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Lanuza v. United States

United States District Court, W.D. Washington

October 29, 2019





         This Court previously dismissed Plaintiff Lanuza's claim for malicious prosecution under the Federal Tort Claims Act ("FTCA") and entered judgment accordingly. See ECF Nos. 148, 149. Now before the Court is Defendant United States' Motion for Rule 11 Sanctions (ECF No. 156) and Motion for Rule 54 Costs (ECF No. 155-2).[1] Also before the Court is Plaintiff Lanuza's opposition to Defendant's motion and Plaintiffs own motion for costs and fees incurred in responding to the Rule 11 motion (ECF No. 152).


         Plaintiff 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 he 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 ("IJ") and applied for cancellation of removal, which required a ten-year uninterrupted presence in this country. 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 Attorney 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 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 solely 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, in its heading the Form referred 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. On remand, DHS did not contest his 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, Judge Pechman[2] 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 September 8, 2015, the United States sent an email to Lanuza's counsel that the United States would seek Rule 11 sanctions if Lanuza continued with what the United States called a "frivolous" FTCA malicious prosecution claim. See ECF No. 153-1 at 12-13.

         On January 13, 2016, the U.S. Attorney's Office in Seattle filed a single-count indictment against Love for deprivation of Lanuza's civil rights in violation of 18 U.S.C. § 242. The indictment 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. United States v. Love, ...

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