Zundel v. Holder

• Decision Date: 07 May 2012
• Docket Number: No. 10–6012.,10–6012.
• Parties: Ernst C. ZUNDEL; Ingrid A. Zundel, Plaintiffs–Appellants, v. Eric H. HOLDER, Jr.; Immigration and Naturalization Service; United States of America; Michael J. Conway; Jimmy Mounce; Gary Slaybaugh; Janet Napolitano; James Berrong; Does I through X, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

687 F.3d 271

82 Fed.R.Serv.3d 697

Ernst C. ZUNDEL; Ingrid A. Zundel, Plaintiffs–Appellants,

v.Eric H. HOLDER, Jr.; Immigration and Naturalization Service; United States of America; Michael J. Conway; Jimmy Mounce; Gary Slaybaugh; Janet Napolitano; James Berrong; Does I through X, Defendants–Appellees.

No. 10–6012.

United States Court of Appeals,Sixth Circuit.

Argued: Jan. 20, 2012.

Decided and Filed: May 7, 2012.

ARGUED:Bruce Leichty, Law Offices of Bruce Leichty, Clovis, California, for Appellants. Christopher W. Hollis, United States Department of Justice, Washington, D.C., Suzanne H. Bauknight, Assistant United States Attorney, Knoxville, Tennessee, Norman H. Newton, Crawford, Crawford & Newton, Maryville, Tennessee, for Appellees. ON BRIEF:Bruce Leichty, Law Offices of Bruce Leichty, Clovis, California for Appellants. Christopher W. Hollis, United States Department of Justice, Washington, D.C., Suzanne H. Bauknight, Assistant United States Attorney, Knoxville, Tennessee, Norman H. Newton, Crawford, Crawford & Newton, Maryville, Tennessee, for Appellees.

Before: SILER, CLAY, and ROGERS, Circuit Judges.

OPINION

ROGERS, Circuit Judge.

Ernst Zundel, a German citizen, and his wife, Ingrid Zundel, a United States citizen, appeal the district court's dismissal of their claims stemming from Mr. Zundel's deportation in 2003. Mr. Zundel entered the United States in March 2000 under the Visa Waiver Pilot Program (VWPP), 8 U.S.C. § 1187. He subsequently filed for permanent resident status under 8 U.S.C. § 1255. But he failed to appear for or reschedule the hearing on his application and was subsequently deported. The Zundels filed a petition for writ of habeas corpus, a petition for writ of mandamus, a claim for injunctive relief under the Administrative Procedure Act, and a Bivens action on behalf of Mrs. Zundel for loss of consortium and companionship. The district court dismissed Mr. Zundel's petition for writ of habeas corpus. On appeal, this court converted his habeas petition into a petition for review under the REAL ID Act of 2005, Pub.L. No. 109–13, Div. B, 119 Stat. 231, and denied the petition. Zundel v. Gonzales, 230 Fed.Appx. 468 (6th Cir.2007)( Zundel II ). The district court then dismissed the Zundels' remaining claims and denied their motion to amend their complaint for a third time. Mr. Zundel's challenge to the determination that he last entered the United States under the VWPP is barred by the doctrine of res judicata. In addition, Mr. Zundel has not shown that this court has subject matter jurisdiction over his challenge to the bar of inadmissibility imposed as a consequence of his removal. Finally, Mrs. Zundel's Bivens claim for loss of consortium and companionship fails to state a claim upon which relief can be granted, and Mr. Zundel's proposed Bivens claim fails on statute of limitations grounds.

I.

This appeal marks the Zundels' third appearance before this court in this action. Zundel v. Berrong, 106 Fed.Appx. 331 (6th Cir.2004)( Zundel I ); Zundel II, 230 Fed.Appx. 468. Ernst Zundel is a German citizen who, prior to entering the United States in 2000, lived in Canada for 42 years. Mr. Zundel entered the United States on March 12, 2000, under the VWPP, 8 U.S.C. § 1187.¹ This pilot program permitted aliens from certain countries to enter the country as non-immigrant visitors without a visa for a period not to exceed ninety days if the alien waived “any right ... to contest, other than on the basis of an application for asylum, any action for removal of the alien.” 8 U.S.C. § 1187(b)(2). Zundel left the country shortly after his March arrival but returned on May 21, 2000—before the ninety-day period expired.

Zundel eventually moved to Sevier County, Tennessee, where he lived with his wife, Ingrid, whom he had married on January 19, 2000. He applied for permanent residency under 8 U.S.C. § 1255 on the basis of his marriage. The Immigration and Naturalization Service (INS) ² notified Zundel that he would be interviewed on June 12, 2001, at the Memphis INS office. Zundel's attorney, however, could not attend the scheduled hearing and purportedly made a written request to reschedule the interview on May 23, 2001. The INS did not contact him to reschedule the interview. Nor did the agency contact Zundel's attorney after he allegedly sent a follow-up letter on May 23, 2002, again asking to reschedule the interview. Zundel's INS file does not contain a record of either request. In the meantime, on January 30, 2002, the INS denied Zundel's application for permanent residence because he failed to appear for the hearing on June 12, 2001.

Zundel's next contact with the INS occurred on February 5, 2003, when he was arrested at his home by officers of the Sevier County Sheriff's Department, acting in coordination with the INS. Officers transported Zundel to the Blount County, Tennessee, jail. At the time, officers provided him with a letter, entitled “Decision,” that explained that his failure to appear for his scheduled interview and his subsequent failure to reschedule or withdraw his application for permanent residence resulted in its termination because it was deemed abandoned. The letter informed Zundel that he could not appeal the decision. That same day, officials also presented Zundel with a Warrant of Deportation. On February 13, 2003, the Zundels filed in the district court a “Writ of Habeas Corpus, Petition for Temporary Restraining Order and Preliminary Injunction, Complaint for Constitutional Violations, Petition to Set Bond.” This petition challenged Mr. Zundel's detention and pending deportation by the INS. The district court denied the Zundels' request for emergency relief without entering a judgment. The Zundels appealed.

On February 14, 2003, this court denied the Zundels' request for an emergency motion to stay removal. On February 17, 2003, the INS deported Zundel, releasing him into Canadian custody. Upon his departure, the INS provided Zundel with a notice informing him that, under 8 C.F.R. § 217.4(b)(1), he qualified as an alien deportable under one or more sections of the Immigration and Nationality Act (INA) § 237, 8 U.S.C. § 1227. The notice informed Zundel that he was prohibited from entering, attempting to enter, or being in the United States for a period of ten years from the date of his departure pursuant to § 212(a)(9) of the INA, 8 U.S.C. § 1182(a)(9). Further, because Zundel had been in the United States unlawfully for more than a year, the notice stated that he was prohibited from entering, attempting to enter, or being in the United States for an additional ten years to run consecutively with the first ten years. See8 U.S.C. § 1182(a)(9)(B)(i)(II). Thus, Zundel's bar of inadmissibility would run twenty years from the date of his departure. The notice then warned Zundel of potential criminal penalties should he enter, attempt to enter, or be found in the United States without the Attorney General's express consent.

After Zundel's departure, this court determined that his removal to Canada rendered his requests for preliminary relief moot. Zundel I, 106 Fed.Appx. at 334. We remanded because the Zundels' requests for permanent relief—i.e., a writ of habeas corpus vacating Mr. Zundel's deportation order and damages for alleged constitutional violations—required the district court's consideration prior to any review by this court.

First in September 2004 and again in November 2004, the Zundels filed amended petitions for a writ of habeas corpus, a writ of mandamus, injunctive relief under the Administrative Procedure Act (APA), 5 U.S.C. §§ 702, et seq., and a Bivens claim for damages by Mrs. Zundel. The district court dismissed the habeas petition for lack of subject matter jurisdiction. On a second appeal, this court converted the habeas petition into a petition for review as required by the recently enacted REAL ID Act of 2005, Pub.L. No. 109–13, Div. B, 119 Stat. 231. Zundel II, 230 Fed.Appx. at 472. We determined we could not review Zundel's claim that the removal decision was motivated by the federal government's hostility directed at his political beliefs; 8 U.S.C. § 1252(g) does not permit review of the Attorney General's discretionary decision to “commence proceedings.” As for Zundel's claim that the INS erroneously determined that he entered the country under the VWPP and thereby waived his right to contest his removal, § 1252(g) did not bar judicial review of that decision. Even so, we held that because Zundel's most recent entry into the United States on May 21, 2000, occurred within the ninety-day admission period for which he had been provided a waiver under the VWPP, he waived, under 8 U.S.C. § 1187(b)(2), his right to contest removal. We therefore denied his petition for review. Zundel II, 230 Fed.Appx. at 476. We did not address Zundel's claims for injunctive relief under the APA, nor did we consider his mandamus claim or Mrs. Zundel's Bivens action.

The federal defendants moved to dismiss the Zundels' remaining claims on March 25, 2008. James Berrong, Sheriff of Blount County, Tennessee, also filed a renewed motion to dismiss. The Zundels then sought to amend their pleadings a third time. The proposed Third Amended Complaint and Petition removed Mr. Zundel's petition for writ of habeas corpus but added substantive allegations concerning Mr. Zundel's February 2003 arrest in Tennessee; amended the prayer for relief to “state and clarify” the Zundels' claims for writ of mandamus and injunctive relief under the Administrative Procedure Act; added a claim for Bivens damages on behalf of Mr. Zundel; converted the official capacity claims against federal defendants John Ashcroft and Tom Ridge into individual capacity claims; and added Condoleeza Rice as a federal defendant.

The district court concluded that Zundel's various amended complaints and petitions (including his proposed amendments) essentially restated his initial request for judicial...