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Lin v. Chertoff

August 26, 2009

XIY QING LIN, ET AL., PLAINTIFFS,
v.
MICHAEL CHERTOFF, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jones, J.

MEMORANDUM

Before the Court is Defendants Michael Chertoff, Julie L. Myers, and Thomas Decker's Motion to Dismiss (Doc. No. 16), Plaintiffs' Response in Opposition thereto (Doc. No. 19), and Defendants' Reply (Doc. No. 20). For the reasons that follow, Defendants' Motion to Dismiss will be granted.

I. Factual Background and Procedural History

The Court recites the facts as stated in Plaintiffs' Complaint, except where otherwise noted.

A. Zheng's Immigration Case

Plaintiffs in this action are Xiu Qing Lin and her husband Jin Xiong Zheng. (Am. Compl. ¶ 1.) Both Plaintiffs were born in China. (Am. Compl. ¶ 11.) They were married on March 3, 2004, in Philadelphia, Pennsylvania. (Am. Compl. ¶ 11.) Lin became a naturalized U.S. citizen on July 1, 2005. (Am. Compl. ¶ 12.) Plaintiffs have two daughters who were born in the United States in 2005 and 2006, respectively, and at the time she filed the original Complaint in this matter, Lin was three months pregnant. (Am. Compl. ¶ 13. See also Compl. ¶ 13.)

Zheng entered the U.S. on February 25, 2001, without being admitted or paroled after inspection by an Immigration Officer. (Am. Compl. ¶ 14.) On that date, he was given a Notice to Appear, which commenced removal proceedings. (Am. Compl. ¶ 14.) Zheng filed an Application for Asylum and for Withholding of Removal ("Asylum Application") on April 17, 2003. (Am. Compl. ¶ 15.) Venue for the Asylum Application was changed to Philadelphia on March 17, 2004. (Am. Compl. ¶ 15.)

On March 9, 2005, Lin filed an I-130 Petition for Alien Relative ("Immigration Petition") on behalf of Zheng. (Am. Compl. ¶ 16.) The Immigration Petition was approved on June 3, 2005. (Am. Compl. ¶ 16.) On January 25, 2006, an immigration judge pre-termitted the Asylum Application and denied on the merits Zheng's application for withholding of removal. (Am. Compl. ¶ 18.)

On July 31, 2005, Zheng filed an I-485 Application to Register Permanent Residence or Adjust Status ("Adjustment Application"). (Am. Compl. ¶ 17.) Based on his Adjustment Application, Zheng was granted an interview that was to be held on April 6, 2006. (Am. Compl. ¶ 19.)

Zheng appealed the denial of his Asylum Application with the Board of Immigration Appeals ("BIA"). (Am. Compl. ¶ 18.) During the pendency of the appeal, he filed a Motion to Remand based on the scheduled I-485 interview. (Am. Compl. ¶ 18.) On July 6, 2007, the BIA denied the remand motion and the appeal. (Am. Compl. ¶ 18.)

On August 3, 2007, Zheng filed a Petition for Review and Motion for Stay of Removal with the United States Court of Appeals for the Third Circuit. (Am. Compl. ¶ 20.) On November 5, 2007, the Honorable Dolores Sloviter denied Zheng's Motion for Stay of Removal, holding that Zheng had not shown a likelihood of success on the merits of his Petition for Review. (Am. Compl. ¶ 21.) On that date, Zheng became subject to an outstanding order of removal.

B. The Events of December 8, 2007

At 6:00 a.m. on December 8, 2007, three uniformed Immigration and Customs Enforcement ("ICE") agents arrived at Plaintiffs' home and banged on the door. (Am. Compl. ¶ 23; Am. Compl., Ex. A, Affidavit of Xiu Qing Lin ("Lin Aff.") ¶ 10.) Zheng woke up and unlocked the door. (Lin Aff. ¶ 10.) The agents barged through the door, pushed Zheng up against the wall, and immediately handcuffed him. (Am. Compl. ¶ 23; Lin Aff. ¶ 10.) The agents then conducted a warrantless search of every room on the second floor of the home. (Am. Compl. ¶¶ 24-26, 29.) During the search, the agents ordered Lin to open a safe in Plaintiffs' bedroom and seized Zheng's two Chinese passports found therein. (Am. Compl. ¶¶ 26-28; Lin Aff. ¶ 13.) The agent arrested Zheng, without a warrant, and took him to York County Correctional Facility, where he was placed under ICE custody. (Am. Compl. ¶ 28; Lin Aff. ¶ 15.) The agents did not show any identification to Plaintiffs, and they conducted these activities in a threatening manner that was frightening to Plaintiffs. (Am. Compl. ¶ 29; Lin Aff. ¶¶ 15-16.) Lin has been told by other people in the Chinese community that their relatives were taken into custody under similar circumstances. (Lin Aff. ¶ 18.)

C. The Instant Action

On December 19, 2007, Plaintiffs filed their original Complaint in this matter, titled "Petition for Writ of Mandamus and Complaint for Declaratory and Injunctive Relief (TRO) and Bivens Action." (Doc. No. 1.) Plaintiffs named three Defendants in the original Complaint: Michael Chertoff, Secretary of Department of Homeland Security ("DHS"); Julie L. Meyers, Assistant Secretary of DHS in charge of Immigration; and Thomas Decker, Philadelphia Field Office Director of ICE. Plaintiffs sought a temporary restraining order that would mandate Defendants to transfer custody of Zheng's passport to the United States Marshal for this judicial district and compel Defendants to release Zheng to the Intensive Supervision Appearance Program ("ISAP") in Philadelphia for the duration of the instant lawsuit, thereby preventing Zheng's removal to China. (Compl. ¶¶ 8-9, 11-12.) In a telephone conference on December 19, 2007, the Honorable Mary A. McLaughlin, who previously presided over this matter, denied Plaintiffs' petition for a TRO. (See Order, Dec. 21, 2007 (Doc. No. 4) at 2.) On December 21, 2007, Plaintiffs sent a letter request to the court, seeking reconsideration of the December 19, 2007, Order. (Doc. No. 5.) Judge McLaughlin denied that request, writing that "it would be inappropriate to become involved in halting a deportation when the United States Court of Appeals for the Third Circuit has denied a stay of Mr. Zheng's removal pending its own adjudication of his appeal." (Order, Dec. 21, 2007, at 2.) Judge McLaughlin also noted that, even if ICE violated the Fourth Amendment as alleged, the"body" of a respondent in a civil proceeding is never itself suppressible as a fruit of an unlawful arrest, and the exclusionary rule generally does not apply to civil deportation proceedings. (Order, Dec. 21, 2007, at 2-2 (citing INS v. Lopez-Mendoza, 468 U.S. 1032 (1984)).) Shortly thereafter, Zheng was returned to China pursuant to a valid removal order. (See Defs.' Mem. in Supp. of Mot. to Dismiss ("Defs.' Mem.") 3.)

On January 28, 2008, Petitioners filed an Amended Complaint, titled "Petition for Writ of Mandamus and First Amended Complaint for Declaratory and Injunctive Relief (TRO) and Bivens Action." (Doc. No. 6.) The Amended Complaint listed the three original defendants, who were sued in their official capacities. The Amended Complaint also named "Three Unidentified ICE Agents" from the Philadelphia office as additional defendants. (Am. Compl. ¶¶ 2-5.) The Amended Complaint does not specify whether the Three Unidentified ICE Agents were sued in their individual or official capacities.

Plaintiffs' Amended Complaint contained four claims: 1) Unreasonable Search and Seizures in Violation of the Fourth Amendment, 2) Violation of Fifth Amendment Right to Due Process and Fourteenth Amendment Right to Equal Protection, 3) Violation of the ...


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