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Blanco Ayala v. United States

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

May 31, 2019

JUAN CARLOS BLANCO AYALA, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

          T.S. ELLIS, III, UNITED STATES DISTRICT JUDGE

         Plaintiff, a United States citizen born in El Salvador, brings this action seeking to recover damages for the Department of Homeland Security's ("DHS") decision to arrest, detain, and remove plaintiff based on an erroneous determination in 2004 that plaintiff was not entitled to derivative citizenship. At issue are defendant's motions (i) to dismiss for lack of subject matter jurisdiction and (ii) to dismiss for failure to state a claim. Because the DHS officials' conduct that plaintiff challenges in this case falls within the discretionary function exception of the Federal Tort Claims Act ("FTCA"), [1] this action must be dismissed for lack of subject matter jurisdiction.

         I.[2]

         Plaintiff was born in El Salvador on January 20, 1978. According to the Complaint, plaintiff first entered the United States at age two or three and was granted lawful permanent residence in the United States on or about September 1, 1987. Plaintiffs parents divorced in 1983, but the divorce decree did not address or decide which parent would have legal or physical custody of plaintiff. On June 8, 1995, plaintiffs father became a naturalized citizen of the United States. At the time of his father's naturalization, plaintiff was seventeen years old and was residing with his father in Washington, D.C. Plaintiffs father had actual, uncontested custody of plaintiff at the time of plaintiffs father's naturalization. Accordingly, by operation of then-applicable Immigration and Nationality Act § 321(a), [3] plaintiff automatically derived United States citizenship on June 8, 1995 by virtue of his father's naturalization.[4] Yet, plaintiff did not receive a certificate of citizenship or any other proof of his citizenship at that time.

         In February 2004, plaintiff left the United States to visit El Salvador. When plaintiff returned to the United States on February 28, 2004 via John F. Kennedy International Airport in New York City, plaintiff was questioned about his immigration status by a United States Customs and Border Protection ("CBP") officer. Plaintiff told the CBP officer that he was a lawful permanent resident, that he lived with his father in Washington, DC, and that his father was a U.S. citizen. Plaintiff also asked the CBP officer to investigate whether plaintiff was a United States citizen. CBP allowed plaintiff to enter the United States but directed him to report to CBP at Dulles International Airport because it appeared that plaintiff had been convicted of four criminal offenses, including two controlled substance offenses. Plaintiff subsequently reported to CBP at Dulles International Airport.

         On April 26, 2004, CBP officers began investigating whether plaintiff possessed derivative United States citizenship from his father's naturalization as a United States citizen. In the course of the investigation, CBP had in its possession information reflecting that at the time of his father's naturalization, (i) plaintiff was a minor, (ii) plaintiff resided with his father, and (iii) plaintiffs parents had agreed that plaintiff would reside with his father. Nonetheless, CBP and DHS officials determined that plaintiff was not a derivative citizen of the United States.

         During a check-in with CBP on or about August 12, 2004, CBP told plaintiff he was not a United States citizen and detained him in an immigration detention center in Virginia. Immigration officials searched plaintiff multiple times while he was detained. Thereafter, United States Immigration and Customs Enforcement ("ICE") served plaintiff with a Notice to Appear ("NT A"), which commenced removal proceedings against plaintiff in Immigration Court in Arlington, Virginia. The NTA informed plaintiff that ICE alleged (i) that plaintiff was not a citizen of the United States, (ii) that plaintiff was convicted of four criminal offenses, including two controlled substance offenses, (iii) and that plaintiff was subject to removal under 8 U.S.C. § 1182(a)(2)(A)(i)(II) (controlled substance offenses), (a)(2)(C) (illicit trafficker in any controlled substance), and (a)(2)(A)(i)(I) (crimes involving moral turpitude). Plaintiff remained detained, but was represented by counsel during his removal proceedings.

         During his removal proceedings, plaintiff, by counsel, conceded that he was not a United States citizen, despite the fact that he was provided a full opportunity to argue that he had previously obtained derivative United States citizenship. Based on plaintiffs admission, the Immigration Court held that plaintiff was subject to removal pursuant to the charges in the NTA. Plaintiff was ordered removed on September 29, 2004, and plaintiff did not notice an appeal of that order. Immigration officials executed the removal order and removed Plaintiff to El Salvador on or about December 6, 2004.

         Plaintiff subsequently returned to the United States in or around 2005. Then, on or about November 20, 2015, ICE officers took plaintiff into custody and detained him at a detention center in Virginia after plaintiffs prior removal order was reinstated pursuant to 8 U.S.C. § 1231(a)(5). Plaintiff retained new counsel, who presented plaintiffs claim of derivative citizenship based on his father's naturalization to ICE on April 4, 2016. That same day, ICE released plaintiff from physical custody through an Order of Supervision. Plaintiff, by his new counsel, subsequently persuaded federal officials of his derivative citizenship. Plaintiff was thus issued a United States passport and a certificate of United States citizenship, and his 2004 removal proceedings were terminated.

         Based on these facts, plaintiff claims that the United States is liable pursuant to the FTC A for the following torts under Virginia law: assault, battery, false arrest, intentional infliction of emotional distress, negligence, and negligent infliction of emotional distress. In essence, these claims allege that DHS officials erroneously determined in 2004 that plaintiff had not become a derivative citizen when his father was naturalized and that, as a result, DHS officials unlawfully arrested, detained, and removed plaintiff in 2004 and again unlawfully arrested and detained plaintiff in 2015 and 2016.

         II.

         In its motion to dismiss for lack of subject matter jurisdiction, defendant argues that subject matter jurisdiction over plaintiffs claims is lacking pursuant to the discretionary function exception to the FTCA's waiver of sovereign immunity.[5]As the Supreme Court has explained, "[a]bsent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." F.D.I.C. v. Meyer, 510 U.S. 471, 474 (1994). The FTCA waives the United States' sovereign immunity with respect to certain damages actions based on "the negligent or wrongful act[s] or omission[s]" of federal employees. 28 U.S.C. § 1346(b)(1). Yet importantly, the FTCA's waiver is limited by several exceptions, which, if applicable, preserve the United States' sovereign immunity from suit and deprive the district court of subject matter jurisdiction over the plaintiffs claims against the United States. See Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001).

         At issue here is the discretionary function exception, which provides that the FTCA's waiver of sovereign immunity does not extend to any claim against the United States "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). This exception "prevent[s] judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Williams v. United States, 50 F.3d 299, 309 (4th Cir. 1995). The discretionary function exception applies if two requirements are met; the government action at issue (i) must "involve[] an element of judgment or choice" (ii) that is "based on considerations of public policy." Holbrook v. United States, 673 F.3d 341, 345 (4th Cir. 2012) (quoting Berkovitz v. United States, 486 U.S. 531, 536-37 (1988)). The Fourth Circuit has held that "[p]laintiffs bear the burden of proving that the discretionary-function exception does not apply" to the challenged government conduct. Indemnity Ins. Co. of North America v. United States, 569 F.3d 175, 180 (4th Cir. 2009).

         Before proceeding to apply these two requirements, it is important to identify the government conduct that is challenged by plaintiffs tort claims. A review of the Complaint reflects that plaintiff alleges that DHS officials negligently and erroneously determined in 2004 that plaintiff was ineligible for derivative citizenship and that this determination led to plaintiffs arrest, detention, and removal to El Salvador in 2004 and his arrest and detention during 2015 and 2016. See Compl. ¶ 43 ("DHS arrested, detained, and deported [plaintiff] based on a misunderstanding of citizenship law in 2004."); id. ¶ 49 ("DHS acted recklessly when the agency incorrectly determined that [plaintiff] was not a U.S. citizen, which subsequently led to his arrest, detention, and deportation to El Salvador."); id. ¶ 52 ("DHS breached its duty [to allow U.S. citizens like plaintiff to enter the United States freely] which was the cause in fact and proximate cause of [plaintiffs] arrests, detention, and deportation."); id. ΒΆ 54 ("DHS acted negligently when the agency incorrectly determined that [plaintiff] was not a U.S. citizen, which subsequently led to his arrest, detention, and deportation to El ...


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