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June 27, 1996

JANET RENO, et al., Defendants.

The opinion of the court was delivered by: RICHEY


 Before the Court in the above-captioned case are the parties' Cross-Motions for Summary Judgment. Also before the Court are the defendants' Motion to Strike, Motion for Leave to File a Surreply, and Motion for Protective Order. Upon consideration of the pleadings, the entire record herein, the law applicable thereto, and for the reasons set forth below, the Court shall deny the parties' Motions for Summary Judgment. The Court also shall declare moot the defendants' Motion to Strike, grant the defendants' Motion for Leave to File a Surreply, and grant the defendants' Motion for Protective Order.


 Portions of the record herein have been filed under seal pursuant to a protective order signed by Chief Judge John Garrett Penn on September 27, 1995. The protective order was necessary to protect the identity and safety of witnesses, government representatives, and their respective family members. For the purposes of the instant Memorandum Opinion and Order, certain individuals have been referred to by title only in order to protect their anonymity and pursuant to Chief Judge Penn's protective order previously entered.

 The following facts are undisputed. 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 import less than one kilogram of cocaine in violation of 21 U.S.C. § 963 before the United States District Court for the Eastern District of Virginia, Alexandria Division. The plaintiff entered into a written plea agreement with the United States Attorney's Office on July 15, 1986, which provided that in return for her guilty plea and for her cooperation with federal law enforcement agencies and prosecutors concerning all violations of law about which she has any information, the United States agreed: that it would dismiss the remaining charges of the indictment; that no evidence she disclosed would be used against her during the course of her cooperation and that the Assistant United States Attorney ("AUSA") would bring the extent of the defendant's cooperation to the attention of the United States Probation Officer; and that it would recommend that the Court suspend any period of incarceration and impose a period of probation at sentencing. The parties agree that the plaintiff complied with the agreement. The prosecutor recommended a suspended sentence and the plaintiff was sentenced to 18 months in prison, of which she served 5-1/2 months.

 On November 21, 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, 8 U.S.C. § 1251(a)(11), *fn1" as a result of her criminal conviction. Id. The initial deportation hearing took place on February 25, 1987. Following two continuances, the plaintiff began to present evidence on April 6, 1988. The INS hearing was adjourned on April 6, 1988 and reconvened on May 10, 1988.

 At the May 10, 1988 hearing, the following individuals discussed an agreement during a recess: an INS trial attorney, a Drug Enforcement Agent ("DEA agent"), the plaintiff's then- attorney, and the plaintiff. That agreement ("the cooperation agreement") is the core of the present dispute. The undisputed terms of the cooperation agreement were that: (1) the plaintiff agreed that she would cooperate with the DEA and the United States Attorney's Office in the investigation and prosecution of drug traffickers; (2) the plaintiff agreed to concede her deportability; (3) the plaintiff agreed to withdraw her application for a waiver of deportation pursuant to section 212(c) of the Act; and (4) the plaintiff agreed to waive her appeal of the Immigration Judge's decision finding her deportable. In exchange, the plaintiff alleges that the government, among other things, promised not to deport her.

 On May 10, 1988, the INS attorney stated on the record during the plaintiff's administrative hearing that the plaintiff:

is going to withdraw the requested relief under 212(c) and is prepared to waive appeal on this case. The Service has agreed that Ms. Ramallo is not going to be taken into custody, that the carryover of the $ 3,000 bond is sufficient, and that there is an agreement of all 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.

 On May 10, 1988, Immigration Judge Arrowsmith entered an order of deportation against the plaintiff. No appeal was taken from that order. Id.

 The parties agree that the plaintiff complied with the following terms of the agreement: (1) she fully cooperated with the United States Attorney's Office and the DEA; (2) she withdrew her request for a waiver of deportation under section 212(c) of the Act; (3) she conceded her deportability; and (4) she waived her right to appeal the Immigration Judge's decision finding her deportable.

 Subsequent to the May 10, 1988 hearing, Immigration Judge Arrowsmith contacted the INS attorney after seeing the plaintiff on television attending a Redskins' game and asked why the plaintiff had not been deported.

 On May 15, 1990, there was a meeting among government representatives and the plaintiff's then-counsel to discuss avenues of administrative or legislative relief for the plaintiff in light of the outstanding order of deportation issued against her on May 10, 1988. One of the options discussed was a motion to reopen the deportation proceedings to give the plaintiff the opportunity to apply for a section 212(c) waiver of deportation. At that meeting, it was determined that the United States Attorney would file the motion to reopen. However, on February 10, 1992, the INS filed the motion to reopen on the plaintiff's behalf.

 On July 9, 1992, the INS moved to dismiss the plaintiff's appeal to the Board of Immigration Appeals based on the plaintiff's departures from the United States after the issuance of the order of deportation on May 10, 1988. Records reflect that the plaintiff departed and reentered the United States on numerous occasions between 1988 and 1992. On August 4, 1992, the INS notified the plaintiff through her attorney that if she left the United States and attempted to reenter during the pendency of immigration proceedings against her, she would be placed in exclusion proceedings.

 On March 10, 1994, the Board of Immigration Appeals dismissed the plaintiff's case for want of jurisdiction, holding that her departures from the United States subsequent to her order of deportation divested the Board of jurisdiction to consider her motion to reopen. 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 Serv., No. 94-1456 (4th Cir. filed Apr. 8, 1994).

 On September 28, 1995, the plaintiff filed the instant action in this Court, alleging violations of the plaintiff's Fifth Amendment rights, breach of contract, and promissory and equitable estoppel. The plaintiff seeks, inter alia, an order declaring that the May 1988 agreement is a legal and binding obligation of the government, and specific enforcement of the agreement by permanently enjoining the government from taking any further action to deport the plaintiff or refuse her reentry into the United States to the extent the plaintiff travels abroad, and by requiring the government to take any and all actions necessary to restore the plaintiff's status as a permanent resident of the United States.

 After filing the instant action, the plaintiff filed a motion to hold the Fourth Circuit proceedings in abeyance pending the outcome of the present case. In a single-judge order, the Fourth Circuit opined:

It appearing to me that at one time, at least, in the recent past the government had an agreement with Marlena Kent Cooke that she could apply for a waiver to deportation, or like provision for her to live in the United States, if she were helpful to the government in the prosecution of certain criminal cases. And it further appearing that she may well have, and probably has, lived up to her part of the agreement, but that the government now opposes a decision on the merits of her application for a waiver of deportation or provision to live in the United States, for some reason which is not clear to me. The said Marlena Kent Cooke has sued the government in the District of Columbia, seeking to enforce the said agreement, in Ramallo v. Reno, et al. No. 1:95CV01851, and on that account seeks to have the proceedings in this case held in abeyance.
I am of [the] opinion Marlena Kent Cook [sic] should be permitted to pursue her said case in the district court in the District of Columbia.

 Cooke v. Immigration and Naturalization Serv., No. 94-1456 (4th Cir. Nov. 7, 1995) (Order) (Widener, Jr., J.).

 In the present suit, the defendants moved for dismissal on the basis that this Court lacks subject matter jurisdiction over the plaintiff's Complaint. The defendants argued that the plaintiff's action "seeks to review the validity of a matter on which her final order of deportation is contingent and requests relief inconsistent with a final order of deportation, which is within the exclusive jurisdiction of the court of appeals" under section 106(a) of the INA. Furthermore, the defendants argued that the plaintiff's departure from the United States while under a final order of deportation "self-executed" the order of deportation and thereby removed this Court's jurisdiction over the order pursuant to section 106(c) of the INA. In a Memorandum Opinion and Order filed on January 29, 1996, this Court held that it had jurisdiction over the claims alleged and the relief sought under 28 U.S.C. § 1331, notwithstanding the immigration context in which the claims arose. Ramallo v. Reno, 918 F. Supp. 11 (D.D.C. 1996) (Richey, J.).

 The parties have concluded their latest round of briefing. The plaintiff has moved for summary judgment on her claims that the government breached the agreement in violation of her Constitutional rights and that the government is promissorily and equitably estopped from deporting her. The defendants move for summary judgment as well. The defendants do not contest that a cooperation agreement was reached, but assert that it only promised the plaintiff a temporary stay of deportation. Further, the defendants assert that, regardless of the terms of the agreement, the representatives that dealt with the plaintiff did not have authority to bind the government. Alternatively, the defendants argue that the plaintiff modified the original agreement and that the plaintiff's own actions demonstrate that she has unclean hands and that she is therefore precluded from obtaining equitable relief.



 A. Summary Judgment Is Appropriate When There Is No Genuine Issue Of Material Fact And The Moving Party Is Entitled To Judgment As A Matter Of Law.

 Summary judgment is mandated under Federal Rule of Civil Procedure 56(c) when the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (citation omitted).

 An issue must be both genuine and material to preclude the entry of summary judgment. Anderson, 477 U.S. at 247-48. An issue is genuine if there is sufficient evidence to support a rational finding either way. In making this determination, the non-movant's evidence "is to be believed, and all justifiable inferences are to be drawn in [their] favor." Id. at 255. "Only disputes of facts that might affect the outcome of the suit . . . will properly preclude the entry of summary judgment." Id. at 248.

 Because the Court would be the ultimate trier of fact in this case if it went to trial, "conflict concerning the ultimate and decisive conclusion to be drawn from undisputed facts does not prevent rendition of a summary judgment." Fox v. Johnson & Wimsatt, Inc., 75 U.S. App. D.C. 211, 127 F.2d 729, 737 (D.C. Cir. 1942); see also Connors v. Incoal, Inc., 301 U.S. App. D.C. 345, 995 F.2d 245, 251 (D.C. Cir. 1993) (summary judgment appropriate in non-jury setting when "factual" issue is one of characterization of lay facts). The Court may draw derivative inferences from undisputed subsidiary facts so long as those inferences do not depend on the evaluation of witness credibility. Cook v. Babbitt, 819 F. Supp. 1, 11 n.11 (D.D.C. 1993) (Lamberth, J.).

 B. The Crux Of The Present Dispute Is Whether The Government Promised The Plaintiff She Would Not Be Deported In Exchange For Her Cooperation.

 The cooperation agreement at issue here was not reduced to writing; it was the result of discussions involving the plaintiff, her attorney, the INS attorney, the DEA Agent, and an AUSA. The crux of the bargain here was the government's alleged promise not to deport the plaintiff in exchange for her cooperation. The details of the plaintiff's green card, travel permission, and alien status are merely terms by which that agreement would be implemented. Regardless of these details, the Court shall conclude herein that the great weight of the evidence supports the plaintiff's assertion that the government promised not to deport her; however, the INS attorney's affidavit precludes summary judgment on this issue. Therefore, the Court shall hold an evidentiary hearing pursuant to Rule 43(e) of the Federal Rules of Civil Procedure in order to determine the limited issue whether the government promised not to deport Ramallo. If, after the hearing, the Court determines that the government in fact promised not to deport Ramallo, the Court shall enforce that promise.

 C. The Plaintiff's Contention That She Would Not Be Deported Is Supported By All The Evidence Except The ...

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