Avalos-Palma v. United States

HERIBERTO AVALOS-PALMA, Plaintiff, v. UNITED STATES OF AMERICA; U.S. IMMIGRATIONAND CUSTOMS ENFORCEMENT OFFICER JOHN DOE(S), Defendants.

Civil Action No. 13-5481(FLW)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Dated: July 16, 2014

*NOT FOR PUBLICATION*

OPINION

WOLFSON, United States District Judge:

Defendants, the United States of America and United States Immigration and Customs Enforcement Officer John Doe(s) (collectively, "the Government" or "Defendants"), move to dismiss, pursuant to Federal Rule of Civil Procedure (12)(b)(1), Plaintiff Heriberto Avalos-Palma's claims brought under the Federal Tort Claims Act ("FTCA") for lack of subject matter jurisdiction. Plaintiff initiated this action by alleging that he suffered injuries as a result of his improper deportation from the United States, by Defendants, in 2008. In his Complaint, Plaintiff asserts claims of: (1) false imprisonment; (2) negligence; (3) intentional infliction of emotional distress; (4) negligent infliction of emotional distress; and (5) malicious prosecution and malicious use of process. Additionally, Plaintiff brings several claims under the U.S. Constitution alleging that Doe Defendants violated his Fourth and Fifth Amendment rights. For the foregoing reasons, Defendants' Motion is granted in part and denied in part as follows: the Court grants Defendants' Motion to Dismiss on Counts I and V, and denies Defendants' Motion to Dismiss on Counts II, III, and IV.

BACKGROUND

When subject matter jurisdiction is challenged under Rule 12(b)(1), the Court "must start by determining whether [it is] dealing with a facial or factual attack to jurisdiction. In reviewing a facial challenge, the Court must dismiss a plaintiff's claims if "the allegations on the face of the complaint, taken as true, [do not] allege facts sufficient to invoke [its] jurisdiction." Licata v. U.S. Postal Serv., 33 F.3d 259, 260 (3d Cir. 1994). Therefore, in order to address the Government's 12(b)(1) Motion, the Court will look to the face of Plaintiff's Complaint and take its allegations as true.

Mr. Avalos-Palma is a native of Guatemala who entered the United States without inspection on or about April 14, 1991. See Complaint at ¶¶ 12-13. As a result, on April 15, 1991, the U.S. Immigration and Naturalization Service ("INS") commenced deportation proceedings against Avalos-Palma. Id. at ¶ 14. The Los Angeles Immigration Court subsequently sent Avalos-Palma notice of a hearing scheduled for May 30, 1991; however, the notice was returned as undeliverable and Avalos-Palma never received notice of the hearing. Id. at ¶¶ 15-17. Consequently, Avalos-Palma failed to appear at his May 30, 1991 hearing, at which time an Immigration Judge ordered him deported in absentia. Id. at ¶¶ 18-19. From 1991 to 2008, Avalos-Palma remained in the United States and had two children with his partner, Alis Barrera. Id. at ¶¶ 20, 25. During this period, he was authorized as work-eligible and worked as a foreman for a landscaping company in Pennington, New Jersey. Id. at ¶ 24.

On November 17, 2008, agents of U.S. Immigration and Customs and Enforcement ("ICE") took Avalos-Palma from his home in Trenton and placed him in their custody pursuant to the May 30, 1991 deportation order. Id. at ¶¶ 6, 26. Subsequently, on December 10, 2008, Avalos-Palma's immigration counsel filed a motion to reopen deportation proceedings before anImmigration Judge. Id. at ¶ 27. In particular, Avalos-Palma asserted that the filing of a motion to reopen an in absentia deportation order, based upon lack of notice concerning the hearing that led to the deportation order, automatically stays the deportation under 8 U.S.C. § 1229a(b)(5) and 8 C.F.R. § 1003.23(b)(1)(v), (b)(4)(iii)(C). Id. at ¶ 28. Despite the continued pendency of his motion to reopen, ICE agents, without advising Plaintiff's counsel or providing Plaintiff with the opportunity to consult with counsel, deported Avalos-Palma from the United States to Guatemala on December 11, 2008, in violation of the mandatory stay. Id. at ¶¶ 31-32.

In response to his improper deportation, Avalos-Palma's immigration counsel continued to litigate on his behalf. In particular, his counsel challenged the 1991 deportation order and asserted various defenses and grounds for relief from his deportation. Id. at ¶¶ 33-34. However, on October 16, 2009, an Immigration Judge denied all of Avalos-Palma's requests for relief, ruling, in part, that the Immigration Court did not have jurisdiction to consider pleadings submitted on Plaintiff's behalf because Avalos-Palma was no longer in the United States. Id. at ¶ 35. In doing so, the Immigration Judge effectively upheld the improper deportation of Avalos-Palma. Subsequently, Avalos-Palma's counsel appealed that decision to the Board of Immigration Appeals ("BIA"). Id. at ¶ 36. Almost two years later, on September 23, 2011, the BIA granted Avalos-Palma's appeal, finding that his 2008 deportation was an unlawful violation of the mandatory stay required under 8 C.F.R. § 1003.23(b)(4)(iii)(C). Id. at ¶ 37. The BIA vacated Avalos-Palma's removal order and ordered the reopening of his deportation proceedings. Id. at ¶ 38. As far as the record currently indicates, those proceedings remain open. On June 2, 2012, approximately 42 months after the improper deportation, ICE agents effectuated Avalos-Palma's return to the United States. Id. at ¶ 41.

On March 22, 2013, within two years of the BIA's decision, Avalos-Palma submitted an Administrative Tort Claim ("SF-95") to the U.S. Department of Homeland Security ("DHS"). Id. at ¶ 4. Avalos-Palma alleged that he had suffered physical injury, emotional distress, and financial and liberty losses as a result of his deportation. Id. at ¶ 49. In particular, Avalos-Palma claimed that he feared he would never return to the United States and that he was permanently separated from his family, that he suffered financial harms because he was unable to secure employment while in Guatemala, that his inability to provide for his family and fear for the economic and physical security of his children caused him emotional distress, and that he suffered sleeping problems, digestive problems, and persistent headaches. Id. at ¶¶ 45-49. That claim was denied on August 13, 2013. Id. at ¶ 4. Thereafter, Avalos-Palma filed the instant action in September 2013.

Counts I through V of Avalos-Palma's Complaint raise various tort claims - brought pursuant to the FTCA - against the United States of America. In Count I, Avalos-Palma avers that Defendants are liable for false imprisonment as a result of their actions in deporting him from, and preventing his re-entry to, the United States. See Complaint at ¶¶ 51-55. In Count II, Avalos-Palma brings a negligence claim asserting that Defendants had a duty not to deport him in violation of the mandatory stay, and that this duty was breached through his deportation. Id. at ¶¶ 56-60. Under Count III, Avalos-Palma alleges that Defendants' actions in deporting him and preventing his re-entry constitute intentional infliction of emotional distress. Id. at ¶¶ 61-65. Alternatively, in Count IV, Avalos-Palma brings a related claim for negligent infliction of emotional distress. Id. at ¶¶ 66-68. Finally, Avalos-Palma brings malicious prosecution and malicious use of process claims against Defendants in Count V, alleging that his deportation was a separate proceeding that the Government instituted against him with malice. Id. at ¶¶ 69-74.In that regard, Avalos-Palma argues that the BIA's determination that deportation was improper was a favorable termination of this proceeding. Id. at ¶ 71.

The Government moves to dismiss Plaintiff's FTCA claims pursuant to Federal Rule of Civil Procedure (12)(b)(1) for lack of subject matter jurisdiction on three grounds: (1) Avalos-Palma's claims are time-barred by the two-year statute of limitations for FTCA actions under 28 U.S.C. § 2401(b); (2) Congress barred judicial review of Avalos-Palma's FTCA claims in 8 U.S.C. § 1252(g); and (3) Avalos-Palma fails to identify a private analogue for his FTCA claims as required under 28 U.S.C. §§ 1346(b)(1), 2674.¹

DISCUSSION

Plaintiff's tort claims against the United States of America are governed by the FTCA, 28 U.S.C. §§ 1346(b), 2401, 2671, et seq. "In 1946, Congress passed the FTCA, which waived the sovereign immunity of the United States for certain torts committed by federal employees." F.D.I.C. v. Meyer, 510 U.S. 471, 475-76 (1994) (citing 28 U.S.C. § 1346(b)). Thus, a claimant may bring an action for money damages against the United States, provided that the claimant has first exhausted administrative remedies by presenting his claim to the appropriate federal agency. See 28 U.S.C. § 2675(a); McNeil v. United States, 508 U.S. 106, 113 (1993). If the agency denies the administrative claim, as the DHS did here in August 2013, the claimant "may file an action on her claim in a district court." Santos ex rel. Beato v. United States, 559 F.3d 189, 193 (3d Cir. 2009) (discussing 28 U.S.C. §§ 2675(a), 2672).

I. Statute of Limitations under the FTCA

Under 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 . . . ." 28 U.S.C. § 2401(b). In order to maintain Congress' intent to have a "single statute of limitations govern all tort claims asserted against the United States," federal law governs when a claim accrues under the FTCA. Tyminski v. United States, 481 F.2d 257, 262-63 (3d Cir. 1973). The Supreme Court has cautioned courts to construe the limitations provision in 28 U.S.C. § 2401(b) narrowly because the FTCA "waives the immunity of the United States," and courts should not take it upon themselves "to extend the waiver beyond that which Congress intended." United States v. Kubrick, 444 U.S. 111, 117-18 (1979). Thus, courts are "not free to construe it so as to defeat its obvious...