for relief from deportation pursuant to section 212(c) of the INA. Id. Also at that hearing, the plaintiff denied that she had ever knowingly used, possessed, sold, or trafficked in cocaine, although she admitted that she had traveled to Rio de Janeiro, as alleged in her indictment, in the company of individuals who subsequently were convicted of importing cocaine. Id. at 2. The plaintiff testified that as a result of her conviction, she assisted government officials in this country in their apprehension of narcotics traffickers. Id. The Immigration Judge ("IJ") adjourned the proceedings so that the plaintiff could obtain the appearance of the federal officers with whom she had cooperated. Id.
When the hearing resumed in May 1988, the parties entered into an agreement concerning the plaintiff's case. An attorney for the INS stated that the plaintiff "is going to withdraw the requested relief under 212(c) and is prepared for an order of deportation from this Court and is also prepared to waive appeal on this case." Id. The INS agreed that the plaintiff "is not going to be taken into custody, . . . and that there is an agreement of all the parties that there will be an additional request made to the district director which is beyond the court's jurisdiction as far as the effect of the order of deportation." Id. Accordingly, the IJ entered an order on May 10, 1988 finding the respondent deportable and ordering her deported. Id. No appeal was taken from that order. Id.
On February 10, 1992, the INS moved to reopen the plaintiff's deportation proceedings, stating that, "in the time that has passed since the original order of deportation was entered, the [plaintiff] has been extremely helpful to the government of the United States and has provided critical information that has resulted in the successful prosecution of many drug-related cases in the Eastern District of Virginia." Id. at 3. The plaintiff's attorney joined in that motion and, in a decision dated February 20, 1992, the IJ reopened the plaintiff's deportation proceedings. Id. On March 17, 1992, the IJ gave the plaintiff's attorney one week to file a Form I-191 in support of the plaintiff's application for relief from deportation. The Form was not submitted, however, and on April 15, 1992, the IJ issued a decision denying the plaintiff's request for section 212(c) relief for lack of prosecution due to her failure to file the required Form. The IJ also denied the requested relief, finding that the plaintiff was not statutorily eligible following the cessation of her lawful permanent resident status when she did not appeal the May 10, 1988 deportation order. The plaintiff appealed from the April 15, 1992 decision of the IJ at the Board of Immigration Appeals ("Board"). Id.
The INS, which previously did not oppose reopening the plaintiff's deportation proceedings, changed its position on appeal based on information that the plaintiff made seven trips outside the United States between July 5, 1989 and March 29, 1992. The INS attorneys were "apparently unaware" of this information prior to the appeal. On the basis of this information, the INS attorneys moved to dismiss the plaintiff's appeal, contended that the plaintiff had "self-executed" the 1988 deportation order and, therefore, that reopening the proceedings was improper pursuant to section 106(c) of the INA. Id.3
The plaintiff raised a number of arguments on appeal. Most relevant to the instant action, the plaintiff argued that, at the time of the 1988 hearing, the INS and her former attorney entered into an agreement whereby, in return for her withdrawal of her section 212(c) application and her acceptance of a final order or deportation, the INS would not enforce her deportation and would permit her to continue to remain in the United States in consideration for her assistance to government officials in their prosecution of drug traffickers. Id. at 5. The plaintiff submitted an affidavit of the attorney who represented her at the 1988 hearing. The attorney averred that it was his understanding that the INS, in return for the plaintiff's cooperation, would not enforce the plaintiff's deportation order, would permit her to travel outside the United States, would continue her bond, and would quash the deportation order at some future date. The plaintiff also submitted evidence, including correspondence and memoranda from the government substantiating her claim.
The plaintiff maintained that the INS should be estopped from seeking her deportation and that it should be required to honor its part of the agreement concerning her status. The plaintiff also asserted a claim of ineffective assistance of her former attorney because, inter alia, he did not obtain a clear commitment in writing from the INS, nor did he timely submit her section 212(c) application. Id. at 6.
On March 10, 1994, the Board dismissed the plaintiff's case for want of jurisdiction. Specifically, the Board held that the plaintiff's departures from the United States subsequent to her order of deportation divested the Board of jurisdiction to consider any motion to reopen the deportation proceedings. Id. at 6. As for the alleged agreement not to enforce her departure, the Board stated that it was without the power to enforce such an agreement, even if one existed. Id. at 8. In that regard, the Board noted that the plaintiff's claim was similar to an estoppel defense, which the Board has held it is without authority to apply. On April 8, 1994, the plaintiff filed a petition for review of the Board's decision with the United States Court of Appeals for the Fourth Circuit. See Cooke v. Immigration and Naturalization Service, No. 94-1456 (4th Cir. filed Apr. 8, 1994). Deportation proceedings have been held in abeyance pending review by the Fourth Circuit Def. Mot. to Dismiss at 3.
On May 10, 1994, the plaintiff moved to have the Fourth Circuit proceedings held in abeyance pending attempts to settle the case. The defendants did not object and negotiations commenced. Efforts at settlement continued ...