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sustaining a negligence claim for damages under the Federal Tort Claims Act brought by an alien alleging that she was wrongfully denied asylum and removed to Kenya
Summary of this case from Sissoko v. RochaOpinion
No. C-03-04538 EDL.
January 10, 2005
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
On October 7, 2003, Plaintiff Rosabell Munyua filed this action against the United States based on her interaction with Immigration and Naturalization Service ("INS") officers at the San Francisco International Airport in March 2001. Plaintiff alleges, inter alia, that she was unlawfully detained and interrogated by INS officers upon her arrival at the airport from Kenya, was denied the opportunity to seek asylum and was involuntarily sent back to Kenya, where she had to go into hiding. She proceeds under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671- 2680.
On October 26, 2004, Defendant filed a Motion for Summary Judgment and Dismissal on the grounds that: (1) the Court lacks jurisdiction under the FTCA over these claims because there is no analogous private, state or local activity; (2) alternatively, the Court lacks jurisdiction because of the discretionary function exception; (3) Plaintiff's negligence claim fails as a matter of law because state law must be the source of substantive liability under the FTCA whereas Plaintiff alleges a duty created by federal law; and (4) Plaintiff fails to raise a triable issue of fact as to her claims of false imprisonment, assault, intentional infliction of emotional distress, violation of the California Constitution and of California Civil Code section 52.1. The parties fully briefed this matter and the Court held a hearing on December 7, 2004. For the following reasons, Defendant's Motion is granted in part and denied in part.
FACTS
For many years, Plaintiff suffered severe physical harm and persecution in Kenya as a member of a political party that opposed the ruling government there. See Declaration of William Hapiuk Ex. CC. On February 8, 2001, Plaintiff applied for a visitor visa at the American Embassy in Nairobi, Kenya. See Declaration of Andrew Cheng Ex. E; Hapiuk Decl. Ex. A at 22:18-23. Plaintiff received a visa and she arrived at the San Francisco International Airport from Kenya with her younger daughter on March 5, 2001. Immigration inspector Adrian Scaletti conducted a primary inspection interview of Plaintiff. See Cheng Decl. Ex. C. Plaintiff did not mention to Inspector Scaletti that she had suffered persecution in Kenya. See Hapiuk Decl. Ex. A at 119:9-13. Inspector Scaletti referred Plaintiff to a secondary inspection for a more detailed interview because: (1) Plaintiff had a single-entry, rather than a multiple-entry, visa; (2) the stated purpose of Plaintiff's trip was to visit; and (3) Plaintiff represented that she had a round-trip ticket even though she did not. See Cheng Decl. Ex. L at 136:4-19; 143:4-24.
Inspector Enrique Enriquez conducted Plaintiff's secondary interview. See Cheng Decl. Ex. J at 68:2-3. Inspector Enriquez had determined that Plaintiff was not a bona fide visitor because: (1) she had a one-way ticket; (2) she had little money; (3) she had relatives here; and (4) she was untruthful on her visa application. See Cheng Decl. Ex. J at 146:7-13. Inspector Enriquez determined that Plaintiff was likely inadmissible under the Immigration and Nationality Act section 212(a)(6)(C)(i).See id. at 111:17-25; see also 8 U.S.C. § 1182(a)(6)(C)(i) ("Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible"). Inspector Enriquez took a sworn statement from Plaintiff to memorialize the facts of her case. He did not, however, use Immigration Form I-867AB, which is used to create a record of the facts of the case and to screen for asylum seekers. See 8 C.F.R. § 253.3(b)(2)(i). Form I-867AB includes such questions as, "Do you have any fear or concern about being returned to your home country or being removed from the United States?" and "Would you be harmed if you are returned to your home country or country of last residence?" See Hapiuk Decl. Ex. K. If an alien expresses fear of return to his or her home country, immigration officials must refer the alien to an asylum officer for a credible fear interview to determine eligibility for asylum. See 8 U.S.C. § 1225(b); 8 C.F.R. § 235.3(b)(4).
In her statement, Plaintiff represented, inter alia, that she was not married and that she has two daughters, one with her and one back in Kenya. See Cheng Decl. Ex. D. She stated that she was a tour conductor in Kenya. See id. She stated that she had no claim to United States citizenship or residency. See id. She stated that she has a brother living in Vallejo, but that she has not communicated with him in approximately ten years and that he was not expecting her at the airport. See id. Plaintiff also stated that she understood that she was inadmissible because she did not tell the truth to the consular official. See id. Plaintiff testified that she did not read the sworn statement before she signed it.See id. at 248:22-24.
Plaintiff testified that during the questioning at the airport, she told immigration officials that she was seeking refuge in the United States and that she did not want to return to Kenya. See Hapiuk Decl. Ex. A at 85:12-16. She also told officials that she would be killed if she returned to Kenya. See id. at 87:18-20. She testified that she started crying at several points during the interviews, and that the immigration officials yelled at her and told her that she lied on her application. See id. at 89:15-16; 93:1-94:9. She admits that she was not cooperative at first because she was terrified and worried about her ill daughter, who had accompanied her on the airplane. See id. at 117:1:14. Plaintiff did not tell immigration officials that a bandage on her arm was from a beating by Kenyan police. See id. at 249:3-250:25; 301:22-203:4
Inspector Enriquez testified to the contrary that Plaintiff did not express fear of returning to Kenya. See Hapiuk Decl. Ex. B at 99:7-10; 143:21-23. Supervisor Inspector Karr testified similarly that he did not have any indication that Plaintiff feared returning to Kenya. See Hapiuk Decl. Ex. C at 188:5-7. It is undisputed that they did not refer Plaintiff to an asylum officer for a credible fear interview.
After questioning Plaintiff, Inspector Enriquez recommended, and Supervisor Inspector Karr approved, that Plaintiff be permitted to withdraw her application for admission, rather than be subject to an expedited removal, which would trigger a five-year bar to re-applying for admission. See id. Ex. I at 157:15-19; 162:9-12; Hapiuk Decl. Ex. C at 199:3-19 (supervisor has discretion to order expedited removal or to permit withdrawal of application for admission). Plaintiff was returned to Kenya that same day. Plaintiff claims that her sworn statement was coerced and that she did not voluntarily withdraw her application for admission. Plaintiff testified that Inspector Enriquez told her that: "You better answer my questions positively, or I'll return you [to Kenya] or put you in jail." See Hapiuk Decl. Ex. A at 100:11-13. She also explained that she only agreed in the sworn statement that she was voluntarily returning to Kenya because she thought that whether she was put in jail or returned, she would die, and she wanted to die in Kenya. See Cheng Decl. Ex. G at 241:22-243:5.
Inspector Enriquez denied coercing Plaintiff into withdrawing her application. See id. at 222:6-8. He testified that he did not threaten her with jail if she did not withdraw her application, but he may have said that she would be in a detention facility if she was subject to expedited removal rather than voluntary withdrawal. See id. at 222:9-14.
Plaintiff admits that no immigration officer invaded her personal space or touched or threatened to touch her during the interviews. See Cheng Decl. Ex. G at 166:8-22. She never felt exposed to physical harm by the officers. See id. at 166:23-167:1. She was never told that she was not free to leave the interview area. See id. at 315:10-13.
Upon her return to Kenya, Plaintiff was forced to go into hiding for several months. See Hapiuk Decl. Ex. I at 7:13. She returned to the United States without incident in September 2001 through Houston, Texas. See id. at 7:19-20. In September 2002, she was granted asylum following an interview with an asylum officer. See id. at 7:20-22. Plaintiff testified that she has suffered from sleeplessness and a racing heartbeat since the March 2001 incident. See Hapiuk Decl. Ex. A at 335:2-23.
DISCUSSION
A. Existence of local analogy
1. JURISDICTION UNDER THE FTCA
The FTCA waives sovereign immunity for specified torts of federal employees acting within the scope of their employment "in the same manner and to the same extent as a private individual under like circumstances" would be liable under the law of the state "where the act of omission occurred." 28 U.S.C. § 1346(b); 28 U.S.C. § 2674. This liability extends to "'the performance of some activities that private persons do not perform,' . . . when a state or municipal entity would be held liable under the law where the activity occurred." Concrete Tie of San Diego v. Liberty Constr., Inc., 107 F.3d 1368, 1371 (9th Cir. 1997) (quoting Hines v. United States, 60 F.3d 1442, 1448 (9th Cir. 1995)). The government may be sued with regard to acts of federal investigative or law enforcement officers on any claim arising out of assault, battery, false imprisonment, false arrest, abuse of process or malicious prosecution. See 28 U.S.C. § 2680(h);Caban v. United States, 728 F.2d 68, 72 (2d Cir. 1984).
The FTCA applies only if state law would impose liability on private persons or on state or municipal entities under similar circumstances. See Woodbridge Plaza v. Bank of Irvine, 815 F.2d 538, 543 (9th Cir. 1987);Aguilar v. United States, 920 F.2d 1475, 1477 (9th Cir. 1990). "Like circumstances" for purposes of the FTCA means analogous circumstances, not identical ones. See Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (citing Indian Towing Co. v. United States, 350 U.S. 61, 64-66 (1955) ("Moreover, if the United States were to permit the operation of private lighthouses — not at all inconceivable — the Government's basis of differentiation would be done and the negligence charged in this case would be actionable. Yet there would be no change in the character of the Government's activity in the places where it operated a lighthouse, and we would be attributing bizarre motives to Congress were we to hold that it was predicating liability on such a completely fortuitous circumstance — the presence of identical private activity.")).
In this case, Defendant characterizes the immigration officers' actions narrowly as carrying out the uniquely federal activities of inspecting an applicant for admission at a United States port-of-entry. See Def.'s Mot. for Summ. J. at 10:13-14. Defendant argues that this activity has no state or municipal analog, so there is no jurisdiction. See, e.g., Woodbridge Plaza v. Bank of Irvine, 815 F.2d 538, 543 (9th Cir. 1987) (plaintiff's claim that the FDIC did not abide by state banking laws pertaining to the duties of receivers did not sound in tort and there was no persuasive analogy with private conduct). Plaintiff, however, characterizes the officers' conduct more broadly as akin to general law enforcement duties. See Pl.'s Opp'n to Def.'s Mot. for Summ. J. at 7:20-21.
Defendant has cited no case, and the Court has found none, adopting such a sweeping exemption under the FTCA for conduct by immigration officers like that alleged in this case. To the contrary, courts have exercised jurisdiction over cases brought under the FTCA involving misconduct by immigration officers at the border. See, e.g., Rhoden v. United States, 55 F.3d 428 (9th Cir. 1995) (detention at port of entry pending charges of illegal entry); Garcia v. United States, 826 F.2d 806 (9th Cir. 1987) (shooting by immigration officer of bystander who was interfering with arrest). In Rhoden, for example, a lawful permanent resident, who was detained by INS agents upon his return from a trip abroad, brought an action under the FTCA for false arrest and imprisonment that survived summary judgment. Further, the actions by the immigration officers in this case, including detaining and questioning Plaintiff, are akin to law enforcement activities.
The fact that the challenged activities took place at the border does not negate the analogy to law enforcement, particularly for purposes of summary judgment, although it may affect the ability of Plaintiff ultimately to prevail. See Caban v. United States, 728 F.2d 68, 73 (2d Cir. 1984) (holding that an alien seeking entry to the United States have substantially less right to avoid detention than does a person already lawfully in the country). The Caban case ultimately held, following a bench trial, that the United States would not be liable under the FTCA if INS agents acted in conformance with federal standards regarding treatment of applicants for entry into the United States. See Caban, 728 F.2d at 74. However, for purposes of the jurisdictional analysis at the summary judgment stage, the Caban case does not support the sweeping conclusion that there is no jurisdiction under the FTCA here, where there is a dispute as to whether the INS agents violated the federal requirement to refer applicants who express fear of returning home.
Defendant's reliance on Akutowicz v. United States, 859 F.2d 1122 (2nd Cir. 1988) is also not persuasive. The Akutowicz plaintiff sued under the FTCA claiming, inter alia, that the government wrongfully deprived him of his citizenship by issuing a certificate of loss of nationality. The court concluded that the State Department's withdrawal of citizenship after a five-year investigation constituted a quasi-adjudicative action for which no private analog existed and therefore the plaintiff failed to state a claim under the FTCA. See Akutowicz, 859 F.2d at 1125-26. Here, the immigration officers' conduct with respect to Plaintiff was not quasi-adjudicative; instead, it was akin to arrest and interrogation by police.
B. The discretionary function doctrine
Defendant contends that the action is also barred by the discretionary function doctrine. The FTCA's waiver of sovereign immunity does not apply to "any claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). The defendant bears the burden of proving the discretionary function exception. See Prescott v. United States, 959 F.2d 793, 797, 799 (9th Cir. 1992). The discretionary function exception is designed "to prevent judicial 'second guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort."United States v. Gaubert, 499 U.S. 315, 322 (1991).
Courts apply a two-part test to determine whether the discretionary function exception bars an FTCA claim. See Berkovitz v. United States, 486 U.S. 531, 536 (1988); Miller v. United States, 163 F.3d 591, 593-94 (9th Cir. 1988). First, the court must consider whether the act involves "an element of judgment or choice." See Miller, 163 F.3d at 593. Second, the act or decision must be "based on considerations of public policy." See Miller, 163 F.3d at 593; see also United States v. Gaubert, 499 U.S. 315, 323 (1991). When a statute or regulation allows a federal agent to act with discretion, there is a strong presumption that the authorized act is based on an underlying policy decision. See Gaubert, 499 U.S. at 323. Law enforcement decisions at the border, however, although involving some discretion, do not involve the sort of generalized "social, economic and political policy choices that Congress intended to exempt from tort liability." Garcia v. United States, 826 F.2d 806, 809 (9th Cir. 1987) (citing Caban v. United States, 671 F.2d 1230 (2d Cir. 1982) (INS decision whether to detain alien based on alien's appearance and ability to answer questions about his homeland not a discretionary function under FTCA).
Defendant contends that the immigration officers exercised their discretion to permit withdrawal of an application for admission in lieu of expedited removal, thereby satisfying the first prong of the test. Defendant further contends that the choice is susceptible to policy analysis, thereby meeting the second prong.
Plaintiff responds that the immigration officials failed to comply with mandatory requirements set forth in statute and regulations. Specifically, Plaintiff contends that the discretionary function exception does not apply to four mandatory duties neglected by Officers Enriquez and Karr: (1) the mandatory duty to refer Plaintiff to an asylum officer for a credible fear interview after she expressed a fear of being killed upon return to Kenya; (2) the mandatory duty to advise Plaintiff about asylum and to determine her fear of return; (3) the mandatory duty not to coerce individuals to withdraw an application for admission; and (4) the mandatory duty to investigate reports and complaints of misconduct to the Office of Internal Audit or the Office of Inspector General.
1. Duty to refer to asylum officer
If an arriving alien expresses a fear of return to his or her country, immigration officers are required to refer the alien to an asylum officer for a credible fear interview. See 8 U.S.C. § 1225(b); 8 C.F.R. § 235.3(b)(4). Defendant admits that this duty is not discretionary. See, e.g., Hapiuk Decl. Ex. H at 3:22-27; Reply at 10:22-24. Therefore, this conduct is not subject to the discretionary function exception. Moreover, there is a triable issue of fact as to whether Plaintiff expressed fear of return.Compare Hapiuk Decl. Ex. A at 87:14-21; 89:15-21, with Hapiuk Decl. Ex. B at 99:10-16. Therefore, Defendant's Motion for Summary Judgment on this issue is denied.
2. Duty to advise Plaintiff about asylum by completing Form I-867AB
Expedited removal procedures apply to any alien found to be inadmissible under section 212(a)(6)(C), as Plaintiff was here.See 8 C.F.R. § 235.3(b)(1). In every case of expedited removal, the examining immigration officer "shall create a record of the facts of the case and statements made by the alien. This shall be accomplished by means of a sworn statement using Form I-867AB, Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act." See 8 C.F.R. § 235.3(b)(2)(i). Form I-867AB is used to screen applicants for asylum and helps meet the statutory requirement to "provide information concerning the asylum interview . . . to aliens who may be eligible." 8 U.S.C. § 1225(b)(1)(B)(iv).
Here, it is undisputed that Officers Enriquez and Karr did not use Form I-867AB. Defendant concedes that the Form is required in cases where expedited removal is ordered (see Mot. at 12:9-11), but argues that Plaintiff was permitted to withdraw her application instead. The Inspector's Field Manual, an internal manual designed to provide guidance on policies and procedures for all aspects of the INS Inspection Program, states that in withdrawal cases, inspectors should use Form I-867AB, but there is no requirement to do so. See Declaration of Linda Loveless at ¶ 8; Ex. 2 § 17.2(c). By contrast, the Field Manual requires the Form's use when expedited removal is contemplated.See Loveless Decl. ¶ 7, Ex. 1 at § 17.15(b). Plaintiff contends that the officers were required to use Form I-867AB, both because she was inadmissible and because the immigration officials contemplated removal.
While Defendant may be correct that the Form is not required for withdrawal, immigration officials only have discretion to permit an alien to withdraw his or her application when the decision is voluntary. See 8 C.F.R. § 235.4 ("The Attorney General may, in his or her discretion, permit any alien applicant for admission to withdraw his or her application for admission in lieu of removal proceedings under section 240 of the Act or expedited removal under section 235(b)(1) of the Act. The alien's decision to withdraw his or her application must be made voluntarily. . . ."); see also Hapiuk Decl. Ex. P at 1 ("Withdrawal is strictly voluntary and should not be coerced in any way."). Defendant concedes that immigration officers had no discretion to coerce Plaintiff into withdrawing her application. See Reply at 10:22-24.
There is a question of fact as to whether the withdrawal of Plaintiff's application for admission was voluntary. Plaintiff testified that she was coerced into withdrawing her application and expressed her fear of returning. See Cheng Decl. Ex. G at 241:22-243:5; Hapiuk Decl. Ex. A at 85:12-16. Inspector Enriquez, however, testified that he did not coerce Plaintiff into withdrawing her application. See Hapiuk Decl. Ex. B at 222:6-8. If Plaintiff did not voluntarily withdraw her application for admission, use of the Form I-867AB may have been required, so the discretionary function doctrine may not apply.
3. Duty not to coerce withdrawal of application
As set forth above, the decision to withdraw an application for admission must be made by the alien voluntarily and a triable issue of fact exists as to whether Plaintiff was coerced. Therefore, Defendant's Motion for Summary Judgment on this issue is denied.
4. Duty to report previous incident
Evidence of criminal wrongdoing or serious administrative misconduct by immigration officers must be reported to Office of Inspector General. See 8 C.F.R. § 0.29c. Also, use of coercion by an immigration officer to induce a suspect to make a statement is prohibited and must be promptly investigated. See 8 C.F.R. § 2878(c)(vii); 8 C.F.R. § 287.10(a).
Plaintiff argues that the proper reporting procedures were not followed with respect to a prior incident in January 2000 involving a different alien. See Hapiuk Decl. Ex. H at 21:4-9. Linda Adams, the INS Port Director, testified at her deposition that she had not been alerted to the incident in January 2000, but that if she had, she would have done something about it.See Hapiuk Decl. Ex. F at 184:1-191:1. The complaint contains no allegations about this incident. Further, even if the incident as described to Ms. Adams at her deposition was true, the failure to report the incident in 2000 was not a duty owed to Plaintiff. Therefore, Defendant's Motion for Summary Judgment on this issue is granted.
3. PLAINTIFF'S NEGLIGENCE CLAIM
The FTCA provides that the United States can be liable in tort under some circumstances if a private person would be liable to the plaintiff "in accordance with the law of the place." See 28 U.S.C. § 1346(b). The reference to the law of the place means "law of the State — the source of substantive liability under the FTCA." See Delta Savings Bank v. United States, 265 F.3d 1017, 1024 (9th Cir. 2001) (quoting FDIC v. Meyer, 510 U.S. 471, 478 (1994)). A duty only arising from federal law cannot sustain a claim under the FTCA. See id. at 1024.
Plaintiff initially pointed to two duties of care as the basis for her negligence claim. See Compl. ¶¶ 39-40. First, Plaintiff alleged that the government breached the duty owed under 8 U.S.C. § 1225(b) to refer Plaintiff for a credible fear interview when she expressed her fears of returning to Kenya. Second, Plaintiff alleged that the government breached the duty owed under 8 C.F.R. § 235.4 to not coerce Plaintiff into withdrawing her application for admission to the United States. These duties, which arise under federal law, cannot sustain her negligence claim under the FTCA. In her opposition, however, Plaintiff argues that Defendant owed two other duties: (1) one under the California special relationship doctrine; and (2) another under California Government Code section 815.6.
A. Special relationship doctrine
As a general rule, a person owes no duty to control the conduct of another. See Davidson v. City of Westminster, 32 Cal.3d 197, 203 (1982). However, in limited circumstances, a special relationship may give rise to a duty by a public entity to protect a person falling within that relationship. See MacDonald v. California, 230 Cal.App.3d 319, 333-34 (1991). Special relationships are generally found where a public entity voluntary assumed a duty toward the injured party, the victim relied on a promise of protection by a public entity or the victim was dependent on the public entity for protection because the public entity either created the peril or lulled the victim into a false sense of security. See Davidson, 32 Cal.3d at 206-208.
Plaintiff contends that by detaining her for inspection and determining that she was inadmissible, the government created a special relationship with her which gave rise to a duty of care. Plaintiff argues that the immigration officers had a duty to exercise reasonable care for Plaintiff's safety because they detained her, and that duty included the obligation not to expose Plaintiff to an unreasonable risk of injury by third parties.See Lugtu v. California Highway Patrol, 26 Cal. 4th 703, 717 (2001) (holding that a police officer who stopped a car by the median of a highway rather on the safer shoulder had a reasonable duty of care to protect the occupant against risk from being hit by other cars); see also Zuniga v. Housing Authority of the City of Los Angeles, 41 Cal.App.4th 82 (1995) (housing authority had a special relationship with the plaintiffs because it provided housing with a dangerous condition); McCorkle v. City of Los Angeles 70 Cal.2d 252 (1969) (police officer had a special relationship with the plaintiff because officer instructed the plaintiff to follow the officer into an intersection where the plaintiff was hit by a car).
None of these cases are similar to the circumstances here. Defendant did not voluntarily assume any specific duty to Plaintiff by, for instance, promising her protection only to place her in increased danger or lulling her into a false sense of security. While the statutory and regulatory provision for a credible fear interview arguably extends protection to a class of people — inadmissible aliens who may be eligible for asylum — the special relationship cases are not based on a legal protection extending to a class, but instead a relationship arising from specific acts by particular officials toward particular individuals. Fundamentally, the danger to Plaintiff came from people in her native country, not the immigration officials.
Plaintiff also claims that a special relationship arose when she identified herself as an asylum seeker because she was dependent on the government to be referred for a credible fear interview. See Mann v. California, 70 Cal.App.3d 773, 780 (1977) (finding a special relationship where a police officer stopped to provide assistance to a motorist, lulled the motorist into a false sense of security and then withdrew his protection, including flashing lights, without advising the motorist). Rather than establishing an expanded basis for a special relationship, the Mann case has been distinguished as a "simple application of the 'good Samaritan' doctrine." See Davidson, 32 Cal.3d at 208. Under the good Samaritan doctrine, a person who attempts to rescue another person who is in imminent and serious peril through negligence of a third person cannot be contributorily negligent for injuries caused as a result of that attempt provided the attempt is not recklessly made. See Black's Law Dictionary 478 (6th ed. 1991). This doctrine does not apply to the relationship between Plaintiff and Defendant.
Plaintiff's reliance on Kim v. United States, No. C90-1163 WD (W.D. Wash. 1993) to support her special relationship argument is not persuasive. See Hapiuk Decl. Ex. J. In that unpublished opinion from Washington, which is not binding here, the government owed a special relationship under Washington law because the immigration officers took the plaintiffs into custody for eight and one half hours and did not allow them to meet with their representatives or attorneys. No such obligation or circumstances apply here.
Similarly, cases outside of the immigration context that find a special relationship for purposes of negligence involve some degree of voluntary assumption of a duty by the public entity that results in a special relationship. See, e.g., Scott v. County of Los Angeles, 27 Cal.App.4th 125, 148 (1994) (addressing the duty to protect owed by a social worker to a child placed in foster care by a county entity); Johnson v. County of Los Angeles, 143 Cal.App.3d 298 (1983) (addressing the special relationship between a jailer and an inmate when the jailer knew about the inmate's serious psychiatric condition and promised to take care of the inmate).
Plaintiff has presented no evidence to support her argument that Defendant voluntarily assumed a specific duty to Plaintiff above the general protection offered to all aliens during questioning at the airport. No special relationship exists between Plaintiff and Defendant to support her negligence claim.
B. California Government Code section 815.6
California Government Code section 815.6 provides:
Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge that duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.
Defendant argues that because this code section does not provide a duty but only a standard under which a public entity can be liable for violation of a duty specified elsewhere, section 815.6 cannot be used to incorporate federal duties as the basis of Plaintiff's negligence claim under the FTCA. See Delta Savings Bank v. United States, 265 F.3d 1017, 1024 (9th Cir. 2001) (rejecting the plaintiff's reliance on California's evidentiary doctrine of negligence per se law codified in Evidence Code section 669 as the source of the duty under the FTCA because that law did not itself establish a duty of care). The Ninth Circuit, however, has treated Government Code section 815.6 differently. Specifically, several decisions have recognized Government Code section 815.6 as a basis for negligence liability under the FTCA.See Concrete Tie of San Diego v. Liberty Constr., Inc., 107 F.3d 1368 (9th Cir. 1997); Hines v. United States, 60 F.3d 1442 (9th Cir. 1995); Doggett v. United States, 875 F.2d 684 (9th Cir. 1989). While Defendant contends that the reasoning of Delta Savings undermines the validity of these three cases, Delta Savings did not overruled them. Also, Government Code § 815.6 is not a general evidentiary presumption broadly applicable like the negligence per se doctrine codified in Evidence Code § 669. Accordingly, Government Code section 815.6 may serve as the predicate for an FTCA claim.
Liability may be imposed on a public entity pursuant to section 815.6 if three factors are met: "'(1) an enactment must impose a mandatory, not discretionary, duty; (2) the enactment must intend to protect against the kind of risk of injury suffered . . .; and (3) breach of the mandatory duty must be a proximate cause of the injury suffered.'" MacDonald v. California, 230 Cal.App.3d 319, 327 (1991) (quoting California v. Superior Court, 150 Cal.App.3d 848, 854 (1984)). For purposes of section 815.6, an enactment includes a constitutional provision, statute, ordinance, or regulation. See Cal. Gov't Code § 810.6. A regulation is defined as "a rule, regulation, order or standard, having the force of law, adopted by an employee or agency of the United States pursuant to the federal Administrative Procedures Act." Cal. Gov't Code § 811.6.
Here, the first prong is satisfied because both statute and regulation confer a mandatory duty on immigration officers to refer an alien to an asylum officer for a credible fear interview if the arriving alien expresses a fear of return to his or her country. See 8 U.S.C. § 1225(b); 8 C.F.R. § 235.3(b)(4). Second, the enactment was intended to protect against the kind of risk of injury suffered by Plaintiff. The requirement of a credible fear interview is designed to protect genuine candidates for asylum from being turned away from the borders without close scrutiny. See, e.g., 8 C.F.R. § 235.3(b)(4)(i). Here, there is a triable issue of fact as to whether Plaintiff expressed fear of returning to Kenya. Examining the disputed facts in the light most favorable to Plaintiff demonstrates that Plaintiff expressed fear, but that expression was not closely examined. Third, if the immigration officers knew that Plaintiff expressed fear of return to Kenya, yet failed to follow the law creating a mandatory duty to refer her for a credible fear interview, that failure would be the proximate cause of Plaintiff's injury, that is, her immediate return to Kenya where she was exposed to danger of persecution. The question of proximate cause is ultimately one for the trier of fact. See Doggett, 875 F.2d at 693.
Accordingly, because Officers Enriquez and Karr had a mandatory duty to refer Plaintiff for a credible fear interview if she expressed fear of returning to Kenya, liability may be imposed against the United States under the FTCA for negligence in accordance with section 815.6. Therefore, Defendant's Motion for Summary Judgment of Plaintiff's negligence claim is denied.
After the hearing, Defendant referred the Court to recent Ninth Circuit cases distinguishing the term "aggravated felony" in the context of immigration, where a heightened need for federal uniformity exists, from the term in the context of criminal sentencing law, which historically has varied by state.United States v. Fernandez, 388 F.3d 1199, 1259, n. 44 (9th Cir. 2004) ("We note that the need for uniformity is not as compelling in the context of criminal law — which has been traditionally a subject of state law — as it is in other contexts which are regulated primarily by the federal government.");Ferreira v. Ashcroft, 382 F.3d 1045, 1049-50 (9th Cir. 2004);Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 913 (9th Cir. 2004). Defendant asks this Court to extend this reasoning to bar FTCA claims here, although the Ninth Circuit has not yet done so. Even if the reasoning of these cases in a different context extended to this case, here uniformity is not threatened because Plaintiff must ultimately show that Defendant violated uniform federal requirements.
4. PLAINTIFF'S FALSE IMPRISONMENT CLAIM
Under California law, false imprisonment is the "nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short." Rhoden v. United States, 55 F.3d 428, 430 (9th Cir. 1995). If a plaintiff proves the elements of the tort, the defendant has the burden of establishing that the detention was legally justified. See Rhoden, 55 F.3d at 430. Because state courts would look to federal law to determine whether the conduct by immigration officials was privileged or not, federal law applies to determine whether a detention was legally justified. Rhoden, 55 F.3d at 431; Caban, 728 F.2d at 72-73 (applying New York law).
Defendant contends that even if Plaintiff can make out the elements of false imprisonment, which Defendant disputes, her detention was legally justified and therefore not actionable. Immigration officials have wide latitude in holding aliens for questioning at the border, particularly where the applicant has made false statements to gain entry, as here. See 8 U.S.C. § 1225(a)(3); 8 C.F.R. § 235.3(a); see generally United States v. Tsai, 282 F.3d 690, 694 (9th Cir. 2002) (holding that routine border searches do not require a warrant or even individualized suspicion); U.S. v. Alfonso, 759 F.2d 728, 733 (9th Cir. 1985) ("The mere entry into the United States from a foreign country provides sufficient justification for a border search."). Plaintiff has presented no evidence to refute Defendant's showing that her questioning was legally justified. Also, Plaintiff admitted that she was never told that she could not leave the detention area. Further, if she had been referred for a credible fear interview as she claims she should have been, her detention was mandatory and, indeed, likely would have lasted longer. See 8 C.F.R. § 235.3(b)(4)(ii).
Further, Defendant argues that Plaintiff cannot establish that she was detained for an appreciable length of time. Although a short detention can constitute false imprisonment, the period of detention must be unreasonable to be actionable. See Alterauge v. Los Angeles Turf Club, 97 Cal.App.2d 735, 736 (1950) (holding that a 15-minute detention for questioning by security personnel at a racetrack was not reasonable because the plaintiff had peaceably entered the premises and was sitting in a car away from racetrack patrons and gambling paraphernalia when he was arrested). Plaintiff has cited no case, and the Court has found none, in which a short detention for questioning at a border constituted an appreciable length of time for purposes of finding liability for false imprisonment. Plaintiff, who left on a plane the same day that she arrived, has presented no evidence that her short detention was unreasonable.
Therefore, Defendant's Motion for Summary Judgment on Plaintiff's false imprisonment claim is granted.
5. PLAINTIFF'S ASSAULT CLAIM
To bring a civil action for assault under California law, a plaintiff must demonstrate "an unlawful intent by one person to inflict immediate injury on the person of another then present."Lowry v. Standard Oil Co. of Cal., 63 Cal.App.2d 1, 6-7 (1944). To establish liability for assault, the victim must believe that the tortfeasor's act may result in imminent contact. See Restatement (Second) of Torts § 24. Words alone are insufficient to find liability for assault. See Restatement (Second) of Torts § 31.
Plaintiff presents no evidence that she feared that an immigration officer intended to inflict immediate injury on her. She testified that the officers never touched her, never threatened to touch her, never threatened to use physical force, and that she never felt in danger of physical harm. See Cheng Decl. Ex. G at 166:8-167:5. Plaintiff argues that the government is liable for assault because she was in fear of going to jail and that she feared suffering injury in Kenya when she was returned there. This argument falls short of creating a triable issue of fact that she believed she was in danger of imminent contact. Therefore, Defendant's Motion for Summary Judgment on Plaintiff's assault claim is granted.
6. PLAINTIFF'S INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM
To establish a prima facie case for intentional infliction of emotional distress under California law, a plaintiff must prove: (1) extreme and outrageous conduct by the defendant, without privilege, with the intention of causing or reckless disregard of the probability of causing emotional distress; (2) that she suffered severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. See Cervantez v. J.C. Penney, Inc., 24 Cal.3d 579, 593 (1979). To be outrageous, conduct must be so extreme as to "exceed all bounds that are usually tolerated in a civilized society." Davidson v. City of Westminster, 32 Cal.3d 197, 208 (1982).
This claim fails for essentially the same reasons as Plaintiff's false imprisonment claim did. First, immigration officials are privileged to hold aliens like Plaintiff for questioning at the border. See 8 U.S.C. § 1225(a)(3); 8 C.F.R. § 235.3(a). It is undisputed that Plaintiff made false statements to the immigration officers and gave them grounds for suspicion, such as her one-way ticket, so they had reason to believe she was inadmissible and to detain her for further questioning. Moreover, had she been referred for a credible fear determination, she would have been detained even longer.
Second, the immigration officers' conduct may have been negligent, but Plaintiff has not met her burden on summary judgment of raising a triable issue of fact that the conduct was extreme and outrageous. For example, Plaintiff does not contend that she was held under unbearable conditions or otherwise mistreated during her detention, and the officials did not subject her to removal with its five-year ban on reentry. Therefore, Defendant's Motion for Summary Judgment on Plaintiff's Intentional Infliction of Emotional Distress claim is granted.
7. PLAINTIFF'S STATE CONSTITUTIONAL AND CIVIL CODE § 52.1 CLAIMS
Article 1, section 1 of the California Constitution provides that all people are free and enjoy inalienable rights, including defending life and liberty. Liberty as used in the Constitution includes freedom from bodily restraint, but also includes other liberty interests. See In Re Roger S., 19 Cal.3d 921, 927 (1977). But the right to liberty is not absolute and is subject to the exercise of reasonable police powers. See National Organization for the Reform of Marijuana Laws v. Gain, 100 Cal.App.3d 586, 598 (1980).
Plaintiff contends that the government interfered with her liberty in two ways: (1) by denying her access to her ill child throughout her inspection; and (2) by depriving her of the right to be free from bodily restraint. Plaintiff, however, has provided no authority for the conclusion that a short separation from her child while at a statutorily-permitted border inspection constitutes an unprivileged interference with a liberty interest in raising her child.
Also, Plaintiff testified that she was not subject to physical restraint while she was questioned and she was never told that she could not leave. She has not presented any authority that such conduct raises a triable issue of fact as to bodily restraint. The Court has already ruled against Plaintiff on her similar claim for false imprisonment. The Court is also wary of allowing Plaintiff to make what amounts to a claim based on federal constitutional violations that cannot be a basis of liability under the FTCA. See FDIC v. Meyer, 510 U.S. 471, 477-78 (1994).
Therefore, Defendant's Motion for Summary Judgment on Plaintiff's claim under Article 1, section 1 of the California Constitution is granted. Defendant's Motion for Summary Judgment on Plaintiff's claim under Civil Code section 52.1 is also granted because that claim is derivative of the constitutional claim.
CONCLUSION
Defendant's Motion for Summary Judgment is granted with respect to Plaintiff's claims for assault, false imprisonment, intentional infliction of emotional distress, violation of California Constitution Article 1, section 1 and violation of California Civil Code section 52.1. The motion is denied as to Plaintiff's claim for negligence, as narrowed above.
IT IS SO ORDERED.