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Frontera v. United States

March 31, 2009

FORTUNATO FRONTERA, PLAINTIFF,
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: William M. Skretny United States District Judge

DECISION AND ORDER

I. INTRODUCTION

Plaintiff Fortunato C. Frontera ("Frontera" or "Plaintiff"), commenced this action on June 14, 2005, and filed an Amended Complaint on May 19, 2006. Therein, Frontera alleges that defendants United States of America, thirteen named federal employees, and other unknown federal employees (together, "Defendants" or "the Government") wrongfully deported him and later unlawfully imprisoned and detained him for more than five years when he reentered the United States. According to Plaintiff, he is and was at all relevant times a United States citizen. Frontera asserts claims against the individually named defendants under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution, and against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671 et seq.

On January 17, 2007, Defendants moved to dismiss the Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure and, alternatively, for summary judgment.*fn1 (Docket No. 50). On April 23, 2007, Plaintiff filed his opposition to Defendants' motion to dismiss, and cross-moved (Docket No. 56), pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, for an order denying or staying Defendants' request for summary judgment on the ground that no discovery has yet taken place.*fn2 Defendants filed a Reply Memorandum of Law ("Defs' Reply") on July 6, 2007, and the matter is now fully briefed. Having reviewed the parties' submissions, this Court finds oral argument unnecessary.

II. BACKGROUND

This case involves two of the provisions of the Immigration and Nationality Act ("INA") that set forth conditions under which children born abroad may attain U.S. citizenship. One pertains to children born to a U.S. citizen and an alien parent, 8 U.S.C. § 1401, and the other to children born to two alien parents, at least one of whom later became a naturalized citizen, 8 U.S.C. § 1432 (repealed Oct. 30, 2000). The INS repeatedly found that Frontera had not attained citizenship under the former provision, but ultimately determined that he had derivative citizenship under the latter.

A. Facts

Frontera's father, Tommaso Frontera ("Tom"), was born a United States citizen in Utica, New York, on February 6, 1915. Tom left the United States for Italy in 1918, when he was approximately three years old, and remained there until 1954. In March 1946, Tom voted in an Italian election, which caused him to lose his United States citizenship under the Nationality Act of 1940. While still in Italy, Tom married Frontera's mother, an Italian citizen. Frontera was born in Italy on May 29, 1950 to two alien parents, his father having lost his U.S. citizenship. Frontera's mother died in 1953, and Tom later married another Italian citizen, Domenica Castano. Domenica never adopted Frontera or his two brothers.

On or about July 24, 1953, Tom filed an application to resume U.S. citizenship and swore an "Oath of Renunciation and Allegiance" at the U.S. Consulate in Naples, Italy. (Am. Compl., Ex. 1-B.) The Naples Consulate issued Tom a U.S. Passport and he returned to the United States in April 1954. (Id., Ex. 1-N.) In December 1954, immigrant visas were issued to Domenica, Frontera, and his two siblings, Vincenzo and Francesco. (Id., Ex. 1-C.) Frontera arrived in the United States on January 13, 1955, and entered the country as a legal permanent resident. (Id.)

Some twenty years later, in 1975, Frontera pled guilty to attempted rape in the first degree and was sentenced to four years' incarceration. In 1976, the Immigration and Naturalization Service ("INS")*fn3 received an alien conviction report on Frontera and commenced an investigation to determine whether he was subject to deportation. (Defs' Appx. Ex. G.) Frontera was interviewed at the Elmira Correctional Facility and stated that his father was a U.S. citizen by birth, and his stepmother became a U.S. citizen through naturalization in June 1962. (Id.) As part of the investigation, Domenica's "A file"*fn4 was reviewed. Its contents revealed that Domenica's naturalization was completed on June 7, 1962, she was married to Tom, who was born in Utica, New York, and Frontera's birth mother had died on March 19, 1953. (Id.)

Based on the information obtained from Frontera and Domenica's A file, the INS investigator concluded that section 301 of the INA, 8 U.S.C. § 1401 (child born abroad to a U.S. citizen and an alien), applied to Frontera's circumstances, but that Frontera did not acquire U.S. citizenship because his father had not lived in the United States for a total of 10 years prior to Frontera's birth, as was then required. (Id. Ex. G.) The investigator also determined that Frontera was not amenable to deportation at that time. (Id.)

On February 13, 1989, Frontera filed with the INS an Application for Certificate of Citizenship, Form N-600, in which he claimed derivative citizenship through his father. In the application, Frontera stated that his father was a citizen by birth who had not lost his citizenship, and that his birth mother was deceased. (Am. Compl., Ex. 1-E.) While his application was pending, on June 19, 1989, Frontera was sentenced to a term of 5 to 15 years' incarceration for criminal sale of a controlled substance in the third degree. (Id., Ex. 1-H.) On June 27, 1989, in a letter relative to his N-600 application, the INS advised Frontera that it did not appear he became a United States citizen through his father because his father had not resided in the United States for 10 years prior to Frontera's birth, as was then required by 8 U.S.C. § 1401. (Id. Ex. 1-F.) Frontera was invited to submit additional information that might establish that his father did meet the statutory residence requirements, but he did not submit any additional information in that regard. (Id.)

An INS agent, Jean M. Peterson, was assigned to investigate the N-600 application and whether Frontera was subject to deportation as a result of his 1989 conviction. (Leslie Aff. ¶ 39.) Among other things, defendant Peterson took a sworn statement from Frontera in which he stated that his father was born in the U.S., and had lived in Italy for an unknown time before returning. (Am. Compl., Ex. 1-H.) Peterson completed an Investigation Workplan, which included the notation "Interview and take SS from subject father, Thomas Frontera, 6 Marilyn Ct., W. Seneca, NY." (Id., Ex. 1-G.) However, instead of interviewing Tom, Peterson took a sworn statement from Frontera's brother, Vincenzo, who responded to questions she posed about their father. (Id. and Ex. 1-I.) Vincenzo told Peterson that Tom was born in 1915, left the United States for Italy at age 3 or 4, did not return until 1954, and had not served in the U.S. military. (Id.) Vincenzo also gave information about his own circumstances, stating that he was born in Italy and naturalized as a U.S. citizen in 1961. (Id.) Peterson concluded that Frontera did not acquire citizenship through his father because Tom had not met the applicable residence requirements prior to Frontera's birth. She determined that Frontera was a deportable alien pursuant to section 241(a)(ii) of the INA. (Id., Ex. 1-J.)

After he was paroled from his state sentence, Frontera appeared in the INS offices in Buffalo, New York, seeking a replacement Alien Registration receipt card. (Leslie Aff., Ex. T.) His A file was reviewed and it was found to contain an unadjudicated N-400 Petition for Naturalization in which Frontera claimed U.S. citizenship from birth through his U.S. born father. (Id.) An immigration examiner determined that Frontera did not derive citizenship from Tom, due to Tom's lack of physical presence in the U.S. for the requisite number of years. (Id.) It was also noted that Frontera had not responded to the INS's earlier request for additional information. (Id.) Defendant INS investigator M. A. LaMonte was directed to take Frontera into custody, and the INS commenced a deportation proceeding against him as an aggravated felon, pursuant to section 237(a)(2)(B)(I) of the INA. 8 U.S.C. § 1227(a)(2)(A)(iii). (Id.; Defs' Appx. Ex. N.)

Defendant INS agent Thomas A. Matecki completed a "Memorandum of Investigation" in connection with the deportation proceeding and concluded that Frontera did not receive derivative citizenship through his father. (Am. Compl., Ex. 1-K.) Agent Matecki found that Frontera did not acquire citizenship under 8 U.S.C. § 1401 because his father did not meet the requirement of physical presence in the U.S. for 10 years prior to his birth, or under § 1432 because his father was a native-born citizen, not a naturalized one. (Id.) Frontera, who was represented by counsel in the deportation proceeding, ultimately conceded deportability on January 6, 1995, but sought a waiver of deportation. (Defs' Appx., Ex. O.) The Immigration Judge ("IJ") denied the waiver on the ground that Frontera was statutorily ineligible. (Id. Ex. P.) Frontera appealed the denial on grounds other than his citizenship, and the Board of Immigrations Appeals ("BIA") upheld the IJ's determination. (Id. Exs. Q, R.) Frontera was deported to Italy on May 31, 1996.

A year later, on June 10, 1997, Frontera flew to Newark, New Jersey, purportedly to visit his sick father. He was detained upon re-entry and interviewed by defendant INS Inspector William Zanotti, who notified his supervisors of a potential violation of criminal law in that it appeared Frontera had attempted re-entry after deportation and without permission. (Id. Exs. S, T.) Frontera gave Zanotti a sworn affidavit in which he stated that he was a citizen of Italy and that his family, except for him, were U.S. citizens. (Am. Compl., Ex. 1-L.) The matter was referred to the United States Attorneys' Office, and Frontera was indicted for illegal re-entry of a previously deported alien. (Defs' Appx., Ex. CC.) Frontera later pled guilty to a charge of illegal re-entry and, on February 23, 1998, was sentenced to 46 months' incarceration. (Id. Ex. V.) His plea necessarily included the admission that he was an alien at the time he reentered the U.S.

In late 1999, while still incarcerated, Frontera wrote to defendant INS employee Nancy Hooks, asking whether he had become a U.S. citizen through either his father, a U.S. citizen by birth, or his stepmother, a naturalized citizen. (Id., Ex. 1-M.) In February 2000, defendant Barch made reference to several pieces of correspondence from Frontera alluding to possible citizenship, and suggested that the matter be referred to the examination branch. (Leslie Aff., Ex. GG.) Defendants Conley and Baskfield reviewed Frontera's file relative to his citizenship in February 2000, and submitted information obtained from the file to defendant Hetzel of the INS's Examination Section for further review. (Leslie Aff., Ex. HH.) Frontera was interviewed on March 2, 2000 with regard to questions raised by the Examination Section, and his brother Vincenzo was interviewed on March 6, 2000. (Id.) Based on the file information and further interviews, it was determined that Frontera did not derive citizenship from either his father or stepmother and was amenable to removal. (Id.) In March 2000, Frontera received notice that the INS intended to reinstate its prior order of deportation. (Id. at II.)

On May 5, 2000, Frontera filed a new Application for Certificate of Citizenship, Form N-600, claiming derivative citizenship through his father. (Id. at KK.) Again, he stated that his father was a U.S. citizen by birth who had not lost his citizenship, and that his mother, an Italian citizen, died in Italy in 1953. (Id.) An INS officer reviewed Frontera's A file and application, and interviewed Frontera by phone. The officer determined that Frontera's father, Tom, had not met the residency requirements for a U.S.-born citizen that would confer derivative citizenship on Frontera. His application was denied on June 4, 2001. (Leslie Aff., Ex. NN.) Frontera did not appeal the denial.

Frontera's prior deportation order was reinstated on June 4, 2001 (Defs' Appx., Ex. Y), and he was taken into INS custody upon his release from federal prison on June 5, 2001 (Am. Compl. ¶¶ 84-85). On July 2, 2001, Frontera filed a habeas petition in which he claimed, among other things, to have become a citizen on the date his father took his Oath of Allegiance, an act of naturalization. (Am. Compl., Ex. 1-O.) Defendant Holmes was the named respondent. (Id.) In or about October 2001, defendant INS Agents Jacobs, Creahan and Edgerton reviewed Frontera's status but found no basis to believe he had obtained derivative citizenship. (Am. Compl., ¶¶ 90-91.)

While the habeas petition remained pending, on April 10, 2002, Frontera filed a third N-600 application in which he asserted derivative citizenship through his father and his stepmother. (Defs' Appx., Ex. AA.) Consistent with his prior applications, Frontera stated that his father was a U.S. citizen by birth who had not lost his citizenship. (Id.) This third N-600 application remained pending when the habeas petition was dismissed, on June 4, 2002. (01-CV-00470Sr; copy at Defs' Appx. Ex. F.)

On June 24, 2002, an attorney representing Frontera faxed a letter and documentation to defendant INS District Director, M. Frances Holmes, indicating that Tom, although born in the United States, subsequently lost his citizenship, was an alien at the time of Frontera's birth, and later naturalized. (Am. Compl., Ex. 1-Q.) Counsel noted that "[a] fact in all Mr. Frontera's past assertions was that he was born to one citizen parent (his father) and one alien parent (his mother)." (Id.). The attorney provided documentation of Tom's Application to Resume Citizenship and his Oath of Renunciation and Allegiance, which established that when Frontera entered the U.S. in 1955, he automatically derived U.S. citizenship through his then-naturalized father under 8 U.S.C. § 1432. Two days after the letter was faxed, Frontera was released from INS custody. He received a Certificate of Citizenship on June 28, 2002, which states that he became a citizen on January 13, 1955, the date he first arrived in the U.S. (Id., Ex. 1-R.) On October 2, 2002, Frontera's conviction for illegal re-entry was vacated and expunged. (Id., Ex. 1-S.)

B. The Instant Litigation

On June 17, 2004, Frontera's attorney filed an administrative claim under the FTCA, seeking $7,000,000 for wrongful detention and false imprisonment totaling 1,838 days. (Id., Ex. 1.) The claim was denied on December 16, 2004, id., Ex. 2, and this action followed on June 14, 2005. In his Amended Complaint, filed on May 19, 2006, Frontera alleges three causes of action against thirteen INS employees, and five causes of action against the United States.

The claims against the individual employees are brought pursuant to Bivens v. Six Unnamed Agents of the Federal Bureau of Narcotics, 403 U. S. 388, 91 S.Ct. 1999, 29 L.Ed. 2d 619 (1971), which held that federal employees can be sued for damages consequent to their unconstitutional conduct while acting under color of their authority. Frontera alleges that each of the named individuals violated his constitutional rights when they failed to consider and investigate all bases that could support his claim for citizenship (first and second causes of action), and when they unlawfully imprisoned him in and after 1997 (third cause of action). In his remaining claims, Frontera seeks relief under the FTCA for negligence, gross negligence, and recklessness relative to the investigations of his citizenship (fourth cause of action); wrongful deportation constituting false imprisonment (fifth cause of action); false imprisonment upon his return to the U.S. in 1997 and thereafter (sixth cause of action); malicious prosecution on the charge of unlawful re-entry (seventh cause of action); and intentional infliction of emotional distress (eighth cause of action).

According to Frontera, each investigation the INS undertook in connection with deportation proceedings, his Form N-600 applications, and his re-entry after deportation was deficient. Specifically, Frontera contends that INS agents failed to take certain mandated steps in investigating his citizenship, including: (1) interview his father; (2) consult all INS databases, including the index of individuals who naturalized after September 27, 1906, to see if his father's name appeared in any INS record; (3) search for and examine his father's INS file; and (4) consider whether Frontera was eligible for citizenship under any provision of the INA, even if the information he provided to the INS did not implicate the provision. (Am. Compl. ¶¶ 42-44, 47, 50, 54, 55, 64, 77, 83, 92-93, 107, 114-116, 128-129, 138, 144; Leslie Aff. ¶ 5.) Frontera claims that each investigation, if properly conducted, would have revealed that his father lost and regained his citizenship, thereby affording Frontera derivative citizenship under § 1432. In short, he claims a properly conducted investigation would have prevented his deportation and subsequent incarceration for unlawful re-entry.

Defendants have moved to dismiss and/or for summary judgment on the grounds that: (1) this Court lacks subject matter jurisdiction over Plaintiff's FTCA claims, which are barred by the discretionary function exception; (2) Plaintiff fails to state a claim under the FTCA; (3) Plaintiff's FTCA claims are untimely, thereby divesting the Court of jurisdiction; (4) Plaintiff fails to state a claim for false imprisonment; (5) Plaintiff fails to state a claim for malicious prosecution; (6) Plaintiff's claims of citizenship were adequately investigated; (7) Plaintiff fails to state a claim under the Fourteenth Amendment; (8) Plaintiff's Bivens claims are untimely; and (9) the thirteen individually named defendants are entitled to qualified immunity.

III. DISCUSSION

A. Subject Matter Jurisdiction

A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The plaintiff bears the burden of establishing the existence of federal jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed. 2d 351 (1992).

Where, as here, the jurisdictional challenges are raised at the pleading stage, the court accepts as true all factual allegations in the complaint and draws all reasonable inferences in the plaintiff's favor. Sharkey v. Quarantillo, 541 F.3d 75, 83 (2d Cir. 2008). It is "presume[d] that general [fact] allegations embrace those specific facts that are necessary to support the claim." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889, 110 S.Ct. 3177, 111 L.Ed. 2d 695 (1990) (alterations added). The court also may consider affidavits and other evidence outside the pleadings to resolve the jurisdictional issue, but it may not rely on conclusory or hearsay statements contained in affidavits. J.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004), cert. denied, 544 U.S. 968, 125 S.Ct. 1727, 161 L.Ed. 2d 616 (2005). Indeed, courts "must" consult factual submissions "if resolution of a proffered factual issue may result in the dismissal of the complaint for want of jurisdiction." Robinson v. Gov't of Malaysia, 269 F.3d 133, 140 n.6 (2d Cir. 2001).

"In assessing whether a plaintiff has sufficiently alleged or proffered evidence to support jurisdiction . . . , a district court must review the allegations in the complaint, the undisputed facts, if any, placed before it by the parties, and-if the plaintiff comes forward with sufficient evidence to carry its burden of production on this issue-resolve disputed issues of fact . . . ." Id. at 140.

Defendants raise two challenges to subject matter jurisdiction: (1) each of Frontera's FTCA claims is untimely,*fn5 and (2) the FTCA claims are barred by the discretionary function exception.

1. Timeliness

The Government contends that each of Frontera's FTCA and Bivens claims accrued as early as 1955, when he was first admitted to the United States, and in any event, no later than July 2, 2001, when he filed a habeas petition referencing Tom's oath of allegiance and naturalization. (Defs' MOL at 22-25, 33-36.) Thus, the Government urges, each claim is time-barred.

a. The Accrual Dates for Plaintiff's Causes of Action

i. The FTCA

The FTCA, which waives the United States' sovereign immunity against certain claims sounding in tort, governs Frontera's claims against the government. Among its prerequisites to suit, the FTCA provides that:

[A] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. 28 U.S.C. § 2401(b). Ordinarily, a plaintiff's FTCA claim accrues on the date that the plaintiff discovers he has been injured, Valdez v. United States, 518 F.3d 173, 177 (2d Cir. 2008) (citing Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998)), and the limitations period is strictly construed, Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999).

Frontera filed his administrative claim with the Department of Homeland Security ("DHS") on June 17, 2004.*fn6 Thus, under a strict application of the limitations period, his FTCA claims are timely only to the extent they are based on events occurring on or after June 17, 2002.

ii. Bivens

It is well-settled that "[t]he statute of limitations for Bivens actions arising in New York is three years." Tapia-Ortiz v. Doe, 171 F.3d 150, 151 (2d Cir. 1999) (citing Owens v. Okure, 488 U.S. 235, 251, 109 S.Ct. 573, 102 L.Ed. 2d 594 (1989)); see also, Harrison v. Lutheran Med. Ctr., 05-CV-2059, 2007 U.S. Dist. LEXIS 76064, at *10 (E.D.N.Y. Oct 11, 2007). While state law supplies the statute of limitations for Bivens claims, federal law determines when a federal claim accrues. Kronisch, 150 F.3d at 123. Under federal law, a Bivens claim accrues at the point in time when the plaintiff knows or has reason to know of the constitutional injury which is the basis of his action. Covington v. City of New York, 171 F.3d 117, 121 (2d Cir. 1999); Adeyi v. United States, 2008 U.S. Dist. LEXIS 86462, at *24 (E.D.N.Y. Mar. 25, 2008). A plaintiff's complaint must be filed no later than three years thereafter.

Frontera commenced this action on June 14, 2005, so, applying the three-year limitations period, his Bivens claims are timely to the extent they are based on events occurring on or after June 14, 2002.

b. Application of Limitations Periods to Plaintiff's Claims

In Frontera's first and second causes of action (Bivens) and his fourth cause of action (FTCA), he alleges that the INS agents assigned to investigate his case at various times did not do all that they were obligated to do in that regard, thereby violating his constitutional rights and breaching their duty to exercise reasonable care with regard to his claims to citizenship. Accepting the allegations in Frontera's Amended Complaint and the attached supporting documentation, all of the challenged conduct occurred between 1989 (Peterson) and October 30, 2001 (Jacobs, Creahan and Edgerton).

In his fifth cause of action (FTCA), Frontera alleges that he was falsely imprisoned when he was deported on May 31, 1996.

The seventh cause of action (FTCA) alleges that the United States maliciously prosecuted Frontera for unlawful re-entry into the United States and when the INS reinstated its prior order of removal. While Frontera does not provide a precise date for the commencement of the criminal proceeding for unlawful re-entry, he does allege that his related incarceration commenced in 1997. The INS notified Frontera, in March ...


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