Kareva v. United States
| Decision Date | 27 March 2014 |
| Docket Number | Case No. 1:12cv267. |
| Citation | 9 F.Supp.3d 838 |
| Parties | Natalia Ivanovna KAREVA, Plaintiff, v. UNITED STATES of America, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Charleston Cheng Kung Wang, Cincinnati, OH, for Plaintiff.
James Millard Coombe, Office of the U.S. Attorney, William Bryan King, II, Atrium Two, Cincinnati, OH, Sarah Stevens Wilson, U.S. Department of Justice, Washington, DC, for Defendants.
This matter is before the Court upon Defendant United States Motion for Summary Judgment (Doc. 31) and Plaintiff Natalia Ivanovna Kareva's Motion for Summary Judgment (Doc. 32). These Motions have been fully briefed. (Docs. 34, 35, 36, 37). In addition, Plaintiff has filed a Motion for Oral Arguments on the Motions for Summary Judgment (Doc. 38), which the Government opposes (Doc. 39).
The Court does not deem that oral argument is essential to the fair resolution of this case pursuant to S.D. Ohio Civ. R. 7.1(b)(2). Therefore, Plaintiff's Motion for Oral Arguments on the Motions for Summary Judgment (Doc. 38) is DENIED.
The parties do not dispute the facts of this case. Plaintiff is a citizen of Russia who entered the United States on June 19, 2003 pursuant to a “nonimmigrant student visa.” (Doc. 16–2). However, Plaintiff did not carry a full course of study, which made her subject to removal. (Id. )
After arriving in the United States, Plaintiff filed an application for asylum and withholding of deportation. (Doc. 14, ¶ 13). Plaintiff was interviewed, but because there were inconsistencies in her testimony, her application was referred to an immigration judge. (Doc. 1–1, at 39).
Plaintiff also filed an I–130 petition based on an individual she claimed to have married while in the United States. (Doc. 1–1, at 5). After Plaintiff was granted several continuances, the I–130 petition was denied. (Id. ) On December 11, 2007, the immigration judge denied Plaintiff a further continuance to file a new I–130 petition based on the same marriage. (Id. ) The immigration judge noted that Plaintiff had a valid passport and no known criminal record. (Id. ) Therefore, the immigration judge granted Plaintiff's application for post-decision voluntary departure. (Id. )
The immigration judge's order stated:
(Id. at 6). This order serves as the basis for Plaintiff's detention almost three years later.
Plaintiff appealed this order to the Board of Immigration Appeals. (Doc. 1–1, at 13). Plaintiff asked the BIA to reopen the matter and permit her to withdraw her plea of Voluntary Departure, strike any order of removal for failure to post the voluntary departure bond, and amend her pleading to reflect her asylum claim. (Id. at 17). Plaintiff explained that she had not posted the bond and “for this reason, she is facing a[n] Order of Removal.” (Doc, 1–1, at 26).
On June 30, 2009, the BIA rejected most of Plaintiff's arguments, including her request to reopen her case and reinstate her asylum application. (Doc. 1–1, at 53). However, the BIA did agree with Plaintiff that the immigration judge erred in granting voluntary departure:
The respondent's prior attorney clearly stated at the respondent's final hearing that the responded “definitely does not want to take voluntary departure” (Tr. 31), but the Immigration Judge granted the respondent this form of relief in spite of this statement. Moreover, the record does not indicate that the Immigration Judge or the respondent's former attorney ever qualified the respondent for this relief. Given these circumstances, we vacate the Immigration Judge's grant of voluntary departure. Moreover, because the Immigration Judge did not provide the respondent with the opportunity to designate a country of removal, we remand the respondent's case to the Immigration Judge to allow the respondent to make this designation.
(Id. at 52). The BIA made it clear that the remand was “for the sole purpose of allowing the respondent to designate a country of removal.” (Id. at 54).
However, on remand Plaintiff attempted to argue other issues. Plaintiff filed a successive asylum petition arguing “changed circumstances” in Russia. (Doc. 1–1, at 56, 59). After a hearing and oral decision on September 23, 2009, the immigration judge issued a written order noting that Russia was designated as the country for removal and that Plaintiff's motion to reopen was denied. (Doc. 1–1, at 77). On September 24, 2009, Plaintiff appealed this order to the BIA. (Doc. 1–1, at 80). A copy of the appeal was served on Immigration and Customs Enforcement (“ICE”) in Cleveland, Ohio. (Doc. 14, ¶ 23).
On March 23, 2010, ICE employees, believing that Plaintiff was subject to a final order of removal, processed Plaintiff for detention under 8 U.S.C. § 1231 but allowed Plaintiff to be released on her own recognizance. ICE Special Agent Brian Gerson testified that he had previously received information from the ICE Regional Counsel's Office that Plaintiff was under a final order of removal. (Doc. 31–2, Brian Gerson Dep. at 19–20, 35).
On May 12, 2010, Plaintiff was detained for removal when she appeared in ICE's office in Columbus for her regular reporting. (Doc. 14, ¶ 25).
On May 13, 2010, Plaintiff filed a motion for stay of removal with the BIA. (Doc. 1–1, at 99). On May 19, 2010, the BIA denied the application for a stay of removal pending consideration of her motion to reopen. (Doc. 1–1, at 107). The BIA noted that “there is little likelihood that the motion will be granted.” (Id. )
The same day, Plaintiff filed an appeal and emergency motion for stay of execution of order of removal with the Sixth Circuit Court of Appeals. (Doc. 1–1, at 109, 120). On May 28, 2010, an attorney for the Department of Justice moved to dismiss the appeal on jurisdictional grounds, arguing that there was no final order because of the BIA appeal was still pending. (Doc. 1–1, at 126). Plaintiff's attorney sent a copy of this motion to ICE. (Doc. 1–1, at 136). Upon learning of the Department of Justice's position that there was no final order, ICE changed Plaintiff's detention status and sought clarification from the BIA as to whether Plaintiff was under a final order of removal. (Docs. 16–4 & 16–5).
On June 1, 2010, Plaintiff's detention status was reclassified to being detained under 8 U.S.C. § 1226(a), which authorizes detention while an alien's removal proceedings are ongoing. (Doc. 16–4). Plaintiff was permitted to appeal this determination to an immigration judge, but there is no record that she did. Two days later, ICE filed a motion with the BIA to expedite a decision on Plaintiff's second appeal to the BIA. (Doc. 16–5). This motion requested that the BIA determine whether the September 23, 2009 order was a final order of removal. (Id. )
On June 23, 2010, the BIA issued an order remanding the record to the immigration judge, explaining: “The Immigration Judge's order does not indicate why he denied the motion to reopen based on changed country conditions.” (Doc. 1–1, at 157). In addition, the BIA explained: “we conclude that there is a final order of removal issued for the respondent, and that the country of removal is Russia (although there has been no final determination regarding the respondent's motion to reopen, in view of the foregoing remand).” (Doc. 1–1, at 158). Two days later, Plaintiff filed a motion to reconsider the BIA's order to the extent that the BIA found that Plaintiff was subject to a final order of removal. (Doc. 1–1, at 166).
On September 20, 2010, while the motion for reconsideration was still pending, Plaintiff's bond was reset to $1500.00, which Plaintiff posted. (Doc. 31–1, Kareva Dep. at 51). Plaintiff was then was released from custody. (Doc. 14, ¶ 40).
On October 7, 2010, the BIA reconsidered its determination that the immigration judge's September 23, 2009 decision was a final order of removal and granted Plaintiff's motion to reconsider. (Doc. 1–1, at 175) The BIA determined that when it remanded the record to the immigration judge on June 23, 2010, there was no final order because the decision did not dispose of all the issues decided by the immigration judge. (Doc. 1–1, at 176).
Plaintiff's only remaining claim is against the United States under the Federal Tort Claims Act. Plaintiff explains that her claim is based on her wrongful arrest and detention by ICE employees.
Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The moving party has the burden of showing an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden of production, the non-moving party cannot rest on his pleadings, but must present significant probative evidence in support of his complaint to defeat the motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
While it was not raised by the parties, this Court has an obligation to determine if the Immigration and Nationality Act...
To continue reading
Request your trial