Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lu v. United States

United States District Court, Ninth Circuit

August 5, 2013

XUE LU, JIE HAO, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

CONSUELO B. MARSHALL, District Judge.

The matter before the Court is the parties' bench trial. The Court has considered memoranda, trial briefs, witness testimony, the evidence presented, as well as the oral argument of counsel and issues the following facts and conclusions herewith.

I. FINDINGS OF FACT

1. Plaintiffs Xue Lu ("Lu") and Jie Hao ("Hao") filed separate applications for political asylum with the Los Angeles Asylum Office of the Federal Immigration and Naturalization Service ("INS").[1] (Pre-Trial Conference Order ("PTCO") at 2:7-10.)

2. The administrative claims for Lu and Hao were received, and more than six months elapsed after the filing of the administrative claims before Plaintiffs filed their complaint. ( Id. at 2:11-13.)

3. Thomas Powell was an employee of the Los Angeles Asylum Office of the INS when he engaged in the conduct relevant to this action. ( Id. at 2:14-15.)

4. Powell at all times while engaging in the conduct relevant to this action was an agent, employee or representative of the United States. ( Id. at 2:16-18.)

5. Pursuant to immigration statutes and regulations, Powell had the requisite authority provided to asylum officers to conduct interviews and grant or refer to immigration court Plaintiffs' asylum applications. ( Id. at 2:27-3:2; 3:17-20; 8 C.F.R. § 208.14(b); Xue Lu v. Powell, 621 F.3d 944, 946 (9th Cir. 2010).)

6. Powell was acting within the course and scope, and under the color of, his office and employment as an officer of the Los Angeles Asylum Office of the INS. ( Id. at 2:19-22; 4:13-17.)

7. Powell was arrested on June 8, 2000, his trial was conducted over a five-day period, the Jury rendered a guilty verdict on August 10, 2004, and he was sentenced on November 22, 2004 for violating 18 U.S.C. § 242 and 18 U.S.C. 201(B)(2)(A). ( See Exhs. 56, 57.)

8. The Court finds the testimony of both Plaintiffs to be credible.

9. Plaintiffs Lu and Hao had the same immigration attorney, Douglas Ingraham.

i. Facts Pertaining to Plaintiff Xue Lu

10. In China, prior to coming to the United States, Plaintiff Lu suffered abuse on two separate occasions at the hands of Chinese police officers due to accusations in violation of China's family planning policy. (Deposition of Xue Lu ("Lu Depo.") at 8:9-10; 9:23-11:10.) On the first occasion, she refused the officers' requests to have an abortion. After she refused, they grabbed her hair and threw her to the ground. When she was thrown to the ground, she was in extreme pain and she later suffered a miscarriage. ( Id. ) When Plaintiff Lu and her boyfriend went to a Chinese government office to request approval for marriage, the office refused and five policemen hit them, shut them in different rooms, banged Plaintiff Lu's head against the wall and kicked her legs, and released them after three hours. ( Id. at 14:17-15:3.) Plaintiff Lu fled to the United States in 1997. ( Id. at 13:1.)

11. The Court finds that as of January 5, 2000, Lu was pregnant. ( See Exh. 200; Exh. 5 at 6671.)

12. On or about February 15, 2000, Powell interviewed Lu at an INS asylum office in the presence of her attorney for the purpose of evaluating Plaintiff Lu's asylum application. (PTCO at 2:25-2:27.)

13. Powell telephoned Lu on February 23 and 24, 2000 and arranged to meet Lu at her residence on February 26, 2000, despite the fact that Powell knew that Lu was represented by counsel for the purpose of seeking political asylum in the United States. ( Id. at 3:3-6.)

14. On February 26, 2000, Powell met Lu at her residence and entered her home. ( Id. at 3:7.)

15. During the meeting on February 26, 2000, Powell kissed Lu's neck and ear, touched her breast and buttocks through her clothing, and attempted to unbutton her clothing. ( Id. at 3:8-10.)

16. Powell did this while stating "if you want a green card, I can approve that for you." (Lu Depo. at 36:23-24.) Plaintiff rejected Powell's demands. While touching Lu, Powell said "[w]ell, I can approve you or reject you...[i]f you don't like it, I will not approve your application." ( Id. at 39:12-13, 18-19.) She said that she did not like it, and he left Lu's home. ( Id. at 39:19-21.)

17. Shortly after the meeting, a notification was sent to Lu that her application for asylum had been denied. ( Id. at 3:11-12.) She was never provided another asylum interview by the Defendant.

18. Lu suffered a miscarriage after her encounter with Powell. ( See Exhs. 5, 200.) There was testimony that stress can cause miscarriages.

19. Lu was in a particularly vulnerable state at the time of her interactions with Powell. This was due to Lu's prior experiences with Chinese officials, Powell's power over her asylum application, and Powell's larger physical size in comparison to Lu. ( See also Exh. 56.)

20. The Court finds that Plaintiffs' expert Dr. Lustig is qualified to render an opinion on his ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.