Guerra-Castaneda v. United States

United States District Court

District of Massachusetts

)

JOSE DANIEL GUERRA-CASTANEDA, )

)

Plaintiff, )

)

v. ) Civil Action No.

) 22-10711-NMG

UNITED STATES OF AMERICA, )

)

Defendant. )

)

MEMORANDUM & ORDER

GORTON, J.

Jose Daniel Guerra-Castaneda (“Guerra-Castaneda” or

“plaintiff”) brings this action against the United States of

America (“the government” or “defendant”) for negligence,

negligent infliction of emotional distress, and wrongful

deportation pursuant to the Federal Tort Claims Act (“FTCA”).

Guerra-Castaneda alleges that the government wrongfully removed

him in violation of a mandatory stay order entered by the First

Circuit Court of Appeals (“the First Circuit”) and that he

suffered injuries as a result.

Although the government admits that it removed plaintiff in

violation of such a stay, it has moved to dismiss his complaint

for lack of subject matter jurisdiction and failure to state a

claim (Docket No. 15). For the reasons that follow, the motion

will be denied, in part, and allowed, in part.

I. Background

A. The Order of Removal

Plaintiff Guerra-Castaneda is a Salvadoran national

residing in Massachusetts. He crossed the United States border

into Texas in June, 2015, and immediately was taken into custody

by the U.S. Customs and Border Protection. In July, 2015, the

U.S. Department of Homeland Security (“DHS”) and U.S.

Immigration and Customs Enforcement (“ICE”) commenced removal

proceedings against Guerra-Castaneda in Houston, Texas.

Plaintiff paid the bond for his conditional release and moved to

New Bedford, Massachusetts. His removal proceedings were

transferred to the Boston Immigration Court, a component of the

Executive Office for Immigration Review, located in Boston,

Massachusetts.

Guerra-Castaneda lived in Massachusetts for three years,

during which time he obtained a Salvadoran passport, a work

permit from U.S. Citizenship and Immigration Services and a

Massachusetts driver’s license. In 2018, the International

Criminal Police Organization, i.e. INTERPOL, issued a “Red

Notice” for his arrest based upon a homicide he allegedly

committed in El Salvador and his purported membership in MS-13.

ICE apprehended Guerra-Castaneda and placed him in immigration

detention.

In proceedings before the Boston Immigration Court,

plaintiff asserted multiple grounds for asylum and the

withholding of removal, including that his credible fear of

torture by Salvadoran authorities if he were to be deported

entitled him to relief under the Convention Against Torture

(“CAT”). On January 8, 2019, Guerra-Castaneda’s claims were

denied by the Boston Immigration Court and an order was entered

that he be removed to El Salvador. His appeal was denied by the

Board of Immigration Appeals (“BIA”) in June, 2019.

B. The Wrongful Removal

On July 23, 2019, Guerra-Castaneda appealed to the First

Circuit. On August 19, 2019, the government filed a notice of

intent to deport plaintiff to El Salvador. ICE scheduled his

transfer to Louisiana on September 3, 2019, and ultimate removal

from the United States on September 6, 2019. At that time,

plaintiff was detained at the Strafford County Department of

Corrections in Dover, New Hampshire.

Guerra-Castaneda filed an emergency motion to stay removal

on August 29, 2019. The government filed its opposition the

following day. On August 30, the First Circuit entered an order

granting a temporary stay of removal until September 13, 2019,

so that it could review the substance of plaintiff’s motion in

full. On September 11, 2019, the First Circuit entered an order

granting a full stay of removal until its review of Guerra-

Castaneda’s motion was complete. Counsel for the government

received notice and service of those orders.

Meanwhile, Guerra-Castaneda had already been transferred to

Louisiana, on September 3, 2019, for staging prior to his

previously scheduled removal. Although his file reflected that

he should not be deported on September 6 because of the

temporary stay, it also noted that he could be deported on

September 13 after the temporary stay expired. Despite the

entry of the full stay order by the First Circuit, Guerra-

Castaneda was informed by ICE employees in Louisiana on

September 12, 2019, that he would be removed to El Salvador the

following day unless they received confirmation that he should

not be. Plaintiff told ICE about the full stay order which had

been entered by the First Circuit and alerted his immigration

counsel about his situation.

Government’s counsel did not inform the ICE Boston Field

Office of the First Circuit’s entry of a full stay until the

evening of September 12, the day after the First Circuit had

entered the order. The Boston Field Office did not update

plaintiff’s file until the morning of September 13. At that

point, ICE officers in Louisiana had already transported Guerra-

Castaneda to the designated flight and removed him to El

Salvador pursuant to the superseded temporary stay of removal

that was to expire on September 13, 2019.

After his wrongful removal to El Salvador, Guerra-Castaneda

was transferred to the custody of the Salvadoran police and

purportedly taken to a prison, Bartolinas de Cajutepeque, where

he was held in a cell which contained more than 50 other

detainees. He alleges that he was regularly assaulted and

degraded by Salvadoran military personnel, became dehydrated and

developed an infection, was denied medicine and was tortured for

refusing to sign an admission of guilt. Plaintiff was released

from prison after nearly 300 days in detention. The criminal

charges against him were dropped but Guerra-Castaneda was unable

to return to the United States until November 3, 2020, more than

one year after his wrongful removal.

Plaintiff filed a complaint to initiate the pending action

on May 10, 2022. In August, 2022, the government moved to

dismiss that complaint for lack of subject matter jurisdiction

and failure to state a claim which defendant timely opposed.

II. Motion to Dismiss

A. Legal Standard

To survive a motion to dismiss under Fed. R. Civ. P.

12(b)(6), the subject pleading must contain sufficient factual

matter to state a claim for relief that is actionable as a

matter of law and “plausible on its face.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). A claim is facially plausible if,

after accepting as true all non-conclusory factual allegations,

the court can draw the reasonable inference that the defendant

is liable for the misconduct alleged. Ocasio-Hernandez v.

Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011).

When rendering that determination, a court may consider

certain categories of documents extrinsic to the complaint

“without converting a motion to dismiss into a motion for

summary judgment.” Freeman v. Town of Hudson, 714 F.3d 29, 36

(1st Cir. 2013) (citing Watterson v. Page, 987 F.2d 1, 3 (1st

Cir. 1993)). For instance, a court may consider documents of

undisputed authenticity, official public records, documents

central to a plaintiff’s claim and documents that were

sufficiently referred to in the complaint.1 Watterson, 987 F.2d

at 3.

A court may not disregard properly pled factual allegations

in the complaint even if actual proof of those facts is

improbable. Ocasio-Hernandez, 640 F.3d at 12. Rather, the

court’s inquiry must focus on the reasonableness of the

inference of liability that the plaintiff is asking the court to

draw. Id. at 13.

1 Although the government has filed a “Statement of Undisputed

Facts” (Docket No. 17) which purports to contain certain

undisputed facts pertinent to its motion to dismiss, it would be

both unnecessary and premature to convert the pending motion

into a motion for summary judgment under Fed. R. Civ. P. 56.

In evaluating a motion to dismiss for lack of subject

matter jurisdiction under Fed. R. Civ. P. 12(b)(1), a court must

determine whether the facts alleged in the complaint support

subject matter jurisdiction when “taken at face value”. Gordo-

González v. United States, 873 F.3d 32, 35 (1st Cir. 2017).

Dismissal of the case is justified only if there is “no

colorable hook [] upon which subject matter jurisdiction can be

hung.” Royal v. Leading Edge Prods., 833 F.2d 1, 1 (1st Cir.

1987). A motion to dismiss for lack of subject matter

jurisdiction should ordinarily be resolved before a court “may

address the merits of a case.” Donahue v. City of Bos., 304 F.3d

110, 117 (1st Cir. 2002).

B. Subject Matter Jurisdiction

1. 8 U.S.C. § 1252(g)

Section 1252(g) of Title 8 of the United States Code

provides that

no court shall have jurisdiction to hear any cause or

claim by or on behalf of any alien arising from the

decision or action by the Attorney General to commence

proceedings, adjudicate cases, or execute removal

orders against any alien under this chapter.

8 U.S.C. § 1252(g).

The parties dispute whether § 1252(g) deprives this Court

of jurisdiction over the claims brought by plaintiff pursuant to

the FTCA concerning his wrongful removal from the United States

in violation of a mandatory stay order entered by the First

Circuit. The question of whether a court has jurisdiction to

hear claims brought by a non-citizen who was subject to wrongful

removal is a novel one in the First Circuit. Several other

circuit courts have, however, addressed the question and arrived

at differing conclusions.

The Circuit Courts of Appeals for the Sixth and Ninth

Circuits hold that claims brought by a wrongfully removed non-

citizen do not fall within the jurisdiction-stripping ambit of

§ 1252(g). See Enriquez-Perdomo v. Newman, 54 F.4th 855, 863-64

(6th Cir. 2022) (“[Section] 1252(g) does not preclude

[plaintiff’s] claims because her removal order was not

executable.”); Arce v. United States, 899 F.3d 796, 800 (9th

Cir. 2018) (“A decision or action to violate a court order

staying removal [] falls outside of the statute's jurisdiction-

stripping reach.”).

To the contrary, the Fifth and Eighth Circuit Courts of

Appeals hold that § 1252(g) applies to such circumstances and

deprives courts of jurisdiction. See Foster v. Townsley, 243

F.3d 210, 214-15 (5th Cir. 2001) (holding that plaintiff’s claim

concerning deportation despite an automatic stay was “within the

ambit of section 1252(g)”); Silva v. United States, 866 F.3d

938, 940 (8th Cir. 2017) (“Although the execution of this

removal order happened to be in violation of a stay, the alien's

claims are directly connected to the execution of the removal

order.”).

Statutory interpretation begins with the text and is guided

by a court’s responsibility “to effectuate congressional

intent.” City of Providence v. Barr, 954 F.3d 23, 31 (1st Cir.

2020) (citations omitted). Terms and phrases used in a statute

are, in the absence of a particular statutory definition,

construed according to their “plain and ordinary meaning”. Id.

The First Circuit has further explained that

[t]he context surrounding a statutory provision and

the structure of the statutory scheme as a whole often

provide useful indicators of congressional intent.

Id. (citations omitted).

Section 1252(g) deprives courts of jurisdiction over claims

“arising from the decision or action” of the Attorney General to

“execute removal orders” and two other specific kinds of

actions. It clearly does not apply to claims arising from the

decision or action to remove an alien in the absence of an

existing removal order for the Attorney General to execute. See

Enriquez-Perdomo, 54 F.4th at 863 (considering § 1252(g) and

concluding that it refers to “existing and enforceable removal

orders subject to execution”).

The legal effect of a stay of a removal order is not a

coercive order against the Government, but rather []

the temporary setting aside of the source of the

Government's authority to remove.

Nken v. Holder, 556 U.S. 418, 429 (2009) (emphasis added).

Such an order returns the parties to the state of affairs

that existed “before the removal order was entered.” Id.

Thus, the government had no authority to execute a removal

order with respect to Guerra-Castaneda because there was no

extant removal order for it to carry out. Id. Plaintiff’s

claims therefore arise out of the government’s violation of a

stay order entered by the First Circuit. See Arce, 899 F.3d at

800 (holding that plaintiff’s claims “arise not from the

execution of the removal order, but from the violation of our

court's [stay] order”). The plain meaning of § 1252(g) does not

extend to the government’s removal of a non-citizen in the face

of a court order precluding its authority to do so.

Defendant contends that “arising from” is a broad phrase

which requires an analysis of whether the execution of a removal

order was the “but for” cause of plaintiff’s alleged harms.

Capacious phrases such as “arising from” should not, however, be

interpreted according to an “uncritical literalism”. Jennings v.

Rodriguez, 138 S. Ct. 830, 840-41 (2018) (explaining that

§ 1252(g) refers only to the three specific actions that are

listed and does not “sweep in any claim that can technically be

said to arise from” those actions).

There is ample precedent from the United States Supreme

Court which addresses the statutory scheme of § 1252(g) and the

intended scope of the provision. See City of Providence, 954

F.3d at 31-32. In Reno v. Am.-Arab Anti-Discrimination Comm.

(“AADC”), the Supreme Court recognized that § 1252(g) is “much

narrower” than a deprivation of jurisdiction over “all claims

arising from deportation proceedings.” 525 U.S. 471, 482

(1999). Rather, it is directed “against a particular evil”:

improper judicial constraints on the Attorney General’s

“prosecutorial discretion” with respect to the three discrete

areas, including the execution of removal orders, listed in the

provision. AADC, 525 U.S. at 482-85 n.9; see also Jennings, 138

S. Ct. at 841.

A myriad of other decisions and actions that might

sometimes occur during the deportation process do not fall

within the scope of the statute. AADC, 525 U.S. at 482; see also

Dep’t of Homeland Sec. v. Regents of Univ. of Calif., 140 S. Ct.

1891, 1907 (2020) (holding that § 1252(g) is “narrow” and does

not impose a “general jurisdictional limitation”). It would be

contrary to congressional intent for this Court to append

additional actions and decisions to the statute’s specific

limitations and thus find that it has been stripped of

jurisdiction in the pending case.

Furthermore, even under the expansive construction of the

phrase “arising from” advocated by the government, the harms

alleged here would not fall within the scope of § 1252(g).

Plaintiff’s claims arise from a “decision or action” – the

wrongful removal of the plaintiff in violation of a court

order – that occurred under circumstances in which the Attorney

General could not execute a removal order because there was no

operative removal order to execute. Thus, Guerra-Castaneda has

not, as the government suggests, simply characterized an event

occurring after the execution of a removal order as the

essential act underlying his claims.

Because the Court finds that § 1252(g) does not apply to

claims brought by a plaintiff who was wrongfully removed in

violation of a court order, it is unnecessary to address the

broader, and more divisive, issue of whether § 1252(g) applies

to both discretionary and non-discretionary acts or only to the

former. See, e.g., Enriquez-Perdomo, 54 F.4th at 865 (explaining

that the panel need not “take a position on the circuit split

regarding whether § 1252(g) applies only to discretionary

decisions and actions”).

C. Recovery Pursuant to the Federal Tort Claims Act

1. The Foreign Country Exception

Under the FTCA, the government has consented to suit where

a plaintiff’s

injury or loss of property, or personal injury or

death [was] caused by the negligent or wrongful act or

omission of any employee of the Government while

acting within the scope of his office or employment,

under circumstances where the United States, if a

private person, would be liable to the claimant in

accordance with the law of the place where the act or

omission occurred.

28 U.S.C. § 1346(b)(1).

The foreign country exception to the FTCA provides,

however, that the government does not consent to suits based

upon “[a]ny claim arising in a foreign country.” 28 U.S.C.

§ 2680(k). The parties dispute whether plaintiff’s claims are

subject to the foreign country exception in view of the Supreme

Court’s decision in Sosa v. Alvarez-Machain, 542 U.S. 692

(2004). According to the government, Guerra-Castaneda’s claims

are premised upon his alleged mistreatment and injuries in El

Salvador and thus are barred by the foreign country exception.

Guerra-Castaneda responds that the “last act necessary to

establish liability”, Sosa, 542 U.S. at 705, occurred in the

United States when he was embarked on a plane in Louisiana by

ICE and removed from the country.

The Sosa Court explained that Congress enacted § 2680(k) in

order to “avoid application of foreign substantive law” and held

that the provision refers to claims based upon foreign injury

regardless of where the underlying tortious act or omission

occurred. Id. at 707-12. In Sosa, the Supreme Court rejected

the “headquarters doctrine” which had previously allowed FTCA

claims in cases where decisions or guidance originating within

the United States led to activities and injuries in a foreign

country. Id. at 701-04.

In the case at bar, plaintiff has alleged more than a

tortious act or omission within the United States and an injury

in El Salvador. Rather, he has alleged that his primary injury

occurred in the United States at the time the government forced

him to board a plane in Louisiana and deported him without an

order of removal authorizing it to do so. Several courts have

held that the foreign country exception does not apply to

similar allegations because the plaintiff was injured

domestically. See, e.g., Arce, 899 F.3d at 801 n.5

(“[Plaintiff’s] injury clearly occurred in the United States

when the government removed him from [the United States] and

deported him[.]”); Lyttle v. United States, 867 F. Supp. 2d

1256, 1301 n.18 (M.D. Ga. 2012).

Whether certain of Guerra-Castaneda’s alleged damages may

not be recoverable because they arose in El Salvador depends

upon factual determinations which cannot be made at the

pleadings stage and, in any event, would not require dismissal

of the entire litigation. See, e.g., Lyttle, 867 F. Supp. 2d at

1301 n.18 (reserving for trial the issue of whether plaintiff’s

“damages for continuing harm that originated in the United

States are recoverable”).

2. Proximate Cause

The government suggests that its violation of the stay

order of the First Circuit was not the proximate cause of

plaintiff’s injury at the hands of authorities in El Salvador

even though it was a “necessary link” leading to his alleged

injuries. In order to establish that a defendant’s negligent

conduct was a proximate cause of one’s injuries under

Massachusetts law, a plaintiff must show that those injuries

fell within the “reasonably foreseeable risks of harm created by

the defendant's negligent conduct.” Staelens v. Dobert, 318 F.3d

77, 79 (1st Cir. 2003) (citing Kent v. Commonwealth, 437 Mass.

312, 320, 771 N.E.2d 770 (2002)); see also Jorgensen v.

Massachusetts Port Auth., 905 F.2d 515, 522–23 (1st Cir. 1990).

In its memorandum in support of dismissal, the government

contends that the complaint does not sufficiently allege

proximate cause. The complaint does, however, contain well-pled

factual allegations that the injuries Guerra-Castaneda suffered

in El Salvador were reasonably foreseeable. He alleges that he

was beaten and tortured by Salvadoran authorities and denied

food, water and medical treatment. Those are precisely the kind

of injuries which motivated plaintiff to resist removal and seek

relief under the CAT in the proceedings before the Boston

Immigration Court, the BIA and the First Circuit.

The government also advocates that the foreseeability of

harm alone does not render its wrongful removal a proximate

cause of Guerra-Castaneda’s injuries. It contends that the

deportation did not cause plaintiff’s injuries and that it

should not be held liable for injuries caused by the conduct of

a third-party, i.e. the Salvadoran authorities, over which it

had no control. There may be more than one proximate cause of

an injury, however, and multiple links of the causal chain may

be “substantial enough and close enough” to be recognized as

such. Sosa, 542 U.S. at 704.

Furthermore, the intervening conduct of a third party does

not preclude the liability of a defendant where that intervening

conduct is itself foreseeable. See Staelens, 318 F.3d at 79.

The government’s analogy to a passenger who is dropped off in a

dangerous neighborhood by an unlicensed driver and later shot is

apt only if the driver was specifically forewarned about the

risk to the passenger and ordered not to drop him off in the

neighborhood. The Court cannot conclude that the wrongful

removal of plaintiff was not a proximate cause of his injuries

at this stage of the proceedings.

3. Comparative Private Liability

The government submits that it cannot be held liable under

the FTCA because there is no private analogue to the allegations

concerning plaintiff’s wrongful deportation here. The FTCA

provides that the government is subject to tort liability

in the same manner and to the same extent as a private

individual under like circumstances.

28 U.S.C. § 2674. Thus, there is no liability where the

government fails to fulfill a federal statutory duty to which

there is no “comparable common law principle”. Sea Air Shuttle

Corp. v. United States, 112 F.3d 532, 536-37 (1st Cir. 1997).

In Sea Air, the First Circuit held there was no liability under

the FTCA when the Federal Aviation Agency failed to seek a

discretionary, regulatory remedy because it was a purely

governmental function which did not “give rise to an enforceable

duty to any individual victim”. Id. at 537.

The limitation on governmental liability imposed by the

phrase “under like circumstances” does not, however, allow

claims only where a private actor could have participated in and

been liable for conduct under the “same circumstances” as the

government. See United States v. Olson, 546 U.S. 43, 46–47

(2005) (citations omitted). Although the government is correct

that a private individual would never have occasion to remove a

non-citizen wrongfully, this Court must “look further afield” to

evaluate whether Massachusetts tort law would impose a duty on a

private person in a comparable circumstance. Id. at 46; see also

Indian Towing Co. v. United States, 350 U.S. 61, 64-65 (1955)

(rejecting the argument that there can be no liability under the

FTCA for the negligent performance of “uniquely governmental

functions”).

A cause of action for negligence may stand against a

defendant who violates a duty to another person “to act with

reasonable care to prevent harm” caused by a third party. Irwin

v. Town of Ware, 392 Mass. 745, 760, 467 N.E.2d 1292, 1302-03

(1984) (noting that such a duty “has been recognized for public

employees as well as private individuals”). Guerra-Castaneda

avers that the government owed him a duty of care because it

held him in its custody and had a special relationship with him.

See Sea Air, 112 F.3d at 537 (holding that the FTCA requires a

relationship between the governmental employee and the plaintiff

“to which state law would attach a duty of care in purely

private circumstances”); see also Williams v. Steward Health

Care Sys., LLC, 480 Mass. 286, 296, 103 N.E.3d 1192, 1200 (2018)

(“A special relationship arises out of the level of control

exercised by the custodian.”)

Plaintiff further alleges that the government violated its

duty to him by wrongfully deporting him and thereby exposing him

to foreseeable injuries from a third party. Plaintiff’s

allegations would constitute a cognizable claim against a

private person who breached a duty of care to him in comparable

circumstances and thus the Court will not dismiss his claims for

negligence or negligent infliction of emotional distress.

4. Wrongful Deportation

Guerra Castaneda has also asserted a tort claim against the

United States for “wrongful deportation”. There is, however, no

tort of wrongful deportation under Massachusetts law and,

notwithstanding the occasional willingness of Massachusetts

state courts to “recognize new tort claims[,]” the Court will

not do so here on their behalf. Thus, plaintiff’s claim for

wrongful deportation will be dismissed.

ORDER

For the foregoing reasons, the motion to dismiss of

defendant for lack of subject matter jurisdiction (Docket

No. 15) is DENIED. The motion to dismiss for failure to state a

claim is, as to Count III, ALLOWED, but is otherwise, DENIED.

So ordered.

_/s/ Nathaniel M. Gorton____

Nathaniel M. Gorton

United States District Judge

Dated: February 16, 2023