United States District Court, N.D. California
January 23, 2004.
Jose Luis ARAUJO, Maria ARAUJO, Plaintiffs
UNITED STATES OF AMERICA, Defendant
The opinion of the court was delivered by: MARILYN PATEL, Chief Judge District
MEMORANDUM & ORDER
Re: Plaintiffs' and Defendant's Cross-Motion
for Summary Judgment
This matter comes before the court on cross-motions for partial
summary judgment regarding the impact of the Ninth Circuit's decision in
Castro-Cortez v. INS on this litigation. Plaintiffs claim that
they are entitled to summary judgment on the issue of liability, since
the Ninth Circuit has already decided that question in their favor.
Defendant, meanwhile, argues that a different question was at issue in
Castro-Cortez, and thus that the Ninth Circuit's holding is
functionally inapplicable to this case. Having considered the arguments
presented and for the reasons stated below, the court enters the
following memorandum and order.
The facts that give rise to this case are already well-described in the
Ninth Circuit's decision in Castro-Cortez v. INS, 239 F.3d 1037
(9th Cir. 2001). For the sake of clarity and completeness, the court
summarizes them again here.
Plaintiff Jose Luis Araujo, a citizen of Mexico, initially came to the
United States in 1979. Id., at 1041. In 1983, Araujo was caught
and deported by the INS after that agency determined that he had entered
the United States illegally. Id. at 1042. Shortly after his
deportation Araujo again returned to the
United States illegally, and in 1996 he married Maria Araujo, a
United States citizen. Id. In 1997, the INS became aware that
Mr. Araujo was again unlawfully in the country when he filed of an
"Application to Adjust Status" to lawful permanent resident. Joint
Statement of Undisputed Facts, at 2. On the morning of March 2, 1999, INS
officers arrested plaintiff at his home and informed him that he would be
taken "straight to Mexico" per a reinstated order of deportation.
Castro-Cortez, 239 F.3d at 1041-42. Araujo was flown to
Phoenix, Arizona, and then placed on a bus and driven to Nogales, Mexico,
where he was deposited on March 3rd. Id., at 1042. The INS took
this action under the legal auspices Section 241(a)(5) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the
relevant portion of which is codified at 8 U.S.C. § 1231(a)(5), which
permits the INS to reinstate prior orders of removal against aliens who
have unlawfully reentered the United States. Id., at 1040.
Jose Luis Araujo subsequently filed a habeas petition with the Ninth
Circuit, arguing both that his summary expulsion from the United States
violated his right to procedural due process and that section 1231(a)(5)
did not apply to him because he had reentered the United States in
violation of a prior deportation order many years before the passage of
IIRIRA. In Castro-Cortez (a consolidated case involving several
similar habeas petitions by individuals deported pursuant to this
provision), the Ninth Circuit granted Araujo's habeas petition and
ordered him returned to the United States, holding that "Congress clearly
intended that the statute [sec. 1231(a)(5)] should not be applied
retroactively to aliens whose reentry occurred prior to its enactment."
Id., at 1051. In an unpublished decision, the Circuit
subsequently awarded attorney's fees to plaintiffs' counsel under the
Equal Access to Justice Act, 28 U.S.C. § 2412(d).
After the resolution of plaintiff's habeas case, Jose Luis Araujo and
his wife Maria Araujo filed suit against the United States, seeking civil
damages under the Federal Tort Claims Act (FTCA) for injuries sustained
in the course of Mr. Araujo's unlawful detention and deportation.
Castro-Cortez v. INS, CV-98-01371-TSZ, at 3. Plaintiffs allege
that by taking Mr. Araujo into custody and deporting him pursuant to an
inapplicable statute, the INS committed the tort of false arrest and
false imprisonment (which in California are amalgamated as one offense).
This case now comes before the court on cross-motions for
summary judgment which ask this court to determine what effect, if
any, the Ninth Circuit Castro-Cortez holding has upon the
pendent legal and factual issues in Plaintiff's suit for damages.
I. Summary Judgment
Summary judgment is proper when the pleadings, discovery and affidavits
show that there is "no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law." Fed.R.Civ.P.
56(c). Material facts are those which may affect the outcome of the case.
Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). A
dispute as to a material fact is genuine if there is sufficient evidence
for a reasonable jury to return a verdict for the nonmoving party.
Id., The moving party for summary judgment bears the burden of
identifying those portions of the pleadings, discovery and affidavits
that demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). On an
issue for which the opposing party will have the burden of proof at
trial, the moving party need only point out "that there is an absence of
evidence to support the nonmoving party's case." Id.
Once the moving party meets its initial burden, the nonmoving party
must go beyond the pleadings and, by its own affidavits or discovery,
"set forth specific facts showing that there is a genuine issue for
trial." Fed.R.Civ.P. 56(e). Mere allegations or denials do not defeat
a moving party's allegations. Id.; see also Gasaway v.
Northwestern Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir. 1994).
The court may not make credibility determinations, Anderson,
477 U.S. at 249, and inferences to be drawn from the facts must be viewed
in the light most favorable to the party opposing the motion. Masson
v. New Yorker Magazine, 501 U.S. 496, 520 (1991).
II. Collateral Estoppel
According to the doctrine of collateral estoppel, "once a court has
decided an issue of fact or law necessary to its judgment, that decision
may preclude relitigation of the issue in a suit on a different cause of
action involving a party to the first case." Dodd v. Hood River
County, 59 F.3d 852, 863 (9th Cir. 1995).
Collateral estoppel applies only where "(1) the issue necessarily
decided at the previous proceeding is identical to the one which is
sought to be relitigated; (2) the first proceeding ended with a final
judgment on the merits; and (3) the party against whom collateral
estoppel is asserted was a party or in privity with a party at the first
proceeding." Hydranautics v. Filmtec Corp., 204 F.3d 880, 885
(9th Cir. 2000) (citations omitted).
I. The FTCA
Plaintiffs have moved for summary judgment on the question of whether
defendant is liable for false arrest and false imprisonment under the
FTCA. The FTCA provides that the United States may be held liable for
torts committed "in accordance with the law of the place where the
[tortious] act or omission occurred." 28 U.S.C. § 1346(b). Since
Araujo was originally arrested and taken into INS custody in California,
the court must look to the laws of California to determine whether he was
falsely imprisoned and falsely arrested; in California, those two
offenses coalesce. See Watts v. County of Sacramento,
256 F.3d 886, 891 (9th Cir. 2001) ("Under California law, the tort of false
arrest and false imprisonment are not separate torts, as false arrest is
`but one way of committing a false imprisonment.'") (quoting Asgari
v. City of Los Angeles, 15 Cal.4th 744, 763) (1997)). According to
California law, false imprisonment consists of "nonconsensual,
intentional confinement of a person, without lawful privilege,
for an appreciable length of time, however short." Fermino v. Fedco.
Inc., 7 Cal.4th 701, 703 (1994) (emphasis added).
II. Applicability of Collateral Estoppel to "Lawful
A. Issues Decided in Castro-Cortez
In the course of its argument regarding the inapplicability of
Castro-Cortez to the present action, defendant raises and then
dismisses three potential grounds upon which plaintiff might seek to
apply Castro-Cortez, including the "law of the case"
doctrine, res judicata (or "claim preclusion"), and collateral
estoppel (or "issue preclusion"). In fact, plaintiff has argued for the
application of Castro-Cortez only via the doctrine of
collateral estoppel, and thus that is the lone basis for summary judgment
that the court will
address here. Defendant does not appear to contest Plaintiff's
contention that the second and third Hydranautics factors are
satisfied.*fn1 See Def. Mot., at 7-10. Rather, the United
States argues that the issues of liability raised here are not identical
to those decided by the Ninth Circuit in Castro-Cortez, In
particular, defendant argues that in the present action it will assert as
a defense that Araujo's arresting INS agents acted with "lawful
privilege," an issue that was not litigated or considered in
Castro-Cortez.*fn2 See id. at 9. Defendant points
this court to a four-part test adopted by the Ninth Circuit for
determining whether two issues considered in two separate litigations are
identical for the purposes of collateral estoppel:
(1) is there a substantial overlap between the
evidence or argument to be advanced in the second
and that advanced in the first?
(2) does the new evidence or argument involve the
application of the same rule of law as that in the
(3) could pretrial preparation and discovery
related to the matter presented in the first
action be expected to have embraced the matter
sought to be presented in the second?
(4) how closely related are the claims involved in
the two proceedings?
Resolution Trust Corp. v. Keating, 186 F.3d 1110
(9th Cir. 1999). Defendant then argues that the question of "lawful
privilege" fulfills none of these four factors, particularly because the
true issue in question in Castro-Cortez had nothing to do with
whether the INS agents operated under a "lawful privilege" but instead
concerned "whether the INS as an agency correctly concluded that amended
8 U.S.C. § 1231(a)(5) applied to aliens such as Araujo who had been
deported and who had illegally reentered the United States before the
effective date of the IIRIRA." Def. Mot., at 9.*fn3
Contrary to defendant's position, under well-established Ninth Circuit
law, the questions of whether the INS lawfully detained and deported
Araujo under 8 U.S.C. § 1231(a)(5) (at issue in
Castro-Cortez) and whether the INS agents who did so acted with
a "lawful privilege" (at issue here) are one and the same. The Ninth
Circuit previously considered this issue in a very similar context, viz.,
an FTCA false imprisonment action stemming from an INS detention of a
lawful permanent resident. In Rhoden v. United States, the
district court initially granted summary judgment for the United States
government under the rationale that "California law does not provide
standards as to when and for how long a federal immigration agent may
detain a potentially excludable alien . . . The [district] court
reasoned that without such state standards, it could not determine
whether Rhoden's seizure and detention violated California law and
therefore Rhoden could not maintain an action against the United States
under the FTCA." Rhoden v.
United States, 55 F.3d 428, 430-31 (9th Cir. 1995). The
Ninth Circuit reversed, explaining that "[u]nder California law, a
California court would apply federal law to determine whether an arrest
by a federal officer was legally justified and hence
privileged. . . . Thus, the liability of the United States in the
present case will be determined by whether the INS agents complied with
applicable federal standards when they detained Rhoden." Id.,
at 431 (citations omitted) (emphasis added); see also
Alvarez-Machain v. United States, 331 F.3d 604, 640 (9th Cir. 2003)
(en banc) (citing Rhoden and holding in a similar
FTCA context that "the United States' liability hinges on whether federal
employees complied with applicable federal standards") (internal
This issue of compliance with applicable federal standards is
precisely what Castro-Cortez adjudicated in the course
of granting Plaintiff's habeas petition. As a necessary logical predicate
to granting the petition, the Ninth Circuit held that the INS possessed
no legal authority to seize Araujo since section 1231(a)(5) did not apply
retroactively to his conduct. Castro-Cortez, 239 F.3d at 1051.
Moreover, the validity of 1231(a)(5) and its applicability to Araujo and
his co-Plaintiffs was the principal substantive issue of that case; the
government's substantive position in Castro-Cortez rested
in essentially its entirety upon the legal legitimacy and
authority bestowed upon INS agents by that law. See id., at
With these facts in mind, consideration of the Resolution
Trust factors is reduced to a mere formality: (1) there exists not
only substantial overlap but utter equivalence between the evidence and
arguments that would be advanced in opposition to defendant's habeas
petition and in support of a "lawful privilege" defense; (2) the rule of
law at issue in each proceeding is the same; (3) pretrial preparation and
discovery in the first action would unquestionably encompass the matter
presented in the second, since the first action focused on precisely that
question; and (4) the claims involved in the two proceedings are very
closely related, since they are both civil allegations that defendant's
arrest and deportation were unlawfully undertaken pursuant to section 123
1(a)(5). In short, collateral estoppel applies in this case to the issue
of defendant's liability under the FTCA; the Castro-Cortez
court has already decided all of the relevant questions.
B. Alternative Grounds for Asserting Lawful Privilege
Faced with this legal nexus between the issue decided in
Castro-Cortez and the tort element of lawful privilege,
defendant argues that the INS possessed alternative legal grounds other
than 8 U.S.C. § 1231(a)(5) on which to arrest plaintiff. The
government claims that these alternative legal bases would constitute a
"legal justification" and hence a "lawful privilege" for the INS officers
to have acted as they did, even if section 1231(a)(5) did not provide
sufficient authority. Specifically, the government points to
8 U.S.C. § 1326 and 1357(a)(2), which it believes permit the INS to arrest
individuals such as Araujo who are illegally within the United States.
Plaintiffs reply that these other putative grounds are irrelevant to the
question at hand. Since the INS obviously intended to arrest Araujo under
the auspices of 8 U.S.C. § 1231(a)(5), and in fact carried out the
arrest as if it were buttressed by that legal authority, alternative post
hoc legal theories cannot be used to justify that arrest. See
Van Der Hout Dec., Exh. 1 (INS Notice of Intent/Decision to Reinstate
Prior Order stating the government's intent to arrest and deport Araujo
pursuant to section 241(a)(5) of the Immigration and Nationality Act
(8 U.S.C. § 1231(a)(5))).
The United States' reliance upon these alternative avenues of legal
authority is unfounded. Neither 8 U.S.C. § 1326 nor
8 U.S.C. § 1357(a)(2) provide sustainable grounds upon which the original
INS arrest of Araujo could be supported. 8 U.S.C. § 1326 provides
that it is a felony for any alien who "has been denied admission,
excluded, deported, or removed" to be "found" within the United States.
8 U.S.C. § 1326(a)(1). Presumably, the INS could have obtained a
warrant for Araujo's arrest and arrested him for violation of that
statutory provision. However, the INS did not obtain a warrant to arrest
Jose Araujo.*fn5 By consequence, his arrest, if effected for a violation
of 8 U.S.C. § 1326, is governed by 8 U.S.C. § 1357(a)(2) and
(4), the statutory sections empowering INS officers to make arrests of
certain illegal aliens without warrants. See, e.g., United States v.
Tejada, 255 F.3d 1, 3 n. 3 (1st Cir. 2001) ("Courts have read
subsection (a)(2) to apply to arrests of aliens for status offenses and
subsection (a)(4) to apply to arrests of aliens for other crimes.").
Specifically, section 1357(a) authorizes the INS
. . . (2) to arrest any alien who is . . .
entering or attempting to enter the United States
in violation of any law or regulation made in
pursuance of law regulating the admission,
exclusion, expulsion, or removal of aliens, or to
arrest any alien in the United States, if he has
reason to believe the alien so
arrested is in the United States in violation
of any such law or regulation and is likely to
escape before a warrant can be obtained for his
arrest . . . [and]
. . . (4) to make arrests for felonies which
have been committed and which are cognizable under
any law of the United States regulating the
admission, exclusion, expulsion, or removal of
aliens, if he has reason to believe that the
person so arrested is guilty of such felony and
if there is likelihood of the person escaping
before a warrant can be obtained for his
arrest. . . .
8 U.S.C. § 1357(a)(2) & (4).
The government has not attempted to demonstrate, and cannot
demonstrate, that Jose Araujo was "likely to escape before a warrant can
be obtained." The only evidence in the record is to the contrary: at the
time of his arrest Jose Araujo was living with his wife and had filed an
Application to Adjust Status to lawful permanent resident, hardly
evincing an intention to flee. Moreover, Jose Araujo filed this
Application in 1997 but was only arrested in 1999; in the interim, the
INS had time to file a Notice of Intent/Decision to Reinstate Prior
Order. See Van Der Hout Dec., Exh. 1. Defendant has not
produced any evidence to support its claim that Araujo could have been
subject to a warrantless arrest under section 1357(a)(2) or (4). Under
such circumstances, summary judgment for plaintiff is proper. No
alternative grounds exist upon which Plaintiff's arrest can be
maintained. Because the government is incorrect in its belief that
alternative legal authority existed for its arrest of Jose Araujo, it is
not necessary for this court to decide plaintiffs' rebuttal argument
regarding whether post hoc explanations can justify an arrest made on
For the reasons stated above, the court GRANTS Plaintiff's motion for
partial summary judgment on the issue of liability and DENIES defendant's
motion in its entirety.
IT IS SO ORDERED.