Orozco Cardona v. United States of America

MOTION for Partial Summary Judgment

S.D. Cal.April 24, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ALANA W. ROBINSON Acting United States Attorney ERNEST CORDERO, JR. Assistant U.S. Attorney California Bar No. 131865 Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, CA 92101 Tel: (619) 546-7478 Fax: (619) 546-7751 Email: ernest.cordero@usdoj.gov Attorneys Defendant United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ERNESTO OROZCO CARDONA, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. Case No.: 16cv0546-AJB (BGS) NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Date: June 29, 2017 Time: 2:00 p.m. Judge: Hon. Anthony J. Battaglia Courtroom: 4A [NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT] TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on June 29, 2017, at 2:00 p.m., or as soon thereafter as this matter can be heard in Courtroom 4A (Schwartz) of the United States District Court located at 221 W. Broadway, San Diego, California 92101, Defendant, United States of America, will, and now does, move for partial summary judgment pursuant to Federal Rule of Civil Procedure 56 on the grounds discussed in the memorandum of points and authorities, including but not limited to, the following: / / / / Case 3:16-cv-00546-AJB-BGS Document 22 Filed 04/24/17 PageID.100 Page 1 of 2 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. There is no subject matter jurisdiction under the FTCA for Plaintiff’s claims of government wrongdoing that lack the required private person analog. 2. The Court lacks subject matter jurisdiction over Plaintiff’s claims arising out of alleged misrepresentations. 3. The FTCA’s statute of limitations bars any claims based on actions or omissions that occurred more than two years before Plaintiff filed his administrative claim, including claims related to the processing of his Green Card and investigation into his allegation of identity theft back in 2005. 4. Pursuant to 8 U.S.C. § 1252(g), the Court lacks subject matter jurisdiction over Plaintiff’s claims arising out of the initiation and enforcement of a removal order. 5. Plaintiff’s claims arising out of the initiation and enforcement of a removal order are barred by prosecutorial immunity. This Motion is based upon this Notice of Motion and Motion, the Memorandum of Points and Authorities, the exhibits lodged in support of the motion, the Declaration of Ernest Cordero, Jr., all filed concurrently herewith, all pleadings and files in this action, and upon such other matters presented to the Court at the time of the hearing. DATED: April 24, 2017. Respectfully submitted, ALANA W. ROBINSON Acting United States Attorney s/Ernest Cordero, Jr. ERNEST CORDERO, JR. Assistant United States Attorney Attorneys for Defendant United States of America Case 3:16-cv-00546-AJB-BGS Document 22 Filed 04/24/17 PageID.101 Page 2 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ALANA W. ROBINSON Acting United States Attorney ERNEST CORDERO, JR. Assistant U.S. Attorney California Bar No. 131865 Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, CA 92101 Tel: (619) 546-7478 Fax: (619) 546-7751 Email: ernest.cordero@usdoj.gov Attorneys for Defendant United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ERNESTO OROZCO CARDONA, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. Case No.: 16cv0546-AJB (BGS) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT Date: June 29, 2017 Time: 2:00 p.m. Judge: Hon. Anthony J. Battaglia Courtroom: 4A Case 3:16-cv-00546-AJB-BGS Document 22-1 Filed 04/24/17 PageID.102 Page 1 of 22 i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page I. INTRODUCTION .................................................................................................... 1 II. STATEMENT OF MATERIAL FACTS ................................................................. 1 A. The Loss Of Plaintiff’s Green Card And Theft Of His Identity .................... 1 B. Plaintiff’s Removal From The United States To Mexico .............................. 3 III. OROZCO CANNOT MAINTAIN FTCA CLAIMS FOR ALLEGED WRONGFUL ACTS RELATED TO THE PROCESSING OF HIS GREEN CARD OR ANY FAILURE BY USCIS TO INVESTIGATE HIS REPORT OF IDENTITY THEFT .................................................................... 7 A. Orozco’s Allegations Of Government Wrongdoing Lack The Required Private Person Analog Under The FTCA ....................................... 7 B. The United States Has Not Waived Sovereign Immunity For Claims Based On Misrepresentation And Thus Cannot Be Held Liable On Such Grounds ................................................................................ 8 C. The FTCA’s Statute Of Limitations Bars Any Claims Based On USCIS’s Alleged Negligence In Processing Orozco’s Green Card And Investigating His Report Of Identity Theft ........................ 9 IV. OROZCO CANNOT RECOVER UNDER THE FTCA FOR HIS ARREST, DETENTION AND DEPORTATION DONE TO EFFECTUATE HIS REMOVAL ........................................................................... 11 A. 8 U.S.C. § 1252(G)’s Jurisdiction Stripping Language Deprives This Court Of Subject Matter Jurisdiction Over Orozco’s Claims .............. 11 B. Orozco’s FTCA Claims Should Be Dismissed Because The ICE Agents And Attorneys Involved In His Removal Are Protected By Absolute Prosecutorial Immunity ........................................... 14 V. CONCLUSION ....................................................................................................... 16 Case 3:16-cv-00546-AJB-BGS Document 22-1 Filed 04/24/17 PageID.103 Page 2 of 22 ii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page Cases Akutowicz v. United States, 859 F.2d 1122 (2d Cir. 1988) ................................................................................... 8 Alcaraz v. United States, 2013 WL 4647560 (N.D. Cal. Aug. 29, 2013) ....................................................... 13 Buck v. Stewart, 2008 WL 901716 (D. Utah Mar. 31, 2008) ............................................................ 15 Buckley v. Fitzsimmons, 509 U.S. 259 (1993) ................................................................................................ 15 Butt v. United States, 714 F. Supp. 2d 217 (D. Mass. 2010) ....................................................................... 8 Butz v. Economou, 438 U.S. 478 (1978) ................................................................................................ 15 Cato v. United States, 70 F.3d 1103 (9th Cir. 1995) .................................................................................. 10 Delta Savings Bank v. United States, 265 F.3d 1017 (9th Cir. 2001) .................................................................................. 7 Doe v. Corrigan, 2007 WL 4365477 (N.D. Cal. Dec. 12, 2007) ....................................................... 15 Doe v. United States, 829 F. Supp. 59 (S.D.N.Y. 1993) ........................................................................... 15 Flood v. Harrington, 532 F.2d 1248 (9th Cir. 1976) ................................................................................ 14 Frontera v. United States, 2009 WL 909700 (W.D.N.Y. Mar. 31, 2009) ........................................................ 10 Fry v. Melaragno, 939 F.2d 832 (9th Cir. 1991) .................................................................................. 14 Gobel v. Maricopa County, 867 F.3d 1203 (9th Cir. 1989) ................................................................................ 14 Case 3:16-cv-00546-AJB-BGS Document 22-1 Filed 04/24/17 PageID.104 Page 3 of 22 iii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Grimes v. City & Cty. of San Francisco, 951 F.2d 236 (9th Cir. 1991) .................................................................................. 10 Guerrero v. United States, 2008 WL 2523892 (C.D. Cal. June 20, 2008) ........................................................ 12 Hodgson v. United States, 2014 WL 4161777 (W.D. Tex. Aug. 19, 2014) ..................................................... 13 Imbler v. Pachtman, 424 U.S. 409 (1976) ................................................................................................ 14 Jimenez-Angeles v. Ashcroft, 291 F.3d 594 (9th Cir. 2002) .................................................................................. 12 Kareva v. United States, 9 F. Supp. 3d 838 (S.D. Ohio Mar. 27, 2014) ........................................................ 13 Lawrence v. United States, 340 F.3d 952 (9th Cir. 2003) .................................................................................... 9 Lutz v. United States, 685 F.2d 1178 (9th Cir. 1982) .................................................................................. 7 MacDonald v. United States, 2011 WL 6783327 (S.D. Cal. Dec. 23, 2011) ........................................................ 13 Meyers v. Contra Costa Cty. Dep’t of Social Services, 812 F.3d 1154 (9th Cir. 1987) ................................................................................. 15 Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) .................................................................................... 5 Nakamura v. United States, 2012 WL 1605055 (E.D.N.Y. May 8, 2012) .......................................................... 13 Nesovic v. United States, 71 F.3d 776 (9th Cir. 1995) .................................................................................... 10 Partovi v. Beamer, 2011 WL 6300925 (D. Haw. Dec. 16, 2011) ......................................................... 15 Pedroza v. Gonzalez, 2010 WL 6052381 (S.D. Cal. Dec. 13, 2010) ........................................................ 13 Pedroza v. Gonzalez, 2011 WL 883913 (S.D. Cal. Mar. 11, 2011) .......................................................... 13 Case 3:16-cv-00546-AJB-BGS Document 22-1 Filed 04/24/17 PageID.105 Page 4 of 22 iv 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Read v. Haley, 650 F. App’x 492 (9th Cir. 2016) ........................................................................... 14 Rivera v. United States, 204 F. Supp. 2d 305 (D.P.R. 2002) .......................................................................... 9 Sisseton-Wahpeton Sioux Tribe v. United States, 895 F.2d 588 (9th Cir. 1990) .................................................................................. 11 Sissoko v. Rocha, 509 F.3d 947 (9th Cir. 2007) .................................................................................. 12 United Scottish Insurance Co. v. United States, 614 F.2d 188 (9th Cir. 1979) .................................................................................... 7 United States v. Neustadt, 366 U.S. 696 (1961) .................................................................................................. 8 United States v. Olson, 546 U.S. 43 (2005) .................................................................................................... 7 Walker v. United States, 2009 WL 3011626 (E.D. Cal. Sept. 17, 2009) ................................................. 10, 11 Ward v. Caulk, 650 F.2d 1144 (9th Cir. 1981) ................................................................................ 10 Welcker v. United States, 752 F.2d 1577 (Fed. Cir. 1985) .............................................................................. 11 Xue Lu v. Powell, 621 F.3d 944 (9th Cir. 2010) .................................................................................... 8 Statutes 8 U.S.C. § 1252(g) ............................................................................................ 1, 11, 12, 13 8 U.S.C. § 1252(G) ........................................................................................................... 11 8 U.S.C. § 1231(a)(5) ............................................................................................... 5, 12, 15 28 U.S.C. § 1346(b)(1)......................................................................................................... 7 28 U.S.C. § 2401(b) ................................................................................................ 9, 10, 11 28 U.S.C. § 2674 ................................................................................................................. 7 28 U.S.C. § 2680(h) ............................................................................................................ 8 42 U.S.C. § 1983 ............................................................................................................... 14 Case 3:16-cv-00546-AJB-BGS Document 22-1 Filed 04/24/17 PageID.106 Page 5 of 22 v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rules 8 C.F.R. § 241.8 ................................................................................................................ 15 Case 3:16-cv-00546-AJB-BGS Document 22-1 Filed 04/24/17 PageID.107 Page 6 of 22 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION This case arises out of U.S. Immigration and Customs Enforcement’s (“ICE’s”) deportation of Plaintiff Ernesto Orozco Cardona (“Orozco”) pursuant to a removal order. Orozco asserts he should not have been deported because the removal order allegedly was issued to someone else who stole his identity. In this Federal Tort Claims Act (“FTCA”) suit, Orozco alleges that even though he brought the identity theft issue to the attention of U.S. Citizenship and Immigration Services (“USCIS”), it failed to investigate the matter. He also did not get a Green Card. Furthermore, because the removal order remained in his immigration records, ICE relied on the order to wrongfully deport him. As discussed below, Orozco’s claims based on USCIS’s alleged failure to investigate the purportedly invalid removal order and issue a Green Card based on a corrected immigration record are not cognizable under the FTCA. Moreover, even if Orozco could state such claims, they would be time-barred. Due to the jurisdiction-stripping language of 8 U.S.C. § 1252(g), the Court also lacks subject matter jurisdiction over Orozco’s claims insofar as they arise out of ICE’s enforcement of the removal order. Furthermore, the claims are barred by prosecutorial immunity. II. STATEMENT OF MATERIAL FACTS1 A. The Loss Of Plaintiff’s Green Card And Theft Of His Identity Orozco is a Mexican citizen and lawful permanent resident of the United States. (Complaint, ECF No. 1, ¶ 7.) In 1994, Orozco lost his wallet in Fallbrook, California. (Id., ¶ 12.) The wallet contained his social security card, driver’s license and lawful permanent resident card (hereinafter, “Green Card”). (Id.) Orozco reported the lost wallet to the Fallbrook Police Department. (Id., ¶ 13.) He also notified the Immigration and 1 This Statement of Facts often cites Plaintiff’s Complaint. For purposes of this summary judgment motion only, those alleged facts will be accepted as true. Case 3:16-cv-00546-AJB-BGS Document 22-1 Filed 04/24/17 PageID.108 Page 7 of 22 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Naturalization Service (“INS”) 2 of the lost wallet and his need for a new Green Card. (Id.) The INS sent Orozco a replacement Green Card about three months later. (Id.) After losing his wallet, Orozco began noticing signs of identity theft. (Id., ¶ 14.) He reported the suspected identity theft to various government entities. (Id., ¶ 15.) In 2005, Orozco attempted to renew his Green card at the USCIS office in Chula Vista, California. (Id., ¶ 17.) One of the officers informed him that there were three deportation orders under his alien number. (Id.) When he told the officer his identity had been stolen, and showed him a folder of evidence supporting his contention, Orozco was referred to ICE Agent Marissa Flores. (Id.) Agent Flores copied the file and took Orozco’s picture and fingerprints. (Id., ¶ 18.) She also told him his case would be sent to the Federal Bureau of Investigation (“FBI”). (Id.) Furthermore, Agent Flores informed Orozco that the FBI would call him within 30 days to begin an investigation. (Id.; Deposition of Ernesto Orozco Cardona (“Orozco Depo.”), Exhibit 1, pp. 002:17-24.)3 But Orozco never received a call from the FBI. (Id.) During a third follow up call to Agent Flores for an update, Agent Flores told Orozco that she would call him if anything developed. (Complaint, ¶ 18.) She also asked Orozco to stop calling her. (Id.) Within two years after he first contacted Agent Flores in 2005, Orozco concluded she would never call him back. (Orozco Depo., p. 003:18-p. 004:6.) He contacted Congressman Darryl Issa’s office for assistance. (Complaint, ¶ 23.) He also sought a lawyer’s help to resolve the problems with his Green Card. (Id.) But he did not have sufficient money to pay the legal fees. (Id.) After his conversations with Agent Flores back 2 On March 1, 2003, USCIS officially assumed responsibility for the immigration service functions of the federal government. The Homeland Security Act of 2002 (Pub. L. No. 107-296, 116 Stat. 2135) dismantled the former INS and separated the former agency into three components within the Department of Homeland Security (“DHS”). 3 All exhibits referenced are attached to the Table of Exhibits filed concurrently with this motion. The deposition page numbers referenced in the citations are to the bates numbers, not the deposition transcript page numbers. Case 3:16-cv-00546-AJB-BGS Document 22-1 Filed 04/24/17 PageID.109 Page 8 of 22 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in 2005, Orozco never again contacted anyone at USCIS about his Green Card. (Id., p. 004:7-11.) To date, he does not have a Green Card or proof of his lawful permanent residence in the United States. (Complaint, ¶ 21.) In 2006, Orozco was laid off from his job. (Id., ¶ 22.) His application for unemployment benefits was denied because: (1) his Green Card had expired; and (2) the deportation orders showed up in his record. (Id.) After he was laid off, but before he established his own business, Orozco received five offers of employment. (Id., ¶ 23.) When he could not provide valid proof of his lawful permanent residence status, the prospective employers retracted their offers. (Id.) B. Plaintiff’s Removal From The United States To Mexico On March 10, 2014, ICE agents arrived at Orozco’s residence located in Temecula, California. (Id., ¶¶ 25-26.) When Orozco and his wife heard them, they stepped outside of their residence to investigate. (Id., ¶ 29.) Among the ICE personnel they encountered outside their home was Deportation Officer Pedro Gomez. (Id., ¶ 31.) At the time, Officer Gomez was part of ICE’s Fugitive Operations Unit working out of the San Diego Field Office. (Deposition of Pedro Gomez (“Gomez Depo.”), Exhibit 2, p. 008:18-p. 010:15.) Officer Gomez had three partners – Immigration Enforcement Agent Joe Ferma, Supervisory Detention and Deportation Officer Kevin Welch, and Deportation Officer Andy Padilla. (Id., p. 011:24-p. 012:12.) Officer Padilla was the group’s supervisor. (Id., p. 011:24-p. 012:8.) The Fugitive Operations Unit identifies, locates and arrests fugitive aliens, including those with an outstanding removal order who have not departed the country. (Id., p. 010:12- 16.) Officer Padilla assigned Orozco’s case to Officer Gomez. (Id., p. 017:5-20.) ICE considered Orozco to be a fugitive alien because Orozco’s immigration records indicated he had an outstanding removal order4 but remained in the country. (Id., p. 010:12-16.) 4 ICE’s actions only involve one removal order. Case 3:16-cv-00546-AJB-BGS Document 22-1 Filed 04/24/17 PageID.110 Page 9 of 22 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Once assigned the case, as was his customary practice, Officer Gomez conducted research to locate Orozco. (Id., p. 018:11-13.) He searched various databases that revealed address and vehicle information related to Orozco’s two DUI’s and a domestic violence conviction. (Id., p. 013:18-p. 014:8; Id., p. 019:23-p. 020:12.) Officer Gomez also prepared a Fugitive Operations Worksheet (“FOW”) that contained biographical data, pictures, a criminal history, address information, vehicle information, the date of removal, and any warning signs that the fugitive might be violent. (Id., p. 015:17-p. 016:22.) Before a fugitive may be arrested for removal purposes by the Fugitive Operations Unit, a supervisor must approve the FOW. (Id., p. 021:17-21.) The supervisor then assigns a team to effectuate the arrest. (Id.) In the case of Orozco, Officer Padilla assigned Officer Gomez, Agent Ferma and Officer Welch (collectively, “ICE Officers”) to arrest him for purposes of removal. (Id., p. 022:9-18.) Once they arrived at Orozco’s house on March 10, 2014, and Orozco had come out of his home with his wife, the ICE Officers inquired about a vehicle parked outside. (Complaint, ¶ 30.) They then asked Orozco his name and date of birth. (Id.) After confirming his identity, the ICE Officers placed Orozco in handcuffs. (Id.) Orozco’s wife asked the ICE Officers why they were arresting her husband. (Id., ¶ 31.) In response, Officer Gomez told her Orozco was subject to a deportation order. (Id.) Orozco’s wife informed Officer Gomez that they had the wrong person because her husband was the victim of identity theft. (Id., ¶ 32.) She provided Officer Gomez with a folder of documents to support her assertion of the identity theft. (Id.) He glanced through the documents, and then asked her whether any of the individuals in several pictures appeared to be her husband. (Id., ¶ 34.) Officer Gomez also told Orozco’s wife that if her husband’s fingerprints did not match those in the records, ICE would release him. (Id., ¶ 33.) Subsequently, Orozco was driven away in an SUV by Agent Ferma. (Id., ¶ 38; Gomez Depo., p. 023:15-21.) Orozco was taken to the ICE Processing Center in downtown San Diego. (Gomez Depo., p. 024:9-p. 026:7.) Because Orozco’s removal order was being reinstated Case 3:16-cv-00546-AJB-BGS Document 22-1 Filed 04/24/17 PageID.111 Page 10 of 22 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 administratively, Orozco was given an opportunity to provide a sworn statement. 5 (Id., p. 036:12-25.) At the Processing Center, Orozco continued to deny he was the subject of the deportation order.6 (Complaint, ¶ 41.) In light of this, the ICE Officers conducted a further review of the evidence available to them, including the whole FOW and the Integrated Automated Fingerprint Identification System (“IAFIS”) results.7 (Gomez Depo., p. 027: 17-p. 028:16.) Officer Gomez even involved the ICE Office of Chief Counsel which advised him that there was a sufficient basis to remove Orozco. Even so, we took the additional steps to go to the Office of Chief Counsel and said, look at this case, look at the evidence, what can we do? So we have two deportation officers looking at the case, one supervisor overseeing the processing, signing off on his removal. We have an assistant field office director who also looked at the case. We got a chief deputy counsel who signed off on the removal. We did what we did. It would have been repeated over and over in my opinion. He just did not give us enough evidence to show us that he was not the guy who was ordered removed. (Gomez Depo., p. 029:19-030:2.) Although Orozco’s fingerprints had been checked in IAFIS, the ICE Officers did not have access to the fingerprints of the alien who had been removed under the deportation order. (Id., p. 031:11-14.) But the Office of Chief Counsel did not believe the removal needed to be held up to await those fingerprints. Q. Officer Gomez, why did he have to be removed before you were able to obtain those fingerprints that were taken of the alien removed under the deportation notice? 5 A “reinstatement” is an administrative procedure through which immigration officials can rely on a prior removal order to effect an alien's departure from the country, bypassing the procedural requirements, and protections, of a regular removal proceeding. See 8 U.S.C. § 1231(a)(5); Morales-Izquierdo v. Gonzales, 486 F.3d 484, 489-91 (9th Cir.2007) (en banc). 6 “Removal” and “deportation” are sometimes used interchangeably in this brief. 7 IAFIS is a national automated fingerprint identification and criminal history system maintained by the Federal Bureau of Investigation (FBI). Case 3:16-cv-00546-AJB-BGS Document 22-1 Filed 04/24/17 PageID.112 Page 11 of 22 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. The decision was not made [by] me. It was done by someone else. Q. Who was that decision made by? A. The final decision was made by Deputy Ted Yamada. MR. CORDERO: Where is he from? THE WITNESS: The Office of Chief Counsel. He is an attorney. (Gomez Depo., p. 032: 19-p. 033:3.) Mr. Yamada made his decision after being informed of Orozco’s identity theft assertions and a review of the available evidence. Q. And who is the officer that makes the ultimate decision to execute the removal? A. Ultimate decision? Ted Yamada. Q. Did you tell Mr. Yamada that Mr. Orozco asserted he was the victim of identity theft? A. Yes. Q. When you told Mr. Yamada that, what was his response? A. He reviewed the documents, the NRC documents, looked at the photos, looked at the fingerprints, matched that we had the NCIC matching FBI number, and the conclusion was that this is the guy. Go ahead and remove him. (Gomez Depo., p. 034:20-p. 035:10.) Orozco was removed to Tijuana, Mexico later the same day – March 10, 2014. (Complaint, ¶¶ 52-53.) On March 11, 2014, counsel retained by Orozco’s wife contacted Chief Counsel for ICE, Jason Aguilar, to raise the identity theft issue and assert that the wrong person had been deported. (Id., ¶ 55.) Orozco’s attorney also made a FOIA request for records from the Executive Office for Immigration Review. (Id., ¶ 56.) On or about March 14, 2014, after further investigation by ICE and a forensic analysis of fingerprints, Orozco was paroled back into the United States. (Id., ¶¶ 59-60.) / / / / / / / / / / / / / / / / / / / / Case 3:16-cv-00546-AJB-BGS Document 22-1 Filed 04/24/17 PageID.113 Page 12 of 22 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. OROZCO CANNOT MAINTAIN FTCA CLAIMS FOR ALLEGED WRONGFUL ACTS RELATED TO THE PROCESSING OF HIS GREEN CARD OR ANY FAILURE BY USCIS TO INVESTIGATE HIS REPORT OF IDENTITY THEFT A. Orozco’s Allegations Of Government Wrongdoing Lack The Required Private Person Analog Under The FTCA The United States is only liable in tort “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1); see also 28 U.S.C. § 2674 (“The United States shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances”). The Supreme Court has affirmed this requirement by noting the plain meaning of its wording; namely, that “the United States waives sovereign immunity ‘under circumstances’ where local law would make a “private person” liable in tort.” United States v. Olson, 546 U.S. 43, 44 (2005); see also Delta Savings Bank v. United States, 265 F.3d 1017, 1025 (9th Cir. 2001) (“any duty that the United States owed to [plaintiff] must be found in California state tort law”). Here, Orozco’s claims related to his Green Card and USCIS’s failure to investigate his report of identity theft should be dismissed because his allegations of government wrongdoing do not have a private person analog under state tort law. As the Ninth Circuit made clear, “a federal statute or regulation under which the employee acted only ‘becomes pertinent’ in an FTCA action ‘when a state law duty is found to exist.’” Id. (quoting Lutz v. United States, 685 F.2d 1178, 1184-85 (9th Cir. 1982)). By itself, “the existence of a federal statutory duty does not . . . create a duty to be vindicated by the Act.” United Scottish Insurance Co. v. United States, 614 F.2d 188, 194 n.4 (9th Cir. 1979), aff’d after remand, 692 F.2d 1209 (9th Cir. 1982), rev’d on other grounds, 467 U.S. 797 (1984). The duty must be created by state law.” Delta Savings Bank, 265 F.3d at 1026. Orozco has failed to identify any state law ground imposing a duty on USCIS that would give rise to FTCA liability. Case 3:16-cv-00546-AJB-BGS Document 22-1 Filed 04/24/17 PageID.114 Page 13 of 22 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Finally, courts evaluating FTCA claims brought by individuals allegedly injured by government immigration officials have generally found a private analog to be lacking. In Akutowicz v. United States, 859 F.2d 1122 (2d Cir. 1988), the Court found the United States not liable for the “allegedly negligent issuance of a passport” because “no private citizen is empowered to certify the loss of American nationality.” Akutowicz, 859 F.2d at 1125; see also Xue Lu v. Powell, 621 F.3d 944, 951 (9th Cir. 2010) (“The plaintiffs’ claim under 8 C.F.R. § 208.9 [asylum interview procedures] . . . was not a claim for which California law would provide a remedy against a private party”); Butt v. United States, 714 F.Supp.2d 217, 218 (D. Mass. 2010) (“[P]laintiff has pointed to no Massachusetts law which imposes a duty of care on a private person in a situation that is analogous to the government’s failure to timely process a visa application”). Here, Orozco’s claims have no basis in state tort law. Furthermore, any violation of a federal statute or regulation does not give rise to FTCA liability. B. The United States Has Not Waived Sovereign Immunity For Claims Based On Misrepresentation And Thus Cannot Be Held Liable On Such Grounds This Court should dismiss Orozco’s claims to the extent they are based on negligent or intentional misrepresentations by government officials because the United States has not waived sovereign immunity for such claims. While the United States decided that its officials may be held liable in tort in limited circumstances, “[a]ny claim arising out of . . . misrepresentation” is still precluded by sovereign immunity. 28 U.S.C. § 2680(h); see generally United States v. Neustadt, 366 U.S. 696 (1961); see also Alexander v. United States, 787 F.2d 1347, 1351 (9th Cir. 1986) (quoting, with approval, the Supreme Court’s recognition of “the broad reach of the ‘misrepresentation’ exception”). Orozco’s Complaint does not contain a misrepresentation cause of action. But there are factual allegations that suggest his claims are based, in part, on misrepresentations. Specifically, he alleges that Marisa Flores of USCIS represented that his report of identity theft would be passed on to the FBI for investigation. But it never was done. (See Complaint, ¶¶ 17-19.) Courts have found that such representations – even when there is no Case 3:16-cv-00546-AJB-BGS Document 22-1 Filed 04/24/17 PageID.115 Page 14 of 22 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 misrepresentation cause of action – are not actionable when included in non- misrepresentation claims. In the present case, Plaintiffs allege, among other things, that government agents were negligent (1) in their duty to warn Plaintiffs of the area’s propensity to flooding and (2) in their failure to inform Plaintiffs of the need for flood insurance. These are claims, in effect, that the Plaintiffs suffered an injury because they relied on a communication of misinformation by government agents…. Even though Plaintiffs do not use the word ‘misrepresentation’ in their allegations, these claims are still barred by that exception. In determining whether one of the FTCA exceptions comes into play, a court must look beyond the literal meaning of the complaint and ascertain the true cause of action. Rivera v. United States, 204 F.Supp.2d 305, 311 (D. Puerto Rico 2002). Here, to the extent Orozco bases his claims on alleged misrepresentations concerning an investigation into his identity theft, or the processing of his Green Card, there has been no waiver of sovereign immunity that would permit such claims. See Lawrence v. United States, 340 F.3d 952, 958 (9th Cir. 2003) (“The misrepresentation exception shields government employees from tort liability for failure to communicate information, whether negligent, or intentional”). C. The FTCA’s Statute Of Limitations Bars Any Claims Based On USCIS’s Alleged Negligence In Processing Orozco’s Green Card And Investigating His Report Of Identity Theft Even if the Court were to have jurisdiction over Orozco’s claims related to the processing of his Green Card and alleged failure to investigate his report of identity theft, the FTCA’s statute of limitations would bar Orozco’s claims. According to the FTCA: A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of the mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. 28 U.S.C. § 2401(b) (emphasis added). Case 3:16-cv-00546-AJB-BGS Document 22-1 Filed 04/24/17 PageID.116 Page 15 of 22 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, Orozco alleges that USCIS did not follow through with an investigation after he reported his stolen identity back in 2005. He also was not able to get a Green Card due to his immigration record. At such time, Orozco’s claims, if any, accrued. But he did not file an administrative claim until July 3, 2014. (Complaint, ¶ 4.) Therefore, his claims are barred by the FTCA’s two-year statute of limitations. See 28 U.S.C. § 2401(b). Orozco may attempt to invoke the continuing tort doctrine8 in defense of his claims. But, a continuing tort or violation has been explicitly defined “as involving ‘repeated instances or continuing acts of the same nature, as for instance, repeated acts of sexual harassment or repeated discriminatory employment practices.’” Walker v. United States, 2009 WL 3011626, at *4 (E.D. Cal. Sept. 17, 2009) (quoting Nesovic v. United States, 71 F.3d 776, 778 (9th Cir. 1995)). While the Ninth Circuit has validated the continuing tort doctrine in the context of the FTCA, Cato v. United States, 70 F.3d 1103, 1108-09 (9th Cir. 2009), its application is inapposite here. This is because “[a] continuing violation is occasioned by continual unlawful acts, not by continual ill effects from the original violation.” Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981) (emphasis added); see also Grimes v. City & Cty. of San Francisco, 951 F.2d 236, 238-39 (9th Cir. 1991) (“mere ‘continuing impact from past violations is not actionable’”). Here, Orozco’s Complaint fails to point to any continuing conduct or repeated actions or omissions that embody similar and discrete characteristics that might support a tolling of the statute of limitations via the continuing tort doctrine. In fact, one court explicitly rejected the continuing tort doctrine under similar circumstances when the plaintiff was detained and deported due to the Government’s alleged failure to properly investigate his citizenship. See Frontera v. United States, 2009 WL 909700, at *14-*15 (W.D.N.Y. Mar. 31, 2009). In Frontera, although the plaintiff alleged injuries that occurred over a period of approximately 12 years, the court found that his injuries “were, or should have been, known to him well before” the two-year statute of limitations expired. Id. at *7, *15. 8 Also known as a “continuing violation.” See, e.g., Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981). Case 3:16-cv-00546-AJB-BGS Document 22-1 Filed 04/24/17 PageID.117 Page 16 of 22 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Orozco knew of his alleged injuries back in 2005 when USCIS failed to investigate his claim of a stolen identity. (See Complaint, ¶¶ 17-19.) Orozco also knew he had not received a Green Card, and deportation orders remained on his record. Orozco also contends he was denied unemployment benefits and employment opportunities. Because he knew of his alleged injuries, he even attempted to gain assistance from Congressman Darrel Issa. (See Id., ¶23.) Under the circumstances, to the extent Orozco had any claims, they had accrued many years before he filed his administrative claim. See Walker, 2009 WL 3011626, at *6 (“FTCA claims accrue as a matter of federal law ‘when a plaintiff knows that he has been injured and who has inflicted the injury’”) (quoting Winter v. United States, 244 F.3d 1088, 1090 (9th Cir. 2001)). In sum, this Court should dismiss Orozco’s claims arising out of USCIS’s denial of his Green Card and failure to investigate his report of identity theft back in 2005. The Court should do so because the claims run afoul of the FTCA’s strict statute of limitations. See 28 U.S.C. § 2401(b). While Orozco’s allegations are unfortunate, “a statute of limitation ‘is not tolled by litigative timidity.’” Sisseton-Wahpeton Sioux Tribe v. United States, 895 F.2d 588, 595 (9th Cir. 1990) (quoting Welcker v. United States, 752 F.2d 1577, 1583 (Fed. Cir. 1985)). IV. OROZCO CANNOT RECOVER UNDER THE FTCA FOR HIS ARREST, DETENTION AND DEPORTATION DONE TO EFFECTUATE HIS REMOVAL A. 8 U.S.C. § 1252(G)’s Jurisdiction Stripping Language Deprives This Court Of Subject Matter Jurisdiction Over Orozco’s Claims Congress divested courts of jurisdiction over claims arising out of removal proceedings against non-citizens. Specifically, 8 U.S.C. § 1252(g) provides that 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. Case 3:16-cv-00546-AJB-BGS Document 22-1 Filed 04/24/17 PageID.118 Page 17 of 22 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 U.S.C. § 1252(g).9 Importantly, the Ninth Circuit has concluded that § 1252(g) is not limited to the issuance of removal orders by an immigration judge in formal administrative proceedings; instead, that section also reaches removal procedures initiated and executed by immigration officers without review by an immigration judge. Sissoko v. Rocha, 509 F.3d 947, 949 (9th Cir. 2007) (§ 1252(g) applies to decision to commence “expedited removal proceedings”); see also Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 599 (9th Cir. 2002) (decision of whether and when to commence deportation proceedings is covered by § 1252(g)’s jurisdiction-stripping provision). In this case, the specific mechanism by which Orozco was deported – a reinstatement of removal under 8 U.S.C. § 1231(a)(5) – falls within the jurisdiction-stripping provisions of § 1252(g) because it “is tantamount to ‘a decision to . . . execute a removal order’” and “also would seem to qualify as a ‘decision to . . . commence proceedings.’” Guerrero v. United States, 2008 WL 2523892, at *5 (C.D. Cal. June 20, 2008). In Guerrero, the court evaluated whether § 1252(g) precluded it from hearing an FTCA suit after the plaintiff’s prior removal order was reinstated and he was deported. The removal occurred even though the court had expressed an intention to declare the prior removal order invalid as a violation of Due Process. Id. Because the prior removal order was still valid at the time of the reinstatement, the plaintiff’s claims arose from the commencement of reinstatement proceedings or the execution of a reinstatement order. Id. Accordingly, the court determined § 1252(g) deprived it of jurisdiction to hear the plaintiff’s FTCA claims stemming from the reinstatement of a prior removal order even though the court was of the view that the order was invalid. Id. 9 While § 1252(g) references the Attorney General, the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, transferred almost all immigration-related authority to the newly formed Department of Homeland Security and its Secretary. Thus, any reference to the Attorney General is appropriately replaced by reference to the Secretary of the Department of Homeland Security. Case 3:16-cv-00546-AJB-BGS Document 22-1 Filed 04/24/17 PageID.119 Page 18 of 22 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Under the circumstances, § 1252(g) applies to Orozco’s claims notwithstanding his allegations of procedural or substantive error. Indeed, multiple courts have found that § 1252(g) strips courts of jurisdiction even in cases of detentions or deportations being performed contrary to statute or regulation, or otherwise erroneously. E.g. Kareva v. United States, 9 F. Supp. 3d 838, 842-45 (S.D. Ohio Mar. 27, 2014) (non-citizen detained pursuant to a non-final order of removal); Hodgson v. United States, 2014 WL 4161777, at *8 (W.D. Tex. Aug. 19, 2014) (deportation proceedings initiated against Canadian-born American Indian, a class that by treaty cannot be deported); Alcaraz v. United States, 2013 WL 4647560, at *2 (N.D. Cal. Aug. 29, 2013) (non-citizen deported notwithstanding stay to deportation required by statute); Nakamura v. United States, 2012 WL 1605055, at *5 (E.D.N.Y May 8, 2012) (non-citizen detained for immigration consequences of federal drug charges, notwithstanding those drug charges were being dismissed); MacDonald v. United States, 2011 WL 6783327, at *6 (S.D. Cal. Dec. 23, 2011) (Canadian-born American Indian was deported despite treaty barring such deportations). At least one case from this district has applied § 1252(g) to claims arising out of a decision to commence removal proceedings. See Pedroza v. Gonzalez, 2011 WL 883913, at *1 (S.D. Cal. Mar. 11, 2011). There, a non-citizen had been detained pursuant to deportation orders later found to be barred by res judicata. Although the deportation orders had no lawful basis, the court nonetheless concluded “[i]t is evident from these allegations that [Plaintiff Pedroza’s] claims fall squarely within Section 1252(g), as he challenges the very decision to commence proceedings against him.” Pedroza v. Gonzalez, 2010 WL 6052381, at *5 (S.D. Cal. Dec. 13, 2010) (Magistrate Judge’s Report and Recommendation) adopted by Pedroza v. Gonzalez, 2011 WL 883913 (S.D. Cal. Mar. 11, 2011), aff’d, Pedroza v. Gonzalez, 488 Fed. Appx. 270 (9th Cir. Nov. 22, 2012) (“The district court properly dismissed Pedroza’s action for lack of subject matter jurisdiction under 8 U.S.C. § 1252(g)”). When Congress enacted 8 U.S.C. § 1252(g), it intended to preclude federal courts from hearing civil suits concerning the decisions and actions of agents of the Department Case 3:16-cv-00546-AJB-BGS Document 22-1 Filed 04/24/17 PageID.120 Page 19 of 22 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of Homeland Security,10 such as those alleged in Orozco’s Complaint. Accordingly, the Complaint should be dismissed to the extent it alleges claims arising out of Orozco’s arrest, detention and deportation undertaken to execute the removal order. B. Orozco’s FTCA Claims Related To His Removal Should Be Dismissed Because The ICE Agents And Attorneys Involved In His Removal Are Protected By Absolute Prosecutorial Immunity The Supreme Court in Imbler v. Pachtman, 424 U.S. 409 (1976), surveyed the common-law history of the absolute immunity prosecutors enjoy from civil suits and confirmed that prosecutors are shielded from general tort liability as well as suits brought under 42 U.S.C. § 1983. Id. at 421-29. Indeed, “[t]he immunity is absolute, and is grounded on principles of public policy.” Id. at 422 (quoting Yaselli v. Goff, 12 F.3d 396, 406 (2d Cir. 1926)); see also Gobel v. Maricopa County, 867 F.3d 1203-04 (9th Cir. 1989) (“absolute immunity is warranted when the prosecutor acts as an advocate in initiating a prosecution and presenting the state’s case”) abrogated on other grounds by Merritt v. County of Los Angeles, 875 F.2d 765 (9th Cir. 1989). Absolute prosecutorial immunity is not limited to prosecutors in criminal cases. It also applies to government lawyers pursuing civil claims. Fry v. Melaragno, 939 F.2d 832, 837 (9th Cir. 1991) (applying prosecutorial immunity to IRS attorneys involved in tax court litigation); Flood v. Harington, 532 F.2d 1248, 1250-51 (9th Cir. 1976) (same); see also Read v. Haley, 650 Fed. Appx. 492, 494-95 (9th Cir. 2016) (affirming dismissal of claim against government attorney who participated in medical board administrative proceeding). Furthermore, prosecutorial immunity is not limited to government attorneys. The test for whether a non-attorney government agent is covered by prosecutorial immunity is a functional one, and, pursuant to that test, the Supreme Court has found that law enforcement officers may perform actions sufficiently prosecutorial in nature as to warrant absolute 10 See Note 2, supra, regarding statutory reference to the Attorney General and the contemporaneous authority of the Secretary of the Department of Homeland Security. Case 3:16-cv-00546-AJB-BGS Document 22-1 Filed 04/24/17 PageID.121 Page 20 of 22 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 immunity. See Buckley v. Fitzsimmons, 509 U.S. 259, 276 (1993) (“When the functions of prosecutors and detectives are the same, as they were here, the immunity that protects them is also the same”); Meyers v. Contra Costa Cty. Dep’t of Social Services, 812 F.3d 1154, 1157 (9th Cir. 1987) (child services worker absolutely immune for initiating and pursuing civil child dependency proceedings). Finally, although prosecutorial immunity most often serves as a defense to individual capacity claims against government employees, it also applies to FTCA claims against the United States. Doe v. United States, 829 F. Supp. 59, 60-61 (S.D.N.Y. 1993) (United States may raise the defense of prosecutorial immunity in an FTCA action); Doe v. Corrigan, 2007 WL 4365477, *4 n. 4 (N.D. Cal. Dec. 12, 2007) (FTCA claims may be subject to defense of absolute prosecutorial immunity); Buck v. Stewart, 2008 WL 901716, *4 (D. Utah March 31, 2008) (dismissal of FTCA claims based on prosecutorial immunity). Here, summary judgment should be entered as to Orozco’s claims to the extent they are premised on an alleged wrongful removal. The United States is immune because the ICE Officers who deported Orozco would be entitled to absolute prosecutorial immunity as officers of an administrative agency when they performed actions analogous to those of criminal prosecutors. See Butz v. Economou, 438 U.S. 478, 515 (1978). In Butz, the Court explained that “[t]e decision to initiate administrative proceedings against an individual . . . is very much like the prosecutor’s decision to initiate or move forward with a criminal prosecution” and, accordingly, “those officials who are responsible for the decision to initiate or continue a proceeding subject to agency adjudication are entitle to absolute immunity from damages liability for their part in that decision.” Id. at 515-16. ICE Officers are empowered by statute and regulation to reinstate prior orders of removal against non- citizens, clearly placing them within the class of officials that the Butz court contemplated would be protected by absolute prosecutorial immunity for their administrative actions. See id.; see also 8 U.S.C. § 1231(a)(5); 8 C.F.R. § 241.8. The Court’s analysis in Butz has also been specifically applied to immunize ICE officials from civil liability. See Partovi v. Beamer, 2011 WL 6300925, at *7 (D. Haw. Dec. Case 3:16-cv-00546-AJB-BGS Document 22-1 Filed 04/24/17 PageID.122 Page 21 of 22 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16, 2011) (“governmental agency members, such as ICE officials, who perform adjudicative functions are absolutely immune from suit concerning decisions made while undertaking that function”). The Partovi court evaluated a civil suit brought against an Immigration Judge and an ICE attorney involved in the plaintiff’s deportation and held that both were immune from civil liability because absolute immunity extends to federal administrative agency proceedings. Id., at *7-*8. Accordingly, this Court should grant partial summary judgment in favor of the United States on Orozco’s claims arising out of the commencement and execution of his removal, including his arrest and detention. V. CONCLUSION For the foregoing reasons, partial summary judgment should be granted as to the claims in the Complaint to the extent they are based on: (1) USCIS’s acts and omissions that occurred more than two years before Orozco filed his administrative claim, including those related to the processing of his Green Card and investigation of his identity theft allegation; and (2) Orozco’s arrest, detention and deportation to enforce the removal order. DATED: April 24, 2017 Respectfully submitted, ALANA W. ROBINSON Acting United States Attorney s/ Ernest Cordero, Jr. ERNEST CORDERO, JR. Assistant United States Attorney Attorneys for Defendant United States of America Case 3:16-cv-00546-AJB-BGS Document 22-1 Filed 04/24/17 PageID.123 Page 22 of 22 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ALANA W. ROBINSON Acting United States Attorney ERNEST CORDERO, JR. Assistant U.S. Attorney Cal. State Bar No. 131865 Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, CA 92101-8893 Telephone: (619) 546-7478 Facsimile: (619) 546-7751 Email: ernest.cordero@usdoj.gov Attorneys for Defendant United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA I, Ernest Cordero, Jr., declare as follows: I am an Assistant U.S. Attorney in the Southern District of California. I have primary responsibility for handling the above-referenced case on behalf of the United States. I have personal knowledge of all facts contained in this declaration. If called upon to do so, I could and would competently testify thereto. 1. Attached to the Notice of Lodgment of Exhibits in Support of Motion for Partial Summary Judgment are true and correct copies of excerpts taken from the deposition transcripts of Ernesto Orozco Cardona and Pedro Gomez. The excerpts have been labeled and bates numbered as follows: ERNESTO OROZCO CARDONA, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. Case No.: 16cv0546-AJB (BGS) DECLARATION OF ERNEST CORDERO, JR. IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT Date: June 29, 2017 Time: 2:00 p.m. Judge: Hon. Anthony J. Battaglia Courtroom: 4A Case 3:16-cv-00546-AJB-BGS Document 22-2 Filed 04/24/17 PageID.124 Page 1 of 2 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit Description Page Nos. A Excerpts from the Deposition of Ernesto Orozco Cardona taken January 19, 2017 001-006 B Excerpts from the Deposition of Pedro Gomez taken January 27, 2017 007-038 I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 24th day of April 2017. /s/ Ernest Cordero, Jr. ERNEST CORDERO, JR. Case 3:16-cv-00546-AJB-BGS Document 22-2 Filed 04/24/17 PageID.125 Page 2 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ALANA W. ROBINSON Acting United States Attorney ERNEST CORDERO, JR. Assistant U.S. Attorney Cal. State Bar No. 131865 Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, CA 92101-8893 Telephone: (619) 546-7478 Facsimile: (619) 546-7751 Email: ernest.cordero@usdoj.gov Attorneys for Defendant United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Defendant, United States of America, hereby submits its Notice of Lodgment of Exhibits in support of its Motion for Partial Summary Judgment. Exhibit Description Page Nos. A Excerpts from the Deposition of Ernesto Orozco Cardona taken January 19, 2017 001-006 B Excerpts from the Deposition of Pedro Gomez taken January 27, 2017 007-038 DATED: April 24, 2017 Respectfully Submitted, ALANA W. ROBINSON Acting United States Attorney s/ Ernest Cordero, Jr. ERNEST CORDERO, JR. Assistant U.S. Attorney ERNESTO OROZCO CARDONA, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. Case No.: 16cv0546-AJB (BGS) NOTICE OF LODGMENT OF EXHIBITS IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT Date: June 29, 2017 Time: 2:00 p.m. Judge: Hon. Anthony J. Battaglia Courtroom: 4A Case 3:16-cv-00546-AJB-BGS Document 22-3 Filed 04/24/17 PageID.126 Page 1 of 41 EXHIBIT A Case 3:16-cv-00546-AJB-BGS Document 22-3 Filed 04/24/17 PageID.127 Page 2 of 41 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ERNESTO OROZCO CARDONA, Plaintift., ' vs. Case No. 16CV0546-AJB (BGS) UNITED STATES OF AMERICA, Defendants. ______________ / DEPOSITION OF ERNESTO OROZCO CARDONA San Diego, California January 19, 2017 Reported By: Cynthia Denise Stires, CSR Certificate No. 4472 CERTIFIED COPY ~~H~~~~[ ~~rn~ COURT R[PURT[RS 001 Case 3:16-cv-00546-AJB-BGS Document 22-3 Filed 04/24/17 PageID.128 Page 3 of 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ernesto Orozco Cardona - 1/19/2017 they were looking at the pictures of other people. And then they asked me, what do you have to prove that you have this identity theft? And that's when I showed them my file -- my folder with all the tickets that I have resolved, the IRS cards that they've sent me, all the evidence that I had to prove that I had been a victim of identity theft. And that's the reason why they didn't arrest me there. And then they referred me to this -- this building I think, to the -- the deportation office. And that's when I filed my case before Officer Marissa Flores and I showed her. She also saw that I had several deportations with my green card number. And I tried to look in the computer but she didn't let me. My case was very simple. The only thing is that they needed to help me but they never helped me. took Q. A. That was in 2005? Yes. And also I showed her my folder. She she made copies. She brought me down in the elevator and she fingerprinted me. I think it was the detention center here because there were cells. And she fingerprinted me and she said that she was going to take care of my case, that the FBI would contact me to start an investigation, which never occurred. And whenever I called Marissa -- because she SHELBURNE SHERR COURT REPORTERS, INC. (619) 234-9100 www.sscourtreporters.com 45 002 Case 3:16-cv-00546-AJB-BGS Document 22-3 Filed 04/24/17 PageID.129 Page 4 of 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ernesto Orozco Cardona - 1/19/2017 Officer Gomez said that was -- that had been another deportation. And it's obvious that it was not true. Q. I understand that you can't give me an exact date as to when you had that last conversation with Marissa Flores. Do you recall if it was more or less than a year after you first went to the immigration office in 2005 to try to get your green card renewed? A. after. Maybe the last call was more than a year Was it less than two years? Q. A. I don't think so. Well, less than two years, yes. Q. Okay. So the last call you had with Marissa Flores, who you first saw in 2005, was sometime less than two years later? A. Q. Yes. At some point did you decide that Marissa Flores was never going to call you back? A. Yes. I even went to talk to an attorney and he would charge me $5,000 to take care of my case. And I didn't have the money. He didn't give me any installments to pay him and that's why ... Q. So you wanted to hire him to try to straighten out the problem with the green card? SHELBURNE SHERR COURT REPORTERS, INC. (619) 234-9100 www.sscourtreporters.com 48 003 Case 3:16-cv-00546-AJB-BGS Document 22-3 Filed 04/24/17 PageID.130 Page 5 of 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ernesto Orozco Cardona - 1/19/2017 A. Yes, exactly. Q. Do you remember about when you saw him? A. I don't remember, but it was after one year, two years. It was during that time. Q. So one to two years after 2005? A. Yes. Q. After you had your last conversation with Marissa Flores, did you have any more contact with any of the immigration authorities about trying to get your green card back? A. Q. A. No. Why not? I don't know. I never thought I needed it because I started working, you know, being self-employed. And like I told you before that my priorities started being my wife, because the transplant appointments that she had. That went to -- you know, it was my second priority or like on the back burner. I didn't have to show my green card to anybody to get work so ... Q. At some point did you decide that you wanted to try to get work with an employer and would need your green card? A. Friends who know me who are supervisors and know the problem that I have have always offered me SHELBURNE SHERR COURT REPORTERS, INC. (619) 234-9100 www.sscourtreporters.com 49 004 Case 3:16-cv-00546-AJB-BGS Document 22-3 Filed 04/24/17 PageID.131 Page 6 of 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ernesto Orozco Cardona - 1/19/2017 Declaration Under Penalty of Perjury I, Ernesto Orozco Cardona, declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct; that I have read my deposition and have made the necessary corrections, additions, or changes to my answers that I deem necessary. Executed on this day of ----- -------' 2017. Ernesto Orozco Cardona SHELBURNE SHERR COURT REPORTERS, INC. (619) 234-9100 www.sscourtreporters.com 115 005 Case 3:16-cv-00546-AJB-BGS Document 22-3 Filed 04/24/17 PageID.132 Page 7 of 41 REPORTER'S CERTIFICATE 1 2 I, CYNTHIA DENISE STIRES, Certified Shorthand Reporter, 3 in and for the State of California, Certificate Number 4472, 4 do hereby certify that the deponent was by me first duly sworn 5 to testify to the truth, and that the foregoing testimony was 6 reported by me in shorthand and was thereafter transcribed 7 with computer-aided transcription; that the foregoing is a a true, correct, and complete record of said proceedings. 9 I further certify that I am not in any way 10 interested in the outcome of the cause in said caption. 11 The dismantling, unsealing or unbinding of the 12 original transcript will render the Reporter's Certificate 13 null and void. 14 15 16 17 18 19 20 21 22 23 24 25 X Reading and signing was requested. Reading and signing was waived. Reading and signing was not requested. In witness whereof, I have hereunto set my hand 3