Enriquez-Perdomo v. Newman

Decision Date22 July 2021
Docket Number20-6393
Parties Riccy Mabel ENRIQUEZ-PERDOMO, Plaintiff-Appellant, v. Ricardo A. NEWMAN, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Benjamin T. D. Pugh, PUGH & ROACH ATTORNEYS AT LAW, PLLC, Covington, Kentucky, for Appellant. Timothy D. Thompson, UNITED STATES ATTORNEY'S OFFICE, Louisville, Kentucky, for Appellees. ON BRIEF: Benjamin T. D. Pugh, Christopher D. Roach, PUGH & ROACH ATTORNEYS AT LAW, PLLC, Covington, Kentucky, Michael J. O'Hara, O'HARA, TAYLOR, SLOAN & CASSIDY, Crestview Hills, Kentucky, for Appellant. Timothy D. Thompson, UNITED STATES ATTORNEY'S OFFICE, Louisville, Kentucky, for Appellees.

Before: BATCHELDER, WHITE, and DONALD, Circuit Judges.

WHITE, J., delivered the opinion of the court in which DONALD, J., joined. BATCHELDER, J. (pp. –––– – ––––), delivered a separate dissenting opinion.

HELENE N. WHITE, Circuit Judge.

Plaintiff-Appellant Riccy Enriquez-Perdomo appeals the district court's dismissal of her claims against Defendants-Appellees United States Immigration and Customs Enforcement (ICE) officers Ricardo Newman, Joseph Phelps, John Korkin, and Shawn Byers (collectively, "Defendants"), brought under the First, Fourth, and Fifth Amendments to the United States Constitution. The district court dismissed Enriquez-Perdomo's complaint for lack of subject-matter jurisdiction under 8 U.S.C. § 1252(g). We AFFIRM the dismissal of Enriquez-Perdomo's First Amendment retaliation claim, VACATE the judgment with respect to her other claims, and REMAND for further proceedings consistent with this opinion.

I.
A. Factual Background

Enriquez-Perdomo is a Honduran national and resident of Florence, Kentucky. In August 2004, when Enriquez-Perdomo was nine years old, an immigration judge in Harlingen, Texas, ordered that she be removed to Honduras after she failed to appear at her removal hearing. The next month, on September 16, 2004, an Immigration and Naturalization Service (INS) official signed a warrant of removal/deportation. The INS directed Enriquez-Perdomo to report to Harlingen in October 2004, but never removed her.

In 2012, the Department of Homeland Security (DHS) instituted an immigration-relief program called Deferred Action for Childhood Arrivals (DACA). Under DACA, certain young immigrants may apply for a renewable two-year deferral of removal. DACA applies only to persons who immigrated to the United States when they were under the age of sixteen; were under the age of thirty-one in 2012; have continuously resided in the United States since 2007; are currently in school, have completed high school, have obtained a general-education-development certificate, or are honorably discharged veterans; have not been convicted of a felony, a significant misdemeanor, or multiple misdemeanors; and pose no threat to national security or public safety. DHS "exercis[es] its prosecutorial discretion" to defer removal under DACA "on an individual basis." R. 29-1, PID 152–53. The Secretary of Homeland Security's memorandum announcing DACA (the "DACA Memorandum") explained that "[a]s part of this exercise of prosecutorial discretion, the above criteria are to be considered whether or not an individual is already in removal proceedings or subject to a final order of removal." Id.

In March 2013, United States Citizenship and Immigration Services (USCIS) approved Enriquez-Perdomo for DACA. She renewed her DACA status in March 2015 and January 2017. As of the events giving rise to this lawsuit, Enriquez-Perdomo had DACA status that was active through January 30, 2019. DHS never terminated her DACA status.

On August 17, 2017, Enriquez-Perdomo went to an ICE office in Louisville, Kentucky, to post bond for ICE detainees. Enriquez-Perdomo's complaint alleges that during her visit, Defendants checked the government's database and confirmed that she had received DACA, but nevertheless arrested and detained her. According to the complaint, Defendants did not obtain a warrant for her arrest or inform her of the reason for her arrest. She claims that her arrest was motivated in part by her ethnicity and in part by her assistance of ICE detainees.1

Enriquez-Perdomo alleges that prior to her arrest, she had visited the ICE office frequently, was on a first-name basis with many of the ICE agents and staff, and had provided free interpretation services to ICE agents; that during her visits to that office, ICE agents, including Newman, had confirmed her immigration status; and that when Phelps, Korkin, and Byers arrested her, Newman informed them that there was no lawful basis to do so. Enriquez-Perdomo further alleges that Defendants transported her between several different facilities in three states and deprived her of sleep and food during her eight days in custody.

B. Procedural History

Enriquez-Perdomo sued Defendants in their individual capacities, asserting five claims for money damages under Bivens v. Six Unknown Federal Narcotics Agents , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) : (1) unconstitutional arrest and imprisonment under the Fourth Amendment, (2) unconstitutional pretrial detention under the Fourth Amendment, (3) First Amendment retaliation, (4) violation of due process under the Fifth Amendment, and (5) violation of equal protection under the Fifth Amendment.

Defendants filed a "motion to dismiss/motion for summary judgment" under Rules 12(b)(1), 12(b)(6), and 56 of the Federal Rules of Civil Procedure, arguing that 8 U.S.C. § 1252(g) deprived the court of jurisdiction to consider Enriquez-Perdomo's claims. They also asserted that Enriquez-Perdomo failed to state a claim because no Bivens remedy is available for the claims she asserts, and that Defendants are entitled to qualified immunity.2

Defendants submitted evidence to "challeng[e] the factual existence" of subject-matter jurisdiction. R. 20-1, PID 61. Newman submitted a declaration, asserting that on August 17, 2017, his office conducted searches in USCIS's "Computer-Linked Application Information Management System" (CLAIMS) and "Person Centric Query Service" (PCQS) databases, which revealed that Enriquez-Perdomo was "subject to an active removal order and warrant of removal and, further, did not have any current legal status." R. 20-4, PID 86. He also stated that he reviewed the CLAIMS, PCQS, and "ENFORCE Alien Removal Module" (EARM) databases, which "confirmed that [Enriquez-Perdomo] was subject to an existing removal order from 2004 and that her [DACA] expired in March 2017." Id. at PID 86–87. Newman asserted that he could not confirm that Enriquez-Perdomo had DACA status in his search of the databases. Id. at PID 87. He also claimed that he notified Enriquez-Perdomo that "she was being charged under 8 U.S.C. § 1182." Id. Newman further declared that after Enriquez-Perdomo was detained and transferred to Chicago for removal, "it was discovered that USCIS had begun inputting DACA information into the Electronic Immigration System (ELIS) [database,] and CLAIMS and PCQS no longer had the most up-to-date information." Id.

Korkin submitted declarations confirming that the CLAIMS, PCQS, Enterprise Document Management System, and Central Index System databases all failed to reveal that Enriquez-Perdomo had active DACA status. He asserted that he was not aware that USCIS had begun entering DACA information into ELIS, nor that the databases he searched had not been updated.

Enriquez-Perdomo opposed Defendants’ motion, submitting a declaration that conflicted with Newman's. Enriquez-Perdomo then filed a motion for a stay pending discovery under Rule 56(d) of the Federal Rules of Civil Procedure. The district court granted the stay, limiting discovery to the issue of subject-matter jurisdiction, and specifically to "(1) document discovery to obtain the electronic and other documents that Defendants relied upon in deciding to detain and transport [Enriquez-Perdomo] on August 17, 2017; (2) evidence regarding what information Defendants relied upon in deciding to detain and transport [Enriquez-Perdomo;] ... and (3) information regarding the authenticity of the warrant of removal/deportation." R. 37, PID 474.

After jurisdictional discovery, Enriquez-Perdomo filed a supplemental opposition to Defendants’ motion, attaching an expert declaration from Mark Lanterman, Chief Technology Officer of Computer Forensic Services. Lanterman stated that "Newman conducted a person and activity search of CIS, CLAIMS3, CLAIMS4, ELIS[,] and ELIS 2" on August 17, 2017, and Enriquez-Perdomo's DACA status was listed in the ELIS 2 database as of January 5, 2017. R. 60-2, PID 553–54.

In response, Defendants submitted a declaration from Jeffrey A. Wilson, the Unit Chief of the Information Technology Management for Enforcement and Removal Operations at ICE. According to Wilson, Newman conducted a search for Enriquez-Perdomo in the EARM database, which displayed "Yes" in the "Proceed With Removal" field. Wilson stated that the "Proceed With Removal" field was updated to "No" on August 30, 2017. Newman submitted another declaration clarifying the information that he reviewed. He asserted that he reviewed the EARM database, which listed Enriquez-Perdomo's "case category" as "8C," meaning "subject to a final order of removal"; listed her "processing disposition" as "Bag and Baggage," meaning that she had been ordered removed by an immigration judge; showed a "Current/Active Alert" indicating that she was "subject to a final order of removal and, if located, [she] should be detained and removed"; and displayed "Yes" in the "Proceed With Removal" field. R. 61-3, PID 583–84. Newman also declared that he did "not recall requesting [PCQS] to search [the ELIS or ELIS 2 databases] for information about ... Enriquez-Perdomo"; "[a]t the time that Ms. Enriquez-Perdomo was detained, [he] was unfamiliar with ELIS and ELIS 2"; and he "believed [that] CLAIMS and CLAIMS 2 contained the most up-to-date DACA information." Id...

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