United States District Court, W.D. Washington
MEMORANDUM OPINION AND ORDER
BARBARA J. ROTHSTEIN, UNITED STATES DISTRICT JUDGE.
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). 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).
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.
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,
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
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.
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.
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.
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, Judge Pechman 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
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.
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, ...