Opinion
3:00-CV-0528-R
June 5, 2001
MEMORANDUM OPINION AND ORDER
On March 8, 2000, Plaintiff, Man Khac Nguyen, filed suit in this court under the Federal Tort Claims Act, 28 U.S.C. § 2671 et. seq. to recover damages from the Defendant, the United States of America, for the Texas common law torts of negligence and false imprisonment. Now before this court is the Defendant's Motion for Summary Judgment, filed on April 24, 2001. For the reasons stated below, this Motion is DENIED.
Background
Plaintiff, Man Khac Nguyen, was born in Vietnam on September 7, 1976, of Vietnamese parents. On November 4, 1978, the Plaintiff's father passed away. On June 19, 1985, Plaintiff's mother came to the United States as a permanent resident, and on July 19, 1991, she became a naturalized U.S. citizen. On December 14, 1993, at the age of seventeen, Plaintiff came to the U.S. as a permanent resident based on a visa petition by his mother. It is undisputed that according to 8 U.S.C. § 1432(a) (the Immigration and Nationality Act), at the moment Plaintiff entered the United States, he automatically acquired U.S. citizenship. However, the Plaintiff did not receive a certificate of citizenship, nor was the Plaintiff aware that he was a U.S. citizen.
Section 1432(a) confers automatic citizenship on children born outside of the United States of alien parents if certain conditions are satisfied. The conditions relevant to this case are: 1) the naturalization of the surviving parent as a United States citizen if one of the parents is deceased; and 2) residency by the child in the United States, while under eighteen, subsequent to the naturalization of the surviving parent. See 8 U.S.C. § 1432(a)(2) and (5).
In 1995, Plaintiff was convicted of two counts of Burglary of a Vehicle, and in 1996, he was convicted of Theft of Property and Attempted Theft of Property. On July 3, 1997, Plaintiff was contacted by an Immigration and Naturalization Services (INS) agent, Mark Ogrodnik, while incarcerated in a Grand Prairie, Texas jail. According to the Plaintiff, the two men were unable to communicate at that time because the Plaintiff does not speak English and Agent Ogrodnik did not have an interpreter.
On July 22, 1997, after being released from the Grand Prairie jail, Plaintiff was taken into INS custody based on Agent Ogrodnik's belief that he was a deportable alien. Agent Ogrodnik interviewed the Plaintiff with the assistance of an interpreter, and then completed an I-213 Form (Record of Deportable /Inadmissible Alien Form). The I-213 form included the following relevant information about the Plaintiff: Plaintiff was born on September 7, 1976 in Vietnam; Plaintiff entered the United States as a Immigrant on December 14, 1993; and Plaintiff's father is deceased. Agent Ogrodnik's additional notes on the I-213 form contain the following relevant information: Plaintiff was believed to be a member of an Asian gang; Plaintiff's alien file (A-file) had been requested from "ICF;" and Plaintiff had a photocopy of his I-551 Resident Alien card when he was taken into custody. (App. to MSJ p. 33) According to the sworn affidavit of Nancy Falgout, an immigration law specialist, the "IR2 POO 931214" notation on the back of Plaintiff's Resident Alien card indicates that Plaintiff was admitted to the U.S. for permanent residence at Portland, Oregon, on December 14, 1993, as the unmarried child of a U.S. citizen parent.
Agent Ogrodnik's sworn affidavit in support of the Defendant's Motion for Summary Judgment contains the following relevant allegations about his July 22, 1997 encounter with the Plaintiff: at no time during the interview did the Plaintiff claim to be a U.S. citizen; Plaintiff claimed to be a native and citizen of Vietnam; Plaintiff did not state that his mother was a U.S. citizen; and a claim to U.S. citizenship was not evident from the information Agent Ogrodnik included in the I-213 form. The Plaintiff's sworn affidavit submitted in support of his opposition to this Motion makes the following relevant allegations about the July 22 interview: Plaintiff had a very difficult time communicating with Agent Ogrodnik because the interpreter provided by the INS spoke very little Vietnamese; Plaintiff provided Agent Ogrodnik with little more than his name, his parents' names, and the fact that his father was deceased; and Agent Ogrodnik did not ask the Plaintiff anything about his mother, other than her name.
On July 24, 1997, the INS issued a Notice to Appear, served it on the Plaintiff, and informed the Plaintiff of his rights. The Notice to Appear states, in English, that the Plaintiff is deportable because he is not a U.S. citizen; that he is a native and citizen of Vietnam; that he was admitted to the United States on December 14, 1993 as an Immigrant; and that he has been convicted of an aggravated felony, as defined by the Immigration and Naturalization Act. The Notice states further that Plaintiff was told in Vietnamese and English of the time and place of his deportation hearing, and it contains the signature of the person who apparently translated the contents of the Notice into Vietnamese. Plaintiff was then released on a $25,000 bond, but was taken into custody, evidently because he was unable to post the required amount. Plaintiff requested a reconsideration of the bond amount but it is not clear from the Summary Judgment evidence if the decision was ever reconsidered. On August 7, 1997, the Notice to Appear was approved by counsel for the INS.
Defendant claims that the Plaintiff did not request a reconsideration of his custody determination. However, the "I do" box is clearly marked on the request for reconsideration section of the Notice of Custody Determination form.
On August 18, 1997, Plaintiff appeared pro se before an Immigration Judge. The Judge explained the Plaintiff's rights to him through a Vietnamese interpreter, who participated in the proceedings via telephone. The case was re-set to August 29, 1997, at which time the Plaintiff, again appearing pro se, admitted the factual allegations contained in his Notice to Appear and conceded removability as an aggravated felon. Plaintiff avers in his sworn affidavit that, at both of his August, 1997 appearances, he was informed by his interpreter that he could not ask questions or offer any explanations beyond "yes" or "no" answers to the questions asked of him. Plaintiff claims to have understood little of these proceedings other than questions about his name, his place of birth, and his criminal record.
Plaintiff's case was continued to September 19, 1997, at which time Plaintiff appeared with counsel and requested another continuance. The case was then continued to October 3, 1997, at which time the Plaintiff's application for withholding of removal was denied and he was ordered removed to Vietnam. Plaintiff, through counsel, reserved the right to appeal but evidently an appeal was never perfected. At no time during the above-described proceedings did the Plaintiff or his attorney raise the issue of U.S. citizenship.
Mary Agnello was the attorney of record for the INS at the October 3, 1997 hearing. In a sworn affidavit submitted in support of this Motion for Summary Judgment, Ms. Agnello states that her review of the Plaintiff's A-file prior to the hearing did not indicate that the Plaintiff had a claim to U.S. citizenship. Plaintiffs A-file contains the following relevant documents: Plaintiff's Immigrant Visa Application, indicating that his date of birth is September 7, 1996, that his father died in 1978, and that he was an immediate relative of an U.S. citizen at the time of his application; the Certificate of Naturalization for the Plaintiff's mother, indicating that she became a U.S. citizen on July 19, 1991; Plaintiff's birth certificate, indicating that his date of birth was September 7, 1996; a United States Orderly Departure Program Application and Affidavit, indicating that Plaintiff's father was deceased in 1978; and Plaintiff's father's death certificate.
This court does not know if the contents of Plaintiff's A-File, as submitted to this court by the Plaintiff, are the same contents that appeared in the file when it was reviewed by Ms. Agnello or throughout the Plaintiff's period of confinement, when the file was available for review by other INS officials. However, the Defendant did not raise this issue in its Reply to the Plaintiff's Opposition to this Motion, therefore, for the purposes of this Motion, this Court will assume that the contents before it are the same as those that appeared in the file throughout the Plaintiff's period of confinement.
The next action taken in the Plaintiff's case was a request for a bond hearing, almost one year later, on August 31, 1998. According to INS case notes, Plaintiff's request for a bond hearing included a statement by the Plaintiff that he was Amerasian; a statement that the Defendant interprets as a false claim that one of the Plaintiff's parents was born in the United States. Plaintiff's sworn affidavit in opposition to this Motion states that he never claimed to be Amerasian and that he is still unaware of what the term actually means. Plaintiff avers that he asked for the bond reduction after learning from a fellow detainee that the fact that Plaintiff's mother is a U.S. citizen might help his case. INS case notes regarding Plaintiff's bond hearing also indicate that a request was made by an Administrative Law Judge (ALJ) for the INS to review Plaintiff's file and determine why the Plaintiff was still in custody; however, it is not clear whether such a review was ever undertaken. On September 21, 1998, the bond hearing was conducted and Plaintiff's request for a reduction was denied because the Plaintiff was under a final order of removal. Plaintiff appeared pro se at this hearing and again did not claim to be a U.S. citizen.
On November 24, 1998, Richard Fernandez entered an appearance as counsel for the Plaintiff, and on December 1, 1998, Mr. Fernandez asserted a claim of derivative citizenship on the Plaintiff's behalf. Mr. Fernandez submitted the following material in support of the Plaintiff's citizenship claim: Plaintiff's birth certificate; Plaintiff's Legal Permanent Resident Card; Plaintiff's mother's naturalization certificate; and Plaintiff's father's death certificate. On December 11, 1998, fifteen months after being taken into INS custody, Plaintiff was released after the INS determined that Plaintiff demonstrated a prima facie case in support of his derivative citizenship claim. Plaintiff subsequently filed an application for a certificate of citizenship and received his certificate on April 17, 2000. Plaintiff's certificate of citizenship states that he became a citizen on December 14, 1993; the date on which he first entered the United States.
The following additional facts are alleged in Plaintiff's sworn affidavit in opposition to Defendant's Motion for Summary Judgment: Plaintiff left school in Vietnam at the age of eleven and attended only two weeks of high school when he came to the United States; Plaintiff cannot read or write very well in Vietnamese, cannot read any English, and speaks very little English; and throughout his period of confinement, Plaintiff did not understand the difference between legal residency and citizenship or the meaning of the phrase derivative citizenship. Plaintiff avers that if he had known he had a claim to U.S. citizenship, he would have asserted it rather than spend fifteen months in INS detention.
Discussion
I Subject Matter Jurisdiction
After submitting its initial Motion for Summary Judgment, the Defendant submitted a supplemental motion, in which it claimed that a recent Fifth Circuit case raises the issue of whether this Court has jurisdiction to hear the Plaintiff's claim. The case cited by the Defendant is Foster v. Townsley, 2001 WL 170651 (5th Cir. 2001). In Foster, the Fifth Circuit held that 8 U.S.C. § 1252(g) stripped the District Court of jurisdiction to hear a claim of constitutional violations, pursuant toBivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), where the claim arose out of an INS officer's decision to execute the Plaintiff's deportation order. Foster, 2001 WL 170651.
Defendant argues that according to Foster, because the Plaintiff's claims arise out of the INS's decision to institute removal proceedings against him, this court does not have jurisdiction to hear the Plaintiff's case. Although there is likely more than one reason why theFoster case does not strip this court of jurisdiction over the Plaintiff's claims, this court need not go any further than to observe that 1252(g)'s jurisdiction-stripping provision applies only to "claims by or on behalf of any alien." 8 U.S.C. § 1252(g) ( emphasis added). Because the Plaintiff is a U.S. citizen and was a U.S. citizen at the time his claims arose, 1252(g) does not apply to this case. Therefore, this court has jurisdiction to hear this case and can proceed to consider the Defendant's Motion for Summary Judgment on the merits.
The full text of 8 U.S.C. § 1252(g) states: "Except as otherwise provided in this section and notwithstanding any other provision of law, 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."
II Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure allows summary judgment only when the moving party demonstrates that there is no genuine issue as to any material fact and the party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Melton v. Teachers Ins. Annuity Assoc. of Am., 114 F.3d 557, 559 (5th Cir. 1997). The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrates the absence of a genuine issue of material fact. See Celotex Corp., 477 U.S. at 323.
Once the movant has discharged its initial burden under Rule 56, the nonmovant must set forth specific facts, by affidavits or otherwise, showing that there is a genuine issue for trial. Topalian v. Ehrman, 954 F.2d 1125, 1132 (5th Cir. 1992), cert. denied, 506 U.S. 825 (1992). In weighing the evidence, the court must decide all reasonable doubts and inferences in the light most favorable to the nonmovant. See Walker v. Sears. Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988); Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985). As long as there appears to be some support for the disputed allegations such that "reasonable minds could differ as to the import of the evidence," the motion for summary judgment must be denied. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
III Federal Tort Claims Act
A Applicable Law
Under the Federal Tort Claims Act (FTCA), the United States is liable for the tortious conduct of its employees "in the same manner and to the same extent as a private individual under like circumstances. . . ." 28 U.S.C. § 2674. To determine whether a private person would be liable, and thus whether the United States is liable in a given case, courts apply the law of the state "where the act or omission occurred."Crider v. United States, 885 F.2d 294, 296 (5th Cir. 1989) (quoting, 28 U.S.C. § 1346(b) (1982); citing. Rayonier, Inc. v. United States. 352 U.S. 315, 318 (1957)). Accordingly, Texas principles of tort law will govern the question of the Defendant's liability in this case.
B Immunity
At the outset, the Defendant's claim of qualified immunity for the United States based on the INS officials' reasonable, good faith belief that the Plaintiff's detention was lawful, fails as a matter of law. Although federal courts apply the substantive law of the state in which the acts or omissions took place when assessing FTCA liability, they do not apply state principles of official immunity. See Crider, 885 F.2d at 296 ("we must disregard state rules of sovereign or official immunity in analyzing the scope of FTCA liability, because these conflict with Congress's analogy to 'private person' liability under § 2674") (citing, United States v. Muniz, 374 U.S. 150, 164 (1963); Wright v. United States, 719 F.2d 1032, 1034-35 (9th Cir. 1983)). Courts "refuse to permit the United States to shield itself from FTCA liability by relying on state rules of sovereign or official immunity." Hurtado v. United States, 1996 WL 65115, 7 (S.D. Tex. 1996) (citing, Hetzel v. United States, 43 F.3d 1500, 1502-04 (D.C. Cir. 1995) (citations omitted)). Therefore, the Defendant is not entitled to rely on Texas principles of qualified immunity as a defense to the Plaintiff's FTCA claim.
C FTCA Claim Based on Negligence
Because the Defendant's Motion for Summary Judgment addresses only the Plaintiff's FTCA claim based on false imprisonment, to the extent that the Defendant intended to include the Plaintiff's negligence claim in its Motion, that Motion is hereby DENIED.
D FTCA Claim Based on False Imprisonment
Under Texas law, "[t]he essential elements of false imprisonment are: (1) willful detention; (2) without consent; and (3) without authority of law." Tovar v. United States, 2000 WL 425170, 5 (N.D. Tex. 2000) (citing, Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995)).
1 Willful Detention
In addressing the willful detention requirement, Defendant states that under Texas law, willful detention means "the placing of a person in a position where he cannot exercise his will in going where he may lawfully go." (MSJ p. 21 (citing. Newton et. al v. Rhoads Brothers, 24 S.W.2d 378, 379 (Comm. App. 1930); Kroger Company v. Warren, 420 S.W.2d 218, 222 (Civ.App. — Houston (1st Dist.) 1967, no writ)). Defendant argues that because the INS had probable cause to detain the Plaintiff, he was properly detained, and was therefore not lawfully entitled to leave the detention facility.
Defendant's citations to Newton and Kroger are incorrect, as is the conclusion Defendant draws from these misleading citations. Newton defines the entire tort of false imprisonment as, "[a]ny intentional conduct that results in the placing of a person in a position where he cannot exercise his will in going where he may lawfully go;" it does not apply this definition only to the "willful detention" element, as the Defendant expressly asserts in its brief. Newton, 24 S.W.2d at 379. Moreover, nothing in the Kroger opinion supports Defendant's assertion that the "willful detention" element of false imprisonment involves an analysis of where a plaintiff may lawfully go. Kroger, 420 S.W.2d 218. In an attempt to confuse the issues before this Court, the Defendant melds the first and third elements of false imprisonment, arguing that because the detention was made with legal authority, as required by the third element of false imprisonment, there was no "willful detention."
An example of a correct analysis of the "willful detention" prong is seen in Tovar v. United States. There, the court found that the "willful detention" element of false imprisonment was not met because the plaintiff was detained pursuant to criminal charges pending against her, not pursuant to her INS detainer. Tovar, 2000 WL 425170 at 6. Tovar illustrates that the "willful detention" element simply refers to whether the named defendant purposefully caused the plaintiff to be detained. InTovar, it was the agency in charge of the plaintiff's criminal prosecution, and not the INS, that "willfully detained" the plaintiff. Therefore, whether the INS would have had probable cause to detain the Plaintiff were she not detained pursuant to her criminal case was a separate issue that the court did not have to reach. Id. In the present case, it is clear that regardless of the INS's authority to detain the Plaintiff, the INS willfully detained him for fifteen months; his detention was not an accident, it was brought about by the purposeful actions of the INS, and the Plaintiff was not free to leave.
2 Without Consent
In addressing Plaintiff's false imprisonment claim, the Defendant does not address the consent element. However, elsewhere in its brief, the Defendant argues that Plaintiff "waived his right to complain of his incarceration because he himself held the key to his release." (MSJ p. 18) Defendant's own case law, offered in support of this argument, holds otherwise:
A waiver takes place where one dispenses with the performance of something which he has a right to exact, and occurs where one in possession of any right, whether conferred by law or by contract, with full knowledge of the material facts, does or forbears to do something, the doing of which or the failure or forbearance to do which is inconsistent with the right or his intention to rely upon it.Ford v. Culbertson, 308 S.W.2d 855, 865 (Tex. 1958) ( emphasis added). The summary judgment evidence is replete with facts supporting the conclusion that the Plaintiff did not have full knowledge of the facts material to his derivative citizenship claim. Therefore, a genuine issue of material fact exists as to whether the Plaintiff waived his right to challenge his allegedly unlawful detainment or consented to that detainment.
It should be noted that Ford was decided in 1958, not in 1985, as cited by the Defendant.
3 Without Authority of Law
Defendant argues that because the Plaintiff claimed to be a citizen of Vietnam, the INS met its burden of proving that Plaintiff was an alien and thus had authority to detain him. Defendant claims that the INS did not know the Plaintiff qualified for citizenship, and moreover, Defendant argues, the INS was not responsible for determining whether or not grounds for citizenship existed once it met its burden. Defendant's brief states: "it is not INS's burden to determine plaintiff's status in this country. The plaintiff is the best source of information as to his status and has the burden of conveying facts relevant thereto to the INS." (MSJ Reply p. 5) Absent such conveyance, the Defendant argues, the INS acts with authority in detaining alleged aliens.
The Plaintiff, on the other hand, argues that the detention was unlawful as a matter of law because the Plaintiff was not, in fact, an alien at the time he was detained. Plaintiff argues further that the INS actually knew he was a citizen; a fact, Plaintiff argues, that renders the detention unlawful, regardless of who had the burden of proof. Plaintiff alleges that the INS's knowledge of Plaintiff's citizenship was present at the time the Plaintiff was taken into custody and was confirmed shortly thereafter when Plaintiff's A-file was reviewed by INS agents.
For the reasons stated above, this court must apply the law that a Texas court would apply in determining if there is a genuine issue of material fact as to whether or not the INS acted with legal authority in detaining the Plaintiff. Because INS agents are federal agents acting pursuant to federal law, a Texas court would consult federal law to determine whether the Plaintiff was lawfully detained. See Saldana v. United States, 1985 WL 5997, 4 (citing, Caban v. United States, 728 F.2d 68 (2d Cir. 1984)).
There are a number of provisions in the Immigration and Naturalization code that are relevant to the actions taken by the INS agents in this case. First, the INS has authority, without a warrant, to interrogate any alien or person believed to be an alien as to his right to be in the United States, pursuant to 8 U.S.C. § 1357 (a)(1). The INS then has authority to arrest any alien in the United States if it has reason to believe that the alien is in the U.S. in violation of any law or regulation. See 8 U.S.C. § 1357 (a)(2). Lastly, 8 U.S.C. § 1227(a)(2)(iii), 1228, and 1231(a)(1)(A) and (2), grant the INS authority to commence deportation proceedings against aliens who have been classified as aggravated felons, and to incarcerate criminal aliens after their removal is determined. Together, these provisions demonstrate that if the Plaintiff actually was an alien, his detention would have been lawful. However, these provisions do not address the situation before this court: a situation in which the detainee was a citizen and the INS is alleged to have had knowledge of this fact.
This court notes that the Defendant incorrectly cites 8 U.S.C. § 1225(b) as empowering the INS to also detain suspected aliens. Section 1225(b) however, deals with suspected aliens who are seeking admission to the United States; it does not apply to situations in which someone who has legally entered the U.S. is suspected of being an criminal alien. See 8 U.S.C. § 1225(b)(titled, "inspection of applicants for admission").
Although federal case law is sparse, there are a few cases that are instructive. In Tovar v. United States, for example, the plaintiff argued that INS agents acted without lawful authority in arresting and detaining her as a criminal alien when she had been granted new trials on her prior convictions. Tovar, 2000 WL 425170, 7. The INS argued that a routine computer check failed to reveal that the convictions had been set aside, and therefore, according to the evidence available to it, the INS acted lawfully in detaining Tovar, despite her protestations. Id. The court explained that its review of the summary judgment evidence failed to locate proof that created a genuine issue of material fact concerning what the INS agents knew about Tovar's convictions. Id at 8. Because there was nothing to contradict the INS's statement that the evidence available to it showed that plaintiff was a criminal alien, the court granted the motion for summary judgment. Id. Tovar indicates that in the present case, because the INS had evidence available to it that showed the Plaintiff qualified for derivative citizenship, there is a genuine issue of material fact concerning whether the INS knew the Plaintiff was a U.S. citizen, despite the Plaintiff's statements to the contrary. For example, Plaintiff's I-213 form and the supporting documentation — i.e., a copy of Plaintiff's Resident Alien card — indicates that when Plaintiff entered the United States he was under eighteen, his father was deceased, and he was the immediate relative of a U.S. citizen. More importantly, Plaintiff's A-file, which was reviewed by INS counsel no later than October 3, 1997, contained Plaintiff's birth certificate, his father's death certificate, and his mother's naturalization certificate; the very same information that Plaintiff's attorney ultimately submitted in support of his derivative citizenship claim. It was this documentation that led the INS to release the Plaintiff on the grounds that he had established a prima facie case of citizenship. Additionally, in August, 1998, an ALJ ordered the INS to review the Plaintiff's file, at which time it would have again seen the evidence of his citizenship. Although Agent Ogrodnik and Counsel Agnello averred that there was nothing in Plaintiff's documentation from which his derivative citizenship could have been ascertained, these are conclusory assertions that cannot defeat the contradictory documentary evidence that is before this court. If nothing else, the averments simply confirm that a genuine issue exists as to what the INS knew about the Plaintiff's status.
Tovar v. United States is also instructive in that the court defined "act[ing] with authority of law" as "undertak[ing] proper procedures."Tovar, 2000 WL 425170, 8 (stating that the government argued that "it undertook proper procedures — i.e., acted with authority of law."). In this case, even if Plaintiff could not prove that the INS actually knew he was a citizen, there is a genuine issue of material fact as to whether the INS followed proper procedures in reviewing Plaintiff's documentation and failing to recognize that the derivative citizenship law applied to the facts of Plaintiff's case. This question is not addressed by the parties in their briefs and thus this court finds that factual and legal issues exist as to what procedures the INS was obliged to follow and if it followed those procedures in this case.
Caban v. United States, a Second Circuit Federal Tort Claims Act case, offers additional guidance in determining the legality of the Plaintiff's detention. 728 F.2d 68. In Caban, the plaintiff, a U.S. citizen, was stopped at an airport while attempting to enter the United States. 728 F.2d at 70. Mr. Caban was ultimately arrested and detained by the INS because he failed to prove his citizenship to the inspector's satisfaction. Id. After a six-day detention, Caban posted bond, was released, and then provided the documentation necessary to prove he was a citizen. Id. The Second Circuit first determined that the INS acted lawfully in arresting and initially detaining Caban because he had not established his right to enter the U.S. "beyond doubt," as is required by the provision of the Immigration and Naturalization law that applies to persons seeking entry. See id. at 74. The court then made a separate finding that the length of Caban's detention was also lawful because it was for a "reasonable" period of time given the various administrative constraints at issue. Id. at 75.
The provision at issue in Caban does not apply to the facts of this case; it applies only to those persons seeking entry to the United States, or those for whom the legality of their entry is being challenged. See 8 U.S.C. § 1225(b). The distinction between these two classes of aliens appears to have been overlooked by the Defendant throughout its brief.
Caban indicates that a lawful detention can become unlawful at the point at which the INS's decision to continue the detention is no longer reasonable. The summary judgment evidence in this case demonstrates a genuine issue of material fact as to whether, at some point during his fifteen month confinement, it was no longer reasonable to continue to detain the Plaintiff. For example, even if it was reasonable and lawful for the INS to initiate proceedings against the Plaintiff based on Plaintiff's own statements regarding his citizenship, there is a genuine issue as to whether it continued to be reasonable for the INS to proceed against the Plaintiff once Counsel Agnello reviewed Plaintiff's A-file. Moreover, the INS's behavior may have become even less reasonable in August, 1998, once the Plaintiff informed the INS that his mother was a U.S. citizen and an ALJ ordered INS counsel to review Plaintiff's file.
Defendant relies heavily on case law regarding the allocation of burden of proof in asking this court to hold as a matter of law that Plaintiff was lawfully detained. In deportation proceedings, the INS has the burden of establishing the facts supporting deportability, including alienage, by "clear, unequivocal, and convincing evidence." Woodby v. INS, 385 U.S. 276, 277 (1966). The Defendant is incorrect, therefore, in citing 8 U.S.C. § 1361 for the proposition that "the burden of proof is always on the alien to prove that they are in the United States legally." (MSJ p. 14) Section 1361 applies only to aliens seeking admission to the United States or aliens suspected of having illegally entered the United States. See 8 U.S.C. § 1361. It does not apply in this case, where it is conceded that the Plaintiff was lawfully present in the United States, but was facing removal due to his criminal activity.
This is another example of Defendant's failure to recognize the distinction between these two classes of aliens.
Defendant is also incorrect in asserting that the case law "presumes that some act must be made by the alien to claim derivative status." (MSJ p. 13) As a practical matter, the alleged alien is typically the party that raises the derivative citizenship claim as a defense to removal. This reality, however, does not negate the fact that derivative citizenship occurs as soon as the requirements of 8 U.S.C. § 1432, as described above, are satisfied. See In re Julio August Fuentes-Martinez, 1997 WL 219496 (BIA 1997). Moreover, neither of the two derivative citizenship cases cited by the Defendant involved an allegation that the INS possessed the information necessary to prove the derivative citizenship claim. Instead, in each case, the alleged alien presented the INS with new information or allegations. This factual distinction is the reason why it was the alleged alien, and not the INS, who took the initial step to claim derivative citizenship in the cases cited by the Defendant. See Charles v. Reno, 117 F. Supp.2d 412 (N.J. Dist. 2000); In re Julio Augusto Fuentes-Martinez, 1997 WL 219496.
Defendant is correct in stating that once the INS demonstrated that the Plaintiff was born in Vietnam and the Plaintiff himself claimed to be a Vietnamese citizen, a rebuttable presumption of alienage arose and the burden shifted to the Plaintiff to prove his citizenship. See Scales v. INS., 232 F.3d 1159, 1163 (9th Cir. 2000) (citing, Corona-Palomera v. INS. 661 F.2d 814, 818 (9th Cir. 1981); Matter of Leyva, 16 I. N. Dec. 118, 119 (BIA 1977)). That the Plaintiff had the burden of proving citizenship at his removal hearing does not, however, negate the fact that the INS did not have authority to detain him if it knew he was a U.S. citizen.
Evidence exists to support Plaintiff's argument that at some point during his period of detainment, the INS knew that he qualified for derivative citizenship. This court therefore finds that a genuine issue of material fact exists as to whether the INS acted with the authority of law in detaining the Plaintiff. Because the Plaintiff has also met his burden on all of the other elements of false imprisonment, the Defendant's Motion on this issue is hereby DENIED.
Conclusion
For the reasons stated above, Defendant's Motion for Summary Judgment is DENIED. It is so ORDERED.