690 F.3d 78 (2nd Cir. 2012), 11-61, Liranzo v. United States

Docket Nº:11-61.
Citation:690 F.3d 78
Opinion Judge:SACK, Circuit Judge:
Party Name:Viterbo LIRANZO, aka Viterbo Ignacio Liranzo Dicent, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Attorney:Lawrence K. Katz, Katz & Kreinces LLP, Mineola, NY, for Plaintiff-Appellant. James H. Knapp (Margaret M. Kolbe, Varuni Nelson, on the brief), Assistant United States Attorneys, of counsel, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Defenda...
Judge Panel:Before: SACK, RAGGI, and CHIN, Circuit Judges.
Case Date:August 09, 2012
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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690 F.3d 78 (2nd Cir. 2012)

Viterbo LIRANZO, aka Viterbo Ignacio Liranzo Dicent, Plaintiff-Appellant,

v.

UNITED STATES of America, Defendant-Appellee.

No. 11-61.

United States Court of Appeals, Second Circuit.

August 9, 2012

Argued: Jan. 30, 2012.

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[Copyrighted Material Omitted]

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Lawrence K. Katz, Katz & Kreinces LLP, Mineola, NY, for Plaintiff-Appellant.

James H. Knapp (Margaret M. Kolbe, Varuni Nelson, on the brief), Assistant United States Attorneys, of counsel, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Defendant-Appellee.

Before: SACK, RAGGI, and CHIN, Circuit Judges.

SACK, Circuit Judge:

In March 2006, plaintiff Viterbo Liranzo, a United States citizen, completed a term of incarceration in New York State prison for felony possession of a controlled substance. Before his release, United States Immigration and Customs Enforcement (" ICE" ) erroneously identified him as a permanent resident alien who had been convicted of a felony, which rendered him subject to removal.1 He was released to the custody of ICE and transported to a detention center in Louisiana pending removal. During removal proceedings in Louisiana, it was discovered that Liranzo is a U.S. citizen, and he was therefore released.

Thereafter, Liranzo brought the instant complaint in the United States District Court for the Eastern District of New York against the United States under the Federal Tort Claims Act (" FTCA" or the " Act" ) alleging, inter alia, that federal immigration officials had falsely arrested and

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imprisoned him. Following some two years of discovery, the matter was set for trial. But before trial began, the district court (Sandra J. Feuerstein, Judge ) granted the government's motion to dismiss the case for lack of subject matter jurisdiction because, the court concluded, there was no private analogue to the immigration detention suffered by plaintiff, as required for the Act to have worked a waiver of the United States' sovereign immunity from suit.

Inasmuch as we conclude that there is such an analogue, we reverse and remand for further proceedings. We affirm the district court's judgment insofar as it dismissed the plaintiff's Fourth Amendment claim, which he does not challenge on appeal.

BACKGROUND2

Liranzo's Citizenship

Plaintiff Viterbo Liranzo was born on May 10, 1955, in the Dominican Republic. He entered the United States as a lawful permanent resident in 1965 when he was ten years old. On February 24, 1972, pursuant to a Dominican divorce decree, the plaintiff's mother, Augustina Dicent, was awarded custody of Liranzo. On October 6, 1972, when Liranzo was sixteen years old, his mother became a naturalized U.S. citizen. Because he was a lawful permanent resident in his mother's custody when she was naturalized, and he was younger than eighteen years old at the time, Liranzo obtained derivative citizenship on that date under the immigration laws then in force. See Immigration and Nationality Act (" INA" ) § 321(a)(3), 8 U.S.C. § 1432(a)(3) (repealed 2000) (providing for derivative citizenship upon, inter alia, the " naturalization of the parent having legal custody of the child when there has been a legal separation of the parents" ).

Derivative citizenship under section 321 of the INA was " automatic; that is, when certain conditions exist[ed], a child bec[ame] a U.S. citizen even though neither parent, nor the child, ha[d] requested it." Lewis v. Gonzales, 481 F.3d 125, 131 (2d Cir.2007) (per curiam). Nonetheless, under that regime, the government did not issue a certificate of naturalization to children who obtained derivative citizenship until such a certificate was sought by the child or a parent.3 See 8 C.F.R. § 320.3. Thus, apparently because Liranzo did not know he had become a citizen, he continued to renew his " resident alien card" (or " green card" ) until the mid-1990s. Liranzo's last green card was effective through June 10, 2006. As a result of the renewals, at the time of the events in question, federal immigration records erroneously listed Liranzo as a lawful permanent resident rather than as a citizen.

Liranzo's New York State Conviction and Subsequent Immigration Detention

In approximately September 2005, Liranzo was convicted of criminal sale of a controlled substance in the fourth degree in violation of New York Penal Law section 220.34 for selling cocaine. He was incarcerated at the Nassau County Correctional

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Center (" NCCC" ) in East Meadow, New York. His term of incarceration was scheduled to end on or about March 17, 2006.

While Liranzo was serving his sentence, ICE agents identified him as a resident alien convicted of a drug felony through ICE's Criminal Alien Program. 4 ICE issued an immigration detainer to NCCC officials requesting that they release Liranzo only into ICE's custody so that he could be removed from the United States. See generally 8 C.F.R. § 287.7(a) (describing the nature and purpose of immigration detainers). Because of the detainer, Liranzo was held at the NCCC for approximately seven days beyond his projected release date.

According to Liranzo, he was interviewed by an ICE representative at the prison. Liranzo asserts that he told the ICE representative that he, Liranzo, was a United States Citizen. Liranzo also alleges that his sister spoke to another ICE representative and provided the representative with Liranzo's mother's naturalization papers.

On or about March 24, 2006, ICE took Liranzo into custody. ICE also served him with a Notice to Appear for removal proceedings, charging him as a removable alien who had committed an aggravated felony. He was first held in an ICE detention facility in Manhattan for some 23 hours, then taken to a facility in Freehold, New Jersey, where he was held for another seven days. Thereafter, he was transported to the Federal Detention Center at Oakdale, Louisiana.

Liranzo's removal proceedings, during which he was represented by counsel, began in Oakdale. On May 3, 2006, the proceedings were adjourned to allow Liranzo's attorney to gather documents for the purpose of substantiating Liranzo's claim to citizenship. On or about May 21, 2006, his attorney filed a motion to terminate the proceedings supported by Liranzo's birth certificate and his mother's naturalization certificate and divorce decree.

Thereafter, government officials investigated the validity of Liranzo's mother's divorce decree and her award of custody of Liranzo to determine whether he would have met the applicable requirements for derivative citizenship. These issues were determined in Liranzo's favor on or about June 21, 2006.

On June 30, 2006, ICE released Liranzo. He was taken to a bus terminal in Louisiana, where he arranged for his own transportation back to New York City. With ICE's consent, removal proceedings were formally terminated on or about July 20, 2006.

District Court Proceedings

After exhausting his administrative remedies by filing a claim with the Department of Homeland Security, Liranzo filed the instant complaint in the United States District Court for the Eastern District of New York against the United States on July 18, 2008. He sought five million dollars in damages for " false arrest and imprisonment" and other torts allegedly committed by government officials in connection

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with his immigration detention. On February 6, 2009, the United States answered the complaint, elliptically asserting as one of its defenses that Liranzo's claims were " subject to, and limited by," the FTCA. Am. Answer at 4, Liranzo v. United States, No. 08 Civ. 2940(SJF)(ARL) (E.D.N.Y. Feb. 6, 2009), ECF No. 9. After nearly two years of discovery, a bench trial was scheduled to begin on December 13, 2010. 5 No motion to dismiss was made, and no motions for summary judgment were made by either party.

Federal Rule of Civil Procedure 12(h)(3) provides that " [i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." FED. R. CIV. P. 12(h)(3); see also Weinstein v. Iran, 609 F.3d 43, 47 (2d Cir.2010) (" [S]ubject matter jurisdiction may be raised at any point...." ), cert. denied, __ U.S. __, --- S.Ct. ----, __ L.Ed.2d __, No. 10-947, 2012 WL 2368690 (June 25, 2012). On December 8, 2010, just five days before the scheduled start of the bench trial, the government submitted a letter motion seeking dismissal of the complaint for lack of subject matter jurisdiction. The government premised its motion on the defendant's sovereign immunity from suit based on the limited nature of the FTCA's waiver of that sovereign immunity. See Wake v. United States, 89 F.3d 53, 57 (2d Cir.1996) (" Absent a waiver, sovereign immunity shields the federal Government and its agencies from suit. Thus, sovereign immunity is jurisdictional in nature." ) (ellipsis, brackets, and internal quotation marks omitted). The waiver extends only to claims for which a private analogue exists— that is, the waiver extends only to claims that could be brought against a " private individual under like circumstances," 28 U.S.C. § 2674— permitting the government to be held liable only " 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," id. § 1346(b)(1).

The government's " chief legal argument" was that there was no private analogue to immigration detentions because " citizenship determinations and immigration matters are federal functions reserved to the federal government, and, ... because a private individual cannot engage in such determinations, the United States has not waived sovereign immunity on claims related thereto." Def.'s Reply Letter Br. at 1, Liranzo v. United States, No. 08 Civ. 2940(SJF)(ARL) (E.D.N.Y. Dec. 14, 2010), ECF No. 38 (" Def.'s...

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