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Fred Kenneth Macdonald v. United States of America; United States

December 23, 2011


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court


This case arises from the improvident commencement of removal proceedings against Plaintiff Fred Kenneth MacDonald. As a Canadian-born American Indian, MacDonald is exempt from restrictions imposed on aliens by the United States' immigration laws and is not subject to removal. MacDonald brings this suit after having been detained for two months, deported, and spending a year outside the United States. He alleges a Bivens cause of action*fn1 for violation of his Fourth and Fifth Amendment rights, as well as violations of the Non-Detention Act ("NDA"), 18 U.S.C. § 4001, and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346. Currently before the Court is the individual Defendants' motion to dismiss or, in the alternative, for summary judgment. For the reasons set forth below, the Court GRANTS the motion.


MacDonald was born in Vancouver, British Columbia. His mother, Roberta Nahanee, is 100% American Indian and is a registered member of the Squamish Nation, a Canadian-recognized Indian tribe. (See MacDonald Decl., Ex. E [Doc. No. 29-1]; Pavone Decl., Exs. M, N [Doc. No. 29-2].) MacDonald is also a registered member of the Squamish Nation. (See MacDonald Decl., Exs. E, F.) On May 2, 1995, MacDonald was admitted to the United States as a lawful permanent resident ("LPR") under the classification of admission "S-13." (Id., Ex. G.) MacDonald's Form I-181, which documents his status as a lawful permanent resident, indicates that he is admitted for permanent residence as a "Canadian Born American Indian." (See id.)

On July 21, 2009, MacDonald was arrested by the San Diego Police Department for possession of cocaine with intent to sell and possession of a dangerous weapon. On the same day, Department of Homeland Security ("DHS") officer William Pena lodged a detainer with the San Diego County Jail, requesting advance notification of MacDonald's release from custody. (Def. Motion, Ex. 005 [Doc. No. 23-2].) On August 3, 2009, MacDonald pleaded guilty to unlawful possession of cocaine with intent to sell and was sentenced to 120 days in jail and three years of probation. He was released from custody on September 28, 2009.

Upon MacDonald's release from state custody, he was taken into DHS custody. DHS officer Kourounis interviewed MacDonald and conducted computer database queries about his criminal and immigration histories.*fn2 (Id. at 021-22, 028-49.) Based upon his research, Agent Kourounis recommended that removal proceedings be commenced against MacDonald, (id. at 026-27), and his supervisor, Defendant Kent D. Haroldsen, approved the recommendation, (id. at 026). The paperwork prepared by Kourounis and reviewed by Haroldsen indicated in several places that MacDonald was admitted into the United States as a LPR under the classification "S 13." (See id. at 027-28, 030, 032-33, 035, 050.) MacDonald was subsequently served with an Arrest Warrant, Notice to Appear, and Custody Determination denying him release on bond. (Id. at 050-53.) All of these documents, which were prepared by Agent Kourounis, were approved by Defendant Haroldsen. The Notice to Appear charged MacDonald with being removable pursuant to 8 U.S.C. § 1237(a)(2)(B)(i) and (ii) due to his drug conviction. (Id. at 050-52.)

MacDonald had a bond hearing before Immigration Judge ("IJ") Anthony Atenaide on October 7, 2009. (Id. at 055.) He then had a removal hearing before IJ Renee L. Renner on October 14, 2009. (Id. at 056-57.) At the removal hearing, MacDonald admitted all of the allegations, conceded removability, waived appeal, and was ordered removed to Canada. (Id.) MacDonald was removed to Canada on November 27, 2009. (Id. at 065.)

According to MacDonald, when he was held in DHS custody for deportation, he was aware that his Indian status gave him special rights and that "[him] being deported might be a big mistake," although he was not completely "positive" about it. (MacDonald Decl. ¶ 7.) He indicates that he made a conscious choice not to contest the charges because, based on what he observed at other immigration proceedings, he feared that if he did contest the charges, he would be held in custody for at least another 6 months, or even one to three years. (Id.) Rather, in order to secure his release as quickly as possible, MacDonald decided not to contest the charges, with the intention to "challenge the situation from the outside." (Id.)

MacDonald returned to the United States on January 9, 2010, and was granted admission based on his prior LPR status. Upon his return, MacDonald approached the immigration office in San Diego and spoke with Defendant Ed Hughes. He unsuccessfully attempted to explain his S-13 classification status to Agent Hughes and to obtain a replacement "green card," showing his LPR status. (Id. ¶ 83.) According to MacDonald, he returned a week later and provided Agent Hughes with supporting documentation, codes, Supreme Court decisions, and federal statutes. (Id. ¶ 84.) The DHS did not get back to MacDonald for approximately a year, during which time MacDonald remained in Canada. (Id. ¶¶ 87, 88, 89.) On March 22, 2011, after having realized the improvidence of the removal proceedings, the DHS took action to have the removal order vacated and MacDonald's LPR status reinstated. (Def. Motion, Ex. 072-74.) In its motion to reopen removal proceedings and to terminate case, the DHS expressly acknowledged that, as a Canadian-born American Indian, MacDonald was "never removable" under the Immigration and Nationality Act ("INA"). (Id.) On March 30, 2011, the IJ terminated without prejudice the removal proceedings against MacDonald and vacated the removal order. (Id. at 075-76.)

MacDonald commenced this lawsuit on May 16, 2011. Defendants removed the case to this Court on May 18, 2011. On June 8, 2011, MacDonald filed his First Amended Complaint ("FAC"), alleging four causes of action: (1) Fourth Amendment violations; (2) Fifth Amendment violations; (3) violations of the NDA; and (4) violations of the FTCA. He seeks compensatory and punitive damages for the stressful conditions he had to endure while being held in the DHS custody as well as for being forced to live in Canada for a year, after having been removed there with "nothing but the California clothing on his back." (FAC ¶ 72.) Moreover, MacDonald alleges that, as the result of his deportation, he lost his catering business in Southern California and that his clothing line suffered irreparable damage and loss of inventory. (Id. ¶¶ 75, 76.)

The United States and the DHS filed an answer on July 18, 2011. On October 31, 2011, individual Defendants Kent Haroldsen, John Garzon, Robin Baker, and Ed Hughes filed this motion to dismiss or, in the alternative, for summary judgment.*fn3 Defendants contend that the case should be dismissed for lack of subject matter jurisdiction under 8 U.S.C. § 1252(g). In the alternative, Defendants contend the case should be dismissed because there is no Bivens cause of action under the facts of this case, MacDonald failed to state a plausible cause of action against some of Defendants under Federal Rule of Civil Procedure 12(b)(6), and Defendants are nonetheless entitled to either absolute or qualified immunity. MacDonald filed an opposition, and Defendants replied. On December 22, 2011, the Court heard oral argument on the motion.


I. Status of Canadian-born American Indians

It is undisputed that if MacDonald is an American Indian born in Canada and possesses 50% of American Indian blood, then he is entitled to special privileges not afforded to other aliens.*fn4 The right of the American Indians to move freely between Canada and the United States was first recognized in the Jay Treaty of 1794 and was reiterated in the Explanatory Article of 1796.

See Treaty of Amity, Commerce and Navigation, U.S.-Great Britain, art. III, Nov. 19, 1794, 8 Stat. 116 ("It is agreed that it shall at all times be free to his Majesty's subjects, and to the citizens of the United States, and also to the Indians dwelling to either side of the said boundary line, freely to pass and repass by land or inland navigation, into the respective territories and countries of the two parties, on the continent of America . . . ."); Explanatory Article to Article 3 of the Jay Treaty, U.S.-Great Britain, May 5, 1796, 8 Stat. 130 ("That no stipulations in any treaty subsequently concluded by either of the contracting parties with any other State or Nation, or with any Indian tribe, can be understood to derogate in any manner from the rights of free intercourse and commerce secured by the aforesaid third Article of the treaty of Amity, commerce and navigation, to the subjects of his Majesty and to the Citizens of the United States and to the Indians dwelling on either side of the boundary-line aforesaid; but that all the said persons shall remain at full liberty freely to pass and repass by land or inland navigation, into the respective territories and countries of the contracting parties, on either side of the said boundary-line . . . .").

In 1928, to secure this right of free passage, Congress enacted the Act of April 2, 1928, 45 Stat. 401, which provided that the Immigration Act of 1924 "shall not be construed to apply to the right of American Indians born in Canada to pass the borders of the United States." Today, this provision is codified in 8 U.S.C. § 1359 and provides as follows:

Nothing in this subchapter shall be construed to affect the right of American Indians born in Canada to pass the borders of the United States, but such right shall extend only to persons who possess at least 50 per centum of blood of the American Indian race.

Prior to 1978, the Bureau of Indian Affairs ("BIA") construed § 1359 narrowly as providing only that Canadian-born American Indians could not be precluded from entering the United States. See Matter of Yellowquill, 16 I. & N. Dec. 576, 577-78 (BIA 1978). Thus, the BIA's position was that although an American Indian born in Canada could be deported, each time he sought admission to the United States, he could not be refused and entered "with a clean slate." Id. In the Matter of Yellowquill, the BIA reconsidered its position and, relying on the decision in Akins v. Saxbe, 380 F. Supp. 1210 (D. Me. 1974), held that "American Indians born in Canada who are within the protection of section 289 of the Act are not subject to deportation on any ground." Id. at 578.

II. Subject matter jurisdiction

Defendants first contend that the whole case should be dismissed because 8 U.S.C. § 1252(g) divests this Court of jurisdiction. Section 1252(g) provides in full:

Except as provided in this section and notwithstanding any other provision of law (statutory or non-statutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, 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 ...

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