Opinion by Judge KLEINFELD; Dissent by Judge KOZINSKI.
KLEINFELD, Circuit Judge:
The main issue in this case arises from breach of a cooperation agreement. Thomas, a criminal, traded information to the United States Attorney for a promise that “the government” would not oppose his application [1335]*1335for discretionary relief from deportation. The government nevertheless did oppose his application. The Immigration and Naturalization Service argues that it was not bound by the United States Attorney’s promise. We hold that the INS was bound. The promise expressly bound the government for the particular conduct, and the United States Attorney had actual authority to bind the government. The case also requires remand for reconsideration of the motion to reopen under Butros v. INS, 990 F.2d 1142 (9th Cir.1993).
I. Facts
Thomas was brought to the United States and admitted as a lawful permanent resident as a child in 1954. Three decades later, still not a citizen, he was a narcotic's dealer. In 1983 he pleaded guilty to conspiracy to possess cocaine for sale, and was sentenced to seven years imprisonment. At the government’s urging, he was released from prison after about two years because of his cooperation in a major narcotics investigation.
Thomas and an Assistant United States Attorney entered into a cooperation agreement that consisted of a formal “letter of agreement” on the letterhead of the “United States Attorney — Mountain States Drug Task Force.” It was signed by Thomas, two DEA agents, a Narcotics Task Force Agent, and the Assistant United States Attorney on behalf of the United States Attorney. Basically, Thomas promised to give the government a sworn statement about his narcotics trafficking, and work as a cooperating witness for two years. In return, the government agreed to advise the Parole Commission of his cooperation, and promised not to oppose motions made by Thomas’s attorney for reduction of sentence or relief from deportation. Under the agreement, if the United States Attorney decided that Thomas had lied, the government could terminate the agreement and do nothing it had promised. Before the government terminated, however, Thomas was entitled to confront his accusers and explain himself.1
[1336]*1336After Ms conviction, the INS issued an order to show cause why Thomas should not be deported. Thomas requested discretionary relief under Section 212(c), 8 U.S.C. § 1182(c) (1988). The day before his hearing, Thomas moved for a continuance. He claimed a continuance was warranted because the cooperation agreement was still under seal in district court pending completion of proceedings against other narcotics dealers, and Thomas sought the testimony of individuals regarding the extent and value of his cooperation. The motion for continuance was demed.
The INS opposed Thomas’s request for relief from deportation, despite the express promise of “The Government” not to oppose that very motion. At the hearing, the INS called two witnesses who testified to Thomas’s bad character and criminal activities. Thomas testified about his reformed attitudes and the extent of his cooperation under the agreement. Although he could not introduce a copy of the cooperation agreement into evidence, the Immigration Judge was made aware that he had cooperated extensively pursuant to an agreement. Thomas lost, appealed, and lost again before the Board of Immigration Appeals (BIA).
While Thomas’s appeal was pending before the BIA, his cooperation agreement was unsealed, so Ms attorney provided the BIA with a copy. The INS attorney, in response, provided the BIA with a letter from a UMted States Attorney. The Umted States Attorney urged that the INS was not “completely” bound by the agreement, although he noted the text of the agreement “may suggest that.” He also claimed Thomas breached the agreement, which released the government from its obligations.2
cation or relief from deportation to the Court, parole commission and U.S. Immigration Service.
Thomas subsequently moved to reopen his deportation proceedings because of new equities — marriage, birth of a son, and successful completion of probation. The BIA demed the motion, on the ground that the final deportation order ended his lawful residency, and so ended his eligibility for discretionary relief from deportation.
II. Analysis
We have jurisdiction to review a decision of the BIA under the Immigration and Nationality Act, 8 U.S.C. § 1105a (1988). We must remand on the motion to reopen because of a change in the law subsequent to the BIA’s decision. That does not end the matter, though. Thomas has appealed the BIA decision on his initial appeal, as well as its decision on his motion to reopen. The demal of the motion to reopen, and the motion itself, involve different issues from the [1337]*1337BIA decision on Thomas’s appeal of the Immigration Judge’s order denying him Section 212(c) relief. We therefore must address the petition for review of the appeal to the BIA. Even if the BIA decides that the new equities asserted in the motion are insufficient to change the result, the government’s breach of its agreement requires that Thomas’s Section 212(c) proceeding be conducted again, unopposed by the government.
A. Denial of the Motion to Reopen.
The BIA denied the motion to reopen on a ground which later became invalid in this circuit. It relied on our decision in Gonzales v. INS, 921 F.2d 236 (9th Cir.1990), for the proposition that once the Immigration Judge’s order of deportation was upheld by the BIA, the deportee was ineligible for Section 212(c) relief. But our subsequent en bane decision, Butros v. INS, 990 F.2d 1142, 1144 (9th Cir.1993), holds to the contrary. Because Thomas has not actually departed from the United States, the statute and regulation thereunder do not bar his motion to reopen. Id. We must therefore remand to the BIA so it can consider Thomas’s motion to reopen.
B. The Cooperation Agreement.
Thomas argues that the government violated the agreement pursuant to which he waived his constitutional right to silence and provided the government with information and testimony. He claims that this violation breached his constitutional right to due process of law. We review de novo. Barraza Rivera v. INS, 913 F.2d 1443, 1448 (9th Cir.1990). We reverse, with directions that Thomas have a new proceeding in which the government does not oppose his motion for 212(c) relief.
It has long been the law that the government’s failure to keep a commitment which induces a guilty plea requires that judgment be .vacated and the case remanded. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498-99, 30 L.Ed.2d 427 (1971). A cooperation agreement is analogous to a plea agreement. United States v. Carrillo, 709 F.2d 35, 36 (9th Cir.1983). The government is held to the literal terms of the agreement, and ordinarily must bear responsibility for any lack of clarity. United States v. Anderson, 970 F.2d 602, 607 (9th Cir.1992). Enforcement of the agreement requires that the person making the promise be authorized, and that the promisee rely on the promise to his detriment. Johnson v. Lumpkin, 769 F.2d 630, 633 (9th Cir.1985).
The INS argues that “the Service was not a party to the agreement, nor is it bound by the agreement, nor does the agreement specify that INS would not oppose the alien’s request.” The INS correctly points out that the record does not show the INS was ever consulted about whether the government should make the agreement, or even advised that the agreement existed. The INS also argues that the United States Attorney lacked authority to enter into an agreement on its behalf.
We sympathize with the INS’s concern that it may be bound by an agreement made without its participation, and that a deportation order may be vacated because of an agreement of which the INS was not informed. The INS did not knowingly do anything unfair to Thomas, so far as the record shows. The INS trial attorney may be justifiably annoyed at spending considerable time and effort opposing a motion for relief from deportation, only to have the effort wasted if the United States Attorney promised that the motion would not be opposed and did not advise the INS of the promise. Any unfairness to the Service apparently results from the failure of the United States Attorney to keep the INS informed.
Nevertheless, Thomas was entitled to performance by the government of its promise. “The staff lawyers in a prosecutor’s office have the burden of ‘letting the left hand know what the right hand is doing’ or has done. That the breach of the agreement was inadvertent does not lessen its impact.” Santobello, 404 U.S. at 262, 92 S.Ct. at 499. The United States Attorney should have written to whomever in the Department of Justice would be responsible for seeing that the promise he made on the government’s behalf would be performed by the INS. The BIA should have reversed and remanded for a new hearing in which the government would not oppose Thomas’s motion for relief from deportation.
The agreement plainly and unambiguously spoke to the issue of deportation and expressly bound the INS. In the first paragraph, the agreement says that “Govern[1338]*1338ment,” designated as the promisor, “includes its departments, officers, agents, and agencies.” See supra note 1 (setting forth text of agreement). The eighth paragraph bound “[t]he Government,” so defined, not to oppose motions for “relief from deportation to the ... U.S. Immigration Service.” See supra note 1. Motions for relief from deportation are made and heard before the INS, and opposed by INS lawyers, so this particular promise, to mean anything, had to mean that the INS would not oppose such a motion. The letter making the promise is on “United States Attorney — Mountain States Drug Task Force” letterhead, with the seal of the Department of Justice on the top. There is no question the agreement purported to bind the INS not to oppose Thomas’s application for relief from deportation.
The most substantial issue raised by the government is whether the United States Attorney possessed the requisite authority to bind the INS. To analyze an agency issue, we distinguish between actual and apparent authority. Generally, as explained below, apparent authority will not suffice in this context. Then under the rubric of actual authority, we distinguish between express and implied authority. In this case, there was no express authority, so we must determine whether the circumstances of the express authorization implied authority for acts of this kind.
The rule requiring compliance by the government with promises made during plea bargaining and analogous contexts generally requires that the agent be authorized to make the promise. Johnson v. Lumpkin, 769 F.2d 630, 633 (9th Cir.1985) (federal prosecutor’s promise does not bind state authorities) Estoppel and apparent authority normally will not substitute for actual authority to bind the United States government. Utah Power & Light Co. v. United States, 243 U.S. 389, 408-09, 37 S.Ct. 387, 391, 61 L.Ed. 791 (1917); Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384, 68 S.Ct. 1, 3, 92 L.Ed. 10 (1947). But see Houck ex rel. United States v. Folding Carton Admin. Comm., 881 F.2d 494, 501 (7th Cir.1989).
In the law of agency, actual authority takes two forms: (1) express authority, and (2) authority that is implied or incidental to a grant of express authority. W. Edward Sell, Sell on Agency 25-31 (1985). Therefore, the United States Attorney’s promise that the government would not oppose Thomas’s § 212(c) application is binding on the INS if the United States Attorney had either an express grant of authority to make such a promise, or his authority for making the promise is incidental to some other express grant of authority.
United States Attorneys get their authority directly from Congress, not by delegation from the Attorney General. Congress has conferred express authority on United States Attorneys by law:
Except as otherwise provided by law, each United States attorney, within his district, shall—
(1) prosecute for all offenses against the United States;
(2) prosecute or defend, for the Government, all civil actions, suits or proceedings in which the United States is concerned;
(3) appear in behalf of the defendants in all civil actions, suits or proceedings pending in his district against collectors, or other officers of the revenue or customs for any act done by them or for the recovery of any money exacted or paid to these officers, and by them paid into the Treasury;
(4) institute and prosecute proceedings for the collection of fines, penalties, and forfeitures incurred for violation of any revenue law, unless satisfied on investigation that justice does not require the proceedings; and
(5) make such reports as the Attorney General may direct.
28 U.S.C. § 547.
Congress has charged the Attorney General, not United States Attorneys, with administration and enforcement of the Immigration and Nationality Act. 8 U.S.C. § 1103(a). Within the Immigration and Naturalization Service, the Attorney General and the Commissioner have made various delegations of that authority. See, e.g., Dodig v. INS, 9 F.3d 1418, 1419-20 (9th Cir.1993); 8 C.F.R. §§ 100.2(a), 103.1(a). So far as we have found in the Code of Federal Regulations, no delegation of that authority has been made to United States Attorneys.
[1339]*1339Our dissenting colleague infers from the absence of any express delegation that United States Attorneys have- no authority. But this proves too much. We have not been able to find any place in the Code of Federal Regulations where the Attorney General delegates to United States Attorneys her power to prosecute federal crimes. They nevertheless have that power, because Congress assigned it to them independently of any delegation by the Attorney General. The regulations laying out the organization of the Department of Justice conspicuously omit any delegation of authority to United States Attorneys, no doubt because their authority is statutory. This statutory authorization is referred to at the delegation to Assistant and Deputy Assistant Attorneys General of the Attorney General’s authority to designate Department attorneys to conduct legal proceedings “which United States attorneys are authorized by law to conduct.” 28 C.F.R. § 0.13.
Congress expressly assigned overlapping authority to both the Attorney General and to United States Attorneys. It has authorized the Attorney General to conduct “any kind of legal proceeding ... which United States Attorneys are authorized by law to conduct.” 28 U.S.C. § 515(a). The reference to authorization “by law” connects this statute assigning authority to the Attorney General, with the statute quoted above, assigning duties directly “by law” to United States Attorneys. A United States Attorney in Denver does indeed exercise authority without the need for delegation from the Attorney General, even though a Deputy or Assistant Attorney General in Washington D.C. exercises it pursuant to a delegation. Congress has spread out power instead of concentrating it all at the center.
We have found no express limitation on the United States Attorneys’ power to bind the INS. The government argues that “the AUSA had no authority to speak for the INS.” But the authorities it cites do not support that proposition. Doe v. Civiletti, 635 F.2d 88, 90 (2d Cir.1980), holds that the oral representations of a Strike Force Justice Department attorney and a DEA agent did not commit the Marshals Service with regard to the Witness Protection Program. Their lack of authority was express, under an Attorney General’s order that attorneys and others “are not authorized” to make such commitments, which were to be made by “authorized representatives of the U.S. Marshals Service only.” Id. No comparable order or other express restriction of authority has been shown to us in this ease. United States v. Fitzhugh, 801 F.2d 1432, 1433 (D.C.Cir.1986), holds that the DEA was not bound by a prosecutor’s agreement because the agreement “did not encompass a subsequent DEA registration proceeding,” not for any lack of authority.
We have found no express grant of authority to United States Attorneys to bind the “government” not to oppose motions for relief from deportation to the INS. We must therefore decide whether their authority to “prosecute for all offenses against the United States,” 28 U.S.C. § 547(1) (1988), implies such authority. It does, under ordinary principles of agency law.
The authority to “prosecute” implies the power to make plea agreements incidental to prosecution. That is because an agent has actual authority to make contracts incidental to the agency:
Unless otherwise agreed, authority to make a contract is inferred from authority to conduct a transaction, if the making of such a contract is incidental to the transaction, usually accompanies such a transaction, or is reasonably necessary to accomplish it.
Restatement (Second) of Agency § 50 (1958); see also id. § 35 (authority to conduct transaction includes authority for incidental acts). The implied authority of an agent to do the things normally incidental to the authorized transaction is actual, not apparent authority. W. Edward Sell, Sell on Agency 31 (1985); Harold G. Reuschlein & William A. Gregory, Agency and Partnership 37-38 (1975). Apparent authority, which generally will not suffice to bind the government, arises when a principal causes a third party to believe, correctly or not, that the principal has authorized the agent to engage in particular conduct. Implied authority, unlike apparent authority, is intended by the principal, or would be if the principal thought about it, even though instead of being express, it is implied by words, deeds, custom, acquiescence, and other circumstances. “[I]mplied actual authority, like expressed actual authority, will suffice [to hold the government bound by the acts of its agents].” H. Landau & Co. v. United States, 886 F.2d 322, 324 (Fed.Cir. [1340]*13401989). Authority “is generally implied when such authority is considered to be an integral part of the duties assigned to a [g]overnment employee.” Id. (quotation omitted).
Cooperation agreements subsequent to conviction are less common than plea agreements, but so customary and closely related that no one, so far as we know, has ever raised a question of whether United States Attorneys can make cooperation agreements on behalf of the government. Many criminal cases involve aliens, and the convictions affect deportability, so deportability will commonly be a concern of defense counsel, affecting the terms of the agreement. Federal Defenders of San Diego, Defending a Federal Criminal Case § 17.04.03 (1992).
A United States Attorneys’ authority to commit the government not to oppose a motion for relief from deportation as part of a plea bargain is incidental to his statutory authority to prosecute crimes. The implication arises from several factors. First, deportation commonly arises from the context of criminal prosecution. It is likely to be a central issue in many criminal cases involving aliens. Second, the terms of a plea or cooperation agreement will commonly affect deportation. The attorneys will negotiate the offenses of conviction and sentences partly by considering the effects of these determinations on deportation. Third, there is no reason why, in the absence of regulations or orders to the contrary, we should doubt that Congress implied this grant of authority. Both the United States Attorneys and the Immigration and Naturalization Service are within the same Department. United States Attorneys are very high officials. They are appointed by the President and confirmed by the Senate to high positions in which they exercise authority in criminal cases tersely stated as “prosecute” in an independent and broad statutory conferral. 28 U.S.C. §§ 541, 547(1).
The Fourth Circuit, in holding that a United States Attorney in one district could make a promise binding a United States Attorney in another district, adopted a rationale which would compel the same conclusion we reach:
[TJhough the Government negotiates its plea agreements through the agency of specific United States Attorneys — as necessarily it must — the agreements reached are those of the Government. It is the Government at large — not just specific United States Attorneys or United States “Districts ” — that is hound by plea agreements negotiated by agents of Government. Whenever a United States Attorney negotiates and enters a plea agreement, it is the Government that “agrees” to whatever is agreed to. Of course, the Government may — and quite readily can— “agree” through its agents that only certain agents are to be obligated in particular respects, or that the Government’s obligation is limited territorially or temporally, or that the Government’s obligation is otherwise qualified. But the mere fact that a particular agent, holding office in a particular district, and for a limited term of office makes the “agreement” — “agrees”— does not impose those limitations. In sum, under that settled circuit law, the proper way for plea agreements to express such limitations is as limitations on the Government’s general obligation — a thing quite easily done — and not by technically inaccurate identifications of particular agents or agencies of Government as the contracting party.
United States v. Harvey, 791 F.2d 294, 302-03 (4th Cir.1986) (emphasis added). Harvey establishes that the United States government as a whole uses United States Attorneys as its authorized agents to negotiate plea bargains in criminal cases, so their authorized agreements bind the government as a whole.
This case is distinguishable from those where some official of lesser authority over prosecutions than the United States Attorney has purported to bind the United States Attorney, e.g., United States v. Williams, 780 F.2d 802 (9th Cir.1986) (VA administrator had no authority to bind United States Attorney); United States v. Hudson, 609 F.2d 1326 (9th Cir.1979) (Secret Service agent had no authority to bind United States Attorney). Nor is the case before us analogous to one where the defendant claimed, without factual support in the record, that a federal promise bound state authorities. Johnson v. Lumpkin, 769 F.2d 630, 634 (9th Cir.1985).
Except as otherwise authorized by law, the Attorney General of the United States supervises all litigation to which the United States or an agency thereof is a par[1341]*1341ty. 28 U.S.C. § 516. The Attorney General also has authority to control and direct all employees of the Immigration and Naturalization Service. 8 U.S.C. § 1103(a). If the Attorney General wished to limit the incidental authority of United States Attorneys in this respect, she could easily do so with a section in the Code of Federal Regulations, but she has not chosen to do that. As a matter of administrative prudence the Department of Justice might wish to have some internal coordinating procedure for agreements by United States Attorneys which affect the Immigration and Naturalization Service. That is an administrative concern of the Attorney General, not the judiciary. It was not incumbent on defense counsel to assure that the United States Attorney was not stepping on any toes in the Immigration and Naturalization Service.
In its petition for rehearing, the INS points out that the Attorney General instructed United States Attorneys that:
No agreement shall be made by a U.S. Attorney that an individual will not be extradited or deported or that his/her extradition or deportation will be delayed, altered or restricted to certain nations without the prior approval of the Criminal Division in criminal eases and in cases involving extradition, or the Civil Division in civil cases.
United States Attorneys’ Manual § 9-73.510 (1984).
The INS concedes that this was not mentioned in the briefs, including the supplemental briefs we requested on the implied authority issue. The INS says that the quoted direction is in the United States Attorneys’ Manual, a document not readily available to INS attorneys. We do not know whether this manual is available to people not employed by the Department of Justice. We need not decide what effect language in an unpublished manual might have, because the quoted language does not change the result.
The language implies that a United States Attorney does have authority to promise relief from deportation if the agreement is approved by the Criminal Division. The United States Attorney made the agreement. If he followed his manual, then the agreement was approved, and he acted with express authority.
The record includes no affidavit or other evidence that the United States Attorney acted without approval. If the United States Attorney or his Assistant disobeyed his manual, and did not obtain the prior approval of the Criminal Division, it would have been easy enough for him to file an affidavit- saying so. That would have been evidence of the absence of authority.
We are nonplused by our colleague’s suggestion that our holding is contrary to long established precedent. Chief Justice Marshall wrote in 1835 that “[h]e who alleges that an officer entrusted with an important duty has violated his instructions, must show it.” DeLassus v. United, States, 34 U.S. (9 Peters) 117, 134 (1835). The reason is that when a government officer makes a grant or concession, his act “carries with it prima facie evidence that it is within his power.” Id. We recognized this principle (not that the Supreme Court speaking through Chief Justice Marshall needs our recognition) in United States v. Jones, 176 F.2d 278, 282 (9th Cir.1949), and United States v. State of Washington, 233 F.2d 811, 816 (9th Cir.1956), among other places.
What “prima facie evidence” and “must show it” mean is that the government’s plea bargain with Thomas sufficed as prima facie evidence of authority, and the burden of proof was on the government to show that the United States Attorney violated his manual. Now that we know the Criminal Division had to approve such an agreement, the well established rule requires that we presume that before the DEA agents, Narcotics Task Force agent, and Assistant United States Attorney signed the formal agreement, they obtained the necessary Criminal Division approval.
We shall not invent an excuse for the government to break its promise. If they have an excuse, let them prove it.
The second of the Johnson v. Lumpkin conditions, reliance by Thomas to his detri[1342]*1342ment on the promise, has not been put at issue by the government. By explicitly listing non-opposition to a 212(c) motion among the things the government promised, the agreement suggests that the non-opposition was among the things Thomas wanted if he was to assume the sometimes dangerous and unpleasant role of informant and government witness.
While Thomas had the burden of demonstrating his entitlement to section 212(c) relief, as the BIA said, his burden could have been carried much more easily and effectively had the INS lawyer simply said “we do not oppose the application.” Instead, the INS lawyer vigorously opposed the application, and put on a devastating case, with two live witnesses. In Santobello, the trial judge said “I am not at all influenced by what the District Attorney says,” yet the Supreme Court held that the prisoner was entitled to another proceeding at which the government would perform its promise. Santobello, 404 U.S. at 259, 263, 92 S.Ct. at 497, 499. A fortiori, so is Thomas.
The INS argued to the BIA that the agreement was terminated because of Thomas’s breach. But the agreement expressly provided that it could not be terminated for this reason without first allowing Thomas to confront his accusers and explain his position. He was not given this opportunity, so the agreement was not effectively terminated. Plainly, the government was disappointed in Thomas’s testimony. A criminal’s testimony often lacks the persuasive force of plain truth, even when it is true, and often it is hard to know whether it is true. The government bargained for a criminal’s testimony, and cannot avoid paying the agreed price because of buyer’s remorse.
Our dissenting colleague has not found authority to support his instinct that United States Attorneys cannot bind other parts of the Department of Justice in plea agreements, so is forced, as we are, to apply more general propositions of law and to invent a new theory of “interpolated” and “extrapolated” powers without support in the law. See dissent at n. 2. The dissent “emphatically disagreed] with the notion that a corona of implied authority surrounds every grant of power by the government to its agents.” But it must. Such a “corona” accompanies virtually every grant of authority to any agent. ‘ If it were necessary to state everything expressly in order to confer authority, then it would be as hard to draft an authorization as it is to write a computer program. Congress, after all, only gave United States Attorneys authority to “prosecute” criminal cases. It did not grant them express authority to bargain about the cases and enter into plea agreements in order to avoid the burden and risk of prosecuting. That authority is implied, not express. The dissent, if it were correct, would compel the conclusion that all federal plea agreements are void for lack of authority, because United States Attorneys have no express authorization to make plea agreements.
The second critical proposition in the dissent is that “there is no precedent for applying common law principles to define the relationship between the government and its agents.” That proposition so broadly stated is, of course, erroneous,- as the dissent implicitly concedes. The Federal Circuit has applied common law principles for exactly this purpose. It has held that implied authority, unlike apparent authority, is a form of actual authority which binds the government to contracts. H. Landau & Co. v. United States, 886 F.2d 322 (Fed.Cir.1989). The Court of Claims routinely examines facts of particular cases to see whether, though not express, implied authority existed. See, e.g., Howard v. United States, 31 Fed.Cl. 297, 312 (1994); Zoubi v. United States, 25 Cl.Ct. 581, 587-88 (1992).
More broadly, the proposition is mistaken because if it is true, it must be false, like the proposition “all statements are false.” Stated positively, the dissent’s proposition is that “common law principles do not define government agency relationships.” But the central term, “agent,” is defined only by the common law. It is a common law [1343]*1343term of art. The proposition boils down to saying that the common law does not define something which is defined by the common law. As Justice Jackson explained, we cannot understand the words, even of our federal statutes, without the benefit of the common law:
Were we bereft of the common law, our federal system would be impotent. This follows from the recognized futility of attempting all-complete statutory codes, and is apparent from the Constitution itself.
D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 470, 62 S.Ct. 676, 685, 86 L.Ed. 956 (1942) (Jackson, J. concurring).
Of course the dissent is correct that Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947), requires one contracting with a government agent to take the risk of having accurately ascertained that the agent has acted within the scope of his authority. In that case, the government crop insurance agent sold the farmers a policy for spring wheat, but the published regulations prohibited coverage for that type of crop, so the farmers could not collect on the insurance. The case says nothing about whether authority must be express rather than implied. The farmers lost in Merrill because published regulations prohibited the government agents from selling the insurance they purported to sell. By contrast, no regulation prohibited the United States Attorney from making the promise he made, and nothing about the nature of the particular promise suggested any lack of authority. The dissent’s reference to turning “square corners” in dealings with the government alludes to condemnation of sharp practice, but the only evasion of a solemn promise in this case was by the government itself.
The dissent wonders how the Attorney General could limit the authority of United States Attorneys. A ease it cites, Doe v. Civiletti, 635 F.2d 88 (2d Cir.1980), shows how. The reason that the United States Attorney could not bind the U.S. Marshal Service in that ease was that the Attorney General had issued a Department of Justice Order saying “[government] Attorneys are not authorized” to make the relevant representations or promises. Id. at 90, n. 3. The Attorney General has “direction” over all litigation to which the United States is a party, 28 U.S.C. § 516, as well as authority to conduct any legal proceeding which United States Attorneys can conduct, 28 U.S.C. § 515. She plainly can direct whether United States Attorneys can promise nonopposition to immigration petitions when they make plea bargains.
Thomas also contends that he was deprived of due process of law because the Immigration Judge denied him a continuance. The reversal and remand on other grounds obviates the need to decide the continuance issue.
The case is REMANDED for proceedings not inconsistent with this opinion.