Opinion
CV-01-718-ST
April 5, 2002
ORDER, FINDINGS AND RECOMMENDATIONS
INTRODUCTION
On June 17, 1999, the United States Immigration and Naturalization Service ("INS") detained plaintiff, Kwai Fun Wong ("Wong"), at its Portland, Oregon office. Wong is a citizen of Hong Kong, the Matriarch of the Tao Heritage, and the leader of plaintiff Wu-Wei Tien Tao Association ("Association"), a non-profit organization registered in Oregon. The Association operates plaintiff Chong Hua Sheng Mu Gong ("Sheng Gong"), a non-profit religious organization located in Houston, Texas. Wong has taken lifelong vows of vegetarianism and celibacy.
Immediately following her detention on June 17, 1999, Wong was arrested, handcuffed, and taken to the Multnomah County Detention Center ("MCDC"). Wong was imprisoned at MCDC for five days, during which time she alleges that she was twice subjected to strip searches, including orifice searches, was denied access to her attorney or her followers, and was denied vegetarian meals. On June 22, 1999, Wong was removed from the United States.
Wong, the Association, and Sheng Gong allege that defendants, the INS and various INS officials, including defendants David V. Beebe, Jerry F. Garcia, Jack O'Brien, and Douglas Glover, violated their rights under the First, Fourth, and Fifth Amendments to the United States Constitution and substantially burdened their exercise of religion in violation of the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb, by denying Wong advance parole prior to or after her trip to Hong Kong, improperly revoking Wong's parole after her return to the United States, improperly refusing to adjust Wong's status to that of lawful permanent resident, then detaining and arresting Wong, subjecting her to strip searches, denying her information on how to contact her attorney or her followers, denying her vegetarian meals, and summarily removing her from the United States.
The following motions are now pending in this matter: (1) Defendants' Motion to Stay Discovery Until After the Court Rules on Defendants' Motion to Dismiss (docket #20); (2) Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint (docket #31); (3) Plaintiffs' Motion to Compel (docket #33); (4) Plaintiffs' Motion to Stay Consideration of Defendants' Motion to Dismiss Until Plaintiffs (a) are Allowed to File Their Amended Complaint; and (b) are Allowed Discovery (docket #34); (5) Plaintiffs' Amended Motion to Allow Filing of Second Amended Complaint (docket #46); and (6) Defendants' Motion for Clarification (docket #53).
For the reasons that follow, defendants' Motion for Clarification (docket #53) is granted; the parties' competing motions to stay discovery (docket #20) or to stay the pending motions to dismiss (docket #34) are denied; plaintiffs' Amended Motion to Allow Filing of a Second Amended Complaint (docket #46) is granted; and plaintiffs' Motion to Compel (docket #33) is granted, subject to adoption of the following recommendation by a district court judge. This court further recommends that defendants' Motion to Dismiss Plaintiffs' First Amended Complaint (docket #31) should be denied.
ANALYSIS I. Preliminary Matters A. Defendants' Motion for Clarification
On December 13, 2001, defendants filed a Motion for Clarification (docket #53), asking this court to clarify its minute order dated November 14, 2001 (docket #45). That minute order grants plaintiffs' motion filed on November 9, 2001 (docket #44), to Alter, Amend, or Correct their Motion to Allow Filing of a Second Amended Complaint. The purpose of plaintiffs' motion was simply to amend their proposed Motion to Allow Filing of a Second Amended Complaint (and the proposed Second Amended Complaint submitted therewith) to reflect a request for attorney fees in their Fourth Claim for Relief under RFRA. However, the minute order incorrectly states that it is "Granting plaintiffs' motion to allow filing of second amended complaint," rather than granting plaintiffs' Motion to Alter, Amend, or Correct their motion to Allow Filing of a Second Amended Complaint. Accordingly, defendants' Motion for Clarification (docket #53) is granted and the minute order will be amended.
B. Motions to Stay
The parties also have filed competing motions to stay. Defendants assert that discovery should be stayed until this court rules on their motion to dismiss, while plaintiffs assert that defendants' motion to dismiss should be stayed. Furthermore, plaintiffs move to compel certain discovery. As discussed in detail below, several legal issues in this case will control the future course of this litigation. Those legal issues, which are squarely presented by defendants' motion to dismiss, should be put to rest so that all parties can proceed in the most expeditious manner. Thus, plaintiffs' Motion to Stay Consideration of Defendants' Motion to Dismiss Until Plaintiffs (a) are Allowed to File Their Amended Complaint; and (b) are Allowed Discovery (docket #34) is denied.
However, this court also grants plaintiffs' Amended Motion to Allow Filing of Second Amended Complaint (docket #46) to allow plaintiffs to add a claim under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671-80, and recommends that defendants' Motion to Dismiss Plaintiffs' First Amended Complaint (docket #31) should be denied, with plaintiffs given leave to replead to specify the factual allegations underlying each of their claims. As a result, and in order that discovery in this case not be unnecessarily delayed, defendants' Motion to Stay Discovery Until After the Court Rules on Defendants' Motion to Dismiss (docket #20) is also denied.
C. Plaintiffs' Motion to Compel
Plaintiffs have also filed a Motion to Compel (docket #33), seeking responses to Request for Production Nos. 1-5 and 12-21 in Plaintiffs' First Discovery Requests. Defendants counter that no discovery should be allowed because plaintiffs' claims should be dismissed. As discussed below, this court recommends that plaintiffs be allowed to proceed with their claims. Accordingly, plaintiffs' Motion to Compel (docket #33) is granted, subject to adoption of these Findings and Recommendations by a district court judge.
II. Motion to Dismiss — Lack of Subject Matter Jurisdiction A. Procedural Posture
The original Complaint in this action was filed on May 18, 2001. Thereafter, on September 27, 2001, defendants filed a Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim Upon Which Relief May be Granted (docket #14). On October 17, 2001, plaintiffs filed a First Amended Complaint (docket #30), and defendants' Motion to Dismiss (docket #14) was therefore deemed withdrawn. See Minute Order dated November 5, 2001 (docket #41). Defendants then filed the present Motion to Dismiss the First Amended Complaint (docket #31), asserting that: (1) this court lacks subject matter jurisdiction; (2) plaintiffs have failed to state any claim upon which relief can be granted; and (3) even if plaintiffs' claims survive these two challenges, the individual defendants are entitled to qualified immunity. This court first addresses defendants' assertion that plaintiffs fail to allege subject matter jurisdiction.
B. Legal Standard
In considering FRCP 12(b)(1) motions to dismiss for lack of subject matter jurisdiction which attack the face of the complaint, as opposed to relying upon extrinsic evidence, the court must consider the allegations of the complaint as true. Gould v. Electronics Inc. v. United States, 220 F.3d 169, 176 (3rd Cir. 2000); Valdez v. United States, 837 F. Supp. 1065, 1067 (E.D. Ca 1993), aff'd, 56 F.3d 1177 (9th Cir. 1995). In addition, courts may consider documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading." Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir.), cert denied, 525 U.S. 1001 (1998) (citations omitted). Dismissals under FRCP 12(b)(1) are limited to cases where the federal claim is "immaterial and made only for the purpose of obtaining federal jurisdiction" or the "claim is wholly insubstantial and frivolous." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 104 (1998); Bell v. Hood, 327 U.S. 678, 682-83 (1946); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987).
However, when ruling on a challenge to subject matter jurisdiction, the court is free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary. Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). In such cases, no presumption of truthfulness attaches to plaintiff's allegations. Id. Unlike a motion to dismiss for failure to state a claim under FRCP 12(b)(6), a court may consider extrinsic evidence regarding a motion to dismiss for lack of subject matter jurisdiction without converting the motion into one for summary judgment. Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1558 (9th Cir. 1987).
C. Allegations of the First Amended Complaint
The First Amended Complaint references a number of documents, copies of which the parties have attached to various filings in support of their respective motions. Since the parties do not appear to question the authenticity of those documents, this court will consider them in ruling on the motion to dismiss for lack of subject matter jurisdiction. Additionally, while the parties have considerably different views of the legal significance of the facts of this case, defendants do not challenge the basic historical factual allegations underlying plaintiffs' claims, nor have they submitted any evidence to challenge the remaining factual allegations. Thus, this court assumes as true the following allegations of the First Amended Complaint (docket #30):
1. Background and Parties
Wong is a citizen of Hong Kong and the selected Matriarch of the Tao Heritage and the leader of the Association. Wong is the heavenly mandated successor to continue the unbroken lineage of the ancient Tao Heritage. First Amended Complaint, ¶¶ 3, 26. She first lawfully entered the United States in 1985 as a qualified Tao Minister. Id, ¶ 3.
The Association is a worldwide, nonprofit religious organization registered in New York, Texas, and Oregon. Id, ¶ 4. Sheng Gong is a nonprofit religious organization located in Houston, Texas and operated by the Association. One of the missions of Sheng Gong is the creation of a holy meeting place for all beings to receive God. Id, ¶ 5. The function of Tien Tao is both religious and educational. It is dedicated to the operation of the Association and the fostering of universal truth. The followers believe that Tao means the Truth, the Path, or the Way and that Tien Tao is the way to return heaven by restoring the original nature. One of the most important missions of Tao is to propagate the truth of the immortal Tao throughout the world in order to enlighten people to their true selves and awaken their conscience so that all people can live in harmony, exercise virtue, and restore their connection with God. Id, ¶ 11.
At all times material herein, defendants David V. Beebe ("Beebe"), Jerry F. Garcia ("Garcia"), Jack O'Brien ("O'Brien"), Douglas Glover ("Glover"), and John Doe INS officials ("John Does") were employees of the United States and officials of the INS. Id, ¶ 6. At the INS's Portland office, Beebe was the District Director (id, ¶ 7); Garcia was Assistant District Director of Examinations (id, ¶ 8); O'Brien was the Port Director (id, ¶ 9); and Glover was a Supervisory Inspections Officer (id, ¶ 10).
2. Wong's Entry Into the United States and Succession in the Tao Heritage
In 1992, the former Leader of the Association, Fat Fan Cheung ("Qian Ren"), instructed Wong to accompany him to apply for permanent residency in the United States in order to accomplish the mission of establishing Tao in the west. The Association filed the initial immigration petition on Wong's behalf in 1992. The INS approved Wong's filing in November of 1992 and again in December of 1994. In 1993, Qian Ren appointed Wong as the inheritor of the ancient Tao Heritage. Wong resided in the United States carrying out her religious work while her petitions were pending before the INS for over six years. Wong never received notice whether her applications had been ruled upon. Id, ¶ 12. 3. Wong's Succession and Departure from the United States
On March 16, 1999, Qian Ren passed away in Houston, Texas. Upon his death, Wong became his successor in the ancient Tao Heritage and was obliged to arrange his funeral services and accompany his body back to Hong Kong for burial. In the Tao Way, it was crucial for Wong to accompany Qian Ren's body back to Hong Kong. Wong was responsible for meeting with all senior Tao ministers from the worldwide Tao arena in Hong Kong to plan the future operations of the Association in the aftermath of Qian Ren's sudden death. Wong, as the inheritor of Qian Ren and the leader of the Association, was the only person qualified and in the position to handle the funerary services of Qian Ren and the one in charge of directing the future of the worldwide organization. Under the circumstances, Wong was compelled to leave the United States to fulfill her religious obligations. Id, ¶ 13.
Because her petition for permanent residency was pending, Wong was not permitted to leave the United States without advance permission (advance parole) from the INS. Wong attempted to make special arrangements with the INS through her immigration attorney to see if she could leave the United States without the advance parole, but was unsuccessful. Because of the state of extreme urgency and under the heavy burden of her religious obligations, Wong departed the United States on or about March 27, 1999, having not been able to obtain advance parole authorization prior to her departure. Id, ¶ 14.
4. Wong's Return to the United States
On April 13, 1999, 18 days after Wong departed the United States, she returned to the United States via San Francisco, California. When the INS officers in the San Francisco airport were informed of the reason for Wong's departure without receiving advance parole and her prior application for permanent residency, they paroled Wong into the United States and requested that she report for a deferred inspection in Portland on April 28, 1999. Id, ¶ 15.
On or about April 20, 1999, Wong and the Association together filed an adjustment of status application under the Immigration and Naturalization Act ("INA"), § 245(i), 8 U.S.C. § 1255(i) ("INA § 245(i)"), which was accepted by the INS's Nebraska Service Center. Id, ¶ 16. According to the INS's June 17, 1999 letter to Wong, she also filed an Application for Advance Parole, presumably retroactively. See Letter from INS to Wong dated June 17, 1999 ("Denial Letter"), p. 3, a copy of which is attached as Exhibit 5 to Declaration of Counsel in Support of Plaintiffs' (1) Motion to Stay Consideration of Defendants' Motion to Dismiss Until Plaintiffs Are Allowed Discovery; and (2) Motion to Compel Discovery ("Declaration of Plaintiffs' Counsel"), filed October 29, 2001 (docket #35).
On or about April 26, 1999, Wong's immigration attorney notified the Portland INS office that Wong had filed her adjustment of status application and notified O'Brien to contact his office if O'Brien wanted to meet with Wong in person. No one at the INS requested such a meeting, nor contacted Wong's attorney. Id, ¶ 17.
On or about April 29, 1999, Beebe revoked Wong's parole status. Plaintiffs allege that this revocation of parole was improper because Wong's adjustment of status application had not yet been decided. Id, ¶ 18.
On or about May 20, 1999, Glover and O'Brien issued a "Notice and Order of Expedited Removal" and a Determination of Inadmissibility, finding Wong "inadmissible in proceedings under [the expedited removal provision.]" See Declaration of Plaintiffs' Counsel, Exhibit 13. In doing so, plaintiffs allege that the Portland INS office and the individual defendants ignored the filing of the adjustment of status application and failed to consider Wong's application under the INA, § 245(i), thereby violating her constitutionally guaranteed due process rights. Id, ¶ 19.
The specific provision pursuant to which Wong was removed was INA § 235(b)(1), 8 U.S.C. § 1225(b)(1) ("INA § 235(b)(1)"). Unless otherwise specified, all references to "the expedited removal provision" are to that specific subsection.
5. Wong's Detention and Removal from the United States
On or about June 9, 1999, Beebe issued a letter requesting Wong to appear at the Portland INS office to receive her Employment Authorization Card on June 17, 1999. Id, ¶ 20.
Wong appeared as requested on June 17, 1999, to receive her Employment Authorization Card and was seized by INS officers. Wong was locked in a room by four INS officers and subjected to an inquisition. Wong was given a letter denying her application for the adjustment of status signed by Garcia on behalf of Beebe (the Denial Letter, referenced above). After the inquisition, Wong was arrested, handcuffed, and placed in detention. She was then taken to MCDC where she was subjected to two strip searches, including an orifice search. Wong was imprisoned for a total of five days. Id, ¶ 21.
Wong has made a lifetime vow of vegetarianism. Requests were made for vegetarian meals for Wong, but these requests were ignored. She lived on bread and water during her five-day detention and was unable to practice her faith. In addition, while Wong was incarcerated, she was not provided with a translator or information about her rights or how to contact her attorney or her followers. Id, ¶ 22.
After her arrest, Wong was not provided with a hearing before an administrative law judge, despite repeated requests by her immigration attorney. Id, ¶ 23. On or about June 22, 1999, Wong was removed from the United States under protest and extreme duress. That same day, she was served with the Notice and Order of Expedited Removal, described above. Id, ¶ 24.
6. Damages
Wong, as the leader of the Association, has been denied her right to be in the United States to perform her duties which are essential to the proper functioning of the Association and Sheng Gong, which has had serious consequences for the Association and Sheng Gong. This situation has bred confusion and chaos among Tao practitioners in regions throughout the world. Also, Wong's standing as the Leader of the Association and Sheng Gong has suffered substantial harm and her mandated mission is now being challenged. The mission of Tao and the administration of the Association and Sheng Gong have been seriously jeopardized. Id, ¶ 26.
The faith of the members of the Association has also been shaken by Wong's unlawful arrest, detention, and removal, thereby damaging Wong's reputation, the reputation of the Association, and the reputation of Sheng Gong. Wong's sacred life was completely obstructed. She was treated like a criminal by the individual defendants. Their treatment of Wong is an insult to her human dignity and to all members of the Association and Sheng Gong. Id, ¶ 27.
The Association and Sheng Gong are registered religious groups in the United States and the individual defendants, by virtue of their conduct described herein, have denied the Association, Sheng Gong and its leader the right to practice their religion and to associate for that purpose under the First and Fifth Amendments to the United States Constitution. This situation has a substantial damaging impact on both the current and the future propagation of their religious mission. Id, ¶ 28.
The Association and Sheng Gong have been severely damaged economically by Wong's forced absence. There has been a dramatic decrease of donation income as well as membership in the Association and Sheng Gong. The construction of Chong Hua Sheng Mu Gong (God's Home) could not be completed, which is of utmost importance to the members of the Association and Sheng Gong. Id, ¶ 29.
The Association and Sheng Gong also suffered non-economic damages resulting directly from the removal of Wong from the United States. Wong's removal made it necessary for the Association to restructure its worldwide operations. Wong is responsible for the entire Tao arena, including the United States, and must be consulted daily for guidance with everyday matters. Her removal caused extreme inconvenience to the Tao administration which disrupted the operations of the entire region. Id, ¶ 30.
Many members throughout the world disassociated from the Association as a direct result of Wong's unlawful imprisonment and removal. Many members chose not to recognize Wong as the inheritor of the Tao mandate and the leader of the Association because her reputation was so severely damaged by the actions of the individual defendants. This loss of membership as a direct result of Wong's removal from the United States has caused severe hardship both economically and non-economically to the Association. Id, ¶ 31.
As a result of the individual defendants' conduct described above, Wong was forced to endure severe distress, humiliation and embarrassment. Id, ¶ 34.
7. Plaintiffs' Claims
Wong, the Association, and Sheng Gong allege four claims in the First Amended Complaint. Two of those claims seek damages pursuant to Bivens v. Six Unknown Named Agents of the FBI, 403 U.S. 388 (1971). The first Bivens claim is alleged by Wong for a violation of the Fourth and Fifth Amendments (First Claim for Relief), while the second is alleged by all plaintiffs for violation of the First and Fifth Amendments (Second Claim for Relief). Taken together and read most broadly, the First and Second Claims allege that the individual defendants violated: (1) Wong's rights to: (a) practice her religion; (b) associate with others in the practice of her religion, including members of the Association; (c) enjoy the full measure of her liberty rights under the governing immigration law; (d) be free from unreasonable searches and seizures; and (e) be provided substantive and procedural due process of law; and (2) the rights of the Association and Sheng Gong and their members to practice their religion and associate with others in the practice of their religion, including their right to associate with Wong. Specifically, plaintiffs allege that these rights were violated by defendants' acts of: (1) refusing to grant Wong advance parole or to allow her to leave without advance parole (First Amended Complaint, ¶ 14); (2) refusing to consider Wong's adjustment of status application under INA § 245(i) (id, ¶ 19); (3) revoking Wong's parole status without first issuing a decision concerning her request for adjustment of status under INA § 245(i) (id, ¶ 18); and (4) applying the expedited removal provision to Wong while her application for adjustment of status was still outstanding (id, ¶ 19).
The Third Claim for Relief alleges that Wong is entitled to declaratory relief under 28 U.S.C. § 2201. Specifically, Wong alleges that she is entitled to have her application for adjustment of status ruled upon under INA § 245(i).
Finally, the Fourth Claim for Relief alleges that plaintiffs are entitled to an award of damages under RFRA because defendants' conduct substantially burdened their exercise of religion. Additionally, in their Amended Motion to Allow Filing of a Second Amended Complaint (docket #46), plaintiffs seek to add claims under the FTCA for false imprisonment, intentional interference with economic relations, and negligence.
D. Analysis
Each side vehemently accuses the other of turning a shield into a sword. Plaintiffs argue that the INS has impermissibly turned the expedited removal provision into a draconian means to avoid giving any legitimate consideration to the requests for advance parole and pending applications for adjustment of status and of persecuting individuals with legitimate and longstanding ties to the United States.
Defendants argue that plaintiffs, under the "guise" of a Bivens action, are attempting to use the generous protections afforded by the United States Constitution as a means to thwart obvious congressional intent to prevent non-citizens from "flagrantly circumvent[ing] the normal immigrant visa-issuing process abroad by the United States consul." Denial Letter, p. 3. Perhaps not surprisingly, the truth lies somewhere in between these two extremes.
Defendants argue that the First Amended Complaint must be dismissed, and plaintiffs' motion to file a Second Amended Complaint must be denied, because this court lacks subject matter jurisdiction over plaintiffs' claims. This court clearly has federal question jurisdiction under 28 U.S.C. § 1331 over the Bivens and RFRA claims. Additionally, as discussed below, plaintiffs' Amended Motion to File a Second Amended Complaint (docket #46) to add claims under the Federal Tort Claims Act ("FTCA") is granted. Those claims, once added, also are well within this court's jurisdiction under 28 U.S.C. § 1331 and 1346(b). However, defendants contend that general federal question jurisdiction over plaintiffs' claims under 28 U.S.C. § 1331 is barred by INA § 242(a)(2)(A), (a)(2)(B), and (e)(5), 8 U.S.C. § 1252(a)(2)(A), (a)(2)(B), and (e)(5) ("INA § 242"), and that plaintiffs' challenge of Wong's expedited removal cannot be litigated by means of a Bivens action.
The Third Claim for Relief under the Declaratory Judgment Act does not provide plaintiffs with any jurisdictional leverage. Gritchen v. Collier, 254 F.3d 807, 811 (9th Cir. 2001) ("The Declaratory Judgement Act . . . applies only if federal jurisdiction independently exists.").
The INS cites INA § 242(a)(1)(B), but there is no such section. Instead, the relevant provisions limiting judicial review provide as follows:
"no court shall have jurisdiction to review — (i) . . . any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of removal pursuant to [INA § 235(b)(1)]." INA § 242(a)(2)(A);
"no court shall have jurisdiction to review — (i) any judgment regarding the granting of relief under [section 245 of the INA,] section . . . 1255 of this title" INA § 242(a)(2)(B); and
"[i]n determining whether an alien has been ordered removed under section 1225(b)(1) . . . the court's inquiry shall be limited to whether such an order in fact was issued and whether it relates to the petitioner." INA § 242(e)(5).
This case revolves around fundamental disagreements over the exact nature of Wong's immigration status between the time she was paroled into the United States on April 13, 1999, by INS officials in San Francisco and the time she was detained on June 17, 1999, by INS officials in Portland, and the resulting statutory or constitutional rights, if any, plaintiffs enjoyed during that time period.
Defendants characterize Wong's return to the United States from Hong Kong as an attempted "illegal" entry with no valid entry documents and strenuously assert that Wong enjoyed no constitutional rights during that critical time period. In the INS's view, the fact that Wong lived in the United States for some seven years prior to her fateful trip to Hong Kong between March 27 and April 13, 1999, is constitutionally meaningless and that Wong was, for all purposes, on equal footing with a person who had never stepped foot inside the borders of this country. Relying on the Fleuti doctrine, plaintiffs counter that Wong's longstanding domicile in the United States excuses her 18 day trip to Hong Kong. Defendants rejoin that Wong is not entitled to the benefits of the Fleuti doctrine and that they had unquestionable authority to detain her pending her removal from the United States. According to defendants, these two legal truisms strip this court of jurisdiction to hear any of plaintiffs' claims.
This doctrine was first enunciated in Rosenburg v. Fleuti, 374 U.S. 449 (1963).
While this court agrees with defendants that Fleuti does not provide Wong with a safe haven, it disagrees that such a conclusion bars all of plaintiffs' claims. As discussed below, plaintiffs assert claims which do not turn on application of the Fleuti doctrine. Those claims are not subject to dismissal for either lack of subject matter jurisdiction or failure to state a claim. However, because the applicability of the Fleuti doctrine is pivotal to the future of this litigation, this court first discusses that issue, and then explains why plaintiffs' claims are, at least at this point in this litigation, not subject to dismissal.
1. The Expedited Removal Provision
The heart of defendants' position is that Wong was properly removed from the United States pursuant to the expedited removal provision, thus depriving this court of jurisdiction over any of plaintiffs' claims pursuant to INA § 242(a)(2)(A) and (e)(5).
In 1996, prompted by its concern that "thousands of aliens arrive in the U.S. at airports each year without valid documents and attempt to illegally enter," Congress substantially revised the immigration laws and enacted the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"). IIRIRA included the expedited removal provision and made "comprehensive amendments to the [INA], 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq." INS v. St. Cyr, 533 U.S. 289, 292 (2001). The expedited removal provision gives the INS broad authority to order aliens "arriving in the United States" removed if "an immigration officer determines" that the alien is "inadmissible under section . . . 1182(a)(7)." INA § 235(b)(1). An alien is inadmissible under that provision if "at the time of application for admission," the alien is not in possession of a "valid entry document . . . and a valid unexpired passport, or other suitable travel document." INA § 212(a)(7)(A)(i), 8 U.S.C. § 1182(a)(7)(A)(i) ("INA § 212").
H.R. Rep No. 104-469, pt 1 at 158 (March 4, 1996).
2. The Fleuti Doctrine
Defendants assert that Wong was unquestionably subject to removal under the expedited removal provision because at the time she returned to the United States on April 13, 1999, she was not in possession of a "suitable entry document" as required under INA § 212(a)(7)(A)(i).
Wong departed the United States on March 27, 1999, without first obtaining advance parole authorization. When Wong returned to the United States via San Fransisco on April 13, 1999, INS officials paroled her into the United States and requested that she report for a deferred inspection in Portland on April 28, 1999. Wong never reported for the deferred inspection. Instead, through her attorney, she filed the April 20, 1999 adjustment of status application, and then notified the Portland INS office of that application and notified O'Brien to contact Wong's attorney if he wanted to meet personally with Wong. Rather than contacting Wong's attorney, and before any decision was issued concerning Wong's three pending adjustment of status applications, Beebe revoked Wong's parole status on or about April 29, 1999. Then, on May 20, 1999, without notifying Wong, Glover and O'Brien issued a "Notice and Order of Expedited Removal" and a Determination of Inadmissibility. Beebe then issued a letter to Wong to appear at the INS's Portland office to receive her Employment Authorization Card on June 17, 1999. When Wong appeared at the Portland INS office on June 17, 1999, she was given the Denial Letter, which purported to deny each of her three pending adjustment of status applications. She was then arrested, handcuffed, and transported to MCDC, where she was kept for five days. On June 22, 1999, Wong was served with a copy of the May 20, 1999 Notice and Order of Expedited Removal and removed from the United States.
In response to that argument, plaintiffs assert that, under the Fleuti doctrine, Wong was not attempting to "enter" the United States after her return from Hong Kong. The plaintiff in Fleuti was a Swiss national who was admitted to the United States for permanent residence in 1952 and had been continuously in the country except for a visit of "a couple hours" to Ensenada, Mexico in August 1956. In 1959, the INS sought to deport him on the ground that, at the time of his return to the country in 1956, he was within one or more of the classes of excludable aliens. Fleuti was ordered deported as an alien "afflicted with a psychopathic personality" because he was homosexual. His appeal to the Board of Immigration Appeals was dismissed and he then filed an action in federal court for declaratory relief and review of the administrative action. Declining to rule on whether the provision allowing exclusion of aliens "afflicted with a psychopathic personality" was unconstitutionally vague, the Supreme Court instead determined that Fleuti's "innocent, casual, and brief" departure in August 1956 did not constitute an "entry" within the meaning of the INA and therefore could not "subject him to the consequences of an `entry' upon his return." Fleuti, 374 U.S. at 462.
Plaintiffs assert that Wong's departure, undertaken in a "state of extreme urgency and under the heavy burden of [Wong's] religious obligations," First Amended Complaint, ¶ 14, was like Fleuti's "innocent, casual, and brief" trip to Mexico, and that Wong therefore should not have been deemed to be attempting an "entry" or subjected to the consequences of an entry (namely application of the expedited removal provision against her) upon her return. This argument must be rejected for three reasons.
First, the statutory language which formed the basis for the reasoning of Fleuti has been amended. At the time Fleuti was decided, the INA used the term "entry" to denote the "coming of an alien into the United States" with the following exception:
an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary.
Fleuti, 374 U.S. at 452, quoting INA § 101(a)(13), 8 U.S.C. § 1101(a)(13) as it then existed.
Interpreting this exception, the Court declared that "an innocent, casual, and brief excursion by a resident alien outside this country's borders may not have been `intended' as a departure disruptive of [the alien's] resident alien status and therefore may not subject [the alien] to the consequences of an `entry' upon [the alien's] return." Id at 462.
With the enactment of IIRIRA, Congress replaced the concept of "entry" discussed in Fleuti with the concept of "admission," which means "the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." INA § 101(a)(13)(A), 8 U.S.C. § 1101(a)(13)(A). It does not further define "entry." The Board of Immigration Appeals has declared that this amendment eviscerated the Fleuti doctrine. See, e.g., In Re Collado-Munoz, 21 I N Dec 1061 (Dec 18, 1997, en banc) (concluding that Fleuti, "with its origins in the no longer existent definition of `entry' in the Act, does not survive the enactment of the IIRIRA as a judicial doctrine."). Thus, it is questionable whether Fleuti survives IIRIRA.
Second, while the Ninth Circuit has not gone so far as the BIA to declare Fleuti nonexistent, it has taken the position that, absent "a congressional mandate . . . the Fleuti doctrine applies only to lawful permanent resident aliens." Mendoza v. INS, 16 F.3d 335, 337 (9th Cir. 1994). Such a mandate has been found in the statutes which expressly incorporate the language at issue in Fleuti. These statutes govern suspension of deportation, INA § 244, 8 U.S.C. § 1254 and applicants seeking legalization, INA § 245a, 8 U.S.C. § 1255a. Id at 336-37 n3-4; see also, Espinoza-Gutierrez v. Smith, 94 F.3d 1270, 1274 (9th Cir. 1996), rehr'g and suggestion for rehr'g en banc denied, 109 F.3d 551 (9th Cir. 1997); Castrejon-Garcia v. INS, 60 F.3d 1359, 1362-63 (9th Cir. 1995). The same language has also been found in the provisions governing travel by participants in the Special Agricultural Worker program, INA § 210, 8 U.S.C. § 1160. Aguilera-Medina v. INS, 137 F.3d 1401, 1403-04 (9th Cir. 1998). Because Wong is not a lawful permanent resident alien, Fleuti does not apply to her in the Ninth Circuit.
INA § 244(b)(2), 8 U.S.C. § 1254(b)(2) (repealed in 1996), stated: "`An alien shall not be considered to have failed to maintain continuous physical presence in the United States . . . if the absence from the United States was brief, casual and innocent and did not meaningfully interrupt the physical presence.'" Mendoza, 16 F.3d at 337 n3 (emphasis in original).
INA § 245a(a)(3)(B), 8 U.S.C. § 1255a(a)(3)(B), states: "An alien shall not be considered to have failed to maintain continuous physical presence in the United States . . . by virtue of brief, casual, and innocent absences from the United States." (emphasis added).
INA § 210(a)(4), 8 U.S.C. § 1160(a)(4), grants to "lawful temporary resident[s] . . . the right to travel abroad . . . in the same manner as for aliens lawfully admitted for permanent residence." In Aguilera-Medina, the Ninth Circuit considered the 1990 (pre-IIRIRA) departure by a lawful temporary resident and determined that Congress had extended the protections of Fleuti to those individuals by decreeing that "lawful temporary residents were to be treated as permanent legal residents for the purposes of travel, and that lawful permanent residents were to have the benefit of Fleuti." Aguilera-Medina, 137 F.3d at 1403.
Finally, even assuming Fleuti extends to aliens such as Wong who do not yet enjoy the status of a lawful permanent resident, it is difficult to reconcile the facts of this case with a viable claim for application of the Fleuti doctrine. In Fleuti, the court listed a number of factors relevant to the determination of whether the alien intended to depart "in a manner which can be regarded as meaningfully interruptive of the alien's permanent residence," including the length of time the alien is absent, the purpose of the visit, and "whether the alien has to procure any travel documents in order to make his trip, since the need to obtain such items might well cause the alien to consider more fully the implications involved in leaving the country." Fleuti, 374 U.S. at 462 (emphasis added).
In this case, plaintiffs acknowledge that "[b]ecause her petition for permanent residency was pending, . . . Wong was not permitted to leave the United States without advance permission (advance parole) from the INS." First Amended Complaint, ¶ 14. According to the INS, Wong had previously filed two applications for adjustment of status in 1992 and 1994, then left the United States while those applications were pending. However, those departures and subsequent reentries were apparently undertaken prior to the enactment of IIRIRA, which considerably altered the landscape for aliens presenting themselves at the borders of the United States. Wong's apparent attempt to obtain advance parole prior to her departure, or to be granted permission to leave without it, gives rise to the inference that she fully understood the possible implications of her departure. Thus, at least this factor identified in Fleuti weighs against application of that doctrine in her favor.
3. Result of Fleuti's Inapplicability
Defendants assert that since Fleuti is inapplicable, they automatically win because they properly applied the expedited removal provision to Wong which this court lacks jurisdiction to review. However, defendants too narrowly read plaintiffs' allegations.
Plaintiffs allege a broad range of wrongful actions by defendants prior to her removal on June 22, 1999. Because plaintiffs do not specify which of their factual allegations support each of their substantive claims, it is somewhat difficult to discern the exact nature of those claims. However, as best as can be discerned, plaintiffs allege that, as a result of the individual defendants' discrimination against them on the basis of their religious practices, beliefs, and association (First Amended Complaint, ¶ 32), or as a result of discrimination against Wong due to her race and/or national origin (id, ¶ 33): (1) Wong was unable to obtain advance parole authorization either prior to her departure or retroactively upon her return (id, ¶ 14 and Denial Letter, p. 3); (2) despite making attempts through her attorney to do so, Wong was unsuccessful at making special arrangements with the INS to leave the United States without advance parole (First Amended Complaint, ¶ 14); (3) defendants failed or refused to rule on Wong's pending adjustment of status application under INA § 245(i), and then improperly revoked her parole status (id, ¶¶ 16, 18); (4) Wong was taken to the MCDC where she was subjected to strip searches, denied vegetarian meals, denied a translator, and never provided information about her rights or how to contact her attorney or her followers (id, ¶¶ 21-22); and (5) Wong was denied a hearing before an administrative law judge in violation of the INA and her due process rights (id, ¶¶ 23-25).
The First Amended Complaint alleges four claims for relief, only one of which expressly incorporates all of these allegations (First Amended Complaint, ¶ 47). However, based on plaintiffs' arguments, this court assumes that each claim incorporates all factual allegations. As discussed in more detail below, these allegations are sufficient to withstand a motion to dismiss for failure to state a claim against plaintiffs' Bivens and RFRA claims. Thus, defendants' arguments that this court is without subject matter jurisdiction should be rejected.
III. Motion to Dismiss — Standing
Defendants also argue that Wong and the Association have no standing to seek declaratory relief that the INS must rule on her adjustment of status application under INA § 245(i). According to defendants, plaintiffs suffered no "injury in fact" because the INS has already ruled on that application.
"[A]t an irreducible minimum, Art. III requires the party who invokes the court's authority to "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," . . . and that the injury "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision." Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982) (citations and footnote omitted). Specifically, a plaintiff must show:
(1) she has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Bernhardt v. County of Los Angeles, 279 F.3d 862, 868-69 (9th Cir. 2002) (citation omitted).
Wong and the Association jointly filed the April 20, 1999 application for adjustment of status. Although the INS denied this application, Wong and the Association argue that they suffered an "injury" because defendants effectively precluded their ability to seek any reopening or reconsideration of the denial of the application by notifying Wong that there was no review, then summarily detaining, incarcerating, and removing her from the United States.
Defendants argue that Wong has no right of review. However, on a motion to dismiss, this court must accept plaintiffs' allegations as true that Wong was denied a hearing before an administrative law judge in violation of her due process rights. First Amended Complaint, ¶ 23. Thus, both Wong and the Association, as joint applicants, have standing to seek redress for that injury because they argue that defendants precluded them from pursuing their limited rights for review of the denial. That injury may be addressed by a declaration that the INS must allow them to pursue such review. Whether plaintiffs have any further right of review, as alleged in the First Amended Complaint, is a question that may be addressed at a later date.
IV. Motion to Dismiss — Failure to State a Claim under FRCP 12(b)(6)
A. Legal Standard
A motion to dismiss under FRCP 12(b)(6) will only be granted if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his complaint which would entitle him to relief." Gilligan v. Jamco Development Corp., 108 F.3d 246, 248 (9th Cir. 1997). Normally, the review is limited to the complaint, and all allegations of material fact are taken as true and viewed in the light most favorable to the non-moving party. Id. The court, however, may consider whether conclusory allegations follow from the description of facts alleged. Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992). A court may deny leave to amend when any proposed amendment would be futile. Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990), cert denied, 502 U.S. 921 (1991).
B. Analysis of Substantive Claims 1. Bivens Claims
As discussed above, the two Bivens claims allege a violation of: (1) Wong's rights under the Fourth and Fifth Amendments, including her: (a) liberty rights under the INA; (b) right to procedural due process; and (c) right to be free from unreasonable seizures and searches; and (2) all plaintiffs' rights under the First and Fifth Amendments to practice their religion and associate with others in the practice of their religion. Defendants assert that the First Claim for Relief should be dismissed because MCDC officials, not INS officials, strip searched Wong and otherwise subjected her to unconstitutional conditions of confinement. Defendants assert that the Second Claim for Relief should be dismissed because plaintiffs enjoy no First Amendment right. Defendants also assert that, assuming plaintiffs do state cognizable claims, the individual defendants are entitled to qualified immunity against both claims.
a. First Claim for Relief — Liability for the Conditions at MCDC
The Fourth Amendment prohibits "unreasonable" governmental interference with "[t]he right of the people to be secure in their persons, houses, papers, and effects" and protects against "unreasonable searches and seizures." These Fourth Amendment protections apply to aliens. See Rhoden v. United States, 55 F.3d 428, 431-32 (9th Cir. 1995) (citing cases). Similarly, "once an alien enters the country, . . . the Due Process Clause [provides them with protection since it protects] all `persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (citations omitted).
Defendants strenuously assert that these constitutional protections do not apply because Wong was on parole status and therefore had not made an "entry" or been "admitted" into the country during the time between her return from Hong Kong on April 13, 1999, and her removal on June 22, 1999. See INA § 101(a)(13)(B), 8 U.S.C. § 1101(a)(13)(B) (stating that "[a]n alien who is paroled . . . shall not be considered to have been admitted."). However, plaintiffs allege that defendants' first unconstitutional act took place when they denied advance parole to Wong prior to her fateful departure for Hong Kong. There is nothing in the record to counter the conclusion that at that time, Wong had made an "entry" and had been "admitted." Because all of plaintiffs' claims relate back to an allegedly unconstitutional act at a time when it appears that Wong was an alien who had "entered" or been "admitted," this court rejects defendants' argument that plaintiffs cannot allege any constitutional claims.
To the extent that this claim rests on allegations that officials at MCDC subjected Wong to strip searches and denied her vegetarian meals, a translator, and contact with her attorney and her followers, defendants argue that they are entitled to summary judgment because Multnomah County officials, not the individual INS officials who are defendants in this case, are responsible for the unconstitutional actions.
Plaintiffs correctly point out that the Ninth Circuit has held that liability in a Bivens case can be predicated on a broader range of conduct than direct personal participation in the specific unconstitutional act:
[P]ersonal participation is not the only predicate for section 1983 liability. Anyone who "causes" any citizen to be subjected to a constitutional deprivation is also liable. The requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.
Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).
Johnson involved a claim pursuant to 42 U.S.C. § 1983. However, "[a]ctions under § 1983 and those under Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens." Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991).
Defendants rely principally on Correctional Services Corp. v. Malesko, 534 U.S. 61, 122 SCt 515 (2001), for the proposition that the individual defendants may not be held personally liable for the actions of the MCDC, an independent local entity. However, Correctional Services Corp. did not address the issue of whether liability against a federal official extends to anything other than direct personal participation in the alleged unconstitutional act. Instead, Correctional Services Corp. addressed whether a Bivens action would lie against private entities acting under color of federal law. Id, 122 SCt at 519 ("Respondent now asks that we . . . confer a right of action for damages against private entities acting under color of federal law. . . . We have heretofore refused to imply new substantive liabilities under such circumstances, and we decline to do so here."). In this case, plaintiffs have alleged their Bivens claims only against individual federal officials, not against MCDC or any other local or federal agency. Thus, the precise issue addressed in Correctional Services Corp. has no bearing on this case.
With respect to the strip searches, defendants cite United States v. Robinson, 414 U.S. 218, 235 (1973) to argue that any search of Wong conducted at the MCDC, including a strip search, was not a violation of the law. The Ninth Circuit has expressly rejected such a broad reading of Robinson: "In Giles we held that the `full search' authorized by Robinson was limited to a pat-down and an examination of the arrestee's pockets, and did not extend to `a strip search or bodily intrusion.'" Fuller v. M.G. Jewelry, 950 F.2d 1437, 1446 (9th Cir. 1991), quoting Giles v. Ackerman, 746 F.2d 614, 616 (9th Cir. 1984), cert denied, 471 U.S. 1053 (1985). Defendants also argue that they are protected from liability because strip searches are routinely performed at the MCDC for safety and security reasons. However, that argument bolsters plaintiffs' case since well before Wong's strip and cavity search, it was clear that blanket strip search policies are unconstitutional if justified by nothing more than an arrest on suspicion of the commission of a felony or a planned confinement in the general jail population. Id at 1445-46 (9th Cir. 1991); Kennedy v. Los Angeles Police Dep't, 901 F.2d 702, 713-15 (9th Cir. 1989); Thompson v. City of Los Angeles, 885 F.2d 1439, 1446-47 (9th Cir. 1989).
While defendants assert that it is "indisputable" that the individual defendants did not direct or supervise the MCDC in any manner, that assertion has not yet been tested by discovery. At this point, this court is required to accept plaintiffs' allegations as true. Plaintiffs allege that Wong was unable to practice several important tenants of her religion while incarcerated at the MCDC. As discussed in more detail below, plaintiffs allege that defendants duped Wong into coming to the INS offices by asking her to pick up her employment authorization card, then incarcerated her without providing her a copy of the Notice and Order of Expedited Removal until five days later when they summarily removed her from the country. All of these acts allegedly were driven by defendants' discriminatory animus toward plaintiffs, their religious practices, beliefs, and associations. Plaintiffs assert that defendants knew or should have known that the constitutional violations about which she complains would result from their decision to incarcerate Wong at MCDC. Under Ninth Circuit authority, this is sufficient to withstand a motion to dismiss based on a lack of causation. See Harris v. Roderick, 126 F.3d 1189, 1196 (9th Cir. 1997), cert denied, 522 U.S. 1115 (1998).
Defendants also argue that they are absolved of any liability with respect to Wong's detention by virtue of 8 C.F.R. § 235.3(b)(2)(iii), which states that "[a]n alien whose inadmissibility is being considered under this section or who has been ordered removed pursuant to this section shall be detained pending determination and removal." However, the First Amended Complaint is not directed simply at the fact of the detention, but at the reasonableness of that detention and the searches that accompanied it. Plaintiffs allege that Wong was subjected to strip searches, including orifice searches, denied a translator, denied contact with her attorney and her followers, and denied vegetarian meals, none of which is authorized by 8 C.F.R. § 235(b)(2)(iii).
Plaintiffs have sufficiently alleged a claim under the Fourth Amendment and defendants do not directly address the Fifth Amendment issues raised by the First Claim for Relief. At this juncture, this court simply finds that defendants may not escape plaintiffs' First Claim for Relief by pointing the finger at unnamed MCDC officials. Their motion to dismiss the First Claim for Relief should be denied.
b. Second Claim for Relief — First Amendment and Due Process
The Second Claim for Relief alleges that defendants violated the First and Fifth Amendments by denying plaintiffs' rights to practice their religion and to associate with each other. Defendants' attack against the Second Claim for Relief is similar to their jurisdictional attack in that defendants insist that Wong attempted to enter the United States illegally and had no valid entry documents. Based on that premise, defendants conclude that the Second Claim for Relief fails to state a claim because they properly commenced removal proceedings against Wong.
Were plaintiffs simply challenging the merits of the Notice and Order of Expedited Removal, defendants would be correct that this court lacks jurisdiction to entertain plaintiffs' claims. Li v. Eddy, 259 F.3d 1132, 1134 (9th Cir. 2001) (noting that INA § 242(e)(5) "expressly declares that judicial review does not extend to actual admissibility"). However, the First Amended Complaint does not expressly challenge the merits of the Notice and Order of Expedited Removal, but instead seeks damages for defendants: (1) refusing to grant Wong advance parole prior to her departure or permission to leave without advance parole; (2) improperly revoking Wong's parole while her adjustment of status applications were pending; (3) denying her application under INA 245(i); (4) denying her retroactive advance parole; (5) detaining her and subjecting her to unconstitutional conditions of confinement; (6) denying her any opportunity for reopening or reconsideration of the denial of her application for adjustment of status; and finally (6) removing her from the United States. The essence of plaintiffs' claims is that by taking each of these actions, defendants violated various constitutional provisions on an improper and discriminatory basis. Consideration of plaintiffs' Bivens, RFRA, and FTCA claims may involve consideration of the same types of issues as would be involved in reviewing the merits of the Notice and Order of Expedited Removal (i.e. whether racial or religious discrimination was the impetus for the actions). However, that factual overlap does not convert plaintiffs' Bivens, RFRA, and FTCA claims into an impermissible challenge to the Notice and Order of Expedited Removal.
As discussed below regarding plaintiffs' claim for declaratory relief, it appears that Wong's application under INA § 245(i) was decided, but that plaintiffs may have a claim premised upon defendants' acts which denied Wong any opportunity for post-denial reopening or reconsideration.
The lynchpin of defendants' arguments against plaintiffs' Bivens claims is that Wong's status when she returned to the United States on April 13, 1999, put her in the same position as an alien who had never lived in the United States and was seeking entry to the country for the first time. According to defendants, Wong was, for all purposes, on the same footing as the plaintiff in Kleindienst v. Mandel, 408 U.S. 753 (1972). In that case, a Belgium journalist and six American university professors who had invited him to speak filed an action to compel the Attorney General to grant a temporary nonimmigrant visa to the journalist. The journalist had temporarily visited the United States twice before. The Court noted that the journalist, "personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise." Id at 762. Citing that sentence, defendants argue that Wong enjoyed no First Amendment protection relating to her admission to the United States. There are two flaws with this argument.
First, each of plaintiffs' claims traces back to defendants' allegedly discriminatory act of denying advance parole to Wong, either prior to her departure or retroactively upon her return. Had Wong not been denied advance parole on an impermissible basis, her departure would not have affected her immigration status at all. Thus, it is analytically more appropriate to consider the Second Claim for Relief from the standpoint of Wong's status at the time of the first alleged constitutional injury, namely prior to her departure to Hong Kong. There is no suggestion in the record that Wong was not "lawfully present" in this country as of the date of her departure to Hong Kong on March 27, 1999. Mere "lawful presence" in this country guarantees an alien some measure of constitutional protection and undercuts defendants' argument that Wong enjoyed no constitutional protections:
The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization.
Johnson v. Eisentrager, 339 U.S. 763, 770-71 (1950).
Second, despite defendants' characterization to the contrary, the premise of plaintiffs' Second Claim for Relief is not that the First Amendment entitled Wong to admission. Plaintiffs make no such allegation, nor can they. Such a claim, if permitted, would arguably render the entire INA meaningless since every applicant for admission to the United States could assert religious beliefs they desire to practice or opinions they wish to express. Instead, plaintiffs allege that Wong was entitled to have the INS fully and fairly consider her requests for advance parole (both before her departure and retroactively upon her return) and adjustment of status under the governing immigration statutes and regulations, and that defendants violated plaintiffs' First and Fifth Amendment rights by denying those requests and denying any opportunity to appeal those denials, on impermissible grounds. In short, plaintiffs assert that the procedures employed and substantive factors considered by defendants, namely plaintiffs' religious practices, beliefs and association, fell short of being "fundamentally fair," which defendants acknowledge as the applicable constitutional standard in immigration proceedings. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984); Ramirez-Durazo v. INS, 794 F.2d 491, 499-500 (9th Cir. 1986).
The central question is to what status Wong should be "`assimilated . . . for constitutional purposes.'" Shaughnessy v. Mezei, 345 U.S. 206, 214 (1953), quoting Chew v. Colding, 344 U.S. 590, 599 (1953). Unlike the plaintiff in Shaughnessy, Wong did not simply depart the United States and then remain physically outside its borders for a protracted period of time. Instead, Wong alleges that she sought advance parole, or special permission to depart without it, and remained physically absent for only 18 days. Wong's claims that defendants improperly, and for discriminatory reasons, revoked her parole, denied her requests for adjustment of status, and subjected her to expedited removal are analytically identical to her claim that defendants refused to grant her advance parole prior to her departure.
Assume for the sake of argument that Wong had not left, but had instead remained here and filed a Bivens claim alleging that INS officials had denied her advance parole on discriminatory grounds, or had otherwise denied her statutorily or constitutionally protected rights. Defendants then would be unable to successfully argue that plaintiffs have no standing or fail to state a claim or that this court has no jurisdiction. Defendants' arguments that the expedited removal provision eliminates plaintiffs' ability to seek damages for those other violations of their constitutionally protected interests simply goes too far.
As discussed above, plaintiffs do not specify exactly which conduct they claim violated which constitutional provision. However, because this court is faced with a motion to dismiss, it must give the plaintiffs the benefit of any doubt. Plaintiffs allege that defendants' actions of revoking Wong's parole, then detaining, imprisoning, and eventually removing Wong from the country were premised upon Wong's lack of proper documents upon her return to the United States and defendants' denial of the pending adjustment of status applications. The lack of proper documents was caused by defendants' discrimination against plaintiffs by denying advance parole or adjustment of status either because of Wong's national origin or race or because of plaintiffs' religious beliefs, practices, or associations. In short, plaintiffs have alleged that all of the individual defendants' actions have their source in defendants' refusal to grant Wong advance parole or adjustment of status because of Wong's race or national origin, or because of plaintiffs' religious practices, beliefs, or association. Such allegations clearly may form the basis for a constitutional violation for denial of a benefit:
For at least a quarter-century, this Court has made clear that even though a person has no "right" to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to "produce a result which (it) could not command directly." . . . Such interference with constitutional rights is impermissible.
Perry v. Sindermann, 408 U.S. 593, 597 (1972), quoting Speiser v. Randall, 357 U.S. 513, 526 (1958); see also Board of County Comm'rs, Wabaunsee Kansas v. Umbehr, 518 U.S. 668, 674 (1996); Hyland v. Wonder, 972 F.2d 1129, 1134-36 (9th Cir. 1992) (discussing cases), cert denied, 508 U.S. 908 (1993).
For these reasons, this court concludes that the Second Claim for Relief adequately alleges a violation of the First Amendment. As with the First Claim for Relief, defendants do not directly address dismissal of the Second Claim for Relief to the extent it raises Fifth Amendment issues, other than to argue that Wong was on parole status and therefore enjoyed no constitutional protections. This court recommends rejection of that argument and therefore recommends denial of defendants' motion to dismiss the Second Claim for Relief. The issue of what relief plaintiffs ultimately will be entitled to obtain should they prevail on either their First or Second Claims for Relief is left for another day.
c. Qualified Immunity
The individual defendants also assert that they are entitled to qualified immunity.
In Saucier v. Katz, . . . the Supreme Court clarified the two-step qualified immunity inquiry. To decide whether a defendant is protected by qualified immunity, a court must first determine whether, "[t]aken in the light most favorable to the party asserting injury, . . . the facts alleged show the officer's conduct violated a constitutional right." . . . If the plaintiff's factual allegations do add up to a violation of the plaintiff's federal rights, then the court must proceed to determine whether the right was "clearly established," i.e., whether the contours of the right were already delineated with sufficient clarity to make a reasonable officer in the defendant's circumstances aware that what he was doing violated the right. . . . In essence, at the first step, the inquiry is whether the facts alleged constitute a violation of the plaintiff's rights. If they do, then, at the second step, the question is whether the defendant could nonetheless have reasonably but erroneously believed that his or her conduct did not violate the plaintiff's rights.
Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001), quoting Saucier v. Katz, 533 U.S. 194, 201 (2001).
Defendants assert that liability cannot be premised upon the actions they took following Wong's return to the United States, namely revoking her parole, detaining her, and then removing her from the United States, because defendants were relying on statutes and regulations permitting those actions. However, blind reliance on a statute or ordinance does not always protect a government official from liability. As explained by the Ninth Circuit:
As with most legal matters, there are no absolutes here. On the one hand, an officer who acts in reliance on a duly-enacted statute or ordinance is ordinarily entitled to qualified immunity. On the other, as historical events such as the Holocaust and the My Lai massacre demonstrate, individuals cannot always be held immune for the results of their official conduct simply because they were enforcing policies or orders promulgated by those with superior authority. Where a statute authorizes official conduct which is patently violative of fundamental constitutional principles, an officer who enforces that statute is not entitled to qualified immunity. Similarly, an officer who unlawfully enforces an ordinance in a particularly egregious manner, or in a manner which a reasonable officer would recognize exceeds the bounds of the ordinance, will not be entitled to immunity even if there is no clear case law declaring the ordinance or the officer's particular conduct unconstitutional. In the end, however, an officer who reasonably relies on the legislature's determination that a statute is constitutional should be shielded from personal liability.
Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th Cir. 1994) (citations and footnote omitted).
Put another way, "qualified immunity is not available if, `in light of pre-existing law,' the unlawfulness of the officer's conduct was `apparent.'" Pierce v. Multnomah County, 76 F.3d 1032, 1037 (9th Cir.), cert denied, 519 U.S. 1006 (1996), quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987).
With respect to the first step of the qualified immunity analysis, the allegations viewed in the light most favorable to plaintiffs reveal that they have alleged colorable constitutional claims, as discussed above. With respect to the second step of the qualified immunity analysis, assuming that defendants denied advance parole to Wong on the basis that she was of a race or national origin, or the leader of a religious organization that defendants abhor, defendants simply could not "have reasonably but erroneously believed that [their] conduct did not violate the plaintiff's rights." Devereaux, 263 F.3d at 1074. Thus, defendants are not entitled to qualified immunity.
2. RFRA — Fourth Claim for Relief
Defendants also assert that plaintiffs' Fourth Claim for Relief under RFRA must be dismissed for failure to state a claim.
RFRA is premised upon congressional findings that "laws `neutral' toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise" and that "governments should not substantially burden religious exercise without compelling justification." 42 U.S.C. § 2000bb(a)(2) and (3). The express purpose of RFRA is to"provide a claim or defense to persons whose religious exercise is substantially burdened by government." 42 U.S.C. § 2000bb(a)(3) and (b)(2). "[A] plaintiff establishes a prima facie claim under RFRA by proving the following three elements: (1) a substantial burden imposed by the federal government on a (2) sincere (3) exercise of religion. Kikamura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001) (citations omitted). Under RFRA, "the term `government' includes a branch, department, agency, instrumentality, and official (or other person acting under color of law)." 42 U.S.C. § 2000bb-2.
In City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court recognized the "sweeping" nature of RFRA's coverage and noted that its provisions work to prohibit "official actions of almost every description and regardless of subject matter," and that those restrictions "apply to every agency and official" of the federal government, and to "all federal . . . law, statutory or otherwise." Id at 532. The Court concluded that, under RFRA, "[a]ny law is subject to challenge at any time by any individual who alleges a substantial burden on his or her free exercise of religion." Id.
In this case, plaintiffs allege that the individual defendants discriminated against them because of their religious practices, beliefs, and association. They also allege that defendants' actions substantially burdened their exercise of religion. Given that the only issue presently before this court is whether plaintiffs' pleadings can survive a motion to dismiss, this court is required to construe all the allegations in plaintiffs' favor.
Defendants argue that RFRA may not be used to challenge a regulation, citing Anderson v. Angelone, 123 F.3d 1197, 1198 n2 (9th Cir. 1997). However, Anderson involved a challenge to a state prison regulation by way of a RFRA claim brought against only state actors. The Ninth Circuit has held that the Supreme Court "invalidated RFRA only as applied to state and local law." Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1120 (9th Cir. 2000), cert denied, 532 U.S. 958 (2001), citing Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 832 (9th Cir. 1999). In Anderson, the Ninth Circuit merely recognized that, in light of Boerne, it did not need to consider plaintiff's RFRA claim because it challenged a state prison regulation being enforced by state actors at a state prison. Here plaintiffs' RFRA claim is against federal actors enforcing federal law.
Defendants also argue that plaintiffs' Fourth Claim for Relief under RFRA fails to state a claim because plaintiffs fail to allege that vegetarian meals are a required tenent of Wong's faith and therefore no link exists between her dietary habits and any violation of RFRA. However, plaintiffs allege that Wong "has made a lifetime vow of vegetarianism," that defendants' failure to accommodate her vegetarian diet "interfer[ed] with the practice of [Wong's] faith," and that defendants' actions "substantially burdened plaintiffs' exercise of religion." First Amended Complaint, ¶¶ 22, 47. Given these allegations, defendants' assertion is not well taken.
Defendants also argue that plaintiffs' RFRA claim is without merit because Wong's religious exercise could not have been "substantially" burdened as required by 42 U.S.C. § 2000bb-1(a) by only five days of detention. Furthermore, defendants assert that it was local, not federal, officials who allegedly subjected Wong to strip searches and impermissible conditions of confinement. As discussed above with regard to plaintiffs' Bivens claims, federal officials may be subject to liability for setting into motion a series of acts by others which lead to constitutional violations. While the parties did not specifically brief this issue as it pertains to the RFRA claim, the same logic applies.
Moreover, this court does not read plaintiffs' RFRA claim as simply objecting to the fact that Wong was incarcerated for five days. Again, this court is somewhat disadvantaged by the fact that the RFRA claim simply incorporates the factual allegations that precede it. However, plaintiffs' allegations appear to be aimed not only at the fact and conditions of Wong's incarceration, but also at defendants' actions, which in effect forced Wong to either forego her religious obligation to accompany Qian Ren's body back to Hong Kong or to abandon her pending application for adjustment of status.
Even if that were Wong's only allegation, defendants have not cited any authority for the proposition that a particular detention period is legally insufficient under RFRA.
An adherent's free exercise of his or her religion is substantially burdened by a statute that either (1) requires the adherent to refrain from engaging in a practice important to his or her religion . . . or (2) forces the adherent to choose between following a particular religious practice or accepting the statute's benefits. . . . More fully explained, the latter type of substantial burden occurs where non-adherence to a religious practice is necessary to obtain a statute's benefits; such a statute has an indirect coercive effect on the religious adherent's free exercise.
In re Hodge, 220 B.R. 386, 390 (D.C. Idaho), citing Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 140-41 (1987); Thomas v. Indiana Employment Sec. Div., 450 U.S. 707, 717-19 (1981); and Sherbert v. Verner, 374 U.S. 398, 404 (1963). Thus, even if the short period of Wong's detention precludes a claim that her detention violated RFRA, her RFRA claim would nonetheless withstand a motion to dismiss based on plaintiffs' other allegations.
Finally, defendants also argue that they are entitled to qualified immunity from plaintiffs' RFRA claims. However, they premise that argument on the incorrect assertion that plaintiffs fail to allege that defendants actions were prompted by religious discrimination. Because plaintiffs do make that allegation, see First Amended Complaint, ¶¶ 32 47, this argument also fails.
3. Declaratory Relief — Third Claim for Relief
Plaintiffs seek a declaration requiring the INS to rule on Wong's adjustment of status application under INA § 245(i). This statute allows an alien who is "physically present in the United States" who "entered the United States without inspection" and who is the beneficiary of "a petition for classification under [ 8 U.S.C. § 1154] that was filed with the Attorney General on or before January 14, 1998" to apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence. Id. Plaintiffs assert that Wong "entered without inspection," had an adjustment of status application pending, and had prior applications for special immigrant status and the organization's initial approval as a bona fide religious group.
The deadline for this filing was amended in 2000 to provide that the petition must have been filed by April 30, 2001. See INA § 245(i)(1)(B)(i) (2002), as amended by Pub.L. 106-554, § 1(a)(4) [Div. B, Title XV, § 1502(a)(1)(B)].
Plaintiffs argue that defendants failed or refused to make a decision on her application under INA § 245(i), allege that "Wong is entitled to have her application for adjustment of status ruled on under the INA, Section 245(i)," and seek a "judgment against the United States declaring that the INS must rule on [Wong's] application for adjustment of status under the INA, Section 245(i)." First Amended Complaint, ¶¶ 44-45. The record in this case does not support plaintiffs' contention that no decision has yet been made under INA § 245(i). Therefore her request for declaratory relief, as presently pled, should be dismissed. However, as discussed below, this court finds that Wong should be granted leave to replead her Third Claim for Relief to seek a declaration that defendants are required to allow plaintiffs to pursue a request for reopening or reconsideration.
Under the INA § 245(i)(1), two classes of aliens are allowed to apply for adjustment of status, namely aliens who either (i) "entered the United States without inspection" or (ii) are "within one of the classes enumerated in subsection (c) of this section." INA § 245(i)(1)(A)(i) and (ii). The Denial Letter only partially addresses Wong's eligibility under INA § 245(i). It states that "Section 245(i) provides relief for those classes of aliens listed as ineligible to adjust status in Section 245(c)." Denial Letter, p. 2. It then states that "At the time your latest Form I-485 was filed, you were still in parole status and thus not subject to the provisions of Section 245(c) of the Act. Therefore, your application will be considered under Section 245(a) of the Act." Id. Thus, it does not reach the merits of Wong's application under subsection (1)(A)(ii).
The Denial Letter is silent about whether Wong is entitled to relief as an alien who "entered without inspection," leading inexorably to the conclusion that the INS did not believe that subsection (1)(A)(i) even applied. The parties debate whether or not Wong in fact "entered without inspection," but this court need not decide that issue at this juncture.
The Denial Letter makes clear that the INS made a decision under INA § 245(i), namely that it did not apply because Wong had not "entered without inspection" as required under subsection (1)(A)(i) and because Wong was on parole status and not subject to INA § 245(c) as required under subsection (1)(A)(ii). Because the declaratory relief Wong seeks has already been granted, the Third Claim for Relief, as presently pled, should be dismissed.
However, the briefing submitted by the parties reveals that plaintiffs also assert that defendants denied Wong the opportunity to receive full and fair consideration of her application for adjustment of status by refusing to reach the merits of her application under INA § 245(i), and prevented plaintiffs from pursuing any of their post-decision rights by summarily arresting, imprisoning, and then removing Wong from the United States.
Just as it is clear that the INS in fact ruled on Wong's adjustment of status application under INA § 245(i), it is also clear that the INS did not reach the merits of the adjustment of status application under that provision. Instead, its conclusion is based on the facts that Wong had abandoned her two earlier applications and that there were no "intervening equities" allowing her to "avoid" the "visa issuing functions of consuls abroad." Denial Letter, p. 3.
In their briefing on the present motions, plaintiffs assert that defendants effectively (and unconstitutionally) cut off any post-denial rights Wong or the Association may have enjoyed by representing that there were no such rights, by detaining Wong, and by removing Wong from the country. Plaintiffs correctly point out that Wong and the Association had the right to ask for reopening or reconsideration of the denial of the adjustment of status application under 8 C.F.R. § 103.5. However, such a request must be submitted in writing on a particular form, accompanied by a nonrefundable fee, and submitted to the office maintaining the record upon which the unfavorable decision was made. 8 C.F.R. § 103.5(a)(i)-(iii). Had Wong or the Association been able to pursue a request for reopening or reconsideration, they would have been able to argue that the decision was incorrect, based upon an incorrect application of law or Service policy and on the evidence of record at the time of the initial decision. See 8 C.F.R. § 103.5(a)(3). They would have been able to raise the same issues they now raise, including the issue of whether the application should have been considered under subsection (1)(A)(i) because Wong "entered without inspection." They also would have been able to raise any other issues regarding whether they were entitled to have Wong's status adjusted and, if so, whether such an adjustment should have been granted. They could have raised the issue that there were in fact "intervening equities" supporting the request for adjustment of status and challenged the assertions in the Denial Letter that Wong had "displayed a significant pattern of misconduct" and "flagrantly circumvented the normal immigrant visa-issuing process abroad by the United States consul." Denial Letter, p. 2. However, plaintiffs allege that defendants deliberately and improperly short-circuited that process.
The last sentence of the denial letter states "please note that the decisions in this case are not subject to review given your final order of removal pursuant to Section 235(b)(1) of the Act, as amended." Denial Letter, p. 3. Plaintiffs allege that Wong was handed the Denial Letter and then summarily arrested and hauled off to MCDC. Given the express representation that the decision on the application for adjustment of status was "not subject to review," and plaintiffs' allegations that Wong was rendered unable to contact her followers or her attorney during her five day stint in MCDC at defendants' direction, Wong and the Association have a potential claim that defendants denied them the opportunity to request reopening or reconsideration under 8 C.F.R. § 103.5(a).
Plaintiffs' allegations are coupled with the allegation that defendants were driven by discriminatory animus. As discussed above, defendants' efforts to pigeonhole Wong for all purposes into the same category as aliens arriving for the first time on the shores of the United States is unavailing. The fact that defendants went to the time and effort of writing a three page letter denying each of the three pending adjustment of status applications is mute testimony to the fact that defendants were not free to simply ignore those applications and hastily remove Wong under the expedited removal provision. Additionally, plaintiffs allege that Wong was not provided with a copy of the Notice and Order of Expedited Removal until June 22, 1999, the day she was removed from the country. The Denial Letter cites the "final order of removal" as authority for the statement that the denial of the adjustment of status application is "not subject to review." Denial Letter, p. 3. Assuming, as this court must for purposes of these motions, the truth of the allegation that Wong had not yet been served with the Notice and Order of Expedited Removal, it is difficult to understand how that order could be in any sense "final." Under the INS's own regulations, removal proceedings do not "commence" until "issuance and service" of the Notice and Order of Expedited Removal. See 8 C.F.R. § 245.1(c)(9)(i)(E).
At this juncture, this court need not delve into the merits of plaintiffs' claims. The limited issue is whether the Third Claim for Relief is subject to dismissal. This court finds that it is, but that plaintiffs should be granted leave to replead to seek declaratory relief that defendants are required to allow plaintiffs to pursue a request for reopening or reconsideration.
V. Motion to Allow Filing of Second Amended Complaint
Finally, in their Amended Motion to Allow Filing of Second Amended Complaint (docket #46), plaintiffs seek leave to amend to add a claim under the Federal Tort Claims Act ("FTCA") and a request for attorney fees under RFRA. Defendants have not opposed the request to add a claim for attorney fees under RFRA, but do oppose the request to add a claim against the United States under the FTCA on the grounds that such an amendment is futile. Defendants assert that plaintiffs are up against a jurisdictional bar because they failed to exhaust their administrative remedies as required by 28 U.S.C. § 2675(a). Defendants' argument is not well taken.
Plaintiffs' First Amended Complaint did not allege any claim for damages under the FTCA, nor did it allege jurisdiction under the FTCA's jurisdictional provision, 28 U.S.C. § 1346(b). Instead, plaintiffs First Amended Complaint alleged two Bivens claims, a request for declaratory relief, and a claim under RFRA, and asserted general federal jurisdiction under 28 U.S.C. § 1331, and the Declaratory Relief Act, 28 U.S.C. § 2201. In their original proposed Second Amended Complaint, submitted along with their original Motion to Amend (docket #44), filed on November 9, 2001, plaintiffs for the first time sought to add a claim under the FTCA and alleged jurisdiction under 28 U.S.C. § 1346(b). Their amended proposed Second Amended Complaint, filed along with their Amended Motion to Allow Filing of Second Amended Complaint, on November 14, 2001 (docket #46) also included these additions.
Unlike the cases cited by defendants, the FTCA claim involved here has not yet been added and thus is not yet before this court, except to the degree that plaintiffs now seek to add that claim. Plaintiffs are not seeking to "cure [a] jurisdictional deficiency created by the premature filing of the original complaint." Duplan v. Harper, 188 F.3d 1195, 1200 (10th Cir. 1999).
Defendants make much out of the fact that the only claim alleged against the United States in the First Amended Complaint was a claim for declaratory relief, which in and of itself does not provide an independent basis for jurisdiction. See footnote 4, supra. They then point out that, when they challenged plaintiffs' declaratory relief claim on that basis, plaintiffs objected to dismissing the United States as a defendant on the ground that plaintiffs intended to file an FTCA claim against the United States upon exhaustion of their administrative remedies. Defendants reason that naming the United States as a defendant without asserting any other basis for jurisdiction other than an intention to file an FTCA claim against the United States was tantamount to filing an FTCA claim against the United States. However, the fact that the United States may have had a shot at knocking out plaintiffs' claim for declaratory relief on legal grounds does not thereby render plaintiffs' act of naming the United States as a defendant the same as instituting an FTCA claim against the United States. The fact remains that no FTCA claim has yet been alleged, nor have plaintiffs yet alleged jurisdiction under 28 U.S.C. § 1346(b). In short, their act of seeking leave to add a claim under the FTCA following exhaustion of their administrative process is more "properly construed as instituting a new action against the government" over which this court has jurisdiction due to plaintiffs' exhaustion of their administrative remedies. Duplan, 188 F.3d at 1200.
At least at this point, defendants have not raised any other challenge to plaintiffs' Fifth Claim for Relief. Thus, this court reserves for another day all remaining issues related to that claim.
Thus, plaintiffs' Amended Motion to Allow Filing of Second Amended Complaint (docket #46) should be granted to allow plaintiffs to add their Fifth Claim for Relief under the FTCA, and to add a request for attorney fees to their Fourth Claim for Relief under RFRA.
As discussed above, this court recommends that plaintiffs replead their Bivens claims to specify the exact conduct which supports those two claims, and recommends that plaintiffs' Third Claim for Relief be dismissed, with leave granted for plaintiffs to replead that claim to seek declaratory relief that Wong be allowed to pursue a motion to reopen or reconsider the denial of her applications for adjustment of status. Thus, assuming that these recommendations are adopted by a district court judge, the amended proposed Second Amended Complaint must be revised in accordance with this court's rulings.
ORDER
For the reasons stated above:Defendants' Motion to Stay Discovery Until After the Court Rules on Defendants' Motion to Dismiss (docket #20) is DENIED;
Plaintiffs' Motion to Compel (docket #33) is GRANTED, subject to adoption of these Findings and Recommendations by a district court judge;
Plaintiffs' Motion to Stay Consideration of Defendants' Motion to Dismiss Until Plaintiffs (a) are Allowed to File Their Amended Complaint; and (b) are Allowed Discovery (docket #34) is DENIED;
Plaintiffs' Amended Motion to Allow Filing of Second Amended Complaint (docket #46) is GRANTED; and
Defendants' Motion for Clarification (docket #53) is GRANTED, and this court's minute order dated November 14, 2001 (docket #45) is amended by replacing the last sentence of that minute order with the following sentence: "Order — Granting Plaintiff's Motion to Alter, Amend, or Correct their Motion to Allow Filing of Second Amended Complaint (Related Document #44)" to clarify that plaintiffs were not given leave to file their Second Amended Complaint.
RECOMMENDATIONS
In addition, for the reasons stated above, defendants' Motion to Dismiss Plaintiffs' First Amended Complaint (docket #31) should be DENIED, and plaintiffs should be ordered to replead their claims to specify which underlying factual allegations they rely on for each of their Bivens claims and to replead their claim for delaratory relief.
SCHEDULING ORDER
Objections to these Findings and Recommendations, if any, are due April 26, 2002. If no objections are filed, then the Findings and Recommendations will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than May 13, 2002. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will be referred to a district court judge and go under advisement.