Morgan v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PAUL DURHAM MORGAN, 
Petitioner, No. 05-74378
v.
 Agency No.
A24-299-945
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
March 8, 2007—Phoenix, Arizona

Filed July 26, 2007

Before: Michael Daly Hawkins, Sidney R. Thomas, and
Richard R. Clifton, Circuit Judges.

Opinion by Judge Thomas

9079
9082 MORGAN v. GONZALES

COUNSEL

Nicomedes E. Suriel, Phoenix, Arizona, for the petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division,
David V. Bernal, Assistant Director, Office of Immigration
Litigation, Andrew C. MacLachlan, Attorney, Office of
Immigration Litigation, Civil Division, U.S. Department of
Justice, Washington, D.C., for the respondent.
 MORGAN v. GONZALES 9083
OPINION

THOMAS, Circuit Judge:

This appeal presents the question of whether the United
States is estopped from removing an aggravated felon because
the government allegedly agreed not to deport him in
exchange for his cooperation in a federal drug prosecution.
Under the circumstances presented by this case, we deny the
petition for a writ for review.

I

Paul Durham-Morgan is a native and citizen of England
who entered this country as a non-immigrant visitor on
November 8, 1981. He was authorized to remain until Decem-
ber 7, 1981, but exceeded his authorization. In early 1982,
Morgan was arrested and charged with various drug traffick-
ing offenses. He was then served with an Order to Show
Cause charging him as being subject to deportation for over-
staying his visa. In October 1982, Morgan was convicted of
conspiracy to illegally import a controlled substance in viola-
tion of 21 U.S.C. §§ 952, 960 and 963; conspiracy to possess
a controlled substance with intent to distribute in violation of
21 U.S.C. §§ 846 and 841(a)(1); conspiracy to travel in inter-
state and foreign commerce in aid of racketeering enterprises
in violation of 18 U.S.C. §§ 371 and 1952(a)(3)(A); and travel
in interstate commerce in aid of racketeering enterprises in
violation of 18 U.S.C. § 1952(a)(3)(A). He was sentenced to
five years imprisonment, but the sentence was suspended sub-
ject to five years of probation. He was released into the cus-
tody of the then-Immigration and Naturalization Service
(“INS”) and was subsequently released under a bond in Janu-
ary 1983.

Morgan asserts that he then entered into a cooperation
agreement with the government wherein he agreed to testify
in support of the U.S. Attorney’s prosecution of a major drug
9084 MORGAN v. GONZALES
case in Montana in exchange for certain promises regarding
his immigration status. In March 1983, then-U.S. Attorney for
the District of Montana Pete Dunbar1 authorized a written
request to the Helena, Montana, office of the INS to transfer
Morgan’s case from the San Diego Office of the INS and to
grant Morgan employment authorization so he could support
himself and his wife while helping the U.S. Attorney with his
investigation and prosecution. Dunbar authorized a similar
letter to the San Diego office of the INS in April 1983.

Dunbar substantiated in an affidavit that Morgan was coop-
erating with authorities, as he alleged. However, Dunbar did
not indicate in the affidavit that there was an explicit quid pro
quo agreement wherein he agreed to testify in exchange for a
grant of permanent residence in the United States. Dunbar
described Morgan and his wife as “absolute[ly] necessary key
witnesses in one of the most important narcotics cases to arise
in the State of Montana.” Dunbar also stated in his letter to
the INS District Director in Montana that “[i]t is necessary
that [Morgan’s wife’s] visitor permit be extended” and that
“[w]e do not have an indictment let alone a trial date in this
case so it is difficult to predict how long it will be necessary
to continue this proposed arrangement.” Morgan’s case was
transferred to Montana, and the government concedes that
Morgan was subsequently issued a Form I-94 with employ-
ment authorization. However, neither Dunbar nor Morgan
affirm that there was an explicit promise to Morgan of perma-
nent residence in exchange for his testimony.

Morgan asserts that the government contacted him again in
February 1987 to ascertain his status. In this letter, the gov-
ernment acknowledged that Morgan had been granted permis-
1
We note with regret the death of former U.S. Attorney Byron H. “Pete”
Dunbar on June 5, 2007. His lifetime of public service culminated in his
appointment as U. S. Attorney for the District of Montana in 1981 by
President Ronald Reagan. He served with great distinction in that position
until 1990.
 MORGAN v. GONZALES 9085
sion to remain in the United States on a “temporary basis.”
The parties do not dispute that no action was taken by the
government between February 1987 and December 2000. In
December 2000, the INS served Morgan with notice that his
removal proceedings were being recommenced. In May 2001,
the government issued a form I-261 against Morgan, alleging
that his 1982 conviction constituted additional grounds for
deportation.

Through counsel, Morgan then sought to obtain an S visa
to remain in the United States. The so-called “S visa” derives
from 8 U.S.C. § 1101(a)(15)(S), which gives the Attorney
General authority to grant a nonimmigrant visa to a person “in
possession of critical reliable information concerning a crimi-
nal organization or enterprise . . . [who] . . . has supplied such
information to Federal or State law enforcement authorities or
a Federal or State court; and whose presence in the United
States the Attorney General determines is essential to the suc-
cess of an authorized criminal investigation . . . .” The Attor-
ney General may adjust the status of an S visa holder to
permanent resident if, in his opinion, the information provided
by the alien “has substantially contributed to the success” of
an investigation or prosecution. 8 U.S.C. § 1255(j). A request
for an S visa “may only be filed by a federal or state [law
enforcement agency]” through the filing of a Form I-854,
which is then submitted for discretionary approval by the
proper government officers as detailed in 8 C.F.R.
§ 214.2(t)(4).

Morgan’s lawyer wrote to several government employees
involved in the Montana prosecution on which Morgan coop-
erated, asking for assistance in obtaining an S visa for Mor-
gan. These efforts were unsuccessful. Though Dunbar
provided Morgan with an affidavit attesting to Morgan’s
assistance in the prosecution, Morgan claims the remainder of
the agencies he contacted were unable to help either because
they did not possess records going back that far or because the
9086 MORGAN v. GONZALES
officials involved in Morgan’s case were no longer working
for the government.

Unable to induce an agency into granting an actual S visa,
Morgan then asked the immigration judge (“IJ”) to grant him
a “constructive S visa” because, he claimed, he met all the
requirements. The IJ stated that he lacked jurisdiction to issue
a “constructive S visa” — only an authorized Law Enforce-
ment Agency could do that. The IJ, acknowledging that this
was a novel remedy although not entirely unsympathetic to it,
asked if Morgan was going to pursue it further in district
court. Morgan’s counsel answered, “Right. I’m going to
exhaust all administrative remedies.” Morgan’s counsel
explained at that time that “[t]his is a case where we’re going
to be continuing with appeals raising due process and consti-
tutional claims. We’re going to be following Matter of
Thomas as well as a written coram nobis in district court.” In
July 2003, the IJ sustained the factual allegations and charges
that Morgan had overstayed his visa, was guilty of an aggra-
vated felony and was convicted of a controlled substances
offense. The IJ then ordered Morgan deported to England.

Morgan appealed the IJ’s decision to the BIA. Before the
BIA, he argued that he was either (1) entitled to a constructive
S visa, or (2) entitled to remand to the IJ “due to the ineffec-
tive assistance of his former criminal defense attorney by not
filing for a Judicial Recommendation Against Deportation
(JRAD), which would have made [Morgan] eligible for cer-
tain forms of relief from removal.” The BIA dismissed his
appeal, holding that “jurisdiction to grant an S visa lies with
the Department of Homeland Security . . . not with the Immi-
gration Judge” and that Morgan’s ineffective assistance of
counsel claim “would lie with the criminal courts, not with
the Immigration Judge.” Finally, the BIA stated “with respect
to the respondent’s constitutional arguments, we note that, as
a general rule, this Board is without jurisdiction to entertain
such arguments.”
 MORGAN v. GONZALES 9087
In April 2005, Morgan filed a petition for a writ of habeas
corpus in the United States District Court for the District of
Arizona. Upon motion of the government and pursuant to the
REAL ID Act § 106(c), the district court transferred the
action as a petition for review to this Court.

II

[1] The government argues that we lack jurisdiction over
Morgan’s due process and equitable estoppel claims because
he did not raise them before the agency and they are therefore
unexhausted. Morgan does not claim to have raised these
challenges before the IJ or BIA, and for good reason. The
agency has no power to grant relief on estoppel or substantive
due process claims, and accordingly, we have never required
petitioners to exhaust claims of this nature before the agency.
Padilla-Padilla v. Gonzales, 463 F.3d 972, 977 (9th Cir.
2006); Wang v. Reno, 81 F.3d 808, 814 (9th Cir. 1996).2 Mor-
gan thus did not fail to raise his due process and equitable
estoppel claims before the BIA and is not barred from raising
them here for the first time, and we have jurisdiction to con-
sider them.

III

[2] Prior to the Real ID Act, when a petitioner sought to
raise substantive due process challenges like Morgan’s or
other challenges over which the agency lacked jurisdiction or
the power to grant relief, the petitioner would file a habeas
petition in federal district court. See, e.g., Alfaro-Reyes v. INS,
224 F.3d 916, 921 (9th Cir. 2000) (noting “the availability of
habeas review” for deportation cases involving “claims of . . .
2
The exception to the rule that constitutional claims need not be
exhausted before the agency are claims of denial of procedural due pro-
cess by the IJ, which must be raised before the BIA because the agency
does have the power to adjudicate procedural due process claims. See, e.g.,
Sun v. Ashcroft, 370 F.3d 932, 944 n.18 (9th Cir. 2004).
9088 MORGAN v. GONZALES
constitutional violations”). If any factual matters needed to be
resolved, the district court would hold the necessary hearings,
admit any relevant evidence, and resolve them. Pursuant to
the Real ID Act, however, jurisdiction over habeas petitions
challenging final orders of removal is vested “sole[ly]” in the
Courts of Appeal; district courts no longer have habeas juris-
diction over such petitions. See Alvarez-Barajas v. Gonzales,
418 F.3d 1050, 1052 (9th Cir. 2005).

This jurisdictional transfer presents procedural difficulties
in adjudicating habeas petitions involving colorable legal
claims that cannot be asserted before the agency. Petitioners
raising viable legal claims are entitled to an evidentiary hear-
ing, see Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th
Cir. 2006); Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.
2000), but the Courts of Appeal are unable to provide one, see
Tippitt v. Reliance Standard Life Ins. Co., 457 F.3d 1227,
1237 (11th Cir. 2006) (“[I]t is not the role of appellate courts
to make findings of fact.”) (citing Icicle Seafoods, Inc. v.
Worthington, 475 U.S. 709, 714 (1986)).

On occasion, we have resolved this problem by transferring
the case to the district court for fact-finding under 28 U.S.C.
§ 2347(b)(3), “which authorizes such a transfer when an
agency has not held a hearing before taking the complained-
of action, and ‘when a hearing is not required by law and a
genuine issue of material fact is presented.’ ” See Gallo-
Alvarez v. Ashcroft, 266 F.3d 1123, 1129 (9th Cir. 2001)
(quoting 28 U.S.C. § 2347(b)(3)) (citing Reno v. Am.-Arab
Anti-Discrimination Comm., 525 U.S. 471, 496-97 & n.2
(1999) (Ginsburg, J., concurring)).

[3] While this option remains open to us, we need not avail
of it unless the petitioner has alleged a colorable claim upon
which relief might be granted. In the habeas context, an evi-
dentiary hearing is only required if (1) the petitioner’s allega-
tions, if proven, would constitute a colorable constitutional
claim, and (2) the state court trier of fact has not reliably
 MORGAN v. GONZALES 9089
found the relevant facts after a full and fair hearing. See Cor-
rell v. Stewart, 137 F.3d 1404, 1411 (9th Cir. 1998). Because
it is clear that Morgan has not yet had a full and fair hearing
on the facts of his instant claims, the question before us is
whether the facts he has alleged, if proven, make out color-
able claims for either a due process violation based on estop-
pel principles or a substantive due process violation under the
state-created danger doctrine.

A

[4] Morgan contends that his due process rights were vio-
lated because the government promised him relief from
deportation if he would cooperate in a drug prosecution. As
a general matter of fundamental fairness, promises made by
the government to induce either a plea bargain or a coopera-
tion agreement must be fulfilled. See Johnson v. Lumpkin, 769
F.2d 630, 633 (9th Cir. 1985) (citing Santobello v. New York,
404 U.S. 257, 262-63 (1971)). The agreement, however, must
be made by a government official authorized to make it and
the promisee must rely on it to his detriment. Thomas v. INS,
35 F.3d 1332, 1337 (9th Cir. 1994). A United States Attorney
is authorized to enter into cooperation agreements and, in so
doing, to make promises that are binding on other Federal
agencies. Id. at 1340 (U.S. Attorney could bind INS).

[5] However, in this case, Morgan has not alleged that an
actual, explicit promise was made to him or, if one was, what
the precise terms of that promise were. Although he argues
correctly that a United States Attorney has the power to make
promises to an alien that are binding on the government,
nowhere in his brief or petition does he state that either the
U.S. Attorney or anyone else actually made an explicit prom-
ise that he would be granted permanent residence in exchange
for his cooperation. All he alleges is that he “agreed to testify
in support of the United States prosecution of a major drug
case in the State of Montana” and that U.S. Attorney Dunbar
arranged for the transfer of Morgan’s immigration proceed-
9090 MORGAN v. GONZALES
ings from California to Montana, and arranged for Morgan
and his wife to receive employment authorization. Morgan
further clarifies that “[t]he government did not specify a fixed
period when [his] employment authorization would expire,”
and “grant[ed him] permission to remain in the United States
on a temporary basis.” (emphasis added). Morgan then states
that based on these actions, “it was not unreasonable for [him]
to believe that his cooperation with the government meant
that he would be allowed to remain in the United States.”

[6] Because Morgan has not alleged that an actual promise
was made, he has not stated a colorable claim that his due
process rights were violated under the Santobello doctrine.
Even if everything he alleges is found to be true at an eviden-
tiary hearing, it would not prove that the government’s
attempt to remove him is in breach of an explicit term of his
cooperation agreement. That Morgan believed he would be
allowed to remain in the United States indefinitely is not the
same as being explicitly promised as much by an authorized
agent of the U.S. government. Nor is there any external evi-
dence of a promise. Dunbar’s affidavit says nothing about
having made any explicit promise granting Morgan perma-
nent residency in the United States in exchange for his coop-
eration.

[7] Under the circumstances, an evidentiary hearing on
Morgan’s Santobello due process claim is unwarranted. Evi-
dentiary hearings in this context, as in habeas, are not meant
to be “fishing expeditions for . . . petitioners to explore their
case in search of its existence.” Rich v. Calderon, 187 F.3d
1064, 1067 (9th Cir. 1999) (internal quotations omitted). Nor
are petitioners such as Morgan automatically entitled to dis-
covery absent evidence that their claims are colorable. Id. at
1068. Because Morgan has not alleged that an explicit prom-
ise was made and because the only evidence he has tendered
suggests that no such promise was made, we decline to exer-
cise our transfer power to grant an evidentiary hearing on the
basis of this theory of relief.
 MORGAN v. GONZALES 9091
B

Morgan argues in the alternative that even if no express
promise of permanent residence was made, the government’s
actions—specifically, its delay in seeking to remove him—
reasonably led him to believe that he would be permitted to
remain in the United States indefinitely and thus the govern-
ment should be equitably estopped from attempting to remove
him.

[8] “A party seeking to raise estoppel against the govern-
ment must establish affirmative misconduct going beyond
mere negligence; even then, estoppel will only apply where
the government’s wrongful act will cause a serious injustice,
and the public’s interest will not suffer undue damage by
imposition of the liability.” Watkins v. U.S. Army, 875 F.2d
699, 707 (9th Cir. 1989) (en banc) (internal quotations and
alteration in original omitted). “[E]stoppel against the govern-
ment is unavailable where petitioners have not lost any rights
to which they were entitled.” Sulit v. Schiltgen, 213 F.3d 449,
454 (9th Cir. 2000). When estoppel is available, the court then
considers its traditional elements, which include that “(1) the
party to be estopped must know the facts; (2) he must intend
that his conduct shall be acted on or must so act that the party
asserting the estoppel has a right to believe it is so intended;
(3) the latter must be ignorant of the true facts; and (4) he
must rely on the former’s conduct to his injury.” Watkins, 875
F.2d at 709.

[9] Here, Morgan’s only claim of affirmative misconduct is
the extreme delay of the INS in seeking to remove him. In Jaa
v. INS, 779 F.2d 569 (9th Cir. 1986), we considered whether
delay by the INS of 58 months was enough to constitute affir-
mative misconduct. We held that there was no evidence that
the government’s delay was on account of anything other than
neglect and that “[n]eglect will not support estoppel.” Id. at
572. Likewise, there is no apparent reason for the govern-
ment’s delay here except neglect. If anything, the government
9092 MORGAN v. GONZALES
did not follow up on Morgan’s case sooner because immigra-
tion authorities were told that his cooperation with the U.S.
Attorney in Montana could last for an indefinite period of time.3

The case Morgan cites, Yoo v. INS, 534 F.2d 1325 (9th Cir.
1976), holds only that INS delay can amount to affirmative
misconduct when the INS had a clear duty to act and its not
acting deprived the alien of a right to relief. Id. at 1328-29.
Here, the INS was under no clear duty to deport Morgan, nor
did he have a right to relief.

[10] Morgan’s allegations do not amount to a constitutional
violation even if true. Accordingly, there is no genuine issue
of material fact warranting a transfer and hearing.

C

Morgan also contends that removal to England would vio-
late his substantive due process rights under the state-created
danger doctrine.

[11] As a general rule, the government is not liable for the
actions of third parties. See Deshaney v. Winnebago County,
489 U.S. 189, 195-96 (1989). This rule is modified by two
exceptions: “(1) the ‘special relationship’ exception; and (2)
the ‘danger creation’ exception.” L.W. v. Grubbs, 974 F.2d
119, 121 (9th Cir. 1992). The special relationship exception
comes, as its name suggests, from when the government
enters into a special relationship with a party, such as taking
the party into custody or placing him into involuntary hospi-
3
We need not decide today whether under extreme circumstances, negli-
gent delay could constitute grounds for estoppel. We hold only that on
these facts, where Morgan entered the United States as an adult, engaged
in drug trafficking, cooperated with the government and was then not pur-
sued for removal for at least thirteen years because immigration authorities
were either neglectful or still under the impression that his cooperation
with drug prosecutions was ongoing, the equities do not support Morgan’s
estoppel claim.
 MORGAN v. GONZALES 9093
talization. Id. The danger creation exception arises when “af-
firmative conduct on the part of the state” places a party in
danger he otherwise would not have been in. Id.

We have repeatedly held that government agents may be
liable for affirmative conduct placing a party in a danger of
the government’s creation even though the general rule is that
the Fourteenth Amendment does not impose a duty on gov-
ernment officers to protect individuals from third parties. See,
e.g., Munger v. City of Glasgow, 227 F.3d 1082 (9th Cir.
2000) (permitting § 1983 suit against police officers who
forced drunk bar patron outside in only jeans and a tee-shirt
in subzero conditions leading to his death from hypothermia);
Grubbs, 974 F.2d at 127 (permitting § 1983 suit against state
employees who placed a female employee into a situation
with a known violent sex offender who raped her); Wood v.
Ostrander, 879 F.2d 583 (9th Cir. 1989) (permitting § 1983
suit against police officers who stranded woman in high-crime
area in which she was subsequently raped).

[12] The state-created danger doctrine may also be invoked
to enjoin deportation. See Wang, 81 F.3d at 818-19. In Wang,
U.S. officials arranged to bring a Chinese citizen to the United
States to testify in a heroin case. Id. at 811-12. Wang had pre-
viously been tortured by Chinese officials in order to get him
to falsely implicate another suspect for which they generously
promised Wang leniency on charges stemming from his own
involvement in the drug transaction. Id. at 811. When Wang
came here, however, after U.S. officials had misled both him
and the Chinese, he was forced into the Hobson’s choice of
testifying truthfully under oath here and losing his Chinese
leniency and risking further torture upon his return, or perjur-
ing himself here. Id. at 813. After U.S. officials created this
situation and forced Wang into this choice, they then sought
to return him to China where there was a high likelihood he
would be tortured for his truthful testimony here. Id. at 819.
The district court found that the government’s behavior
shocked the conscience and also that the government had cre-
9094 MORGAN v. GONZALES
ated the dangerous predicament Wang was in. Id. at 819. It
permanently enjoined the Attorney General from returning
Wang to China. Id. at 812-13. In affirming, we found that the
government had entered into a special relationship with Wang
by taking him into custody and then engaged in “gross negli-
gence and deliberate indifference” in creating the danger that
Wang would “likely be tortured” if returned to China. Id. at
818-20. We held that the district court properly exercised its
supervisory power to remedy the “extraordinary nature of the
government’s misconduct,” by enjoining the government
from returning Wang to China. Id. at 820.

[13] Here, however, Morgan does not allege anything
approaching the kind of affirmative government misconduct
found in Wang. He argues that were he returned to England,
former associates from his drug-running days twenty-five
years past would be likely to take their revenge on him for his
cooperation with U.S. authorities. Even on the facts as he
asserts them, there is no suggestion that the government, in
entering into a cooperation agreement with him and then
seeking to remove him to England, has acted with “gross neg-
ligence and deliberate indifference.” Unlike in Wang, there is
no suggestion that the English government would be unwill-
ing and unable to protect him. Nor has Morgan alleged that
U.S. officials engaged in serious misconduct by either deceiv-
ing him or coercing his testimony.

Although Morgan seeks an evidentiary hearing to develop
the factual basis for his claim, the arguments he has put forth
are insufficient to warrant him protection under the state-
created danger doctrine even were he to prove everything he
has alleged. Accordingly, there is no genuine issue of material
fact and we opt not to transfer this case to the district court
for further fact finding.

IV

[14] In sum, because Morgan has not alleged a colorable
claim for equitable estoppel or violation of his substantive
 MORGAN v. GONZALES 9095
constitutional rights, his case does not warrant transfer to the
district court for further fact finding under 28 U.S.C.
§ 2347(b)(3). We deny the petition for review.

PETITION DENIED.