The opinion of the court was delivered by: WILLIAM H. ORRICK
Defendants move to dismiss all twelve causes of action in plaintiff's first amended complaint ("FAC"). For the reasons stated herein, the Court grants the motion to dismiss the Eleventh Cause of Action, as mandated by the United States Court of Appeals for the Ninth Circuit, and denies the motion to dismiss the remaining eleven causes of action.
The facts (taken from the Ninth Circuit's opinion in Wang Zong Xiao v. Barr, 979 F.2d 151 (9th Cir. 1992)) may be summarized briefly.
Pursuant to 8 U.S.C. § 1182(d)(5)(A), the government paroled plaintiff into the United States from the People's Republic of China ("PRC") to testify at the trial of several criminal defendants in the so-called "Goldfish" case. At that trial, plaintiff testified that Chinese authorities had tortured and coerced him into confessing and testifying falsely; this Court subsequently declared a mistrial. Plaintiff initially sought asylum, but then on February 5, 1990, he filed a complaint seeking declaratory and injunctive relief to prevent his return to the PRC or delivery into the custody of PRC officials. On July 5, 1990, plaintiff filed his FAC, which, currently, is the operative pleading before the Court. On February 10, 1990, this Court entered a preliminary injunction, ordering that plaintiff remain in the custody of the United States Marshal for the Northern District of California, and enjoining the United States from returning plaintiff to the PRC. This order was to remain in effect pending final adjudication of plaintiff's asylum request.
On July 29, 1991, plaintiff's request for asylum was denied. On February 18, 1992, the INS terminated plaintiff's immigration parole and served him with notice that he was being placed in administrative exclusion proceedings. On the same day, February 18, 1992, plaintiff requested a hearing on his previously filed motion for partial summary judgment on his Eleventh Cause of Action, which alleged that the government is "without legal authority over plaintiff's person and may not remove plaintiff from the United States or return plaintiff to Chinese custody." (FAC P 199.)
On February 20, 1992, the Court granted plaintiff a preliminary injunction preventing the government from moving forward with exclusion or deportation proceedings until final adjudication of the motion for partial summary judgment and final resolution of all appeals arising therefrom. Thereafter, the Court granted plaintiff summary judgment on the Eleventh Cause of Action, and enjoined the government from taking any further action against plaintiff that could place him in jeopardy of a return to the PRC.
Defendants appealed both the preliminary injunction and the grant of summary judgment, alleging (1) that this Court lacked jurisdiction to enjoin exclusion proceedings, (2) that this Court erred in concluding that the INS lacked jurisdiction to place plaintiff in exclusion proceedings, and (3) that this Court erred in granting the preliminary injunction and summary judgment. The Ninth Circuit consolidated the appeals, and in an opinion filed October 30, 1992, vacated this Court's preliminary injunction, reversed this Court's grant of summary judgment, and remanded the case back to this Court "with directions to dismiss the claims in [plaintiff's] Eleventh Cause of Action for lack of jurisdiction." 979 F.2d at 156.
Defendants then filed this motion to dismiss not only the Eleventh Cause of Action but all the remaining eleven causes of action in plaintiff's FAC, not one of which was mentioned in the Ninth Circuit's opinion, or in the mandate.
In his FAC, plaintiff states twelve causes of action, including the Eleventh Cause of Action that the Ninth Circuit directed this Court to dismiss. Briefly, these causes of action are herein summarized.
Plaintiff's second cause of action also is for injunctive relief pending final adjudication of his asylum application, including judicial review. Plaintiff repeats his allegation that defendants will seek to remove him from the United States prior to the completion of the asylum adjudication process, and introduces a new allegation, namely, that "the United States Justice and State Departments are under pressure to return plaintiff to the custody of the Chinese government, regardless of the merits of plaintiff's asylum application." (Id. P 111.) Plaintiff asks this Court to enjoin defendants from removing him from the United States prior to a final adjudication (including appeal) of his asylum application. (Id. P 117.)
Plaintiff's third cause of action is for violation of substantive due process. Plaintiff alleges that defendants, through their actions, "have placed plaintiff into a dangerous predicament. Plaintiff is vulnerable to serious and irreparable injury if he returns to [the PRC], in that the Chinese government will likely torture and execute him as a consequence of his truthful and complete testimony as a U.S. government witness in" the Goldfish case. (Id. P 120.) Plaintiff alleges that because of their conduct, defendants owe him "a duty pursuant to the Fifth Amendment to substantively protect plaintiff's life and liberty." (Id. P 121.) As a remedy for this alleged constitutional violation, plaintiff seeks a permanent injunction barring defendants from removing him from the United States or from turning him over to the PRC. (Id. P 128.)
Plaintiff's fourth cause of action is for breach of the government's duty to protect its witnesses pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701, et seq. As a remedy for this alleged breach, plaintiff requests relief in the form of a permanent injunction barring defendants from ...