ORDER GRANTING IN PART AND DENYING IN PART UNITED STATES' MOTION TO DISMISS; AFFORDING PLAINTIFFS LEAVE TO FILE SECOND AMENDED COMPLAINT
MAXINE M. CHESNEY, District Judge.
Before the Court is defendant United States' motion to dismiss, filed July 2, 2013, by which the United States seeks dismissal of plaintiffs' First Amended Complaint ("FAC"). Plaintiffs have filed opposition, to which the United States has replied. Having read and considered the papers filed in support of and in opposition to the motion, the Court rules as follows.
Plaintiffs Bernave Alcaraz ("Bernave") and Maria Alcaraz ("Maria"), who are husband and wife, bring the above-titled action on behalf of themselves and their three minor children. The following factual allegations, set forth in the FAC, are assumed true for purposes of the instant motion.
Bernave, a United States citizen, filed with the United States Citizenship and Immigration Service an "immigration petition" on behalf of Maria (see FAC ¶¶ 9, 20), and, in conjunction therewith, Maria filed an "application to adjust her status" (see FAC ¶ 20). The petition and application were denied in August 2009. (See FAC ¶ 22.) Thereafter, "the government set in motion a process whereby Maria's case would be reviewed by an immigration judge (IJ')" (see FAC ¶ 22), and, in conjunction therewith, mailed to Maria in December 2009 a "notice of her hearing before the IJ" (see FAC ¶ 24).
Earlier, in July 2009, Maria had "notified the government of her change of address." (See FAC ¶ 23.) The "government, " however, sent the notice of the removal hearing to Maria's "old address, " and Maria did not receive it. (See FAC ¶¶ 25, 26.) "When Maria failed to appear at her hearing, the IJ ordered her removed in June 2010." (FAC ¶ 27.) On June 8, 2011, two Immigration and Customs Enforcement ("ICE") officers "took [Maria] into custody" at her home. (See FAC ¶¶ 29, 35.) Maria arrived at a "holding facility in or around San Diego" either late that evening or very early on June 9, 2011. (See FAC ¶¶ 51, 53.) On the morning of June 9, 2011, Maria was transported to Mexico. (See FAC ¶ 54, 55, 58.)
Meanwhile, on June 9, 2011 at 8:15 a.m., Bernave, through counsel, filed at "120 Montgomery" a "motion to reopen" Maria's removal proceedings. (See FAC ¶ 50.) The Department of Homeland Security did not oppose the motion to reopen, and, on June 30, 2011, the IJ reopened the case. (See FAC ¶ 59.) Maria subsequently reentered the United States "pursuant to ICE's grant of parole." (See FAC ¶ 65.)
In their complaint, plaintiffs allege nine causes of action, seven of which are alleged against the United States. The United States seeks dismissal of each of said seven causes of action, which the Court next considers in turn.
A. First Claim for Relief (False Arrest and Imprisonment)
In the First Claim for Relief, brought pursuant to the Federal Tort Claims Act ("FTCA"), plaintiffs allege that "defendants falsely arrested and imprisoned Maria without legal justification or privilege." (See FAC ¶ 75.) In its motion to dismiss, the United States argues the First Claim for Relief is subject to dismissal in its entirety for several reasons. In response, plaintiffs "concede that the arrest was based upon a facially valid order of removal" and thus "withdraw the claim." (See Pls.' Opp. at 7:3-5.) Plaintiffs also "concede the same with regard to their claim for false imprisonment in connection with all related imprisonments up until the time her stay went into effect." (See id. at 7:6-8.)
With respect to the portion of the claim plaintiffs have not withdrawn, plaintiffs take the position that the removal order was automatically stayed when the motion to reopen was filed, and, consequently, that the United States "was without legal authority to take Maria to Mexico, " which removal, plaintiffs assert, occurred after the motion to reopen was filed. (See id. at 7:6-9.) Specifically, plaintiffs rely on 8 U.S.C. § 1229(b)(5)(C), which provides that when an alien files a motion to reopen removal proceedings based on a claim that the alien "did not receive notice" of the removal proceedings, "[t]he filing of the motion to reopen... shall stay the removal of the alien pending disposition of the motion by the immigration judge." See 8 U.S.C. § 1229(b)(5)(C).
The Court finds the First Claim for Relief, as limited by plaintiffs, is subject to dismissal for lack of subject matter jurisdiction. In particular, as the United States argues, the claim is barred by 8 U.S.C. § 1252(g), which 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." See 8 U.S.C. § 1252(g). The First Claim for Relief is a claim that the removal order should not have been executed in light of the stay. Such claim plainly arises from the decision to execute the June 2010 removal order, and, consequently, is not a claim over which the Court has jurisdiction. See Foster v. Townsley , 243 F.3d 210, 213-15 (5th Cir. 2001) (holding district court lacked jurisdiction to consider damages claim based on United States' removal of alien during period in which order of removal had been stayed); see also Sissoko v. Rocha , 509 F.3d 947, 948-49 (9th Cir. 2007) (holding district court lacked jurisdiction to consider damages claim where plaintiff alleged "false arrest" based on alien's detention, where "detention arose from [government agent's] decision to commence expedited removal proceedings").
Accordingly, to the extent plaintiffs have not voluntarily withdrawn the First Claim for Relief, such claim is subject to dismissal for lack of subject matter jurisdiction, and without leave to amend.
B. Second Claim for Relief (Assault) and Third Claim for Relief (Battery)
The Second Claim for Relief, alleging "assault, " and the Third Claim for Relief, alleging "battery, " are based on the following three allegations: (1) while Maria was being detained at an ICE facility, ICE officers "forcibly took her fingers to put a finger print on certain papers against her will" (see FAC ¶ 41); (2) on the morning of June 9, 2011, Maria was "handcuffed and shackled" (apparently in preparation for her transport to Mexico), and, after she told an officer the "handcuffs were too tight, " the officer "responded by tightening the handcuffs" (see FAC ¶ 54); and (3) after Maria, in handcuffs and shackles, had been placed in a "van" with other female detainees and seated on a steel bench without "seat belts or any sort of restraint, " the "driver and his companion" then "alternatively accelerated and slammed on the brakes causing the women to slide off of the bench and to be slammed against the walls of the van, " and "laugh[ed]" while engaging in such driving activities" (see FAC ¶ 56).
As discussed below, the Court finds the assault and battery claims are subject to dismissal to the extent they are based on fingerprinting, but not otherwise ...