On December 6, 1996, an immigration judge ordered that Mr. be deported. The deportation proceedings took place at Centinela State Prison less than two weeks before Mr. * was to finish his state sentence. These proceedings were held pursuant to 8 U.S.C. § 1252a, which states: "The Attorney General shall provide for the availability of special deportation proceedings at certain Federal, State, and local correctional facilities for aliens convicted of [certain criminal offenses]. Such proceedings shall be conducted . . . in a manner which eliminates the need for additional detention at any processing center of the Service and in a manner which assures expeditious deportation following the end of the alien's incarceration for the underlying sentence." 8 U.S.C. § 1252a(a)(1).

As the clear language of § 1252a indicates, the purpose of institutional deportation proceedings is to allow for expeditious deportations in order to alleviate the burden placed on the government and the alien by additional detention. Thus, the deportation is to take place immediately after completion of the underlying sentence." In sum, Mr. * was ordered deported pursuant to § 1252a, and, therefore, the indictment should be dismissed and he should be expeditiously deported, as that

section requires.

The Ninth Circuit has clearly held that "where justice and fair play require it, estoppel will be applied against the government." Watkins v. United States Army, 875 F.2d 699, 706 (9th Cir. 1989) (en banc) (citations and internal quotation marks omitted), cert. denied, 498 U.S. 95'7 (1990). Indeed, the Ninth Circuit has specifically implied that the doctrine of equitable estoppel can be applied against the government in a §"1326 prosecution. See United States v. Ullyses-Salazar, 28 F.3d 932, 937 (9th Cir. 1994) (conducting equitable estoppel analysis in a §"1326 case), cert. denied, 115 S. Ct. 1367 (1995).

Tn order to apply equitable estoppel against the government, six requirements must be met. The two threshold requirements are that:

(1) the government engaged in affirmative misconduct; and

(2) the misconduct caused an injustice that outweighs any damage to the public interest.

See Watkins, 875 F.2d at 707-09. if these two threshold requirements are met, then the four traditional elements of estoppel are considered. Those elements are: (1) the party to be estopped must know the facts; (2) must intend that his conduct be acted on or must act so that the party asserting estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) must rely on the former's conduct to his injury. See id. at 709.

In this instance, the government sought to deport Mr. * at an institutional deportation proceeding, Mr. * agreed to be deported at the proceeding, and an immigration judge ordered that he be deported. Given these facts, the Court should equitably estop the government from prosecuting Mr. * for a violation of § 1326. Put simply, when the government decided to deport Mr. pursuant to § 1252a, and he accepted the government's decision, the government lost the right, under principles of equity, to prosecute him further.

A. The Government Engaged in Affirmative Misconduct. "There is no single test for detecting the presence of affirmative misconduct; each case must be decided on its own particular facts and circumstances. Affirmative misconduct does require an affirmative misrepresentation or affirmative concealment of a material fact by the government, although it does not require that the government intend to mislead a party." Id. at 707. The first prong of the equitable estoppel test is satisfied in this instance because the government made an affirmative misrepresentation. It represented that Mr. * would be expeditiously deported pursuant to §"1252a. It has now chosen not to do so.

B. The Injustice to Mr. * Outweighs Any Damage to the Public Interest.

"[T]he government cannot be estopped unless its acts also threaten to work a serious injustice and the public's interest will not be unduly damaged by the imposition of estoppel. This requirement involves a balancing of interests in individual cases." Id. at 708 (citations omitted). Mr. * expected to be released from custody and deported to Mexico, where he would start a new life of freedom with his family. "The frustration of those expectations would be a serious injustice. Even convicted criminals are entitled to be treated by their government in a fair and straightforward manner." Johnson v. Williford, 682 F.2d 868, 872 (9th Cir. 1982) (applying equitable estoppel against the government when it attempted to reincarcerate a parolee who was incorrectly released from custody). Moreover, "any disruption of the nation's immigration policies that might result . . . would, in short, be minuscule in comparison to the hardship to which [Mr. *] would be subjected by a failure to estop the" government. Watkins, 875 F.2d at 708-09 (quoting Gestuvo v. District Director of INS, 337 F. Supp. 1093, 1102 (C.D. Cal. 1971)). Put simply, if the government is equitably estopped from prosecuting Mr. *, he will be immediately deported to Mexico; thus, the interests of the American public will not be unduly damaged. On the other hand, the frustration of Mr. *'s expectations would cause a serious injustice. As a result, the second prong of the equitable estoppel test is easily satisfied.

C. The Government Knew The Facts of Mr. *'s Criminal and Immigration History.

Without doubt, the government knew Mr. *'s criminal and immigration history. After all, it was because of this history that it decided to pursue institutional deportation proceedings in his case. The government knew that it could prosecute Mr. * for a violation of §"1326 when it sought and obtained an order of deportation pursuant to § 1252a.

D. Given the Circumstances, Mr. * Had a Right To Believe That By Accepting His Deportation, He Would Be Expeditiously Deported.

Pursuant to §"1252a, the government conducted institutional deportation proceedings less than two weeks before Mr. *'s release date. Mr. * was informed that the INS wanted to deport him, he agreed to be deported, and an immigration judge informed him that he would be deported. Given this conduct, Mr. * had a right to believe that he would be expeditiously deported on his release date.

E. Mr. * Did Not Know That He Was Going to Be Prosecuted Under §1326.

Mr. * thought he was going to be expeditiously deported to Mexico. He did not know that the government would prosecute him for a violation of § 1326.

F. Mr. * Detrimentally Relied On The Government's Conduct.

Because he believed that he would be expeditiously deported, Mr. * gave up his right to contest his deportation. In addition, he arranged to travel to his home with the help of his parents, he prepared and expected to be reunited with his family, and he secured housing and work in Mexico. This is sufficient detrimental reliance. See Johnson, 682 F.2d at 873 (parolee's reunion with family and change of employment constituted "obvious detrimental reliance").

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