Medina v. U.S.

• Decision Date: 25 April 2000
• Docket Number: No. CIV. A. 99-1498-A.,CIV. A. 99-1498-A.
• Citation: 92 F.Supp.2d 545
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Rafael MEDINA, Plaintiff, v. UNITED STATES of America, Defendant.

92 F.Supp.2d 545

Rafael MEDINA, Plaintiff, v. UNITED STATES of America, Defendant.

No. CIV. A. 99-1498-A.

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

April 25, 2000.

Edward S. Rosenthal, Alexandria, VA, for Plaintiff.

Jeri Kaylene Somers, United States Attorney's Office, Alexandria, VA, for Defendant.

MEMORANDUM OPINION AND ORDER

LEE, District Judge.

THIS matter is before the Court on Defendant United States of America's Motion to Dismiss. Plaintiff Rafael Medina filed suit against the United States for intentional torts and violation of his Fourth Amendment rights pursuant to the Federal Tort Claims Act, stemming from his arrest and detention by Immigration and Naturalization Service agents. The United States moved to dismiss Plaintiff's claim for lack of subject matter jurisdiction. The issue presented is whether Section 242(g) of the Immigration and Naturalization Act, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (codified as 8 U.S.C. § 1252(g)) deprives the Court of jurisdiction over Plaintiff Medina's action against the Immigration and Naturalization Service under the Federal Tort Claims Act. For the reasons stated below, the Court holds that Section 1252(g) does not divest the Court of jurisdiction over Plaintiff's claims. Thus, Defendant's Motion to Dismiss is denied.

I. Background

Plaintiff Rafael Medina is a citizen of the Republic of Venezuela. On April 3, 1996, he entered the United States at Miami, Florida on an A2 visa, as an accredited foreign government official with the Embassy of the Republic of Venezuela. He resided in Arlington County, Virginia. In September 1996, Plaintiff's fiancee contacted the police and accused Plaintiff of forcing himself into her apartment, throwing her against the wall, and attempting to rape her. The Circuit Court for the City of Alexandria charged Plaintiff with burglary, sexual battery, attempted rape, and assault and battery. Waiving diplomatic immunity, Plaintiff voluntarily surrendered and submitted himself to the jurisdiction of the court. He went to trial on a plea of not guilty. After a jury trial, Plaintiff was convicted of misdemeanor assault and battery, but acquitted of the remaining charges.

In June 1997, the Immigration and Naturalization Service ("INS") obtained a Notice to Appear to commence removal proceedings against Mr. Medina. On July 2, 1997, Plaintiff was seized, searched, and arrested by agents of the INS at his home. The INS's Notice to Appear alleged Mr. Medina was subject to removal under Section 237(a)(2)(A)(i) of the Immigration and Naturalization Act for being convicted of a crime involving moral turpitude. Plaintiff appealed his misdemeanor conviction to the Virginia Court of Appeals. Plaintiff filed a motion to terminate the removal proceedings before the INS on the grounds that assault and battery is a misdemeanor and is not a crime involving moral turpitude. The Government did not oppose Plaintiff's motion. On September 17, 1997, the Immigration Judge terminated the proceedings. Mr. Medina withdrew his appeal of the state court misdemeanor conviction.

Plaintiff filed an administrative claim under the Federal Tort Claims Act with the INS. After Plaintiff's administrative claim was denied, he filed the present Complaint, alleging assault and battery (Count I), false arrest (Count II), malicious prosecution (Count III), intentional or negligent infliction of emotional distress (Count IV), and unlawful search and seizure in violation of the Fourth Amendment and the law of the Commonwealth of Virginia (Count V).

II. Standard of Review

Pursuant to Federal Rule of Civil Procedure 12(b)(1), a claim may be dismissed for lack of subject matter jurisdiction. Where subject matter jurisdiction is challenged, the burden of proving such is on the plaintiff. See Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991). The court is required to accept the well-pled allegations of the complaint as true for the purposes of the motion. See Virginia v. United States, 926 F.Supp. 537, 540 (E.D.Va.1995). However, the court may look beyond the jurisdictional allegations of the complaint and consider whatever evidence has been submitted on the issue to determine whether subject matter jurisdiction exists. See Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999).

III. The Federal Tort Claims Act and Subject Matter Jurisdiction

Absent a waiver, sovereign immunity shields the federal government and its agencies from suit. See FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). In 1946, Congress passed the Federal Tort Claims Act ("FTCA"), which waived the sovereign immunity of the United States for certain torts committed by federal employees. See 28 U.S.C.A. §§ 1346(b) (West Supp. 1999); id. §§ 2671-2680 (West 1994). Specifically, Section 1346(b) provides that the United States government can be sued for

the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

Congress excepted from the waiver of sovereign immunity any claims arising out of an intentional tort, including assault, battery, false imprisonment, and false arrest. See 28 U.S.C.A. § 2680(h); see also Thigpen v. United States, 800 F.2d 393, 394 (4th Cir.1986). The FTCA also bars claims which depend on the assault and battery by a government employee. See Thigpen, 800 F.2d at 395. However, Congress also limited this exception by exempting investigative and law enforcement officials who commit an intentional tort. See 28 U.S.C.A. § 2680(h). Thus, this section of the FTCA serves as an exception to the exception. The federal government waives sovereign immunity for the acts of investigative and law enforcement officials who commit an intentional tort against an individual.¹

INS agents constitute investigative and law enforcement officers for purposes of the FTCA. See Caban v. United States, 671 F.2d 1230, 1234 n. 4 (2d Cir.1982)(holding that the alleged actions of the INS in detaining the plaintiff were not protected by the discretionary function exception of the FTCA); Ramirez v. United States, 998 F.Supp. 425, 433 (D.N.J.1998)(holding that the United States was not immune from an FTCA claim which alleged wrongful conduct by INS agents who were law enforcement officers). Pursuant to 8 U.S.C. §§ 1225(a) and 1357, INS agents are federal officers who have the power to search, seize, and arrest. See 8 U.S.C.A. §§ 1225(a), 1357 (West 1999). The FTCA waives sovereign immunity for liability of certain intentional torts committed by INS agents. In this case, the INS agents seized and arrested Mr. Medina pursuant to a Notice to Appear and are alleged to have committed intentional torts against him. Thus, the FTCA waives the government's sovereign immunity as it relates to the agents' seizure and arrest of Mr. Medina.

In its motion to dismiss, the United States contends that the 1996 amendment to the Immigration and Naturalization Act repealed an individual's right to bring a civil action for intentional torts under the FTCA against INS agents. Therefore, the issue before the Court is whether its jurisdiction to hear Mr. Medina's claims was subsequently repealed by the Immigration and Naturalization Act, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

IV. Jurisdictional Limitations and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

Judicial review of immigration decisions to admit or exclude aliens is generally governed by the Immigration and Naturalization Act ("INA"). In 1996, the INA was amended by two statutes: the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. 104-132, 110 Stat. 1214 (April 24, 1996), and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub.L. No. 104-208 110 Stat. 3009 (September 30, 1996). Both of these statutes significantly restricted the availability of judicial review of immigration decisions to admit or exclude aliens under the INA.² However, the IIRIRA went further than the AEDPA and restructured the scope of judicial review of immigration decisions.³ As related to this motion, Section 242(g) of the INA, as amended under the IIRIRA, and codified as 8 U.S.C. § 1252(g)(hereinafter "§ 1252(g)"), is entitled "Exclusive Jurisdiction" and provides

Except as provided in this section and notwithstanding any other provision of law, 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.A. § 1252(g) (West 1999). The parties dispute whether § 1252(g) divests the Court of subject matter jurisdiction to hear Plaintiff's FTCA claims against INS.

Relying on segments of the statute, the United States contends that this action is barred by § 1252(g) of the IIRIRA. Defendant specifically relies on the portion which states "notwithstanding any other provision of law" no court shall have jurisdiction to hear any claim arising out of the decision of the Attorney General to "commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act." Id. § 1252(g). Defendant submits that this section grants the INS exclusive jurisdiction over certain removal actions taken by the Attorney General. See 8 U.S.C.A. § 1252(g); see also Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999)[hereinafter "AADC"]; Stewart v. USINS, 181 F.3d 587 (4th Cir.1999); Humphries v. Various Federal USINS...