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.