Kong v. United States

• Decision Date: 23 March 2021
• Docket Number: CIVIL ACTION NO. 20-10119-MPK
• Parties: BUNTHOEUN KONG, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — District of Massachusetts

BUNTHOEUN KONG, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

CIVIL ACTION NO. 20-10119-MPK¹

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

March 23, 2021

MEMORANDUM AND ORDER ON DEFENDANT UNITED STATES OF AMERICA'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT (#11.)

KELLEY, U.S.M.J.

I. Introduction.

In January 2020 Bunthoeun Kong filed a three-count complaint against the United States of America under the Federal Tort Claims Act, 28 U.S.C. § 2674, alleging claims of false arrest (count I), false imprisonment (count II), and violation of the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12 §§ 11H-I (count III).² The United States filed a motion to dismiss pursuant to Fed. R.Civ. P. 12(b)(1) for lack of subject matter jurisdiction and Fed. R. Civ. P. 12(b)(6) for failure to state a claim (#11); the dispositive motion has been fully briefed. (##12, 15.)

II. The Facts.

On April 17, 2018, plaintiff was arrested by officers from U.S. Immigration and Customs Enforcement (ICE). (#1 ¶ 1.) Mr. Kong, a national of Cambodia, emigrated to the United States as a child in 1982. Id. ¶¶ 14, 18. As a young man, he was involved in criminal activity and was incarcerated. Id. ¶ 22. Mr. Kong was ordered deported to Cambodia in 1996 and so, when he was released from incarceration, he was detained by the Immigration and Naturalization Service (INS) (now ICE) pending his deportation. Id. ¶¶ 24, 25.³ Because his country of origin refused to repatriate him at that time, after due consideration, the INS released Mr. Kong in June 2000 under an order of supervision. Id. ¶¶ 26, 28, 29.⁴

Mr. Kong lived in the United States under the order of supervision from June 2000 through April 2018. Id. ¶¶ 3, 14, 29. During this period, he married a United States citizen and had three children. Id. ¶¶ 5, 31, 33. He secured employment with a medical supply manufacturer where he worked for thirteen years. Id. ¶¶ 6, 32. Mr. Kong faithfully complied with the terms of his supervision order for nearly eighteen years. Id. ¶¶ 6, 34.

In December 2017, John A Schultz, Jr., the Deputy Assistant Director for the Removal Management Division, Enforcement and Removal Operations, ICE, Department of Homeland Security (DHS), declared as follows:

7. Pursuant to the repatriation agreement between the United States and Cambodia, Cambodian government officials periodically come to the United States and conduct in-person interviews to verify nationality of Cambodians with final removal orders. See Memorandum between the Government of the United States and the Royal Government of Cambodia for the Establishment and Operation of a United States-Cambodia Joint Commission on Repatriation Signed March 22, 2002, with an August 2003 addendum.

8. Not all Cambodian nationals with final orders of removal are presented to Cambodian government officials for interviews. Instead, ICE generally selects between 50 and 100 Cambodian nationals with final orders of removal who have strong evidence of Cambodian nationality and are within the scope of the agreement between the two countries.

9. Due to ICE's and Cambodia's experience implementing the agreement, ICE is able to identify aliens who would meet the Cambodian standards for travel document issuance.

(#14-4.)

Mr. Schultz subsequently filed another declaration in which he stated, inter alia:

3. In the fall of 2017, Cambodian government officials conducted verification interviews for 95 individuals. In December 2017, the Government of Cambodia issued travel documents for 72 of the 95 aliens interviewed . . . In March 2018, the Government of Cambodia issued travel documents for 18 additional aliens, 17 of the 18 travel documents being for individuals who had not previously received travel documents due to questions concerning various medical conditions. Among the 17, on March 29, 2018, Cambodia issued a travel document [for one individual]. Cambodia has also agreed to issue a travel document for an additional alien once a paperwork discrepancy is resolved. ICE is still seeking a travel document for another alien that Cambodia still has questions concerning his medical condition [sic]. ICE and the Government of Cambodia agree that the remaining 3 aliens are not Cambodian nationals. Thus, of the 95 aliens interviewed in the fall of 2017, ICE and the Government of Cambodia have, to date, reached agreement on 94 of them. Of the 94 aliens, 90 were issued travel documents, one is expected to be issued a travel document, and the three previously discussed were not Cambodian nationals.

(#14-5.)

At the end of February 2018, ICE contacted plaintiff and requested that he appear at the Burlington office to complete a questionnaire that was used to obtain travel documents from theCambodian government. (#12-2 ¶ 7.)⁵ In March 2018 ICE submitted a travel document request to the Cambodian government, renewing the process of seeking a travel document for Mr. Kong to repatriate him. (#12-1 ¶ 7; #12-2 ¶¶ 8, 9.)⁶ According to the Acting Assistant Field Office Director for DHS, ICE, Enforcement and Removal Operations in Burlington, Massachusetts: "ICE's HQ-Removal and International Operations unit advised the local ICE office that Mr. Kong had been added to a list of Cambodian individuals with final orders of removal to be interviewed by the Cambodian government to determine whether Cambodia would issue travel documents to effect repatriation to Cambodia." (#12-2 ¶ 9.)

On April 17, 2018, without notice, ICE officers arrested Mr. Kong "for the purpose of facilitating [his] interview with the government of Cambodia so that Cambodia could re-determine if it would repatriate [him]." (#1 ¶ 36; #12-2 ¶ 11.) Following his arrest, Mr. Kong was detained at various facilities in Massachusetts and Pennsylvania. (#1 ¶ 42.)⁷ He was provided with no information regarding the reason for his arrest, i.e., that he was to be interviewed by the Cambodian government for repatriation, until about a week into his detention. Id. Mr. Kong was interviewed by the Cambodian government on May 3, 2018. (#12-2 ¶ 11.) Only after his interview and a month in detention was Mr. Kong advised how he could challenge his ongoing detention. (#1 ¶¶ 9, 43.) After filing a petition for a writ of habeas corpus, he was released from ICE detention on June 14,2018, pursuant to an order of supervision. Id. ¶¶ 10, 45; #12-2 ¶ 13. That same day, June 14, 2018, the Cambodian government issued a travel document for Mr. Kong. (#12-2 ¶ 11; #14-7 ¶ 5.)⁸

In this suit, Mr. Kong claims that his 2018 arrest and confinement by ICE were unlawful, and that his civil rights were violated. He seeks monetary damages to compensate him for the injuries he suffered arising from this alleged misconduct.

III. Legal Standard.

Pursuant to Rule 12(b)(1), Fed. R. Civ. P., a defendant may move to dismiss an action based on lack of federal subject matter jurisdiction. "'Because federal courts are courts of limited jurisdiction, federal jurisdiction is never presumed.' The party asserting jurisdiction has the burden of demonstrating the existence of federal jurisdiction." Fabrica de Muebles J.J. Alvarez, Incorporado v. Inversiones Mendoza, Inc., 682 F.3d 26, 32 (1st Cir. 2012) (quoting Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir.1998)). Once a defendant challenges the jurisdictional basis for a claim under Rule 12(b)(1), the plaintiff bears the burden of proving jurisdiction. Thomson v. Gaskill, 315 U.S. 442, 446 (1942); see also Justiniano v. Soc. Sec. Admin., 876 F.3d 14, 21 (1st Cir. 2017).

In ruling on a motion to dismiss for lack of jurisdiction, the court must "'credit the plaintiff's well-pled factual allegations and draw all reasonable inferences in the plaintiff's favor.'" Sanchez ex rel. D.R.-S. v. United States, 671 F.3d 86, 92 (1st Cir. 2012) (quoting Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir. 2010)). The "court may also 'consider whatever evidence has been submitted, such as the depositions and exhibits submitted.'" Merlonghi, 620 F.3d at 54 (1st Cir. 2010) (quoting Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996)); Carroll v.United States, 661 F.3d 87, 94 (1st Cir. 2011) (internal citation and quotation marks omitted) ("In evaluating a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, we construe plaintiffs' complaint liberally and ordinarily may consider whatever evidence has been submitted, such as . . . depositions and exhibits."). That being said, a plaintiff cannot assert a proper jurisdictional basis "merely on 'unsupported conclusions or interpretations of law.'" Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995) (quoting Washington Legal Foundation v. Massachusetts Bar Foundation, 993 F.2d 962, 971 (1st Cir. 1993)), cert. denied, 515 U.S. 1144 (1995); Johansen v. United States, 506 F.3d 65, 68 (1st Cir. 2007).

IV. Analysis.

Judicial review in immigration cases is circumscribed by the provisions of the Illegal Immigration Reform and Responsibility Act and Real ID Act. Lopez Lopez v. Charles, No. 12-CV-101445-DJC, 2020 WL 419598, at *3 (D. Mass. Jan. 26, 2020) (citing 8 U.S.C. § 1252; Aguilar v. U.S. Immigration & Customs Enf't Div. of Dep't of Homeland Sec., 510 F.3d 1, 9 (1st Cir. 2007) (explaining that section 1252 is a "general jurisdictional limitation" and applies to "all questions of law and fact and extends to both constitutional and statutory challenges" arising from removal)). Of specific interest here, 8 U.S.C. § 1252(g) provides:

[e]xcept as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, . . . no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

The Supreme Court has read this statutory provision narrowly: "[T]he...