Salgado-Diaz v. Ashcroft

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNESTO SALGADO-DIAZ,  No. 02-74187
Petitioner,
v.  Agency No.
A74-789-511
JOHN ASHCROFT, Attorney General,
Respondent.

ERNESTO SALGADO-DIAZ,  No. 03-73312
Petitioner,
v.  Agency No.
A74-789-511
JOHN ASHCROFT, Attorney General,
OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 2, 2004—Pasadena, California
Filed January 31, 2005
Before: A. Wallace Tashima, Raymond C. Fisher and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Fisher
1263
SALGADO-DIAZ v. ASHCROFT 1267
COUNSEL
Karen Levine, Levine Law Offices, San Diego, California, for
the petitioner.
M. Jocelyn Lopez Wright, Assistant Director, Office of Immi-
gration Litigation, Civil Division, U.S. Department of Justice,
Washington, D.C., for the respondent.
OPINION
FISHER, Circuit Judge:
Ernesto Salgado-Diaz comes before us for the second time,
petitioning for review of a decision of the Bureau of Immigra-
tion Appeals (“BIA”) summarily affirming the decision of an
Immigration Judge (“IJ”) finding him removable. Salgado-
Diaz alleges that his due process rights have been violated
because he has been repeatedly denied an evidentiary hearing
on his allegations that U.S. border patrol agents unlawfully
arrested him on the streets of San Diego, California, and took
him to Mexico in 1996, even though he was in immigration
proceedings at the time. His arrest and expulsion set in motion
a series of events that ultimately resulted in Salgado-Diaz los-
ing his opportunity to seek relief under then-existing immigra-
1268 SALGADO-DIAZ v. ASHCROFT
tion laws that likely would have entitled him to suspension of
deportation.1
If Salgado-Diaz’s allegations concerning his arrest and
expulsion are true, he would have a substantial claim that his
constitutional rights have been violated. Accordingly, we hold
that denying him an evidentiary hearing on those allegations
is itself — under the circumstances present here — a due pro-
cess violation. We therefore grant his petition and remand his
case to the BIA for an evidentiary hearing on petitioner’s
arrest and expulsion by border agents and a determination of
whether petitioner qualifies for the relief of suspension of
deportation.
I. FACTUAL AND PROCEDURAL BACKGROUND
Salgado-Diaz entered the United States from Mexico with-
out inspection in August 1989. He lived in San Diego with his
mother and has a daughter who was born in the United States
in September 1996. He has one U.S. citizen sister and two
other siblings who are legal permanent residents.
In August 1996, Salgado-Diaz filed for asylum and with-
holding of deportation. Shortly thereafter, the Immigration
and Naturalization Service (“INS”) sent him an order to show
cause as to why he should not be deported.2 Petitioner first
appeared before an IJ on November 4, 1996.3 The IJ post-
1
Salgado-Diaz also asserts that the BIA erred in rejecting his ineffective
assistance of counsel claim. We do not reach that claim, given our resolu-
tion of the due process issue.
2
The INS has since been abolished and its functions transferred to the
Department of Homeland Security. See Homeland Security Act of 2002,
Pub. L. No. 107-296, 116 Stat. 2142 (2002), 6 U.S.C. §§ 101-557. For
convenience, we refer to the government agency as the INS.
3
Immigration Judge Anthony Atenaide presided over all the proceedings
throughout the extended process reviewed in this opinion.
SALGADO-DIAZ v. ASHCROFT 1269
poned Salgado-Diaz’s hearing until December so his counsel
could be present.4
Before the scheduled follow-up hearing, however, U.S.
Border Patrol agents arrested Salgado-Diaz on November 17,
while he was walking on a street in San Diego. He alleges that
he was on his way to pick up orange juice from a local store
for a family gathering when, merely because he appeared to
be Hispanic, the agents stopped him and asked if he had a
green card. According to petitioner, he told the agents about
his pending immigration hearing, but they ignored him. He
was then asked to sign a form, which he understood to be nec-
essary for looking up his pending immigration proceedings. In
fact, it was a voluntary departure form. The INS took
Salgado-Diaz by bus to Tecate, Mexico.
Six days later, on November 23, Salgado-Diaz attempted to
reenter the United States using a fake passport.5 He claims he
thought he was carrying a work permit or other document that
could be used to cross the border lawfully. The INS took
Salgado-Diaz into custody when he produced the fake docu-
ment.
After Salgado-Diaz’s attempted reentry, the INS moved in
December 1996 to terminate the still-pending deportation pro-
ceedings so that it could bring exclusion proceedings against
him instead. Concerned that he now faced more serious
charges against him with less likelihood of relief, petitioner
opposed the termination of deportation proceedings — argu-
ing that he did not voluntarily depart the United States but
instead was coerced into leaving the country. The INS
4
Salgado-Diaz told the IJ in November he had an attorney but could not
remember the name of the attorney, who was not present. Because the
attorney suffered a heart attack and was unable to attend the December
hearing, it was continued into January.
5
Petitioner ostensibly had counsel, although counsel may not have been
available to him at this time.
1270 SALGADO-DIAZ v. ASHCROFT
responded by requesting an evidentiary hearing, which it
believed necessary for the IJ “to correctly rule on the issue of
termination.”
At a hearing on January 9, 1997, the IJ terminated deporta-
tion proceedings against Salgado-Diaz, clearing the way for
the INS to institute the more stringent exclusion proceedings
against him. The IJ — plainly troubled by petitioner’s circum-
stances and the allegations of government misconduct — did
not conduct an evidentiary hearing to resolve the disputed
issue of whether petitioner was unlawfully arrested by border
patrol agents and forced to depart the country. Rather, the IJ
concluded that the issue, including any “possible Service mis-
conduct,” would have to be litigated in the exclusion proceed-
ing. The IJ made explicit that terminating the deportation
proceedings did not mean he was deciding or “condoning
what the Service officers may or may not have done in this
case.”
The IJ acknowledged that petitioner could be disadvan-
taged if the INS did not initiate the exclusion proceedings
before April 1, 1997, the effective date of the Illegal Immigra-
tion Reform and Immigrant Responsibility Act of 1996
(IIRIRA), Pub. L. No. 104-208, which worked major changes
in the immigration laws that would be unfavorable to some-
one in Salgado-Diaz’s circumstances. But the IJ also sug-
gested that Salgado-Diaz could seek relief on appeal from any
prejudice caused by terminating the old proceedings if the
new proceedings did not begin until after April 1, 1997.
“[You can] [p]ut all of that into the appeal, say you know, the
Service prejudiced my client by doing all of these things. . .
. [If Salgado-Diaz] is denied suspension after that, you got a
whole bunch of ways to appeal.”
Salgado-Diaz appealed to the BIA, asserting that the IJ vio-
lated his due process rights by terminating deportation pro-
ceedings without a full and fair hearing on his claim for relief.
Specifically, he argued he was not given the chance to estab-
SALGADO-DIAZ v. ASHCROFT 1271
lish facts about his forced removal and the INS border agents’
knowledge that he was already in deportation proceedings at
the time. Salgado-Diaz also urged that the INS, based on its
affirmative misconduct, should be estopped from relying on
his illegal reentry.
The BIA, in June 1998, affirmed the IJ’s decision. The
Board held that based on the record before it, and “absent the
testimony or affidavit of the arresting officers,” it could not
conclude that the agents who arrested Salgado-Diaz coerced
him into signing voluntary return documents or that the INS
should be estopped. The Board did not address petitioner’s
claim that he was denied a fair hearing.
Salgado-Diaz appealed the BIA’s decision to this court,
asking that we consider his claim “that he should be in depor-
tation rather than exclusion proceedings because he was
improperly and illegally removed from the country.” Salgado
v. INS, No. 98-70823, 2000 WL 569505,*1 (9th Cir. 2000)
(unpublished disposition). In its responsive brief, the INS
asserted that the allegations raised by Salgado-Diaz are “is-
sues of fact [that] are properly resolved in an evidentiary
exclusion hearing.” The INS also stated that if the facts dem-
onstrated that border agents had arrested petitioner unlaw-
fully, Salgado-Diaz could still apply for relief from
deportation.
Concluding that the IJ’s decision to terminate deportation
proceedings in favor of an exclusion proceeding was not a
final order of deportation or exclusion, we dismissed for lack
of jurisdiction. Id. However, we expressly noted that the INS
had represented that Salgado-Diaz “may litigate his claims
regarding the legality of his departure, as well as litigate the
question of whether he is properly in exclusion or deportation,
at an exclusion hearing.” Id.
Meanwhile, the INS had on June 12, 1997, instituted new
proceedings against Salgado-Diaz. Although the INS had con-
1272 SALGADO-DIAZ v. ASHCROFT
templated that petitioner would be placed in exclusion pro-
ceedings, IIRIRA eliminated the distinction between
deportation and exclusion proceedings, replacing them with a
new, consolidated category — “removal.” Thus, when the
INS instituted new charges against petitioner, it was in the
form of a notice to appear for removal proceedings.
At subsequent removal hearings before the IJ, petitioner
continued to press for an evidentiary hearing on whether the
border agents in San Diego had unconstitutionally arrested
him and forced him out of the country, interfering with his
pending deportation hearing. In November 2000, Salgado-
Diaz moved to suppress any direct or indirect evidence result-
ing from the arrest.
At a December 2000 hearing, the IJ initially agreed that
Salgado-Diaz should have a hearing on his suppression
motion. But at petitioner’s later and final immigration hearing
in July 2001, the IJ changed his mind and limited the evidenti-
ary hearing to whether any coercion took place after Salgado-
Diaz attempted to reenter the country with his fake passport,
not the circumstances of petitioner’s San Diego arrest and
expulsion. The IJ read the BIA’s decision as foreclosing the
latter issues, leaving only issues related to his reentry open to
dispute — even though this was not the focus of petitioner’s
motion to suppress. The IJ concluded that INS agents did not
engage in any unlawful conduct when Salgado-Diaz reentered
the country and ordered him removed. The BIA summarily
affirmed and subsequently denied his motion to reopen. He
timely petitioned this court for review. We have jurisdiction
under 8 U.S.C. § 1252.
II. STANDARD OF REVIEW
We review de novo due process challenges to final orders
of deportation. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.
2000).
SALGADO-DIAZ v. ASHCROFT 1273
III. DISCUSSION
A. Due Process Violation
[1] Immigration proceedings, although not subject to the
full range of constitutional protections, must conform to the
Fifth Amendment’s requirement of due process. United States
v. Nicholas-Armenta, 763 F.2d 1089, 1090 (9th Cir. 1985).
Salgado-Diaz can establish a due process violation by show-
ing that he was denied “a full and fair hearing of his claims
and a reasonable opportunity to present evidence on his
behalf.” Colmenar, 210 F.3d at 971 (holding that petitioner’s
due process rights were violated when the IJ prevented a full
examination of petitioner during hearing); see Castillo-
Villagra v. INS, 972 F.2d 1017, 1029 (9th Cir. 1992) (holding
that the BIA’s failure to provide petitioners an opportunity to
rebut noticed facts violated due process). Additionally,
Salgado-Diaz must demonstrate that he was prejudiced by the
violation. See Colmenar, 210 F.3d at 971.
[2] We hold that failing to afford petitioner an evidentiary
hearing on his serious allegations of having been unlawfully
stopped and expelled from the United States, aborting his
pending immigration proceedings and the relief available to
him at the time, violated his right to due process of law.
1. Full and fair hearing
[3] Salgado-Diaz has established one possible and one
actual denial of a full and fair hearing. The first, possible
denial allegedly occurred in November 1996, when he was in
the midst of the very statutory process Congress had estab-
lished to permit an alien in his position to regularize his resi-
dency in the United States. If petitioner is to be believed, INS
border agents appear to have stopped and arrested him in vio-
lation of the Fourth Amendment.6 See Gonzalez-Rivera v.
6
We emphasize that we do not reach any conclusions as to the truth of
Salgado-Diaz’s allegations concerning his San Diego arrest and deporta-
tion, the facts of which are to be addressed in an evidentiary hearing.
1274 SALGADO-DIAZ v. ASHCROFT
INS, 22 F.3d 1441, 1446-48 (9th Cir. 1994) (holding that bor-
der officers violated the Fourth Amendment rights of defen-
dant by stopping him because of his Hispanic appearance,
thereby triggering exclusionary rule in a civil proceeding).
The border agents then removed him from the country with-
out any of the procedural safeguards of a formal hearing. See
Hernandez-Luis v. INS, 869 F.2d 496, 498 n.2 (9th Cir. 1989)
(noting that formal deportation proceedings are required
unless a nonresident admits to being deportable and voluntar-
ily departs from the United States).
[4] Petitioner has repeatedly asserted that he did not agree
to leave the country voluntarily and signed the departure form
only because he thought it was needed to look up his pending
case. He distinguishes his circumstances from cases in which
nonresidents have accepted voluntary departure as the “lesser
of two evils” when faced with the threat of the INS instituting
deportation proceedings. See, e.g., Vasquez-Lopez v. Ashcroft,
343 F.3d 961, 970 (9th Cir. 2003). In contrast, at the time of
Salgado-Diaz’s stop, the INS already had initiated proceed-
ings against him — after he sought asylum — and he had
open to him the possibility of relief from deportation. Even if
the agents were justified in taking him into custody, according
to petitioner they still deliberately ignored his plea that he was
in the midst of a pending proceeding. If Salgado-Diaz’s alle-
gations are true, the unlawful arrest and removal denied him
his day in court, substituting a peremptory deportation for a
considered immigration court judgment as to whether
Salgado-Diaz qualified to remain in the United States with his
family.
[5] The other denial of a fair hearing — which petitioner
has in fact established — arises out of the repeated failures to
grant Salgado-Diaz the evidentiary hearing to determine
whether or not the INS border agents really did act improp-
erly, either by unconstitutionally stopping and arresting him
or by expelling him from the country while he was in deporta-
tion proceedings. The INS itself — fully aware of the sub-
SALGADO-DIAZ v. ASHCROFT 1275
stance of Salgado-Diaz’s claim — has from the beginning
argued that an evidentiary hearing was necessary to resolve
his allegations of misconduct. Yet through a series of twists
and turns, that hearing has never come to pass — even though
this court was led to believe such a hearing was going to be
part of the process following our dismissal of Salgado-Diaz’s
first appeal. The failure to hear evidence on Salgado-Diaz’s
arrest and alleged forced removal from the country deprived
him of a reasonable opportunity to present his case, violating
his due process right to a full and fair hearing.
2. Prejudice
[6] Salgado-Diaz must also establish prejudice by showing
his rights were violated “in a manner so as potentially to
affect the outcome of the proceedings.” Campos-Sanchez v.
INS, 164 F.3d 448, 450 (9th Cir. 1999) (internal quotations
and citations omitted). Clearly, Salgado-Diaz’s arrest and
expulsion had a prejudicial impact on his underlying immigra-
tion proceedings. The agents’ conduct ultimately prevented
him from seeking the type of relief from deportation for
which he was eligible before his arrest and expulsion. Had
petitioner been given an evidentiary hearing, he might have
established that the INS border agents’ conduct was indeed
unconstitutional either under the Fourth Amendment or as a
matter of due process. If his arrest violated the Fourth
Amendment, he would be entitled to suppression of his volun-
tary departure statement and the INS Form I-213, which was
completed after he returned to the United States. See
Gonzalez-Rivera, 22 F.3d at 1445-48 (affirming IJ’s decision
to suppress officer testimony and INS Form I-213 following
evidentiary hearing on allegedly unconstitutional stop).
[7] Moreover, regardless of his success on the Fourth
Amendment claim, had Salgado-Diaz demonstrated that he
was involuntarily removed from the country, he would have
shown that his deportation hearing should never have been
terminated and that he was improperly placed in a new type
1276 SALGADO-DIAZ v. ASHCROFT
of proceeding. In Mendez v. INS, we held that “departure” in
the immigration context excludes departures illegally exe-
cuted by the government and in contravention of procedural
due process. 563 F.2d 956, 958 (9th Cir. 1977) (citing Del-
gadillo v. Carmichael, 332 U.S. 388 (1947) (holding that a
nonresident does not make an “entry” into the United States
when he had no intent to “depart,” or left involuntarily)).
Mendez was a permanent resident alien who had been con-
victed of burglary, sentenced for one year and ordered deport-
able under a law that applied to crimes with sentences of one
year or more. His state court conviction was later vacated and
his sentence reduced to less than a year. When petitioner tried
to explain the change to the INS, he was deported anyway
without notice to his counsel. Id. at 957. We found a violation
of petitioner’s right to counsel and ordered him admitted to
the United States, granting him the same status he had prior
to his deportation. Id. at 959.
In this case, assuming petitioner had demonstrated that his
“deportation” was not voluntary or lawfully executed,
Salgado-Diaz would have been returned to his original, pre-
arrest status, under conditions favorable to his qualifying for
relief from deportation. See Castillo-Perez v. INS, 212 F.3d
518, 528 (9th Cir. 2000) (holding that the appropriate remedy
for a due process violation in a deportation proceeding was
for petitioner to “receive a hearing under the law that applied
to him at the time his original hearing occurred”). Thus, the
failure of the IJ to hold an evidentiary hearing prejudiced peti-
tioner by denying him the opportunity to show he should
never have been taken out of his deportation proceeding.
The INS argues that there is no prejudice, because Salgado-
Diaz would not be eligible under IIRIRA for relief in the form
of cancellation of removal, and thus his 2001 removal order
remains valid. See 8 U.S.C. § 1229b(b)(2000) (requiring, inter
alia, 10 years’ physical presence in the United States). The
INS is correct that petitioner would not qualify for relief
under IIRIRA’s rules, which took effect in April 1997. At the
SALGADO-DIAZ v. ASHCROFT 1277
time petitioner received his notice to appear for removal pro-
ceedings in June 1997 — the relevant date for calculating
physical presence under IIRIRA — Salgado-Diaz had been in
the country less than 10 years.
However, but for the allegedly unconstitutional arrest and
expulsion from the country, petitioner would have remained
in deportation proceedings and would have been eligible for
relief under the more favorable immigration laws governing
his 1996 deportation proceeding. Under the prior statutory
regime, the Attorney General could suspend the deportation
of an alien who could demonstrate (1) physical presence in
the United States for the seven-year period prior to his appli-
cation; (2) good moral character during that period; and (3)
that his deportation would result in extreme hardship to him-
self or to his United States citizen or permanent resident
spouse, parent or child. 8 U.S.C. § 1254(a)(1)(1994) (repealed
by Pub. L. 104-208). By November 1996, Salgado-Diaz had
been in the United States more than seven years, had not been
convicted of any crimes and had a U.S. citizen daughter.
[8] In short, Salgado-Diaz had a fair shot at suspension of
deportation but no chance at all once his hearing process
recommenced after April 1997 under the new, stricter IIRIRA
regime. Thus, Salgado-Diaz has established prejudice stem-
ming from the failure of the IJ to hold an evidentiary hearing
on allegations that the INS acted improperly in stopping and
removing him when he was already in immigration proceed-
ings.
B. Equitable Estoppel
The INS argues that Salgado-Diaz’s attempt to enter the
United States as a nonresident without any legal status and
only fake documentation provides an independent and ade-
quate basis for ordering him removable, regardless of whether
he can establish a Fourth Amendment violation or that he was
forced to leave the country during his immigration proceed-
1278 SALGADO-DIAZ v. ASHCROFT
ing. Even if the I-213 form can be suppressed, petitioner’s
alienage and identity demonstrate he was not admissible at the
time he presented himself to border officials. See INS v.
Lopez-Mendoza, 468 U.S. 1032, 1039 (1984) (holding that the
body or identity of a defendant may not be suppressed, “even
if it is conceded that an unlawful arrest, search, or interroga-
tion occurred”). Further, the INS urges that even assuming
Salgado-Diaz was involuntarily removed from the country,
petitioner’s decision to seek admission to the United States
without a valid visa was of his own volition and in violation
of the immigrations laws. Thus, the IJ properly ordered him
removable.
We cannot accept what is essentially a bootstrap argument.
Salgado-Diaz was placed in the position of seeking to re-enter
the United States because of the allegedly unconstitutional
stop and improper removal by border agents. Although he
may have not had “legal status” at the time of his arrest and
expulsion, petitioner was in the midst of a proceeding to
determine his status. We conclude that the doctrine of equita-
ble estoppel precludes the INS from relying on the conse-
quences of its own alleged affirmative misconduct to insulate
that misconduct from review.
1. Equitable estoppel against the government
[9] The government in immigration cases may be subject to
equitable estoppel if it has engaged in affirmative misconduct.
See Mukherjee v. INS, 793 F.2d 1006, 1008-09 (9th Cir. 1986)
(outlining elements of equitable estoppel claim against the
government); Santiago v. INS, 526 F.2d 488, 492 (9th Cir.
1975) (en banc) (holding in the immigration context that the
court continues “to believe that estoppel is available in such
cases where the particular facts warrant it”) (citing INS v.
Hibi, 414 U.S. 5, 8 (1973)); see also Watkins v. United States
Army, 875 F.2d 699, 706-711 (9th Cir. 1989) (en banc) (hold-
ing that equitable estoppel could be invoked against the gov-
ernment where the Army affirmatively misrepresented to
SALGADO-DIAZ v. ASHCROFT 1279
defendant over a 14-year period that he was qualified for
reenlistment despite an ongoing policy that homosexuality
constituted a nonwaivable disqualification for reenlistment);
Fano v. O’Neill, 806 F.2d 1262, 1265-66 (5th Cir. 1987)
(holding that petitioner had adequately stated a claim against
the government for affirmative misconduct where he alleged
the INS “willfully, wantonly, recklessly, and negligently”
delayed in processing his application, suggesting selective
treatment). Cf. Miranda v. INS, 459 U.S. 14, 19 (1982)
(declining to estop the INS from denying permanent resident
status to petitioner who lost his eligibility because of the
INS’s delay, concluding that “[p]roof only that the Govern-
ment failed to process promptly an application falls far short
of establishing” affirmative misconduct). The person seeking
estoppel against the government also must show that the
potential injustice to him outweighs the possibility of damage
to the public interest, and must establish the traditional ele-
ments for estoppel. See Watkins, 875 F.2d at 707.
[10] We conclude that the government should be estopped
from relying on Salgado-Diaz’s attempted re-entry to remove
him, essentially for the same reasons — and to the same
extent — that we have found his due process rights have been
violated. That is, if petitioner can, in the evidentiary hearing
to which we hold he is entitled, prove that the INS deprived
him of his right to have his immigration status determined in
the pending deportation proceeding, the government cannot
rely on the post-expulsion events its own misconduct set in
motion. Adding to our assessment of the equities are the
INS’s representations to this court and petitioner that he
would have the opportunity to litigate his claims at an eviden-
tiary hearing and, if successful, seek suspension of deporta-
tion relief.
[11] We also conclude that estoppel against the government
here would not “unduly damage the public interest.” Johnson
v. Williford, 682 F.2d 868, 871 (9th Cir. 1982) (holding that
defendant who was mistakenly granted parole by the govern-
1280 SALGADO-DIAZ v. ASHCROFT
ment but had reintegrated into the community was unlikely to
threaten the public interest). In this instance, petitioner
already met the criteria for eligibility for suspension of depor-
tation at the time of his expulsion to Mexico. The public
interest would not be burdened by allowing Salgado-Diaz to
have his claim properly considered as if the events arising out
of the government’s actions had not occurred.
2. Traditional elements of equitable estoppel
[12] Salgado-Diaz also must satisfy the traditional elements
of equitable estoppel, which require a showing that (1) the
party to be estopped knows the facts; (2) the party intends that
his or her conduct will be acted on; (3) the claimant must be
ignorant of the true facts; (4) and the claimant must detrimen-
tally rely on the other party’s conduct. See Johnson, 682 F.2d
at 872 (holding elements met where the Parole Commission
deliberately released defendant, even though he was ineligible
for parole).
[13] These four elements are satisfied here, assuming
Salgado-Diaz’s allegations prove to be true. First, the border
agents knew that Salgado-Diaz already was in immigration
proceedings at the time he was stopped in San Diego and that
he had an upcoming deportation hearing. They also should
have known they were violating the Constitution by detaining
petitioner solely on the basis of his Hispanic appearance.
Gonzalez-Rivera, 22 F.3d at 1450 (“The fact that INS officers
receive extensive training in Fourth Amendment law . . . also
supports the inference that when an INS officer makes a stop
based solely on race, he or she has deliberately violated the
law or has acted in conscious disregard of the Constitution.”)
(emphasis added). The INS, knowing Salgado’s claims about
his San Diego arrest and expulsion and the circumstances of
his reentry, further told this court on the first appeal — nearly
three years after having instituted removal proceedings — that
petitioner would have the opportunity “to litigate his claims
regarding the legality of his departure . . . .”
SALGADO-DIAZ v. ASHCROFT 1281
Second, assuming petitioner’s claims to be true, the border
agents intended the consequences of their actions — they
physically removed Salgado-Diaz from San Diego to Mexico,
essentially deporting him without a proceeding. For its part,
the INS plainly intended that this court and petitioner would
act in accordance with the representations it made that
Salgado-Diaz would receive a hearing.
Third, Salgado-Diaz did not understand the basis for the
border patrol agents stopping or arresting him. He also alleges
he did not understand the significance of the documents he
was induced to sign, namely that they would lead to his
deportation rather than the INS tracking down his pending
immigration hearing status. According to Salgado-Diaz, he
did attempt to explain he was in proceedings but was arrested
and expelled anyway. As for the purported evidentiary hear-
ing, neither this court nor petitioner expected that fact-finding
opportunity to be illusory.
Finally, the fourth element is met here, where the INS
agents’ conduct severely disadvantaged Salgado-Diaz by
expelling him to Mexico. The act of taking him out of the
country had the effect of changing his immigration status. See
Heckler v. Cmty. Health Serv., 467 U.S. 51, 61 (1984) (ana-
lyzing detrimental reliance by examining “the manner in
which reliance on the government’s misconduct has caused
the private citizen to change his position for the worse”). Had
he not attempted to return to the United States so he could
appear at his pending immigration hearing, he may have lost
his chance to assert his eligibility for relief from deportation.
Further, petitioner detrimentally relied on assertions by the
INS that he should and would receive a hearing on his claims.
Our own disposition in the first appeal expressly relied on
those assertions.7
7
Given the INS’s representations in the first appeal and our disposition
in light thereof, the law of the case doctrine might also support precluding
the INS from relying on Salgado-Diaz’s reentry to order him removable.
1282 SALGADO-DIAZ v. ASHCROFT
[14] Given the government’s role in bringing about peti-
tioner’s circumstance — if the petitioner proves the alleged
affirmative misconduct — the equities strongly weigh in favor
of estopping the government from seeking removal based on
petitioner’s reentry. If his story does not hold up, of course,
then the basis for his challenge to the 2001 removal order col-
lapses.
IV. CONCLUSION
The petition for review is GRANTED, and we REMAND
the case to the BIA with instructions to order an evidentiary
hearing before an immigration judge as to the facts relating to
Salgado-Diaz’s arrest and expulsion by border patrol agents
in November 1996. If he establishes that his arrest was uncon-
stitutional, evidence stemming from the arrest, including his
voluntary departure and I-213 forms should be suppressed. If
Salgado-Diaz demonstrates that he was involuntarily removed
from the country during his pending deportation proceedings,
then he will have shown that he should never have been
placed in exclusion proceedings. In either eventuality,
Salgado-Diaz will be entitled to the relief available at the time
of his original hearing, including suspension of deportation
under former 8 U.S.C. § 1254(a)(1), as if the arrest and expul-
sion had not occurred. See Castillo-Perez, 212 F.3d at 528.
Finally, if petitioner establishes in the evidentiary hearing that
the border agents engaged in the alleged affirmative miscon-
duct, the government will be estopped from relying on his
attempted reentry to render him removable.
PETITION GRANTED.
This doctrine provides that our decisions on legal issues — both explicit
and implicit— “must be followed in all subsequent proceedings in the
same case.” See Bernhardt v. Los Angeles County, 339 F.3d 920, 924 (9th
Cir. 2003) (internal quotations and citations omitted). We need not resolve
the issue given our holding on equitable estoppel.