Guardado v. U.S.

• Decision Date: 30 September 2010
• Docket Number: No. 1:10cv151 (JCC).,1:10cv151 (JCC).
• Citation: 744 F.Supp.2d 482
• Parties: Julian GUARDADO, Plaintiff,v.UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

744 F.Supp.2d 482

Julian GUARDADO, Plaintiff,

v.UNITED STATES of America, et al., Defendants.

No. 1:10cv151 (JCC).

United States District Court, E.D. Virginia,Alexandria Division.

Sept. 30, 2010.

Ivan Yacub, Yacub Law Office, Falls Church, VA, for Plaintiff.Dennis Carl Barghaan, Jr., United States Attorney's Office, Alexandria, VA, for Defendants.

MEMORANDUM OPINION

JAMES C. CACHERIS, District Judge.

This case involves a suit for money damages by a Salvadorian national who claims he was improperly removed from the United States. Defendants move to dismiss or for summary judgment for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), and for lack of a genuine dispute of material fact pursuant to Federal Rule of Civil Procedure 56(c). For the following reasons, the Court will grant Defendants' Motion.

I. Background

A. Statutory Background

In 1991, a class action settlement known as the “ABC Settlement” resulted in certain benefits for Salvadoran class members, including the right to reapply for asylum and the right to remain in the U.S. during the asylum application period. American Baptist Churches v. Thornburgh, 760 F.Supp. 796 (N.D.Cal.1991) (“ABC”). Class members subsequently apprehended entering the United States, however, are inapplicable for benefits. Id. at 800.

In 1997, Congress enacted the Nicaraguan Adjustment and Central American Relief Act (“NACARA”), Pub.L. 105, 100, 111 Stat. 2193 (1997), among other things permitting ABC class members to apply for suspension of deportation so long as they were not apprehended reentering the U.S. after December 19, 1990. Congress supplemented NACARA in 2000 by passing the LIFE Act Amendments, providing that aliens cannot be barred from seeking cancellation of removal simply because of reinstatement of prior removal orders under the Immigration and Naturalization Act (which provides for automatic reinstatement of prior removal orders where aliens reenter the U.S. illegally). Pub.L. 106–554, § 1505(c) (Dec. 21, 2000). To take advantage of this provision, Salvadoran ABC class members were required to file any motion to reopen a prior removal by October 16, 2001, 8 C.F.R. § 1003.43(f)(1), and must not have been apprehended at re-entering the U.S. after December 19, 1990, 8 C.F.R. § 1003.43(d)(1).

B. Factual Background

This matter arises from events surrounding Plaintiff Julian Guardado's (“Plaintiff”) 2008 removal from the United States to his native country of El Salvador. Plaintiff entered the U.S. on or about April 16, 1990, lacking proper documentation. (Compl. ¶ 6; MSJ at 5 ¶ 1, Ex. 1.) On April 19, 1990, the Immigration and Naturalization Service (“INS”) assigned him Alien Number A70409876, initiated deportation proceedings, and issued an order to show cause. (Compl. ¶ 6; MSJ at 5 ¶ 1, Ex. 1.) On July 9, 1990, after failing to appear at his hearing on that order, the presiding Immigration Judge ordered Plaintiff's deportation. (MSJ at 6 ¶ 2, Ex. 2.) But Plaintiff did not leave the U.S. at that time. (Compl. ¶ 8; MSJ at 6 ¶ 2.)

Defendants allege that sometime before March 8, 1994, Plaintiff was apprehended “near the port-of-entry at San Ysidro, California,” but identified himself to Border Patrol agents as “Gabriel Hernandez Flores,” receiving a different alien number of A72991336 and another order to show cause at a later hearing. (MSJ at 6 ¶ 3.) Defendants further allege that Plaintiff did not appear at that hearing. Id.

Plaintiff was again apprehended attempting to enter the United States on September 2, 1998, this time being stopped at or near San Luis, Arizona, and providing his correct name. (MSJ at 7 ¶ 5, Exs. 5, 6.) The INS subsequently reviewed Plaintiff's ABC eligibility, finding him ineligible because he was “apprehended at the time of entry after December 19, 1990.” (MSJ at 7 ¶ 5, Ex. 6.)

Nonetheless, Plaintiff remained in the U.S. and in 2001 applied for TPS status, which was granted on October 18, 2002, for some reason under a third alien number (A94414668). (MSJ at 7 ¶ 6, Ex. 8.)

Plaintiff was subsequently arrested and convicted twice for driving under the influence of alcohol. (MSJ at 7 ¶ 7.) As a result, United States Citizenship and Immigration Services (“USCIS”) informed Plaintiff on July 25, 2008, that his TPS status had been revoked. (MSJ at 7 ¶ 7, Ex. 8.) A warrant issued on August 1, 2008, for Plaintiff's removal from the U.S. and Plaintiff was removed on September 8, 2008. (MSJ at 7–8 ¶ 8, Ex. 9.)

Plaintiff filed suit on February 19, 2010, seeking monetary relief against the United States and against Immigrations and Customs Enforcement (“ICE”) officer William Allen in his individual capacity. His claims against the United States include assault (Count 1), battery (Count 2), and false imprisonment (Count 3). (Compl. at 7–8 ¶¶ 19–21.) His Claims against Officer Allen include deprivation of access to the courts in violation of the Due Process Clause (Count 1), deprivation of the first amendment right to petition the government to redress grievances via access to the courts (Count 2), battery (Count 3), assault (Count 4), and unreasonable seizure (Count 5).

Defendants moved to dismiss or for summary judgment on August 19, 2010. [Dkts. 9–11.] Plaintiff responded in opposition on September 7, 2010 (“Resp.”). [Dkt. 16.] And Defendants submitted a reply on September 17, 2010 (“Reply”). [Dkt. 19.] Defendants' Motion to Dismiss or for Summary Judgment (“MTD”) is currently before the Court.

II. Standard of Review

A. Motion to Dismiss—Rule 12(b)(1)

Pursuant to Rule 12(b)(1), a claim may be dismissed for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Defendants may attack subject matter jurisdiction in one of two ways. First, defendants may contend that the complaint fails to allege facts upon which subject matter jurisdiction may be based. See Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). In such instances, all facts alleged in the complaint are presumed to be true. Id. Alternatively, defendants may argue that the jurisdictional facts alleged in the complaint are untrue. Id. In that situation, “the Court may ‘look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.’ ” Virginia v. United States, 926 F.Supp. 537, 540 (E.D.Va.1995) (quoting Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir.1993)); see also Adams, 697 F.2d at 1219; Ocean Breeze Festival Park, Inc. v. Reich, 853 F.Supp. 906, 911 (E.D.Va.1994). In either case, the burden of proving subject matter jurisdiction falls on the plaintiff. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Adams, 697 F.2d at 1219.

B. Motion to Dismiss—Rule 12(b)(6)

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. See Randall v. United States, 30 F.3d 518, 522 (4th Cir.1994). In deciding such a motion, a court must first be mindful of the liberal pleading standards under Rule 8, which require only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8. A court must take “the material allegations of the complaint” as admitted and liberally construe the complaint in favor of a plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969).

While Rule 8 does not require “detailed factual allegations,” a plaintiff must still provide “more than labels and conclusions” because “a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964–65, 167 L.Ed.2d 929 (2007) (citation omitted). Indeed, the legal framework of the complaint must be supported by factual allegations that “raise a right to relief above the speculative level.” Id. at 1965. In its recent decision, Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Supreme Court expanded upon Twombly by articulating a two-pronged analytical approach to be followed in any Rule 12(b)(6) test. First, a court must identify and reject legal conclusions unsupported by factual allegations because they are not entitled to the presumption of truth. Id. at 1951. “[B]are assertions” that amount to nothing more than a “formulaic recitation of the elements” do not suffice. Id. (citations omitted). Second, assuming the veracity of “well-pleaded factual allegations,” a court must conduct a “context-specific” analysis drawing on “its judicial experience and common sense” and determine whether the factual allegations “plausibly suggest an entitlement to relief.” Id. at 1950–51. The plausibility standard requires more than a showing of “a sheer possibility that a defendant has acted unlawfully”. Id. at 1949. In other words, “[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.

C. Summary Judgment

Summary judgment is appropriate only if the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954, 958–59 (4th Cir.1996) (citations omitted). The party seeking summary judgment has the initial burden of showing the absence of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

Once a motion for summary judgment is properly made and...