Opinion
CIVIL ACTION NO. 1:14-CV-1422-LMM
2015-07-14
Marisol Magallanes, et al., Plaintiffs, v. United States of America, et al., Defendants.
Peter Reed Hill, Office of Peter Reed Hill, Melaine A. Williams, Office of United States Attorney, Atlanta, GA, for Plaintiffs. Melaine A. Williams, Office of United States Attorney, Atlanta, GA, for Defendants.
Peter Reed Hill, Office of Peter Reed Hill, Melaine A. Williams, Office of United States Attorney, Atlanta, GA, for Plaintiffs.
Melaine A. Williams, Office of United States Attorney, Atlanta, GA, for Defendants.
ORDER
LEIGH MARTIN MAY, UNITED STATES DISTRICT JUDGE
Plaintiffs filed this action alleging the wrongful deportation of Edgar Sanchez-Castaneda. Plaintiffs seek relief through a Writ of Mandamus, and also seek damages under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the Federal Tort Claims Act ("FTCA"). This matter comes before the Court on Defendants' Motion to Dismiss [5].
I. Background
The facts relied upon in this Order are taken from the Complaint. As required on a motion to dismiss, the Court has accepted all facts pleaded therein, and has viewed all inferences in a light most favorable to Plaintiffs.
Plaintiff Edgar Sanchez-Castaneda is a foreign national who was deported to Mexico pursuant to Section 238 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1228. Dkt No. [1] at 2. Plaintiff Marisol Magallanes is a naturalized United States citizen, who married Mr. Sanchez-Castaneda after he was deported. Id.¶ 1. Mr. Sanchez-Castaneda and Ms. Magallanes share three minor children together, who still reside in the United States with Ms. Magallanes. Id. Plaintiffs contend that Mr. Sanchez-Castaneda's removal was unlawful. Id. at 2.
Mr. Sanchez-Castaneda's minor children were initially named as Plaintiffs in the Complaint. However, Plaintiffs have since conceded that the children's claims for loss of consortium are not cognizable under Georgia law. Dkt. No. [6–1] at 14.
On January 2, 2013, several U.S. Immigration and Customs Enforcement ("ICE") agents obtained entry into Plaintiffs' private residence. Id.¶ 3. The agents obtained Ms. Magallanes's consent through a "ruse" in which they showed her a picture of a man and told her that they were looking for a fugitive. Id. Plaintiffs contend that this was a pretext, and that the agents were actually there to detain Mr. Sanchez-Castaneda and his brother, Emmanuel Sanchez-Castaneda. Id.¶ 4. Plaintiffs argue that the ICE agents were part of a "fugitive operations" group searching for Mr. Sanchez-Castaneda, due to his prior convictions, and his brother, who had a pending deportation order. Id.¶ 3.
Believing Mr. Sanchez-Castaneda had been convicted of an aggravated felony, the ICE agents arrested him and took him into custody on January 2, 2013. Id.¶ 3, 5. On that same day, ICE agents attempted to serve Mr. Sanchez-Castaneda with a Notice of Intent to Issue a Final Administrative Removal Order ("Notice of Intent"). Dkt. No. [1–1] at 7. Mr. Sanchez-Castaneda did not sign the Notice of Intent, but his fingerprint was placed on it. Dkt. No. [1] ¶ 7. On January 10, 2013, Defendants issued a Final Order of Expedited Administrative Removal under INA § 238(b). Id.¶ 8. Plaintiffs allege that Mr. Sanchez-Castaneda's counsel did not receive a copy of the Notice of Intent until May 8, 2014, through a Freedom of Information Act request. Id.¶ 7.
Plaintiffs contend that Defendants violated statutory requirements during this removal process in a number of ways. First, Plaintiffs argue that the Notice of Intent was served improperly. Id.¶¶ 7, 11. Plaintiffs argue that Mr. Sanchez-Castaneda should have been given a copy of the Notice of Intent so that he could share it with counsel and answer the charges, or he should have had a bilingual individual explain the Notice of Intent to him. Id. Second, Plaintiffs contend that the Final Order of Expedited Administrative Removal was issued prematurely. Id.¶¶ 8, 12. They argue that 8 C.F.R. § 1238.1(c)(1) requires notice of ten days, and Mr. Sanchez-Castaneda was only given eight days. Id.¶ 8. Third, Plaintiffs claim that Defendants knew that the expedited removal may have been improper because Defendant Harper, the supervisory agent involved in Mr. Sanchez-Castaneda's removal, and Defendant Jones, the Assistant Field Officer Director of ICE, knew that Mr. Sanchez-Castaneda was not convicted of an aggravated felony as required by 238(b), and as a result the execution of the removal order never should have occurred. Id.¶¶ 13-14.
In Count I, Plaintiffs seek a Writ of Mandamus. Id.¶¶ 19-23. Specifically, Plaintiffs "request that Defendants be ordered to process the return of [Mr. Sanchez-Castaneda] ... to remedy the separation of [Mr. Sanchez-Castaneda] from his ... family." Id.¶ 22. Plaintiffs contend that they have exhausted administrative remedies in contesting the removal order. Id.¶ 19.
In Counts II and III, Plaintiffs assert tort claims against Defendants under the FTCA. Plaintiffs argue that they "exhausted their claims under the [FTCA] by filing an administrative claim." Id.¶ 23.
Count II is a kidnapping claim based on Defendants' arresting Mr. Sanchez-Castaneda, detaining him, transporting him to and from detention centers, and escorting him to the Mexican border in an ICE chartered airplane. Id.¶ 24-27.
In Count III, Ms. Magallanes alleges that she has suffered loss of consortium damages due to the unlawful removal of Mr. Sanchez-Castaneda. Id.¶¶ 28-34. She argues that Mr. Sanchez-Castaneda "could have participated in the life of his wife, and the lives of his three children during the nearly one and a half year period of his forced absence from the U.S." if Defendants had granted him an immigration bond or served him with the Notice of Intent properly. Id.¶ 30.
In Count IV, Plaintiffs claim damages under Bivens. Id.¶¶ 35-37. First, Plaintiffs argue that Defendants violated the Fourth Amendment by entering their home without a warrant. Id.¶ 36. Second, Plaintiffs argue that Defendants "violated Plaintiff Sanchez-Castaneda's rights to not to be deprived of his immigration rights, and the right to live in the country of his family's nationality" in violation of the Fifth Amendment guarantee of due process of law. Id.¶ 37.
Defendants filed the instant Motion to Dismiss [5], raising several arguments such as sovereign immunity, qualified immunity, the due care exception to the FTCA, and lack of subject-matter jurisdiction. Dkt. No. [5–1] at 4-23.
II. Subject-Matter Jurisdiction
Before assessing Defendants' arguments for dismissal of certain claims and Defendants, the Court must first determine whether it has subject-matter jurisdiction to hear any of Plaintiffs' claims against any Defendants.
Defendants argue that the Complaint should be dismissed due to lack of subject-matter jurisdiction because Congress has given the Courts of Appeals of the United States exclusive jurisdiction to review decisions to execute removal orders. Dkt. No. [5–1] at 13. Defendants allege that 8 U.S.C. § 1252(g) acts as a "jurisdiction- channeling" provision that divests district courts of jurisdiction over challenges to certain immigration actions, including removal orders, and that this Complaint should consequently be dismissed for lack of subject-matter jurisdiction. Id. at 14.
Plaintiffs argue in response that the Complaint does not fall into the category of claims Congress intended 8 U.S.C. § 1252(g) to bar, and therefore this Court has not been divested of jurisdiction. Dkt. No. [6–1] at 6. Specifically, Plaintiffs claim that Congress "only allowed 238(b) proceedings when the agency strictly followed its rules" and that "Defendants are alleged to have acted contrary to the rules, so that its claims do not fall under lawful efforts to commence proceedings, adjudicate cases, or execute removal orders." Id. at 6–7.
8 U.S.C. § 1252 provides, in pertinent part:
Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
8 U.S.C. § 1252(g) (emphasis added). This statute also states, "a petition for review filed with an appropriate court of appeals ... shall be the sole and exclusive means for judicial review of an order of removal." 8 U.S.C. § 1252(a)(5) (emphasis added).
The Supreme Court, in interpreting this statutory language, has held that § 1252"applies only to three discrete actions that the Attorney General may take: her decision or action to commence proceedings, adjudicate cases, or execute removal orders." Reno v. Am.-Arab Anti–Discrimination Comm. (AADC), 525 U.S. 471, 482, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). In AADC, the Supreme Court held that a district court did not have jurisdiction over a group of aliens' claims that their First and Fifth Amendment rights were violated when they were deported for allegedly supporting a politically unpopular group. Id. at 492, 119 S.Ct. 936. Similarly, the Eleventh Circuit has held:
Section 1252(g) is unambiguous: it bars federal courts' subject-matter jurisdiction over any claim for which the decision or action of the Attorney General (usually acting through his subordinates) to commence proceedings, adjudicate cases, or execute removal orders is the basis of the claim.
Gupta v. McGahey, 709 F.3d 1062, 1065 (11th Cir. 2013).
In Gupta, a foreign national brought a Bivens action, alleging that his civil rights were violated when ICE agents arrested him in connection with the initiation of removal proceedings against him. Id. at 1063–64. The Eleventh Circuit held that the district court's dismissal of the case for lack of subject-matter jurisdiction was proper because Section 1252(g) precludes district courts from hearing any claim arising from a decision to execute removal orders. Id.
Section 1252(g) states clearly that district courts lack jurisdiction to hear "any cause or claim" arising from the decision to commence proceedings or execute a removal order. Guardado v. United States, 744 F.Supp.2d 482, 487 (E.D. Va. 2010). Courts have applied the jurisdiction-stripping provision of § 1252 with regard to FTCA claims, Bivens claims, and claims seeking writs of mandamus. SeeSissoko v. Rocha, 509 F.3d 947, 949–51 (9th Cir. 2007) (noting that the district court lacked jurisdiction under § 1252(g) to review a Bivens claim by an alien alleging improper detention while awaiting removal); Gomez–Chavez v. Perryman, 308 F.3d 796, 801–02 (7th Cir. 2002) (affirming district court's dismissal of a claim seeking mandamus to stop reinstatement of a removal order, noting that the Court of Appeals is the proper arena to challenge the removal order); Foster v. Townsley, 243 F.3d 210, 213–15 (5th Cir. 2001) (holding that § 1252 stripped the district court of jurisdiction to hear Bivens claims for constitutional deprivations resulting from the plaintiff's removal, even when the actions taken were non-discretionary and in violation of regulatory requirements); Kareva v. United States, 9 F.Supp.3d 838, 844–45 (S.D. Ohio 2014) (finding that an alien's FTCA claims for false arrest and imprisonment, based on actions by ICE officials to secure her for removal, lack jurisdiction under § 1252 because they arise from the decision to execute a removal order); Guardado, 744 F.Supp.2d at 493 (dismissing alien's assault, battery, and false imprisonment claims under the FTCA due to lack of jurisdiction under § 1252(g), based on the facts that ICE agents handcuffed the plaintiff and placed him on an airplane during removal).
Section 1252(g) bars district court jurisdiction over "any cause or claim ... arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders ... under this chapter." 8 U.S.C. § 1252(g) (emphasis added). "[A]rising from does seem to describe a nexus somewhat more tight than the also frequently used phrase "related to." Humphries v. Various Federal USINS Employees, 164 F.3d 936, 943 (5th Cir. 1999). Section 1252(g) is not limited to the Attorney General's decisions and actions, but also applies to decisions and actions taken by the Attorney General's subordinates. SeeGupta, 709 F.3d at 1065. A claim that challenges an action taken by ICE agents to "[s]ecur[e] an alien while awaiting a removal determination constitutes an action taken to commence proceedings." Id.; see alsoFoster, 243 F.3d at 214–15 (Due process, equal protection, and retaliation claims based on excessive force by Immigration and Naturalization Service agents while securing an alien for removal are directly connected to the deportation and thus arise out of the execution of a removal order).
The Court finds that all of Plaintiffs' claims arise from the decision by the Attorney General to commence proceedings and execute a removal order against Mr. Sanchez-Castaneda.
Plaintiffs' claim seeking a writ of mandamus seeks the return of Mr. Sanchez-Castaneda "so that a neutral Immigration Judge can decide what relief ... Plaintiff Sanchez-Castaneda is eligible for." Dkt. No. [1] ¶ 20. Plaintiffs assert that "[a] return of Plaintiff Sanchez-Castaneda for removal proceedings would be the only way to remedy the lawless acts of Defendants in purporting to deport Plaintiff Sanchez Castaneda." Id.¶ 20. Plaintiffs' sole basis for this claim is that the removal was unlawful. Because the claim challenges the lawfulness of the removal, a decision made by a subordinate of the Attorney General, this Court lacks jurisdiction to hear it under § 1252(g). See Gomez–Chavez, 308 F.3d at 801–02 (holding that the district court was "clearly" correct in declining to hear a mandamus claim challenging the reinstatement of a removal order because it challenged the lawfulness of the reinstatement, and thus arose out of a decision to execute a removal order).
Plaintiffs' kidnapping claim in Count II also arises from the decision to commence proceedings and execute a removal order against Mr. Sanchez-Castaneda. Plaintiffs allege that "various Defendants" committed kidnapping by detaining Mr. Sanchez-Castaneda, transporting him to and from detention centers, and transporting him to the Mexican border. Dkt. No. [1] ¶ 25.
In Gupta, the Eleventh Circuit considered a similar set of facts, where ICE agents arrested and detained an alien in an effort to secure him while awaiting a removal determination. Gupta, 709 F.3d at 1065. The plaintiff in Gupta was arrested by ICE agents at his home, then transported to multiple detention centers and detained for some time. Id. The Eleventh Circuit held that the alien's claims based on those acts were "challeng[ing] the actions the agents took to commence removal proceedings—exactly the claims that § 1252(g) bars from the subject-matter jurisdiction of federal courts." Id. Similarly, in Sissoko, the Ninth Circuit considered claims by an alien detained by an immigration inspector who was investigating the plaintiff's immigration status. Sissoko, 509 F.3d at 949. The immigration inspector, Ms. Rocha, subsequently decided to pursue an expedited removal order against the alien. Id. The court held that the detention "arose from Rocha's decision to commence expedited removal proceedings" and that it thus lacked subject-matter jurisdiction to hear the claims. Id.
Here, the fact of Mr. Sanchez-Castaneda's removal forms the basis of Plaintiffs' kidnapping claim. ICE's acts of arresting and detaining Mr. Sanchez-Castaneda were for the purpose of securing him while awaiting a removal order. ICE ultimately transported Mr. Sanchez-Castaneda to the Mexican border for the purpose of executing the final order of removal. As in Gupta and Sissoko, the claims in Plaintiffs' Complaint arise from the Attorney General's decision to commence proceedings and execute an order of removal.
Plaintiffs also allege that Defendants Jones and Harper committed kidnapping because they knew that Mr. Sanchez-Castaneda was not convicted of an aggravated felony, and still did not stop the removal. However, this claim directly challenges Mr. Jones's and Ms. Harper's decision, correct or not, to deport Mr. Sanchez-Castaneda. Because this claim arises out of the decision to execute a removal order, this Court lacks subject-matter jurisdiction.
Defendants Melissa Harper, Dan Jones, Felicia Skinner, and Larry Horton are subordinates to the Attorney General. Section 238(b) provides the Attorney General with the power to issue expedited orders of removal. See8 § U.S.C. 1228(b). Defendants were acting as subordinates to the Attorney General in detaining Mr. Sanchez-Castaneda.
In her loss of consortium claim, Ms. Magallanes asserts that "[s]ince the unlawful removal of Plaintiff Sanchez-Castaneda ... Plaintiff Magallanes has lived without the company, cooperation and aid of her husband ... in every conjugal way." Dkt. No. [1] ¶ 30. She further argues that "[t]hese loss of consortium claims are a direct consequence of Defendants [sic] unlawful activities in removing Plaintiff Sanchez-Castaneda." Id. The crux of this claim is that Defendants unlawfully removed Mr. Sanchez-Castaneda. Ms. Magallanes would not have a loss of consortium claim if Mr. Sanchez-Castaneda had been deported after being "granted ... an immigration bond as requested, or served ... properly with a copy of the Notice of Intent," which Plaintiffs contend was required by law. Dkt. No. [1] ¶ 30. Because this claim turns on whether Mr. Sanchez-Castaneda's removal was lawful, it arises from the Attorney General's decision to execute a removal order. Therefore, this Court does not have subject-matter jurisdiction. SeeLopez v. United States, No. CV 14–1795–TUC–CJK (LAB), 2015 WL 300394, at *2–4 (D. Ariz. Jan. 22, 2015) (dismissing loss of consortium claim because it arises from the execution of a removal order).
Plaintiffs' Bivens claim includes both a Fourth Amendment and Fifth Amendment argument. First, Plaintiffs allege that ICE agents entered their home without a warrant, in violation of their Fourth Amendment rights against unreasonable searches and seizures. Dkt. No. [1] ¶ 36. Second, Plaintiffs argue that Mr. Sanchez-Castaneda's improper removal was done in violation of his Fifth Amendment right to due process of law. Id.¶ 37.
As discussed above, the Eleventh Circuit in Gupta held on a similar set of facts that alleged injuries resulting from ICE agents searching an alien's apartment and detaining him were in an effort to secure him and therefore arose from the decision to commence removal proceedings. Gupta, 709 F.3d at 1065. There, ICE agents searched the plaintiff's apartment, car, and personal belongings, without a search warrant, and seized some of his personal property. Here, Plaintiffs allege that ICE agents violated the Fourth Amendment by illegally entering their home in order to find Mr. Sanchez-Castaneda and secure him for removal. The Court finds that, like in Gupta, this claim arises from an action taken to commence removal proceedings.
Next, Plaintiffs also allege that "[t]he act of proceeding without a judge by using a Notice of Intent without observing proper personal service of the document by not leaving a copy with Plaintiff Sanchez-Castaneda ... violated Plaintiff Sanchez-Castaneda's rights to not be deprived of his immigration rights, and the right to live in the country of his family's nationality" and that "[t]his unlawful deprivation of his immigration rights to have the law decided by a judge, and to have decided the law for themselves ... was all done in violation of the Fifth Amendment guarantee of Due Process of law." Dkt. No. [1] ¶ 37.
This claim challenges ICE's decision to subject Mr. Sanchez-Castaneda to 238(b) proceedings through a Notice of Intent, while also not observing proper personal service. Plaintiffs essentially challenge the manner in which Mr. Sanchez-Castaneda was removed, i.e., in an expedited process without proper service of the Notice of Intent, and claim that this deprived him of rights under the Fifth Amendment. The immigration acts provide multiple avenues under which aliens may be removed. The choice of which statutory avenue is appropriate and which procedures effectuate this necessarily fall within the Attorney General's decision to commence proceedings and execute removal orders. This challenge arises directly from the decision to execute a removal order because it challenges the manner in which the removal was performed. SeeFoster, 243 F.3d at 213–15 (finding that claims by an alien alleging violation of due process in the legal manner in which he was removed are directly connected to the execution of the deportation order). Therefore, this Court lacks subject-matter jurisdiction over Plaintiffs' Bivens claim.
Although Defendants are alleged to have violated the statutory rules in executing this removal order, Plaintiffs' claims still fall within the parameters of § 1252(g). The fact that the removal may have been improper does not allow this Court to exercise jurisdiction where Congress clearly intended that it not. Whether Mr. Sanchez-Castaneda was wrongfully deported must be determined by a Court of Appeals. 8 U.S.C. § 1252(a)(5). This Court is explicitly precluded from making that determination. Because Plaintiffs' claims rest entirely upon the allegation that the Attorney General's decisions to commence removal proceedings and execute an order of removal were improper, this Court lacks subject-matter jurisdiction.
III. Conclusion
Defendants' Motion to Dismiss [5] is GRANTED . The Clerk is hereby DIRECTED to CLOSE THIS ACTION .
IT IS SO ORDERED this 14th day of July, 2015.