Escobar v. Gaines, 3-11-0994

ANGEL ENRIQUE NUNEZ ESCOBAR, et al. v. LEE GAINES, et al.

NO. 3-11-0994

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

September 4, 2014

JUDGE CAMPBELL

MEMORANDUM

Pending before the Court, among other things, is the Federal Defendants' Motion for Summary Judgment (Docket No. 378). For the reasons stated herein, the Motion is DENIED.

INTRODUCTION

The Court assumes the reader is familiar with the facts alleged by the parties, which are in conflict, and will discuss the facts only as related to each issue. Plaintiffs have alleged claims against the Federal Defendants, who are all Immigration and Customs Enforcement ("ICE") officials, for violation of constitutional rights and conspiracy, pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 1985(3) and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The Federal Defendants¹ move for summary judgment on all Plaintiffs' claims.

SUMMARY JUDGMENT

Summary judgment is appropriate where there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Pennington v. State Farm Mut. Automobile Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009). The party bringing the summary judgment motion has the initial burden of informing the Court of the basis for its motion and identifying portions of the record that demonstrate the absence of a genuine dispute over materialfacts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). The moving party may satisfy this burden by presenting affirmative evidence that negates an element of the non-moving party's claim or by demonstrating an absence of evidence to support the nonmoving party's case. Id.

In deciding a motion for summary judgment, the Court must review all the evidence, facts and inferences in the light most favorable to the nonmoving party. Van Gorder v. Grand Trunk Western Railroad, Inc., 509 F.3d 265, 268 (6th Cir. 2007). The Court does not, however, weigh the evidence,judge the credibility of witnesses, or determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court determines whether sufficient evidence has been presented to make the issue of fact a proper jury question. Id. The mere existence of a scintilla of evidence in support of the nonmoving party's position will be insufficient to survive summary judgment; rather, there must be evidence on which the jury could reasonably find for the nonmoving party. Rodgers, 344 F.3d at 595.

SUBJECT MATTER JURISDICTION

The Court will first address the Federal Defendants' argument that the Immigration and Nationality Act ("INA") deprives this Court of jurisdiction to hear Plaintiffs' claims.² Two statutory provisions form the basis of Defendants' contentions.

8 U.S.C. § 1252(b)(9)

The INA provides: "Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken orproceedings brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section." 8 U.S.C. § 1252(b)(9).

As noted by another district court, courts are split on how far the INA's jurisdiction-stripping provisions extend. Diaz-Bernal v. Myers, 758 F.Supp.2d 106, 122 (D. Conn. 2010). In Diaz-Bernal, the court found that the only potential remedy for the plaintiffs' constitutional claims before the immigration judge was the suppression of evidence obtained from their allegedly illegal arrests. Id. at 123. Thus, the court said, the immigration judge could not have afforded the plaintiffs substantive relief on their constitutional claims, and jurisdiction was not barred by Section 1252(b)(9). Id.

Citing INS v. St. Cyr, 533 U.S. 289 (2001), the Third Circuit has held that because Section 1252(b)(9) is subject to the limitations of Section 1252(b),³ it applies only with respect to review of an order of removal under subsection (a)(1). Chehazeh v. Attorney General of the United States, 666 F.3d 118, 131 (3^rd Cir. 2012). "Section 1252(b)(9), therefore, requires only that, when there is an order of removal under subsection (a)(1), review of any issues related to that order must be consolidated into a single petition for review and cannot be brought piecemeal." Id.

The scope of Section 1252(b)(9) reaches only claims for judicial review arising from any action taken or proceeding brought to remove an alien. Hamdi v. Napolitano, 620 F.3d 615,626 (6^th Cir. 2010). The court in Hamdi stated "We . . . cannot endorse an interpretation of the 'arising from' language in § 1252(b)(9) that 'swallow[s] all claims that might somehow touch upon, or be traced to, the government's efforts to remove an alien.'" Id.

The First Circuit has read the words "arising from" in Section 1252 (b)(9) to exclude claims that are independent of, or wholly collateral to, the removal process. Among others, this includes claims that cannot effectively be handled through the available administrative process. Aguilar v. United States Immigration and Customs Enforcement Division, 510 F.3d 1, 11 (1^st Cir. 2007). The Aguilar court noted that other courts have demonstrated hostility toward requiring exhaustion when adequate relief could not feasibly be obtained through the prescribed administrative proceedings. Id. at 12. That court held that the plaintiffs' substantive due process claims were collateral to removal and, thus, outside the channeling mechanism of Section 1252(b)(9). Id. at 19.

On the other hand, another district court has found that Section 1252(b)(9) operated to bar Bivens claims by the plaintiffs because it found those claims directly arose from action taken or proceedings brought to remove an alien from the United States. Arias v. United States Immigration and Customs Enforcement Division, 2008 WL 1827604 at *6 (D. Minn. April 23, 2008).

Here, the Plaintiffs are seeking neither review of any orders of removal nor suppression of any evidence; rather, they are seeking monetary compensation for alleged constitutional violations. The Court finds that such claims are independent and collateral to the Plaintiffs' removal proceedings. The immigration judge cannot award money damages for constitutional violations. Therefore, the Court finds that 8 U.S.C. § 1252(b)(9) does not bar jurisdiction in this Court for Plaintiffs' claims against the Federal Defendants.

8 U.S.C. § 1252(g)

The INA also provides: "[n]o 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 commenceproceedings, adjudicate cases, or execute removal orders against any alien under this chapter." 8 U.S.C. § 1252(g).

The Supreme Court has held that this provision applies only to three discrete actions that the Attorney General may take: a decision or action to (1) commence proceedings; (2) adjudicate cases; or (3) execute removal orders. Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482 (1999). "It is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings." Id.⁴ Thus, the Supreme Court has rejected the interpretation that Section 1252(g) covers the universe of deportation claims or that it says there is no judicial review in deportation cases unless this section provides for judicial review. Id. "In fact, what § 1252(g) says is much narrower." Id.; see also Mustata, 179 F.3d at 1020.

The Reno Court listed examples of other decisions or actions that occur during the deportation process to which Section 1252(g) does not apply: decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order. Mustata, at 1021 (citing Reno).

In Diaz-Bernal, cited above, the court found that an allegedly unlawful entry and arrest did not commence removal proceedings. The decision to commence removal proceedings against the Plaintiffs was not made until after they had been the subject of the allegedly unlawful entry and detention. The court held that the alleged Fourth Amendment violations were separate from any decision to initiate removal proceedings. Therefore, the district court could hear the plaintiffs' constitutional claims. Diaz-Bernal, 758 F.Supp.2d at 124.

The Federal Defendants' Memorandum in Support of this Motion admits that the filing of a Notice to Appear (or other charging document) with the immigration court "initiates removal proceedings" against the alien. Docket No. 379, p. 128. The Federal Defendants' counsel stated at the hearing: "I don't believe just the fact that they are out there on that day knocking on doors commences the deportation, because there is nobody to commence it against at that point." Defendants' counsel further postulated that once there is reasonable suspicion that a person is an undocumented alien and the process is commenced to find out more facts, it becomes the first step in deportation proceedings.

As Plaintiffs' counsel points out, before this operation ("Knock and Talk," according to certain Defendants; "Raid," according to the Plaintiffs), the Federal Defendants had no specific information about these Plaintiffs, not even their names. The Federal Defendants could not have shown up with the intent to arrest and commence removal proceedings against these specific, named individual Plaintiffs. Whatever the definition of "commence proceedings," under either set of facts alleged by the parties herein, the actions of the Federal Defendants which are alleged by Plaintiffs to be unconstitutional were not commencing removal proceedings.

The Plaintiffs are not challenging the Attorney General's decision to commence removal proceedings...