Despotic Problems Require Novel Solutions: Leveraging Equitable Estoppel in Deportation Law

The United States was the only country 29-year-old Gilberto Olivas-Bejarano knew as home. Born in Mexico, Olivas-Bejarano was a toddler when his family moved to the U.S. and spent his whole life here, growing up alongside his siblings and attending public school, all under the protection of the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program. Like hundreds of thousands of DACA recipients, Olivas-Bejarano did everything the government asked: He registered with the Department of Homeland Security, reported his whereabouts, passed background checks, and built his life with reliance on the official promise of protection. In 2017, the federal government withdrew that promise and initiated deportation proceedings to send him to a country he had never considered home [1]. Far from exceptional, his experience illustrates a broader doctrinal problem. At the root of this problem is a disturbing inconsistency: American administrative law already recognizes that persons and entities are protected from government action when they have justifiably relied on the government’s previous assurances, but courts have largely been unwilling to apply this same principle to noncitizens facing deportation, even when the government itself caused their reliance through official programs. This article argues that courts should remedy that inconsistency by recognizing a narrow equitable estoppel defense in deportation proceedings. Equitable estoppel, which holds that a party cannot take a position that is inconsistent with a prior guarantee on which another party has relied to their detriment, is a long-established principle of American law [2]. When the government has made affirmative representations that result in reasonable reliance through formal immigration programs or other official representations, both constitutional due process and common-sense fairness require that the government be bound by those representations [3]. The consequences of ignoring estoppel in this context could not be more severe, as deportation is a life-altering punishment [4]. The laws that regulate deportation must take that level of severity into account.

The argument for equitable estoppel in deportation cases does not require a dramatic departure from settled law. Courts need only apply to immigration proceedings the same principles they already apply elsewhere in administrative governance. Begin with the proposition that agencies act arbitrarily (and thus illegally) when they disregard what the Supreme Court has called “serious reliance interests.” In Encino Motorcars, LLC v. Navarro (2016), the Supreme Court struck down a Department of Labor rule on the grounds that the agency had failed to consider the decades of industry reliance that accrued under the former regulatory regime [5]. Reliance, the Court ruled, is not only a sentimental appeal to fairness, but an enforceable requirement of reasoned decision-making under the Administrative Procedure Act (APA) — a mainstay of administrative law requiring agencies to act judiciously. When an agency changes course without seriously considering reliance interests, it acts arbitrarily and capriciously. This should also be — but is not currently — the case in deportation proceedings, where reliance interests are not just economic but personal and, in many cases, irreparable. Companies can recoup losses, while deportation shatters immigrants’ lives.

The Constitution itself provides due process protections, even to noncitizens. Yamataya v. Fisher (1903) established over a century ago that due process applies in deportation proceedings [6]. In Mathews v. Eldridge (1976), the Court confirmed that (1) where the private interest is severe and (2) the risk of erroneous deprivation high, due process demands correspondingly serious procedural constraints [7]. Permanent exile from the only country one has known satisfies the first condition. Estoppel, in this context, is thus grounded in due process, as the government may not arbitrarily ignore the interests of immigrants nor deprive them of fair, established legal procedures. The second condition turns on the nature of the government’s prior conduct: Where the government has merely tolerated a noncitizen’s presence, there is no formal basis for a legal expectation of continued stay, and the risk of erroneous deprivation is correspondingly limited, since there was never a guarantee to be deprived of. But where the government has made affirmative representations — registering, vetting, and issuing written approvals — it has created a legitimate legal expectation that a removal proceeding, if it ignores that history, will necessarily get wrong. The Court in INS v. Hibi (1973) drew precisely this line, declining to estop the government where its conduct was merely passive but leaving open the possibility of estoppel where the government had engaged in affirmative misconduct [8]. That is what differentiates cases like Olivas-Bejarano’s from ordinary immigration proceedings: Programs of deferred action, such as DACA — implemented lawfully within the executive’s prosecutorial discretion and upheld as such by federal courts — involve active government participation at every turn [9]. They differ from mere passive tolerance, as the reasonableness of a DACA recipient’s reliance on this invitation to stay in the country is exceedingly government-driven. To allow deportation of persons who relied on this invitation, without any legal means by which they can assert their reliance as a defense, is to allow the government to take advantage of the very compliance it demanded. And, furthermore, there is perhaps no better way to undermine future trust in democratic government among an already distrustful citizenry.

The alternatives to an adoption of equitable estoppel in certain deportation proceedings are inadequate. Unlike estoppel, APA challenges operate at the programmatic level, invalidating policies rather than shielding individuals [10]. When a reviewing court found the rescission of DACA arbitrary and capricious under the APA, that rescission did nothing for the persons already facing removal [11]. Prosecutorial discretion is no answer either: It is unreviewable, revocable at will, and by definition confers no legal right on which a noncitizen can rely in a proceeding already initiated against him. A remedy that evaporates the moment it is most needed is not a remedy at all. Broad constitutional challenges to immigration policy face a steeper climb. The plenary power doctrine grants Congress and the executive near-unreviewable authority over immigration, a proposition reaffirmed in Kleindienst v. Mandel (1972) and Arizona v. United States (2012), where the Court signaled it had little appetite for disturbing federal executive preeminence in enforcement [12]. Trump v. Hawaii (2018) extended that deference further [13], with the Court upholding the Trump administration’s “travel ban,” thus signaling that facially legitimate executive action in the immigration sphere will seldom be disturbed. Equitable estoppel sidesteps this entirely. It does not challenge the executive’s authority to set immigration policy, nor demand that any program be preserved. It asks only that when the government has made formal, structured representations to a specific individual who foreseeably staked irreversible life decisions on them, it be held to those representations in future enforcement actions. That is not a constraint on sovereign power — it is a constraint on sovereign bad faith, and the law already treats them differently. The Constitution commands the President to “take care that the Laws be faithfully executed,” a clause the Court has read to impose genuine limits on pretextual action*.* In Department of Commerce v. New York (2019) [14], the Court struck down the Commerce Secretary’s decision to add a citizenship question to the census because the stated rationale was a post-hoc fabrication, not because the action itself exceeded statutory authority [15]. Facially valid executive power exercised in bad faith, the Court held, does not receive the same deference as a legitimate exercise of the same power. The bad faith in Department of Commerce was a lie about reasons; the bad faith in DACA’s rescission is the betrayal of reliance the government itself induced. Different wrongs, same defect: The executive claims deference without faithful execution. The Take Care Clause requires honest justification and honest dealing. Equitable estoppel insists on no more than that.

An objection, of course, is that courts have seldom “estopped” the sovereign. In INS v. Hibi, the Court declined to estop the government based on a single consular officer’s conduct, finding no “affirmative misconduct” sufficient to trigger the doctrine [16]. In Office of Personnel Management v. Richmond (1990), the Court likewise refused to apply estoppel where granting it would have compelled an unauthorized expenditure [17]. Neither case closes the door here. Richmond’s logic relied on the Appropriations Clause: In the deportation context, no immigrant is asking the Treasury to spend money it has not authorized. And while a consular officer’s offhand remark would scarcely satisfy Hibi’s “affirmative misconduct threshold,” a multi-year federal program with biometric intake, written approvals, and renewal fees like DACA surely can and does. Moreover, Encino Motorcars confirms that executive flexibility already yields to serious reliance interests in other administrative contexts. There is no principled reason immigration should be the exception [18].

The proposal is narrow. Equitable estoppel — if applied — would exclude most immigration cases by design [19]. Individuals whose presences were tolerated because of administrative backlog would not qualify for relief. Assurances from officers acting without authority would not force estoppel. DACA recipients — who submitted fingerprints, received written federal approval, and built lives that now support roughly 254,000 U.S.-born children and generate $5.6 billion in annual federal tax revenue — would [20]. The Supreme Court in DHS v. Regents of the University of California (2020) faulted the rescission of DACA for ignoring recipients who had enrolled in degree programs, started businesses, purchased homes, and had children in reliance on the program — consequences that would “radiate outward” to 200,000 U.S.-citizen children [21]. The Court in DHS stopped short of endorsing estoppel, but employed the same “reliance” rhetoric and logic that would give licence to any estoppel claim. Because estoppel functions only as a defense, it creates no affirmative entitlement [22], overrides no statute, and compels no benefit. It simply provides that the government may not bring enforcement actions against the very individuals its own formal programs put at risk.

Gilberto Olivas-Bejarano is not an abstraction. He registered, complied, and waited — and the government targeted him for that compliance. Refusing to apply estoppel in cases like his while enforcing reliance principles everywhere else makes one message clear: The rule of law holds for the powerful and yields for the vulnerable. This article has focused on Olivas-Bejarano as the paradigm case, but the underlying principle extends wherever the government has made formal, individualized representations that foreseeably shaped irreversible decisions — a question that merits further development across other deferred-action programs and, potentially, beyond immigration altogether. A government that may disregard its own formal assurances is exercising unbounded power, and that is a condition no constitutional democracy can long endure.

Endnotes
[1] Lulu Garcia-Navarro and Peter Breslow, “Deported after Living in the U.S. for 26 Years,” NPR, May 19, 2019, https://www.npr.org/2019/05/19/723739490/deported-after-living-in-the-u-s-for-26-years-he-navigates-a-new-life-in-mexico.
[2] Cornell Law School Legal Information Institute, “Equitable Estoppel,” Wex, https://www.law.cornell.edu/wex/equitable\_estoppel.
[3] Whether less formally structured official assurances—verbal representations by immigration officers, informal agency communications, or analogous non-programmatic conduct (i.e. “handshake agreements”)—could satisfy the clear representation element of equitable estoppel is beyond the scope of this article.
[4] Fong Yue Ting v. United States, 149 U.S. 698 (1893) (Brewer, J., dissenting) (deportation is “a punishment in the severest form”); Bridges v. Wixon, 326 U.S. 135 (1945) (deportation carries consequences that may amount to the loss of “all that makes life worth living,” and should therefore not rest on insubstantial evidence); Ng Fung Ho v. White, 259 U.S. 276 (1922) (deportation “may result in loss of both property and life, or of all that makes life worth living,” and that severity was the Court’s stated justification for requiring judicial rather than purely administrative process).
[5] Encino Motorcars, LLC v. Navarro, 579 U.S. 211 (2016), https://supreme.justia.com/cases/federal/us/579/15-415/.
[6] Yamataya v. Fisher, 189 U.S. 86 (1903), https://supreme.justia.com/cases/federal/us/189/86/, (“It is not competent for . . . any executive officer . . . arbitrarily to cause an alien who has entered the country . . . to be taken into custody and deported without giving him all opportunity to be heard”).
[7] Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
[8] INS v. Hibi, 414 U.S. 5 (1973) (per curiam).
[9] American Immigration Council, “Deferred Action: An Overview, “https://www.americanimmigrationcouncil.org/research/deferred-action-overview; U.S. Citizenship and Immigration Services, “Consideration of Deferred Action for Childhood Arrivals, “Regulations.gov, https://www.regulations.gov/document/USCIS-2021-0006-0001.
[10] “Administrative Procedure Act,” Legal Information Institute, Cornell Law School, https://www.law.cornell.edu/wex/administrative\_procedure\_act.
[11] Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891, 1906–07 (2020).
[12] Kleindienst v. Mandel, 408 U.S. 753, 769–70 (1972); Arizona v. United States, 567 U.S. 387, 394–95 (2012).
[13] Trump v. Hawaii, 138 S. Ct. 2392 (2018).
[14] Department of Commerce v. New York, 139 S. Ct. 2551 (2019).
[15] “Post-hoc fabrication” in a legal context refers to the dishonest, after-the-fact creation of evidence, justifications, or defenses to support a claim or defense that was not originally supported by the facts. It is a form of bad faith—intentional, dishonest, or malicious behavior—designed to deceive or mislead another party.
[16] INS, 8.
[17] Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990).
[18] Encino Motorcars, 221–22.
[19] “Promissory Estoppel,” Legal Information Institute, Cornell Law School, https://www.law.cornell.edu/wex/promissory\_estoppel.
[20] American Immigration Council, “Deferred Action for Childhood Arrivals (DACA): An Overview,” January 2025, https://www.americanimmigrationcouncil.org/fact-sheet/deferred-action-childhood-arrivals-daca-overview/.
[21] Department of Homeland Security, 140 S. Ct. 1891.
[22] In other words, the government is not required to provide formal assistance or otherwise act to aid an aggrieved party unless it specifically induced that party’s reliance.