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Bibicheff v. Holder

United States District Court, E.D. New York

September 23, 2014

ALEXANDER BIBICHEFF, Plaintiff,
v.
ERIC H. HOLDER, JR., in his official Capacity as U.S. Attorney General; JANET ANN NAPOLITANO, in her official capacity as Secretary of the U.S. Department of Homeland Security; DAVID AGUILAR, in his official capacity as Deputy Commissioner of the U.S. Customs and Border Protection; JOHN T. MORTON, in his official capacity as Director of the U.S. Immigration and Customs Enforcement; JOHN S. PISTOLE, in his official capacity as Administrator for the Transportation Security Administration, Defendants

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[Copyrighted Material Omitted]

Page 256

For the Plaintiff: Nicole Abruzzo Hemrick, Esq., BIBICHEFF & ASSOCIATES, Brooklyn, NY.

For the Defendants: Kristina Wolfe, Esq., Lily Sara Farel, Esq., UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Margaret M. Kolbe, Esq., UNITED STATES ATTORNEYS OFFICE, EDNY, Brooklyn, NY.

Page 257

MEMORANDUM AND ORDER

Denis R. Hurley, Senior United States District Judge.

Plaintiff Alexander V. Bibicheff commenced this action against U.S. Attorney

Page 258

General, Eric H. Holder, Secretary of the U.S. Department of Homeland Security, Janet Ann Napolitano, Deputy Commissioner of the U.S. Customs and Border Protection, David Aguilar, Director of the U.S. Immigration and Customs Enforcement, John Morton, and Administrator for the Transportation Security Administration, John S. Pistole alleging violations of the Administrative Procedures Act (" APA" ), the Fourth and Fifth Amendments of the United States Constitution, and 42 U.S.C. § 1983. Presently before the Court is Defendants' motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure (" Rule" ) 12(b)(1) and Rule 12(b)(6). For the reasons set forth below, Defendants' motion is granted.

BACKGROUND

These facts are taken from the Complaint and are assumed to be true for the purpose of this motion. Plaintiff is a United States citizen who travels internationally with his family for vacation an average of three times a year. On August 27, 2011, Plaintiff was traveling back to the United States after a one week vacation in Aruba. At the Customs and Border Protection (" CBP" ) preclearance area in the Aruba International airport, Plaintiff was handed a Form 6059B Declaration Form, and after having read a question about whether he was bringing any fruit with him, Plaintiff disclosed to a CBP officer that he had two apples and two bananas in his possession, which he had intended to eat on the airplane. Plaintiff asked if he could dispose of the fruit prior to passing through the inspection area, but the CBP officer told him that he would have to show the fruit to the officers at the next clearance area. At the next clearance area, Plaintiff handed the fruit to the CBP officer in charge. The officer confiscated the apples, but allowed Plaintiff to take the bananas with him. Plaintiff alleges that the officer " appeared to make a notation on the computer." Plaintiff did not receive any citations or fines and ultimately boarded the airplane and flew back to the United States. After the trip, since Plaintiff's passport was set to expire in September of 2012, Plaintiff applied for a new U.S. passport, which the U.S. Department of State issued to him on May 20, 2012.

On August 3, 2012, Plaintiff returned to the United States after a vacation in Spain. Upon landing in JFK International Airport, a CBP officer at the primary inspection area asked Plaintiff if he ever lost his passport. Plaintiff responded that he never lost his old passport or his newly issued passport. The CBP officer then escorted Plaintiff to the secondary inspection area, where Plaintiff was detained for approximately 30-45 minutes. During the secondary inspection, the CBP officer asked Plaintiff whether he had any fruit with him, and Plaintiff answered that he did not. Plaintiff inquired as to why he was referred to secondary inspection, but he was not given an answer.

On September 29, 2012, Plaintiff and his wife returned to the United States after a vacation in Mexico, and Plaintiff was again referred to secondary inspection at JFK International Airport. Prior to being sent for secondary inspection a CBP officer tore up the Form 6059B that Plaintiff's wife had filled out and instructed Plaintiff to fill out a new one. Plaintiff and his wife were detained for approximately three hours, during which CBP officers questioned Plaintiff and searched his and his ...


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