Maria S., H.F., S.H.F. v. Garza
| Decision Date | 15 July 2015 |
| Docket Number | Civil Action No. 1:13-CV-108 |
| Parties | Maria S., as Next Friend for E.H.F., S.H.F., and A.S.G., Minors, Plaintiff, v. Ramiro Garza, et al., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
The Plaintiff in this suit is the next friend of the three surviving minor sons of Laura S., a citizen of Mexico, who is now deceased. Plaintiff claims that Laura S. was removed from the United States without due process of law and alleges that this deprivation of rights caused Laura S.'s death. Plaintiff filed a Bivens action and seeks to recover from the immigration officers that effectuated Laura S.'s removal. [Doc. No. 63]. In response, the immigration officers filed a Motion to Dismiss [Doc. No. 67], asserting several grounds they claim warrant the dismissal of Plaintiff's suit. For the reasons described below, Defendants' Motion to Dismiss is DENIED.
Plaintiffs allege the following facts in their complaint.1 Laura S., the mother of three sons, was a citizen of Mexico. [Doc. No. 63 at 3-4]. She never had legal status in the United States. Id. The father of two of Laura S.'s sons—Sergio H.—physically abused Laura S. Id. at 4. In April 2008, Laura S. obtained a protective order against Sergio H. from a municipal court in McAllen, Texas. Id. Sergio H. returned to Mexico and was allegedly working with a drug cartel. Id. Sergio H. threatened Laura S. and told her that he would kill her if he ever saw her again. Id.
On June 8, 2009, Laura S. was traveling in a vehicle with three other passengers near Pharr, Texas when they were stopped by a law enforcement officer for a driving infraction. Id. The officer asked the vehicle's passengers for proof of citizenship or immigration status. Id. Laura S. and two other passengers were unable to produce the necessary papers, and the law enforcement officer turned them over to Defendant Ramiro Garza, a United States Customs and Border Patrol ("CBP") agent. Id. at 5.
Defendant Garza transported Laura S. and the other two passengers to a CBP center near Pharr, Texas. Id. While in the vehicle, Laura S. explained to Defendant Garza that her dangerous ex-boyfriend resided in Mexico, and that she feared for her life if she returned there. Id. Laura S. wept and begged not to be returned to Mexico. Id.
When the group arrived at the CBP center, they were taken into an office for fingerprinting and to complete paperwork. Id. The group was joined by Defendant Ruben Garcia and two other unknown Defendants, all CBP agents. Id. at 6. Laura S. was weeping and anguished when she spoke with Defendants, and informed them that she feared for her life if she returned to Mexico. Id. Although Laura S. informed Defendants of Sergio H.'s threats, Defendants did not question Laura S. about her expressed fears nor attempt to verify or evaluate her risk of harm. Id. Defendants did not inform Laura S. of any of her legal rights, such as the right to seek asylum or the right to a hearing before an immigration judge. Id.
Rather, Defendants "rushed through the proceedings" and "made it clear to [Laura S.] that she was returning to Mexico immediately, despite her pleas." Id. at 7. Defendants presented Laura S. with a number of papers, and told her to sign "here, and here and here." Id. Laura S. was not given a chance to read the papers, nor was she told what she was signing. Id. Laura S. refused to sign the papers, but Defendants "forcefully demanded that she sign." Id. One of the forms Laura S. was forced to sign was a voluntary departure form, a procedure by which an alien may consent to summary removal from the United States. Id. at 11. By signing a voluntary departure form, Laura S. waived her right to a deportation hearing and any other forms of relief for which she may have been eligible. Id.
After Laura S. and the other two passengers signed the papers, including the voluntary departure forms, Defendant Garza drove them to the international bridge. Id. at 8. Laura S. wept on the way to thebridge, telling Defendant Garza that she would not survive the week in Mexico. Id. In the early morning hours of June 9, 2009, Defendant Garza "forced" the group to cross the international bridge and return to Mexico. Id.
Once she returned to Mexico, Laura S. stayed at her grandmother's house. Id. Laura S.'s friends and relatives began "emergency efforts" to get her out of Mexico. Id. After learning of Laura S.'s return to Mexico, Sergio H. soon accosted her, "blocking her car and beating her brutally." Id. Laura S. was rescued by a relative. Id. Several days later, on June 14, 2009, Sergio H. abducted Laura S. and killed her. Id.
The present suit was filed on behalf of Laura S.'s three minors sons ("Plaintiffs"). Id. at 2-3. Plaintiffs bring a Bivens claim against the four CBP agents (collectively, "Defendants") that effectuated Laura S.'s removal from the United States, and seek to recover money damages for the death of their mother. Id. at 12-14. Plaintiffs allege that Defendants violated Laura S.'s Fifth Amendment right to procedural due process when they forced her to sign the voluntary departure form that effectuated her return to Mexico. Id. at 13. Plaintiffs contend that Laura S. was eligible for various forms of relief under United States immigration law, such as mandatory withholding of removal under the Convention Against Torture or mandatory withholding based on persecution risks. Id. at 9. Nevertheless, by allegedly forcing Laura S. to sign a voluntary departure form,2 Plaintiffs claim that Defendants denied Laura S. access to whatever relief she may have been entitled to and forced her to return to a country where she knew her death was imminent. Id. at 10.
In response to Plaintiffs' Complaint, Defendants filed a Motion to Dismiss. [Doc. No. 67]. In their Motion to Dismiss, Defendants assert five separate grounds that they argue warrant the dismissal of Plaintiffs' suit: (1) 8 U.S.C. § 1252(g)'s jurisdictional bar; (2) the absence of a constitutionally-protected right; (3) inapplicability of the Bivens doctrine; and (4) qualified immunity. Id. For the reasons discussed below, Defendants' Motion to Dismiss is DENIED.
In their Motion to Dismiss, Defendants argue that § 1252(g) of the Immigration and Nationality Act bars the Court from considering Plaintiffs' suit. Section 1252(g), entitled "Exclusive Jurisdiction," states:
Except 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, and sections 1361 and 1651 of such title, 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.
8 U.S.C. § 1252(g). Interpreting § 1252(g) narrowly, the Supreme Court has held that it does not bar judicial review of all claims arising from deportation proceedings. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999). Rather, § 1252(g) "applies to only three discrete actions that the Attorney General may take: her 'decision or action' to 'commence proceedings, adjudicate cases, or execute removal orders.'" Id. (quoting 8 U.S.C. § 1252(g)) (emphasis in original). Illustrating its holding, the Supreme Court offered examples of the many decisions made during the deportation process that would not be barred from judicial review by § 1252(g), including "the decisions to open an investigation, to surveil the suspected violator, [and] to reschedule the deportation hearing . . . ." Id.
The three discrete actions described as falling under § 1252(g)'s jurisdictional bar represent distinct components of the deportation process. The first action, "commencing proceedings," occurs after CBP agents apprehend an alien with no legal status in the United States and "file the appropriate charging document with the immigration court." DeLeon-Holguin v. Ashcroft, 253 F.3d 811, 815 (5th Cir. 2001). The charging document is served on the apprehended alien, and gives him or her notice of the nature of the proceedings and time to prepare a defense. U.S. Dep't of Justice, Immigration Court Practice Manual at 55. "Adjudicating cases" refers to the actions taken to maintain removal proceedings against an alien,which culminate in a hearing held before an immigration judge charged with "deciding the inadmissibility or deportability of an alien." 8 U.S.C. § 1229a. If the immigration judge finds that an alien has no legal status to remain in the United States, an order of removal is issued. Id. The final action referenced in § 1252(g), "executing removal orders," occurs when an illegal alien is removed from the United States pursuant to a court order. See Sifuentes-Barraza v. Chertoff, No. 03-51202, 2006 WL 2522143 (5th Cir. Sept. 1, 2006).
Though § 1252(g) has limited judicial review in these three areas, it has not prevented courts from ruling on constitutional claims arising in the deportation context. Humphries v. Various Fed. U.S.I.N.S. Employees, 164 F.3d 936, 944-45 (5th Cir. 1999). For example, in Humphries v. Various Federal U.S.I.N.S. Employees, the plaintiff brought suit alleging that he had been mistreated while he was in custody pending the execution of his removal order. Id. at 939. When determining whether § 1252(g) barred the plaintiff's suit, the Fifth Circuit noted that the plaintiff "would not have been subjected to the alleged mistreatment had the decision not been made to place [him] in detention while awaiting exclusion." Id. at 945. Nevertheless, this tenuous connection to "the decision . . . [to] execute [a] removal order" was not sufficient to bring the plaintiff's suit within the purview of § 1252(g). See id. Rather, the plaintiff's constitutional claim challenging the...
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