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Lanuza v. United States

United States District Court, W.D. Washington

August 6, 2019

IGNACIO LANUZA, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.[1]

          ORDER GRANTING THE UNITED STATES' MOTION TO DISMISS

          BARBARA J. ROTHSTEIN UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff Ignacio Lanuza ("Lanuza") brings this action for malicious prosecution under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. Presently before the Court are a motion for partial summary judgment by Lanuza (Dkt. No. 131) and a motion to dismiss for lack of subject matter jurisdiction and for summary judgment by Defendant the United States of America ("United States") (Dkt. No. 136). Having considered the motions, the responses and replies thereto, [2] the record of the case, and relevant legal authorities, the Court will grant the United States' motion to dismiss for lack of subject matter jurisdiction and strike the cross motions for summary Judgment.

         II. BACKGROUND

         The facts have already been recounted in this Court's prior orders (Dkt. Nos. 35, 86) and in the Ninth Circuit's decision in this case, Lanuza v. Love, 899 F.3d 1019 (2018). Those facts are incorporated into this order. The Court will briefly summarize the relevant background.

         Lanuza is presently a lawful permanent resident married to a U.S. citizen with two U.S. citizen children. He lives and works in Seattle. In 2008 Lanuza encountered an Immigration and Customs Enforcement ("ICE") official who believed that Lanuza was not present in the country legally. ICE then initiated immigration removal proceedings against him.

         On May 6, 2009, Lanuza appeared before an immigration judge ("U") and applied for cancellation of removal. At the time, he met the eligibility requirements to apply, including physical presence in the United States continuously for at least ten years prior to being served a Notice to Appear. During this hearing, an attorney for ICE representing the government, Jonathan Love, stated that Lanuza's immigration file contained an 1-826 Form that was signed by Lanuza in 2000, accepting voluntary departure to Mexico. The next week Love submitted to the court an 1-826 Form purportedly signed by Lanuza on January 13, 2000.

         The 1-826 Form was critical in determining whether Lanuza would be able to remain in the United States with his family because a valid 1-826 Form from January 13, 2000 would render him ineligible for cancellation of removal as it would have established an interruption of the required ten years of continuous presence.

         On January 5, 2010, the IJ found Lanuza ineligible for cancellation of removal and ordered him removed from the United States. The IJ's decision that Lanuza was not eligible for cancellation of removal was based on the 1-826 Form. Lanuza appealed the IJ's decision to the Board of Immigration Appeals ("BIA"), and the Department of Homeland Security ("DHS," the agency overseeing ICE) defended its position at the BIA. The BIA upheld the IJ's decision, "which was based exclusively on the January 2000 1-826," and ordered him removed to Mexico.

         In December 2011, Lanuza's new counsel, Mr. Hilary Han, reviewed the agency file and discovered irregularities in the 1-826 Form. Han then ordered a forensic examination, which revealed that the Form had been falsified. Most glaringly, the Form referred at top to the "U.S. Department of Homeland Security," an agency that was not yet created when the Form was purportedly signed on January 13, 2000.

         Lanuza filed a motion to reopen his removal proceedings before the BIA on February 11, 2012. The BIA granted Lanuza's motion and remanded his case for a full evidentiary hearing on April 20, 2012, citing the "seriousness and particularity of the allegations" raised by Lanuza. DHS did not contest Mr. Lanuza's eligibility for cancellation of removal, and on January 9, 2014 the IJ granted the application, adjusting Lanuza's status to lawful permanent resident.

         On February 13, 2014, Lanuza filed a $500, 000 tort claim against the United States, Dkt. No. 1-6 at 2, which was administratively denied. Lanuza then commenced this action on October 23, 2014 against Defendants Love and the United States. The complaint (Dkt. No. 1) lists five claims under the FTCA: abuse of process, malicious prosecution, intentional infliction of emotional distress, negligence, and negligent infliction of emotional distress. The complaint also alleges that Love violated Lanuza's substantive and procedural due process rights under the Fifth Amendment to the Constitution under a Bivens theory of liability. See Bivens v. Six Unknown Named Agents of Fed Bureau of Narcotics, 403 U.S. 388 (1971).

         On March 20, 2015, the Court[3] dismissed Lanuza's Bivens claim and four of the FTCA claims that were time-barred by the statute of limitations. Dkt. No. 35 at 13. The malicious prosecution claim was the only FTCA claim to remain.

         On January 13, 2016, the U.S. Attorney's Office in Seattle filed criminal charges against Love for deprivation of Lanuza's civil rights in violation of 18 U.S.C. § 242. The single-count charge alleged that between July 3, 2008 and May 11, 2009, Love made fraudulent alterations to the Form 1-826, and then on May 11, 2009 submitted the fraudulent and forged Form into evidence during Lanuza's proceedings. Love pleaded guilty according to a plea agreement, which stated, inter alia, that no other ICE employee knew about or participated in the alteration of the 1-826 Form. United States v. Love, No. 16-CR-0005-BAT (W.D. Wash. April 20, 2016). At all relevant times, Love was an Assistant Chief Counsel for ICE. Id. Love was sentenced to 30 days in ...


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