United States District Court, W.D. Washington, Seattle
IGNACIO LANUZA, Mr. Lanuza,
JONATHAN M. LOVE, et. al. Defendants.
ORDER ON MOTIONS
MARSHA J. PECHMAN, District Judge.
THIS MATTER comes before the Court on Defendant Jonathan M. Love's Motion to Dismiss, (Dkt. No. 9), and Defendant United States' Motion to Dismiss, (Dkt. No. 14). The Court reviewed the motions, Plaintiff Ignacio Lanuza's response briefs, (Dkt. Nos. 18, 24), and the related record. The Court GRANTS Defendant Love's Motion to Dismiss and DISMISSES Plaintiff's claims against Defendant Love, (Dkt. No. 9). The Court GRANTS in part DENIES in part Defendant United States' Motion to Dismiss, (Dkt. No. 14). In light of its rulings on these motions, the Court DENIES Defendant Love's pending Motion to Stay, (Dkt. No. 10), as moot and DENIES Mr. Lanuza's pending Motion to Compel, (Dkt. No. 30), as moot.
Plaintiff Ignacio Lanuza alleges the following facts in his complaint. (Dkt. No. 1.) On or about June 25, 2008, while he was in custody on suspicion of a weapons violation, Mr. Lanuza met Immigration and Customs Enforcement ("ICE") Officer Anthony Dodd at King County Jail. (Id. at 4.) During their meeting, Mr. Lanuza admitted to Officer Dodd that he did not have authorization to be in the United States. (Id.)
On June 25, 2008, Officer Dodd completed an I-213 Form ("Record of Deportable/Inadmissible Alien") recounting his interaction with Mr. Lanuza along with an I-826 Form ("Notice of Rights"). (Id.) Officer Dodd wrote on the I-213 Form that Mr. Lanuza had been advised of his rights per the I-826 Form. (Id.)
Mr. Lanuza was transferred to immigration custody about one week after his meeting with Officer Dodd. (Id.) Officer Dodd served Mr. Lanuza with a Warrant for Arrest of Alien and a Notice to Appear in removal proceedings on July 3, 2008. (Id. at 5.) Although Mr. Lanuza was initially placed in removal proceedings at the Tacoma Immigration Court, he subsequently posted bond and his removal proceedings were transferred to the Seattle Immigration Court. (Id.)
On May 6, 2009, at his master calendar hearing, Mr. Lanuza indicated to the Immigration Judge ("IJ") that he would apply for cancellation of removal. (Id.) Cancellation of removal is a form of relief that allows the IJ to cancel removal proceedings and adjust the applicant's immigration status to that of a lawful permanent resident. (Id.) At the time he was placed in removal proceedings, Mr. Lanuza satisfied the statutory requirements for cancellation of removal, including ten years of continuous presence in the United States. (Id.)
During his May 2009 immigration hearing, the IJ asked Defendant Love to confirm representations that Defendant Love had made off the record. (Id. at 6.) Specifically, the IJ asked Defendant Love to confirm that there were documents in Mr. Lanuza's file that showed he had waived his opportunity to appear before an IJ when he was apprehended at the U.S.-Mexico border in January of 2000. (Id.) Defendant Love responded affirmatively to the IJ's question, asserting that Mr. Lanuza had signed an I-826 Form. (Id.)
On May 11, 2009, Defendant Love submitted the additional evidence requested by the IJ, including an I-826 Form that Mr. Lanuza contends was falsified, along with a motion opposing Mr. Lanuza's application for cancellation of removal. (Id.)
The I-826 Form was critical in determining whether Mr. Lanuza would be able to remain in the United States with his family because a signed I-826 Form would render him ineligible for cancellation of removal. (Id.) By signing an I-826 Form, a non-citizen accepts an administrative voluntary departure instead of exercising his right to appear before an IJ in removal proceedings and thereby breaks whatever continuous physical presence he may have by then accrued. (Id. at 7.)
In its submission to the IJ, the Department of Homeland Security ("DHS") argued that Mr. Lanuza was made ineligible for cancellation of removal because his continuous presence in the United States was broken by the January 2000 voluntary departure. (Id.) Mr. Lanuza challenged DHS's position, arguing:
Nobody ever read to me or gave me any copy of the paper that my attorney  showed me. The only thing that I did was to sign where the [Immigration] official indicated and the official did not explain anything in detail to me about the reason for the paper. I remember everything happened very fast, we were about 70 to 80 persons when everybody simply signed to leave voluntarily.
(Dkt. No. 1-6 at 40.) Mr. Lanuza requested that the IJ issue a subpoena requiring Border Patrol Agent Davis to testify under oath as to the circumstances under which the I-826 Form was signed. (Dkt. No. 1 at 7-8.) The IJ denied his request for subpoena in June 2009. (Id. at 8.)
On January 5, 2010, the IJ found Mr. Lanuza ineligible for cancellation of removal and ordered him removed from the United States. (Id.) The IJ's decision that Mr. Lanuza was not eligible for cancellation of removal was based on the I-826 Form. (Id.) Mr. Lanuza appealed the IJ's decision to the Board of Immigration Appeals ("BIA"), and DHS defended its position before the BIA. (Id.) The BIA upheld the IJ's decision, "which was based exclusively on the January 2000 I-826, and ordered [Mr. Lanuza] removed to Mexico." (Id. at 9.)
Mr. Lanuza hired new counsel on December 9, 2011 to represent him in the Ninth Circuit. (Id.) In December of 2011, Mr. Lanuza's new counsel, Mr. Hilary Han, discovered irregularities in the I-826 Form, as well as other documentation, while reviewing the agency file. (Id.) These irregularities indicated the I-826 Form had been manipulated. (Id.) Mr. Han ordered a forensic evaluation of the I-826 Form. (Id.) The forensic evaluation was completed on February 1, 2012. (Dkt. No. 1-7 at 22-26.) The results of the evaluation demonstrated the I-826 Form had been falsified. (Dkt. No. 1 at 9.)
Mr. Lanuza filed a motion to reopen his removal proceedings before the BIA on February 11, 2012. (Id.) The government did not respond to his motion. (Id.) The BIA granted Mr. Lanuza's motion and remanded his case for a full evidentiary hearing on April 20, 2012, citing to the ...