Gani v. State
| Decision Date | 03 March 2014 |
| Docket Number | No. 115760.,115760. |
| Citation | 2014 N.Y. Slip Op. 24108,44 Misc.3d 740,988 N.Y.S.2d 411 |
| Parties | Haluk GANI, Claimant, v. The STATE of New York, Defendant. |
| Court | New York Court of Claims |
OPINION TEXT STARTS HERE
Levine & Blit, PLLC by: Parveen Husain, Esq., for Claimant.
Eric T. Schneiderman, New York State Attorney General, By: Suzette C. Rivera, Assistant Attorney General, for Defendant.
Claimant Haluk Gani commenced this action by claim filed August 29, 2008, in which he alleges that he came to the United States to attend SUNY Maritime College (“SUNY Maritime”), but his application to obtain legal status as a student was rejected by the United States Citizenship and Immigration Services (“USCIS”) because of errors made by school officials, and in particular by International Student Coordinator Natalie Caesar. Specifically, Gani alleges that Caesar compiled and sent his application to adjust his status to that of student via DHL Express shipping on November 30, 2006, but when Gani followed up on the progress of the package DHL had no record of the tracking number (Claim ¶¶ 15–16). Ultimately, Caesar informed Gani in an e-mail that USCIS had received his application, and she provided him with a file number that she believed was associated with that application. That statement proved erroneous, however, as the application had in fact never been received, and the file number merely identified the record of Caesar's call ( id. ¶¶ 19–20). Gani ultimately submitted a second application to USCIS, but that was denied, along with subsequent applications to reopen and reconsider ( id. ¶¶ 25, 26 and 30).
The claim further alleges that the change of status denial was based on Gani's violation of “applicable immigration rules,” which took place through no fault of his own ( id. ¶ 27). Although the claim does not so state, the evidence at trial made clear that the referenced violation was Gani's taking of classes during the pendency of his application to obtain status as a student. This act, it turned out, was in violation of immigration law, but he contends was undertaken based on Caesar's erroneous advice.
On the basis of the foregoing, claimant maintains that defendant State of New York “owed Gani a duty of care springing from a relationship of trust or confidence” ( id. ¶ 33), Gani had a concomitant right to rely on the State's representations ( id. ¶ 34), and the State damaged Gani by making “repeated fraudulent representations” about his immigration application on which Gani relied to his detriment ( id. ¶ 35). Specifically, claimant asserts that “solely as a result of the negligence of the defendant[ ] ... Gani was denied his application to change his visa status to an F1 student visa” ( id. ¶ 37), and thereby became ineligible “to complete a post-graduate academic degree at SUNY Maritime College” ( id. ¶ 38).
The claim states that the “full nature and extent” of Gani's injuries were unknown at the time of its filing ( id. ¶ 39). As set forth in more detail below, claimant acknowledged at trial that he was, in the end, able to graduate from SUNY Maritime, and through marriage to obtain United States citizenship. He nevertheless asserts, at trial and in his posttrial submissions, that he was harmed by defendant's conduct, since he was unable to accept a job offered to him during the time he was without legal status in the United States.
The State interposed its answer, which raised as its fifth affirmative defense that “[d]efendant through its agents and/or employees took actions which were privileged as being discretionary determinations made by such agents or employees while acting within the scope of their duties as public officials, and therefore defendant is immune from any liability for such actions” (Answer ¶ 12).
A liability trial on this matter was conducted on August 14 and 15, 2013. At trial, claimant presented his own testimony, as well as the deposition transcripts of Caesar, SUNY Maritime Provost Dr. Joseph Hoffman, and Dr. Larry Howard, the Chair of the SUNY Maritime Department of Global Business and Transportation and Caesar's direct supervisor. For its part, defendant called Caesar to testify on its behalf, and both parties submitted various documentary exhibits. The facts adduced at trial are summarized below, with differences in the witnesses' accounts noted.
Gani is a Turkish national who obtained a B1/B2 temporary visa to visit the United States from the United States Consulate in Turkey in September 2005 (Cl.Ex.11).1 Under that visa, he first came to this country in September 2006 ( see Def. Ex. E). The visa allowed him to stay in the United States only until March 20, 2007 (Trial Transcript (“Tr.”) 28; Cl. Ex. 7 at 16).
In November 2006, claimant visited SUNY Maritime with a friend who attended the university. During the visit, he met with Caesar, who served as the International Student Coordinator and Principal Designated School Officer 2 (“PDSO”). Gani testified that he understood Caesar's role to involve “enroll[ing] the international students ... [and] arrang[ing] everything for their enrollment” (Tr. 14). For her part, Caesar identified a PDSO's tasks to primarily include signing off on international students' documentation relevant to their immigration status (Caesar Dep. 30). She acknowledged that the PDSO also was responsible for understanding the relevant provisions of the Code of Federal Regulations (Tr. 134). Caesar, however, was not (and is not) an attorney (Tr. 173).
Gani met Caesar a second time on November 29, 2006, on which occasion she assisted him with his application for the school, and provided him with an acceptance letter (Tr. 16; Cl. Ex. 6). Gani then had two options to obtain legal status as a student in the United States: first, he could return to Turkey and apply for an F–1 student visa at the United States Consulate there (Tr. 103),3 or second, he could remain in the United States and file an I–539 application (“Application To Extend/Change Nonimmigrant Status”) to adjust his status to that of a full-time F–1 student 4 (Tr. 104, 107).
In either case, the student must first obtain a document known as a Form I–20 from the school he or she will attend, based on a showing that the student has the financial wherewithal to support his studies without becoming a ward of the state (Tr. 103, 115). According to Gani, Caesar did not give him the entire form required to request an I–20, but only certain pages thereof on which he had to provide information and his signature, while Caesar filled out the rest (Tr. 18–19, 41, 49–50). For her part, Caesar testified that Gani filled out the I–20 application except for one part left blank, and she then entered that information into the “ “Student & Exchange Visitor Information System,” the computer system employed by USCIS, and by which the actual I–20 document was prepared (Tr. 113, 130–32).
According to Gani, Caesar explained that it was possible for him to enroll at the school and start his studies towards a master's degree while his application to change his immigration status to an F–1 student was pending (Tr. 15, 22). While Caesar did not specifically admit having given such advice, 5 she acknowledged that at the time, she wrongly believed the relevant federal rule allowed foreign students to take classes while awaiting decision on their I–539 application ( see Caesar Dep. 162). In fact, however, an interim rule promulgated by USCIS in 2002 changed that policy, and forbade students temporarily present in the United States pursuant to a B1/B2 visa from taking classes until their new status was approved ( see Cl. Ex. 23).
Gani signed his I–539 application on November 30, 2006. In it, claimant stated that he wanted to begin his classes in the Spring of 2007, and certified that he sought “to enter or remain in the United States temporarily, and solely for the purpose of pursuing a full course of study” at SUNY Maritime, after which he would “continue [his] career in [his] own country” (Cl. Ex. 7 at 1, 18–19); see also Tr. 63 [] ).
Caesar stated that Gani was also given an informational packet (Tr. 111–12). Instructions relating to the I–20 form were introduced into evidence, and contained the following statement:
“If you use a B visa to enter the U.S., you are saying I'm here as a visitor' only. Since you contacted our school about study, this would be viewed as a fraudulent entry' and you could be refused permission to stay longer than six months or to extend or change your status. Do not listen to people who say it is easy to enter the country as a visitor and change your status. It is not true! B visitors are prohibited by U.S. law from pursuing a full course of study prior to obtaining a change of status to F–1 student ” (Cl. Ex. 3 at 2).
These instructions further indicated that the applicant is “not permitted to work off campus or to engage in business without specific employment authorization” (Cl. Ex. 7 at 2).
Gani stated, however, that he had never seen the I–20 background packet (Tr. 188). Further, Howard testified at his deposition, that handouts given to international students were revised regularly (Howard Dep. 32), and Caesar acknowledged that she did not know if the document was prepared subsequent to Gani's attendance at SUNY (Tr. 180, 182).
Caesar informed Gani that she would submit his I–539 application to USCIS via DHL (Tr. 24), which she did as a matter of practice. At her deposition, she agreed that the school “accepted the responsibility to send in students' I–20 and I–539 forms into USCIS....” (Caesar Dep. 46–47). She testified, however, that it was the student's obligation to follow up with USCIS to ensure that the submission is received ( id. 47; see also Tr. 119 [] ). At trial, she stated that SUNY performed the mailing only as a “courtesy,” because of...
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