Tsolmon v. United States
| Decision Date | 28 August 2015 |
| Docket Number | CIVIL ACTION NO. H-13-3434 |
| Parties | AMARSAIKHAN TSOLMON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Southern District of Texas |
This Federal Tort Claims Act ("FTCA") case is before the Court on the Motion to Dismiss or for Summary Judgment ("Defendant's Motion") [Doc. # 28] filed by Defendant United States of America ("Defendant" or the "Government") and the Motion for Summary Judgment ("Plaintiff's Motion") [Doc. # 29] filed by Plaintiff Amarsaikhan Tsolmon ("Plaintiff" or "Tsolmon") [Doc. # 29]. Both motions have been fully briefed and are ripe for review.1 After carefully reviewing the parties' briefing, oral arguments, all matters of record, and the applicable legal authorities, the Court concludes that the United States has not waived sovereign immunity under the FTCA for Plaintiff's claims. As a result, the Court grants the Government's motion to dismiss this case under Federal Rule of Civil Procedure 12(b)(1). Plaintiff's claims are dismissed for lack of subject matter jurisdiction. The parties' cross-motions for summary judgment are denied as moot.
Plaintiff Tsolmon is a Mongolian citizen who at all times relevant to this case was residing in the United States on a valid visa. This case stems from Tsolmon's arrest by Border Patrol agents of the United States Customs and Border Protection ("CBP") conducting a transportation check at approximately 9:30 p.m. on Friday, November 12, 2010, the CBP agents' failure to verify Tsolmon's immigration status after searching government databases for hours, and Tsolmon's subsequent detention at an immigration detention facility from approximately 3:00 a.m on Saturday, November 13, 2010, to approximately 8:40 p.m. on Sunday, November 14, 2010. The following is a summary of Tsolmon's factual allegations and the undisputed facts established by the evidence of record.2
A complete explanation of Tsolmon's immigration history, which appears to span more than two decades and involves multiple visa adjustments, is not in the record. Tsolmon testified only that his mother and several siblings legally reside in the United States.3 The parties agree Tsolmon first entered the United States on July 28, 1999, when he was approximately 16 years old.4 At that time, he had a valid F-2visa that he received as a dependent of his mother, who was a valid F-1 student visa holder.5 Tsolmon's visa apparently was adjusted to an F-1 student visa on May 13, 2002, once he started college in Lafayette, Louisiana.6 After he graduated college in 2008, Tsolmon's visa was adjusted a second time to an H-1B temporary worker visa.7 The evidence suggests Tsolmon's H-1B visa adjustment occurred on October 1, 2009 and was valid through September 20, 2012.8
On Friday, November 12, 2010, Tsolmon traveled by bus from Houston, Texas, to Lake Charles, Louisiana.9 At approximately 9:30 p.m., in Lake Charles, Louisiana, CBP Agents Robert Wilson ("Agent Wilson") and Michael Lewandowski ("Agent Lewandowski") boarded Tsolmon's bus.10 This stop and search was part of a routine "transportation check" by CBP agents.11
Upon boarding the bus, Agents Wilson and Ledanowski began checking thepassengers' identification and asking non-citizens for immigration documents.12 When Agent Wilson reached Tsolmon, Tsolmon gave him a copy of his Texas Identification Card, which states that he is a "TEMPORARY VISITOR."13 Agent Wilson then asked Tsolmon if he was a United States citizen, and Tsolmon stated that he was not but explained he had a valid H-1B temporary worker visa.14 Tsolmon admits that he was not carrying his immigration documents that night.15 Federal law requires a visa holder like Tsolmon to carry certain immigration documents at all times.16
Agent Wilson states that, while he was on the bus, he used the identifying information Tsolmon provided to contact the CBP "New Orleans dispatch" and to request a "records check."17 According to Agent Wilson, this search "yielded novalidating information."18 Agent Wilson then asked Tsolmon to step off the bus and escorted to him to a CBP vehicle nearby.19
While standing near the CBP vehicle by the side of the bus, Agent Wilson allowed Tsolmon to call his roommate to try and locate proof of Tsolmon's valid H-1B visa.20 Agent Wilson spoke to Tsolmon's roommate on the phone and obtained certain identifying information from the documents.21 Tsolmon presents evidence that, at approximately 10:00 p.m., his roommate emailed images to Tsolmon's cell phone of Tsolmon's Mongolian passport and his most recent "I-94 card."22 AgentWilson also contacted the "U.S. Customs and Border Protection Radio in Orlando, Florida, to search several databases" and try to locate evidence of Tsolmon's valid H-1B visa.23 These searches, according to Agent Wilson, "came back negative for information."24 More specifically, he states that the searches of the Computer Linked Application Information Management System ("CLAIMS") and the "TECS Automated Targeting System-Passengers" ("ATS-P") revealed only that Tsolmon had arrived in July 1999 on an F-2 visa that had expired and that his appeal in 2001 to "extend or change his non-immigrant status" was denied.25 Agent Wilson explained that, at the bus station, 26 Having concluded that Tsolmon had failed to provide proof of his claimed valid H-1B visa,Agent Wilson "place[d] him under arrest and transport[ed] him to the Lake Charles Border Protection Station to conduct further checks, and potentially process him for immigration proceedings as an F-2 visa 'overstay.'"27
At the station, Agent Wilson continued to search for evidence of Tsolmon's valid visa.28 Tsolmon states that he was sitting in a chair across from Agent Wilson for most of this time.29 Agent Wilson avers that he requested a second CLAIMS search from the "National Law Enforcement Communications Center (NLECC) in Orlando Florida" but that search "yielded no additional information."30 Agent Wilson further states that he "entered biographical and fingerprint information into IDENT/IAFIS (Automated Biometric Identification System/Integrated Automated Fingerprint Identification System) for immigration, criminal and outstanding warrants," and that "[n]o information returned."31
At about 11:50 p.m., Agent Lewandowski called CBP supervisor Agent Daniel Stanley ("Agent Stanley") at home.32 Agent Stanley suggested running the searches again and calling a family member or friend of Tsolmon to continue to try and verify his immigration status.33 Tsolmon was allowed to call his mother, who orally confirmed his legal immigration status to Agent Wilson but was unable to provide written documentation.34 Agent Wilson states that "repeat checks came back with no new information beyond [Tsolmon's original] F-2 status," which had expired.35
Tsolmon disputes that Agent Wilson's searches did not reveal evidence of any visa adjustments after his F-2 visa expired. Tsolmon further argues that the agents should have been able to locate evidence of his valid visa from the information Tsolmon provided. But Tsolmon does not argue that the database searches conducted Friday night and early Saturday morning showed evidence of his claimed visa adjustment in 2009 from an F-1 student visa to his H-1B temporary worker visa.36
After approximately three hours at the station, Agent Wilson decided to process Tsolmon as a "non-immigrant overstay" because Tsolmon did not have with him, and Agent Wilson could not find electronically, immigration documents establishing current authority for Tsolmon's presence in the United States.37 Agent Wilson states he decided to charge Tsolmon because he "didn't have any proof of [Tsolmon] being here in the United States legally," and "[b]ecause [Agent Wilson] didn't have anything to substantiate [Tsolmon's] release."38 As a result, Agent Wilson prepared a "Notice to Appear" ("NTA") and other documents charging Tsolmon with being a non-citizen in the United States in violation of the terms of his F-2 visa.39
At approximately 2:30 a.m. on Saturday, November 13, 2010, Agent Wilson transported Tsolmon to the Southwest Louisiana Correctional Center ("SLCC").40 Tsolmon was held at SLCC for approximately forty hours, until Sunday evening.
Tsolmon complains that the conditions at SLCC were horrible, but he does not argue Agents Wilson or Stanley had control over or caused those conditions.41 Tsolmon does not dispute that SLCC is 42
On Sunday, November 14, 2010, at approximately 3:30 p.m., CBP supervisor, Agent Stanley, returned to the station to work the evening shift.43 He decided to conduct his own review of Tsolmon's file and searched for evidence of Tsolmon's valid visa.44 He re-did many of the searches conducted late Friday night.45 After what he says was several hours of searching, Agent Stanley eventually located Tsolmon's H-1B visa by finding an approved Petition for Nonimigrant Worker (Form I-129) filed by Tsolmon's employer, ContentActive, L.L.C., showing that USCIS had grantedTsolmon an H-1B visa effective from October 1, 2009 to September 20, 2012.46 He found the I-129 using the identifying information Tsolmon's roommate had provided to Agent Wilson over the phone on Friday night.47
Once Agent Stanley verified Tsolmon's immigration status, he notified Agent Wilson who drove to SLCC and picked up Tsolmon.48 Meanwhile, that same...
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