Xiao v. Reno, C-90-0350 WHO.

Decision Date02 March 1993
Docket NumberNo. C-90-0350 WHO.,C-90-0350 WHO.
Citation837 F. Supp. 1500
CourtU.S. District Court — Northern District of California
PartiesWang Zong XIAO, Plaintiff, v. Janet RENO, in her capacity as Attorney General of the United States; Michael J. Yamaguchi, in his capacity as United States Attorney for the Northern District of California; Reginald L. Boyd, in his capacity as United States Marshal for the Northern District of California; Chris Sales, in her capacity as Acting Commissioner of the Immigration and Naturalization Service; and David Ilchert, in his capacity as District Director for the Immigration and Naturalization Service, Defendants.

Cedric C. Chao, John D. Danforth, Ruth N. Borenstein, Lisa Bradley, Morrison & Foerster, San Francisco, CA, Paul M. Gordon, Law Offices of Paul M. Gordon, Oakland, CA, for plaintiff.

John A. Mendez, U.S. Atty., Stephen L. Schirle, Chief, Civ. Div., Alberto E. Gonzalez, Sp. Asst. U.S. Atty., San Francisco, CA, Mark C. Walters, Asst. Director, Michele Y.F. Sarko, Alexander H. Shapiro, Attys., Office of Immigration Litigation, Civil Div., Dept. of Justice, Washington, DC, for defendants.

OPINION AND ORDER

ORRICK, District Judge.

Defendants move to dismiss all twelve causes of action in plaintiff's first amended complaint ("FAC"). For the reasons stated herein, the Court grants the motion to dismiss the Eleventh Cause of Action, as mandated by the United States Court of Appeals for the Ninth Circuit, and denies the motion to dismiss the remaining eleven causes of action.

I.

The facts (taken from the Ninth Circuit's opinion in Wang Zong Xiao v. Barr, 979 F.2d 151 (9th Cir.1992)) may be summarized briefly.

A.

Pursuant to 8 U.S.C. § 1182(d)(5)(A), the government paroled plaintiff into the United States from the People's Republic of China ("PRC") to testify at the trial of several criminal defendants in the so-called "Goldfish" case. At that trial, plaintiff testified that Chinese authorities had tortured and coerced him into confessing and testifying falsely; this Court subsequently declared a mistrial. Plaintiff initially sought asylum, but then on February 5, 1990, he filed a complaint seeking declaratory and injunctive relief to prevent his return to the PRC or delivery into the custody of PRC officials. On July 5, 1990, plaintiff filed his FAC, which, currently, is the operative pleading before the Court. On February 10, 1990, this Court entered a preliminary injunction, ordering that plaintiff remain in the custody of the United States Marshal for the Northern District of California, and enjoining the United States from returning plaintiff to the PRC. This order was to remain in effect pending final adjudication of plaintiff's asylum request.

On July 29, 1991, plaintiff's request for asylum was denied. On February 18, 1992, the INS terminated plaintiff's immigration parole and served him with notice that he was being placed in administrative exclusion proceedings. On the same day, February 18, 1992, plaintiff requested a hearing on his previously filed motion for partial summary judgment on his Eleventh Cause of Action, which alleged that the government is "without legal authority over plaintiff's person and may not remove plaintiff from the United States or return plaintiff to Chinese custody." (FAC ¶ 199.)

On February 20, 1992, the Court granted plaintiff a preliminary injunction preventing the government from moving forward with exclusion or deportation proceedings until final adjudication of the motion for partial summary judgment and final resolution of all appeals arising therefrom. Thereafter, the Court granted plaintiff summary judgment on the Eleventh Cause of Action, and enjoined the government from taking any further action against plaintiff that could place him in jeopardy of a return to the PRC.

Defendants appealed both the preliminary injunction and the grant of summary judgment, alleging (1) that this Court lacked jurisdiction to enjoin exclusion proceedings, (2) that this Court erred in concluding that the INS lacked jurisdiction to place plaintiff in exclusion proceedings, and (3) that this Court erred in granting the preliminary injunction and summary judgment. The Ninth Circuit consolidated the appeals, and in an opinion filed October 30, 1992, vacated this Court's preliminary injunction, reversed this Court's grant of summary judgment, and remanded the case back to this Court "with directions to dismiss the claims in plaintiff's Eleventh Cause of Action for lack of jurisdiction." 979 F.2d at 156.

Defendants then filed this motion to dismiss not only the Eleventh Cause of Action but all the remaining eleven causes of action in plaintiffs FAC, not one of which was mentioned in the Ninth Circuit's opinion, or in the mandate.1

B.

In his FAC, plaintiff states twelve causes of action, including the Eleventh Cause of Action that the Ninth Circuit directed this Court to dismiss. Briefly, these causes of action are herein summarized.

Plaintiff's first cause of action is for injunctive relief pending final adjudication of his asylum application, including judicial review. Plaintiff alleges a "danger that defendants will seek to remove plaintiff from the United States before a final adjudication on plaintiff's asylum application, in violation of plaintiff's statutory rights, and return him to the custody of the PRC." (FAC ¶ 96.) Consequently, plaintiff asks this Court to enjoin defendants from removing plaintiff from the United States prior to a final adjudication (including appeal) of his asylum application. (Id. ¶ 100.)

Plaintiff's second cause of action also is for injunctive relief pending final adjudication of his asylum application, including judicial review. Plaintiff repeats his allegation that defendants will seek to remove him from the United States prior to the completion of the asylum adjudication process, and introduces a new allegation, namely, that "the United States Justice and State Departments are under pressure to return plaintiff to the custody of the Chinese government, regardless of the merits of plaintiff's asylum application." (Id. ¶ 111.) Plaintiff asks this Court to enjoin defendants from removing him from the United States prior to a final adjudication (including appeal) of his asylum application. (Id. ¶ 117.)

Plaintiffs third cause of action is for violation of substantive due process. Plaintiff alleges that defendants, through their actions, "have placed plaintiff into a dangerous predicament. Plaintiff is vulnerable to serious and irreparable injury if he returns to the PRC, in that the Chinese government will likely torture and execute him as a consequence of his truthful and complete testimony as a U.S. government witness in" the Goldfish case. (Id. ¶ 120.) Plaintiff alleges that because of their conduct, defendants owe him "a duty pursuant to the Fifth Amendment to substantively protect plaintiff's life and liberty." (Id. ¶ 121.) As a remedy for this alleged constitutional violation, plaintiff seeks a permanent injunction barring defendants from removing him from the United States or from turning him over to the PRC. (Id. ¶ 128.)

Plaintiff's fourth cause of action is for breach of the government's duty to protect its witnesses pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701, et seq. As a remedy for this alleged breach, plaintiff requests relief in the form of a permanent injunction barring defendants from removing him from the United States or from turning him over to the PRC. (FAC ¶ 138.)

Plaintiff's fifth cause of action is for breach of the government's duty to exercise ordinary care pursuant to the APA. Plaintiff requests relief in the form of a permanent injunction. (Id. ¶ 146.)

Plaintiff's sixth cause of action is for equitable estoppel based on affirmative governmental misconduct. Because of that alleged misconduct, plaintiff asserts that he "is entitled to an order permanently estopping defendants from asserting any defenses to plaintiff's asylum application or to his civil action, or from asserting any reasons why defendants are entitled to remove plaintiff from the jurisdiction of the United States or to return him to the custody of the PRC or any representative of" the PRC. (Id. ¶ 157.)

Plaintiff's seventh cause of action is for violations of 18 U.S.C. § 3508 and the APA. Section 3508 specifies the circumstances under which the Attorney General may request the temporary transfer to the United States of a person held in custody in a foreign country for the purpose of providing testimony in a criminal proceeding. Subsection (b) of that statute provides that where the transfer "is provided for by treaty or convention, by § 3508, or both," the transferred person shall be returned to the foreign country without extradition proceedings. Subsection (c), the one upon which plaintiff appears to base his claim, provides that where no treaty or convention exists, the Attorney General may exercise his "request and return" authority "if both the foreign country and the witness give their consent." 18 U.S.C. § 3508(c) (emphasis added). Plaintiff alleges the absence of any relevant "treaty or convention"; he further alleges the absence of his consent to the transfer, as subsection (c) would appear to require. Plaintiff's requested relief is for a permanent injunction. (FAC ¶ 167.)

Plaintiff's eighth cause of action is for violation of procedural due process. Plaintiff alleges that the "consent" of the "witness" required under § 3508(c) must be voluntary, knowing, and informed; to that end, plaintiff alleges that the procedural safeguards used in obtaining his consent to be brought to the United States were inadequate, and that § 3508 is, therefore, unconstitutional as applied to him. Plaintiff requests relief in the form of a permanent injunction. (Id. ¶ 177.)

Plaintiff's ninth cause of action also is for violation of procedural due process. Here, plaintiff alleges that § 3508 is unconstitutional on its face, or...

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  • Wang v. Reno, 93-17262
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • April 12, 1996
    ...F.2d 151 (9th Cir.1992) ("Wang I "). 2 On March 2, 1993, the district court dismissed the cause of action as instructed. Xiao v. Reno, 837 F.Supp. 1500 (N.D.Cal.1993). In April, 1993, the district court conducted a lengthy bench trial on the remaining causes of action and found that the gov......

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