Bogomazov v. United States Dep't of Homeland Sec.

• Decision Date: 27 February 2022
• Docket Number: 1:20-cv-24482-DPG/Becerra
• Court: U.S. District Court — Southern District of Florida
• Parties: VITALY VLADIMIROVICH BOGOMAZOV, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

VITALY VLADIMIROVICH BOGOMAZOV, Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

No. 1:20-cv-24482-DPG/Becerra

United States District Court, S.D. Florida

February 27, 2022

REPORT AND RECOMMENDATION^[1] ON DEFENDANTS' MOTION TO DISMISS

JACQUELINE BECERRA, UNITED STATES MAGISTRATE JUDGE.

THIS CAUSE came before the Court upon Defendants, the United States of America (the “United States”), the United States Department of Homeland Security (“DHS”), the United States Immigration and Customs Enforcement (“ICE”), Officer George Williams (“Williams”), and Officer Ralph Angulo's (“Angulo”) (collectively “Defendants”), Motion to Dismiss First Amended Complaint for Lack of Subject Matter Jurisdiction and Failure to State a Claim (the “Motion to Dismiss”). ECF No. [18]. Plaintiff Vitaly Vladimirovich Bogomazov (“Plaintiff”) filed a Response in Opposition (the “Response”), ECF No. [21], and Defendants filed a Reply in Support of their Motion (the “Reply”), ECF No. [22]. The Parties subsequently presented oral argument before the undersigned. ECF No. [28]. Upon due consideration of the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby RECOMMENDED that Defendants' Motion to Dismiss be GRANTED IN PART AND DENIED IN PART.

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I. BACKGROUND

Plaintiff is a Russian national who was lawfully admitted into the United States on a visitor's visa in July 2016. ECF No. [12] ¶ 34. In December 2016, Plaintiff filed an asylum application with the United States Citizenship and Immigration Services (“USCIS”), claiming that if he returned to Russia, he would be subject to prosecutorial persecution. Id. ¶ 35. In support of his asylum application, Plaintiff alleged that he and his wife were the founders of a company that “published a non-profit newspaper discussing different political situations in Russia, including the illegitimacy of the President, lack of an independent judicial system, corruption of the police and the authorities, annexing of the Crimea, the attack on Ukraine, and the incident of Nadezhda Savchenko's kidnapping.” Id. ¶ 36. Plaintiff alleges that he served as a “legal representative of victims who had suffered abuse from police and other authorities.” Id. ¶ 37. Plaintiff alleges that he and his wife have been the subjects of “fabricated politically motivated criminal investigations . . . but, at all times relevant . . . had never been formally charged with or convicted of a crime.” Id. ¶ 38. Plaintiff claims that he filed a petition for asylum after the Russian police department that fabricated a criminal investigation against him, beat and killed another detainee. Id. ¶ 39.

On December 14, 2016, Plaintiff received a letter from USCIS confirming receipt of the asylum application and stating that he “may remain in the U.S. until [his] asylum application [was] decided [and] [i]f [he] wish to leave while [the] application [was] pending, [he] must obtain advance parole from USCIS.” Id. ¶ 43. Moreover, Plaintiff alleges that in light of federal law and other considerations, “DHS policy has, since at least 2009, explicitly conferred an ‘authorized period of stay' on good faith asylum applicants.” Id. ¶ 42. In addition, on June 13, 2017, “USCIS issued Plaintiff an employment authorization with an expiration date of June 12, 2019, ” and as such, Plaintiff has been employed as a truck driver. Id. ¶¶ 44, 85.

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In January 2017, while his asylum application was pending, Plaintiff's authorized period of admission expired. Id. ¶ 40. In the interim, however, Plaintiff's daughter became a naturalized United States citizen. Id. ¶ 47. Thus, in November 2018, Plaintiff's daughter filed an immediate relative petition, which would enable Plaintiff and his wife to adjust their status to lawful permanent residents based on their daughter's citizenship status, irrespective of the expiration of the authorized period of stay. Id. ¶¶ 48-49. Plaintiff alleges that the sole question “before the USCIS was whether Plaintiff is her father, and whether the daughter is a U.S. citizen.” Id. ¶ 50.

One year later, on November 8, 2019, Plaintiff and his wife, appeared for their adjustment of status interviews at a Miami Field Office for USCIS with their daughter. Id. ¶ 53. After the adjustment of status interview concluded, ICE officers, Defendants Angulo and Williams, entered the interview room and arrested Plaintiff without a warrant. Id. ¶ 54. Although not part of the record in this case, Plaintiff alleges that the arrest report indicates, as a basis for removal, that Plaintiff unlawfully remained in the United States for a period longer than permitted because he overstayed his visa. Id. ¶¶ 56-57. Moreover, the arrest report allegedly states that Plaintiff was the target of an Interpol Blue Notice out of Russia on a manslaughter charge. Id. ¶ 61.^[2] The arrest report further indicated that Plaintiff did not have a criminal history in the United States, including

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any arrests or convictions. Id. ¶ 60. As to that first arrest, Plaintiff alleges that, at the time of the arrest, he was “lawfully admitted to the United States on a visitor visa, which had not been revoked, ” and had “remained in the United States in a period of stay explicitly authorized by DHS and had never been unlawfully present in the United States under federal law.” Id. ¶¶ 5-6. In short, Plaintiff alleges that he was arrested without probable cause. In addition, Plaintiff alleges that the Interpol's Blue Notice referenced in the arrest report contained various errors, failed to meet Interpol's criteria, should not have been published, and in any event, does not provide probable cause for an arrest in the United States. Id. ¶¶ 8, 62-70.

The Notice to Appear, charging Plaintiff with unlawfully remaining in the United States for a period longer than permitted, was served on Plaintiff while he was at the Krome Detention Center, and filed with the immigration court one week after the arrest. Id. ¶¶ 58, 72. Plaintiff states that at Krome, he was asked “to sign documents admitting he had violated immigration laws and facilitating his removal” but that he refused. Id. ¶ 72. Plaintiff also alleges that he “was housed on the second floor, forcing him to use stairwells, despite his multiple requests to be moved to the first floor on account of his lower back pain issues.” Id. ¶ 73. Ultimately, over one month later, on December 18, 2019, Plaintiff was released from Krome on a $12, 000 immigration bond based on the immigration judge's determination that the Interpol Blue Notice did not make Plaintiff a danger to the community or a flight risk. Id. ¶¶ 75-80.

On August 3, 2020, USCIS notified Plaintiff that he was required to appear for a second interview to adjudicate the immediate relative petition filed by his daughter. Id. ¶ 86. At that time, USCIS had already approved the petition his daughter had filed for her mother's benefit. Id. ¶ 82. In anticipation of the second interview, Plaintiff's daughter made “a written request to waive her father's appearance at the interview, citing ‘panic attacks' and other conditions which . . . he had

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developed as a result of being arrested at his last interview . . . .” Id. ¶ 89. Plaintiff also followed up with that request via certified mail. Id. ¶ 91. Although waivers of attendance for adjustment of status applicants are permitted, USCIS never responded to the waiver request. Id. ¶¶ 88, 92. Plaintiff alleges that the day before the interview, he visited an urgent care facility because he was experiencing “severe back pain.” Id. ¶ 93. The urgent care doctor “prescribed [Plaintiff] medicines and gave him an injection in his lower back along with a support belt that Plaintiff was instructed to wear at all times, and Plaintiff was instructed to avoid various forms of physical activity, including driving.” Id.

At 8:30 a.m. on September 23, 2020, the date of the second interview, Plaintiffs daughter, who was accompanied by an immigration attorney, appeared in-person at a USCIS Field Office and again requested a waiver of her father's appearance, authorization for her father to appear via teleconference, or that the interview be rescheduled. Id. ¶¶ 95-97. The USCIS officer, after consulting with supervisors, rejected the waiver request and the medical evidence submitted in support, and insisted that Plaintiff appear for the interview in person by 11:30 a.m. Id. ¶ 98. However, at approximately 9:48 a.m., Plaintiff was arrested by ICE agents outside of his condominium while he was headed to the USCIS interview. Id. ¶¶ 99- 101. Plaintiff states that the two officers approached him, one drew a firearm, and that they “made him exit his car, handcuffed him, searched his car, [] placed him under arrest without a warrant and without first reviewing his immigration file, ” and took him into custody. Id. ¶¶ 101-103, 120.

The Amended Complaint alleges that the arrest report states that: (1) Plaintiff unlawfully remained in the United States for a period longer than permitted because he overstayed his visa; (2) Plaintiff failed to appear for a USCIS interview scheduled for the previous day (although it appears that the USCIS interview was set to take place later that day); (3) Interpol issued a

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Diffusion Notice for Plaintiff on June 30, 2020; and (4) Plaintiff was the subject of an Interpol Red Notice out of Russia on a manslaughter charge (although Plaintiff alleges that “ICE and DHS misrepresented that a Red Notice had been issued for Plaintiff, when only a Diffusion had been issued”). Id. ¶¶ 106-08, 111, 157.^[3] The arrest report again indicated that Plaintiff did not have any criminal history in the United States. Id. ¶ 111. On the same day, ICE “arbitrarily cancelled” Plaintiff's previous $12, 000 “immigration judge-issued bond-not due to any breach, but for appearing to have been satisfied.” Id. ¶¶ 1, 109-10 (quotations omitted)...