Darwish v. Pompeo, 18-CV-01370-LJV-MJR

CourtUnited States District Courts. 2nd Circuit. United States District Court of Western District of New York
Decision Date21 March 2022
Docket Number18-CV-01370-LJV-MJR
PartiesMOHAMMED DARWISH, Plaintiff, v. MICHAEL POMPEO, et al., Defendants.


MICHAEL POMPEO, et al., Defendants.

No. 18-CV-01370-LJV-MJR

United States District Court, W.D. New York

March 21, 2022



On November 29, 2018, the plaintiff, Mohammed Darwish, commenced this action under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101-1537; Bivens v. Six Unknown Agents, 403 U.S. 388 (1971); and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1), 2671. Docket Item 1. He alleges that when he was returning to the United States from Toronto, Canada, on July 18, 2016, defendant James Light unlawfully detained and questioned him at the border and defendant Andrew Lipkind wrongfully pursued removal proceedings against him. Docket Item 91 at ¶¶ 8, 11, 16-18. Both acts, he alleges, were based on two faulty premises: that Darwish was not a United States citizen and that he had been convicted of certain crimes. Id. at ¶¶ 12-14, 17-18.

Shortly after commencing this action, Darwish filed an amended complaint (“first amended complaint”) on December 7, 2018. Docket Item 17. The defendants then moved to dismiss the first amended complaint, Docket Item 42, but while that motion was pending, Darwish moved to file a second amended complaint, Docket Item 55.


Darwish also moved for an enlargement of time in which to serve the second amended complaint on defendants Light and Lipkind. Docket Item 69.

In the meantime, the case had been referred to United States Magistrate Judge Michael J. Roemer for all proceedings under 28 U.S.C. § 636(b)(1)(A) and (B). Docket Item 57. On August 19, 2020, Judge Roemer issued a Report and Recommendation (“R&R”) finding that Darwish's motion to file a second amended complaint, Docket Item 55, should be granted in part and denied in part and that Darwish's motion for an enlargement of time to serve defendants Light and Lipkind, Docket Item 69, should be granted. Docket Item 80. More specifically, Judge Roemer recommended that this Court permit Darwish to proceed on his Bivens claims against defendants Light and Lipkind and to replead his FTCA claims. Id. But Judge Roemer also observed that the proposed second amended complaint asserted no facts demonstrating that Darwish had exhausted his administrative remedies as required by the FTCA. Id. In the R&R, Judge Roemer therefore instructed Darwish to allege facts sufficient to demonstrate compliance with the FTCA's jurisdictional requirements in any second amended complaint. Id. On October 9, 2020, this Court adopted the R&R in full. Docket Item 85.

On November 16, 2020, Darwish filed his second amended complaint. Docket Item 91. In his second amended complaint, Darwish repeated his Bivens claims against Light and Lipkind for violations of his rights under the Fourth and Fifth Amendments and asserted an FTCA claim against the United States for malicious prosecution. Id. The defendants then moved to dismiss the second amended complaint. Docket Items 94-106. On March 26, 2021, Darwish responded, Docket Items 113-115, 117, and on April 28, 2021, the defendants replied, Docket Items 118-120.


Judge Roemer held oral argument, and the parties filed post-argument letters. Docket Items 121-123, 125-127. On August 3, 2021, Judge Roemer issued an R&R finding that (1) the defendants' motions to dismiss based on insufficient service of process should be denied;[1] (2) Darwish's FTCA claim against the United States should be dismissed without prejudice for lack of subject matter jurisdiction; and (3) Darwish's Bivens claims against Light and Lipkind should be dismissed in their entirety for failure to state a claim on which relief may be granted. Docket Item 128.

On August 27, 2021, Darwish objected to the R&R.[2] Docket Item 132. On October 6, 2021, the defendants responded, Docket Items 135-137, and on October 27, 2021, Darwish replied, Docket Items 138-140.

A district court may accept, reject, or modify the findings or recommendations of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). The court must review de novo those portions of a magistrate judge's recommendation to which a party objects. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3).

This Court has carefully and thoroughly reviewed the R&R; the record in this case; the objection, responses, and replies; and the materials submitted to Judge


Roemer. Based on that de novo review, the Court accepts and adopts Judge Roemer's recommendations to grant the defendants' motions to dismiss.


Darwish “was born [in] Jerusalem on April 4, 1962.” Docket Item 91 at ¶ 33. He entered the United States in 1980 as a legal permanent resident and now is a United States citizen. Id. at ¶ 2. On July 18, 2016, Darwish and his brother-in-law, Mohammed Mustafa, were returning to the United States after a short trip to Toronto when Customs and Border Protection (“CBP”) agents detained Darwish at a point of entry near Buffalo, New York. Id. at ¶¶ 8, 12, 35.

At that time, Darwish had applied for a United States passport and a certificate documenting his United States citizenship, and those applications were pending. Id. at ¶ 9. He informed the CBP agents about his applications, which would have been noted in CBP records. Id. In fact, CBP would have had proof that Darwish was a legal permanent resident. Id. at ¶ 10. Despite this, CBP Officer Light detained Darwish for more than twenty-four hours and confiscated Darwish's legal permanent resident card. Id. at ¶ 11.

During Darwish's detention and interrogation, Light accused Darwish of having criminal convictions, including a felony; said that Darwish was not a United States citizen; and questioned Darwish about his Muslim affiliations. Id. at ¶¶ 11-12, 14. For


example, Light asked Darwish about the number of wives Darwish had, about Darwish's association with the Muslim community, and whether Darwish belonged to a mosque. Id. at ¶ 37. Light never “advis[ed] [Darwish] of his right to counsel.” Id.

Darwish and his brother-in-law tried to explain to Light that Darwish, through his father, was a United States citizen and that Darwish did not commit any of the crimes Light referenced. Id. at ¶¶ 12-14. And Light would have had “direct access to governmental records showing that [Darwish] did not commit those crimes.” Id. at ¶ 38. But Light simply replied that he could “deport [Darwish] immediately” and repeatedly asked Darwish whether he “want[ed] to be deported.” Id. at ¶ 14.

Darwish's attorney also tried to explain to CBP that Darwish was, in fact, a United States citizen. The attorney called CBP's border crossing office and tried to provide evidence demonstrating Darwish's citizenship. Id. at ¶ 16. But CBP rebuffed counsel's efforts and said it would rely on only the records in its system. Id.

Eventually, CBP and Light released Darwish. Id. at ¶ 17. But they also issued Darwish an I-862 Notice to Appear (“NTA”), charging him with being removable based on criminal convictions. Id. Light knew that Darwish did not commit those crimes, but he nevertheless issued the NTA because of Darwish's “[M]uslim identity.” Id. at ¶¶ 77-78.

About a year later, in May 2017, Immigration and Customs Enforcement (“ICE”) Assistant Chief Counsel Lipkind issued a Form I-261, Additional Charges of Inadmissibility/Deportability, alleging that Darwish was removable based on crimes he did not commit. Id. at ¶ 18. Lipkind would have known that he was filing false charges


because the information available to him clearly established that Darwish did not commit those crimes. Id.

In fact, Darwish did not commit the crimes alleged in the NTA or the I-261; an individual named “Ali Darwish” committed the crimes. Id. (emphasis added). Neither the NTA nor the I-261 suggested that Darwish used the name “Ali Darwish.” Id. at ¶ 72.

After Darwish's counsel presented evidence to the Immigration Court proving that Darwish was not the person who committed the crimes, Lipkind withdrew the charges, and ICE moved to dismiss the NTA and to terminate removal proceedings. Id. at ¶¶ 19-20. On February 6, 2019, the Immigration Court granted that request and terminated the proceedings. Id. at ¶ 20. After waiting four years, Darwish finally received his United States passport in March 2019, id. at ¶ 22; later in 2019, he also received a certificate documenting that he had acquired United States citizenship on February 11, 1980, id. at ¶ 23.



Under Federal Rule of Civil Procedure 12(b)(1), this Court does not have subject matter jurisdiction when it lacks the “statutory or constitutional power to adjudicate [a case or controversy].” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Id. In reviewing a motion to dismiss under Rule 12(b)(1), the Court “must accept as true all material factual allegations in the complaint, but [courts] are not to draw inferences from the complaint favorable to


plaintiffs.” J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004) (citation omitted).


“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted...

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