United States District Court, W.D. Washington
ORDER GRANTING THE UNITED STATES' MOTION TO
BARBARA J. ROTHSTEIN UNITED STATES DISTRICT JUDGE
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,
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.
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.
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.
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.
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
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.
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.
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.
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).
March 20, 2015, the Court 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.
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 ...