United States District Court, N.D. Illinois, Eastern Division
For Sergey Mayorov, Plaintiff: Debra Rae Bernard, LEAD ATTORNEY, Perkins Coie LLP, Chicago, IL; Abiman Rajadurai, Littler Mendelson, P.C., Chicago, IL; Mark M. Fleming, National Immigrant Justice Center, Chicago, IL.
For United States of America, Defendant: James Michael Kuhn, LEAD ATTORNEY, United States Attorney's Office (NDIL), Chicago, IL; AUSA, United States Attorney's Office (NDIL), Chicago, IL.
MEMORANDUM OPINION AND ORDER
REBECCA R. PALLMEYER, United States District Judge.
Plaintiff Sergey Mayorov, a United States citizen, pleaded guilty to residential burglary in Illinois state court in 2010. He received a four-year prison term but was placed in Illinois' " impact incarceration" program, an alternative sentencing program in which individuals serve just 120 days in " boot camp." An offender who successfully completes boot camp will be released from custody without having to serve a custodial prison sentence. Halfway through Mayorov's time in boot camp, United States Immigration and Customs Enforcement (" ICE" ) Officers issued an immigration detainer against him. The ICE detainer requested that the Illinois Department of Corrections (" IDOC" ) hold Mayorov up to an additional 48 hours after he would otherwise be released so that he could be detained by the Department of Homeland Security (" DHS" ) for investigation of whether he was lawfully present in the United States. Because ICE is prohibited as a matter of law from detaining United States citizens, however, the government had no authority to issue this detainer.
Under IDOC rules, a person subject to a detainer is not eligible to participate in boot camp, so Mayorov was transferred to a state prison, where he remained for about ten months before ICE cancelled his detainer, and IDOC reinstated him to boot camp. Mayorov completed the program successfully and was released from custody on April 14, 2012.
Mayorov brings this action pursuant to the Federal Tort Claims Act (" FTCA" ), 28 U.S.C. § 2671 et seq., and asserts claims of negligence and false imprisonment against the Government for its actions in issuing a detainer against him. The detainer, he alleges, resulted in his spending 325 days in prison that he otherwise would not have served. The Government asserts various affirmative defenses that, if applicable, defeat Mayorov's claims. The Government also argues that Mayorov's claims fail on the merits. Both parties have moved for summary judgment. For the reasons that follow, the court concludes that the Government's affirmative defenses do not bar Mayorov's claims, but that the Government is entitled to summary judgment on Mayorov's claim of false imprisonment. Disputes of fact preclude summary judgment on his negligence claim, however. The Government's motion for summary judgment  is therefore granted in part and denied in part. Mayorov's motion for summary judgment in his favor on liability  is denied.
Sergey Mayorov was born in 1990 in Belarus. (Pl.'s Local Rule 56.1 Stat. of Mat. Facts , hereinafter " Pl.'s 56.1," ¶ 6.) He immigrated to the United States in 1999 as a child of his asylee mother, then known as Tatyana Mayorova, and became a lawful permanent resident on July 22, 2005. ( See Def.'s Resp.  to Pl.'s 56.1, ¶ ¶ 7--8.) Mayorov's mother became a naturalized United States citizen on March 22, 2007. ( Id. ¶ 10.) On her N-400 naturalization application, Mayorov's mother listed Mayorov as a dependent minor who lived with her. ( Id. ¶ 9.) She also elected to change her name from Tatyana Mayorova to Tanya May in her application. ( Id. ¶ 10.) Because Mayorov was under eighteen years old and in the legal and physical custody of his mother at the time she naturalized, he automatically became a United States citizen the same day pursuant to the Child Citizenship Act of 2000 (" CCA" ), see 8 U.S.C. § 1431(a). (Def.'s Resp. to Pl.'s 56.1 ¶ ¶ 11--12.) Mayorov did not apply for a naturalization certificate, but the CCA confers citizenship automatically--a certificate is not required. (Pl.'s Resp.  to Def.'s Local Rule 56.1 Stat. of Mat. Facts , hereinafter " Def.'s 56.1," ¶ 9.)
On December 27, 2010, Mayorov pleaded guilty to residential burglary in the Circuit Court of Cook County and was sentenced to four years in prison. (Def.'s Resp. to Pl.'s 56.1 ¶ 19.) The sentencing judge recommended, however, that Mayorov participate in Illinois' " impact incarceration program," a program that sends qualified individuals to boot camp for 120 days in lieu of prison confinement. ( See id. ¶ ¶ 18--20; Plea Colloquy, Ex. 20 to Pl.'s 56.1 [31-21], 7--9; Sentencing Order, Ex. H to Def.'s 56.1.) Upon successful completion of boot camp, Mayorov would be released from IDOC custody without having to serve any prison time. (Pl.'s 56.1 ¶ 19.)
On December 28, 2010, prior to entering boot camp, Mayorov was processed into IDOC's Stateville Correctional Center. (Def.'s Resp. to Pl.'s 56.1 ¶ 21.) There, two ICE officers, Mayra Reynoso and Jennifer Wall, interviewed Mayorov as part of Stateville's inmate intake procedures. ( Id. ¶ 22.) In their depositions, Reynoso and Wall testified that they knew that Mayorov was designated for boot camp; they also knew that inmates who had immigration detainers lodged against them were not eligible to participate in boot camp. ( Id. ¶ 23; see Reynoso Dep., Ex. 7 to Pl.'s 56.1 [31-7], hereinafter " Reynoso Dep.," 45:1--24; Wall Dep., Ex. 8 to Pl.'s 56.1 [31-8], hereinafter " Wall Dep.," 46:5--15.) An immigration detainer is a document issued by DHS that, among other things, asks a state or local law enforcement agency to detain an individual for up to 48 hours (excluding weekends and federal holidays) after the agency's detention authority has ended so that DHS can determine whether the person is lawfully present in the country. ( See Detainer for Sergey Mayorov, Ex. N to Def.'s 56.1.)
There is conflicting evidence about whether Mayorov told Reynoso and Wall that he was a United States citizen. In his deposition, Mayorov does not explicitly say that he told the agents this (and was not directly asked about the matter), but he does make such an assertion in his affidavit. (Mayorov Affidavit, Ex. 22 to Pl.'s 56.1 [31-22], ¶ 3 (" During my processing at Stateville , I informed the ICE officers present that day, who[m] I have come to know were Officers Mayra Reynoso and Jennifer Wall, that I was a United States citizen." ). Neither agent remembers meeting Mayorov, but it is undisputed that they did in fact speak with him as part of the Stateville inmate intake procedures on December 28, 2010. ( See Wall Dep. at 49:23--50:2; Reynoso Dep. at 28:12--16; see Def.'s Resp. to Pl.'s 56.1 ¶ 22.) Reynoso and Wall reviewed DHS's database entries for Mayorov and his mother, and Reynoso made a notation beside Mayorov's name on the inmate log explaining that she and Wall did not issue a detainer because Mayorov was a " Child of U.S.C. [U.S. citizen]." (Def.'s Resp. to Pl.'s 56.1 ¶ ¶ 26--28.) Reynoso does not recall what led her to make this notation. (Reynoso Dep. at 48:1--49:7.) Mayorov recalls that initially, either Reynoso or Wall was skeptical about his legal status:
. . .
She said " I don't know for sure, but I don't see any paperwork on you. It doesn't look like you're going to boot camp. Let me go ask my boss. Step into the next room over." I stepped in there and the boss was a lady. She started asking me what was my mom's name. She found her in the system and then I don't know what she did. She said[,] " What year did your mom become a citizen or naturalized?'' " It was '07. I was 16 back then[,]" and she said[,] " Oh, you were under 18 when your mom became naturalized?" I said " Yeah." She said[,] " You're fine." I just signed some papers and I just went to the next physical, dental.
. . .
Q. What did this second lady do to, quote, find [Mayorov's mother]?
A. She had a computer in front of her. I'm sitting on the end where I can't see it. She just started typing and then she asked me for my mom's name. I said[,] " Tanya May" and she said[,] " I found her." I think she made a phone call to somebody. She made a phone call and then she was like -- she said[,] " You're fine. You're fine. Your mom was naturalized in '07. How old were you in July or June of '07" somewhere around there. I was like[,] " I was 16." She said[,] " You're fine. You can go to boot camp."
. . .
Q. Did the first lady tell you why you couldn't go to boot camp?
A. Yeah, I'm not a citizen.
Q. At that point, did you know you were a citizen?
A. I was sure of it, yes.
Q. Why were you sure of it?
A. My mom became naturalized in '07. I'm under her care. I'm a minor at 16. So I figured I'm a citizen too.
(Mayorov Dep., Ex. 10 to Pl.'s 56.1 [31-10], 23:15--25; 24:1--2; 28:3--15.) Because no detainer issued at that time, Mayorov was cleared to participate in boot camp. (Inmate Log, Ex. 3 to Pl.'s 56.1 [31-3], Ex. A; Reynoso Dep. 48:12--49:7; Wall Dep. 48:15--49:6.) Neither Reynoso nor Wall noted the findings of their investigation in the ENFORCE database, or any other government database. ENFORCE is DHS's principal database of information related to persons encountered during immigration and criminal law enforcement investigations conducted by ICE and other DHS agencies. ( See Def.'s Resp. to Pl.s 56.1 ¶ 29 (citing http://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_ice_eid.pdf) (last visited 2/15/2015).) At least as of April 10, 2014, ENFORCE listed Mayorov's " country of citizenship" and place of " primary citizenship" as Belarus. ( Id. ¶ 31.) The Government does not explain why the agents chose not to update Mayorov's ENFORCE profile to reflect that he was a United States citizen once they decided not to issue a detainer, beyond asserting that they were under no obligation to do so. ( Id. ¶ 29.)
The ICE Secure Communities Processing Center in Chicago (" Secure Communities" ) conducts immigration investigations using fingerprints maintained by all state and local law enforcement agencies within a particular jurisdiction. ( Id. ¶ 33). On December 30, 2010, Secure Communities received a " query"  on Mayorov's fingerprints from prison officials at Stateville. (Def.'s Resp. to Pl.'s 56.1 ¶ 35.) When Secure Communities receives a query, an ICE contractor prepares a packet of information collected from government databases related to the individual, including the person's date of birth, current citizenship status as reflected in a person's CIS and ENFORCE entries, and other evidence probative of a person's citizenship status. A different ICE employee then reviews the packet and decides whether to issue a detainer. ( Id. ¶ ¶ 34, 37.) On March 8, 2011, ICE contractor Jessica Beckman prepared a packet of information on Mayorov and forwarded it to Giuseppe DiMaggio, an ICE agent working at Chicago's Secure Communities office in March 2011. ( Id. ¶ 36.) The packet did not state that Mayorov was a United States citizen, but it did include information that reflected Mayorov's date of birth, the date he received lawful permanent residence, evidence that he received lawful permanent residence through a parent, and at least his mother's original first name. ( Id. ¶ 37.) DiMaggio's job was to review the packet and decide whether to issue a detainer against Mayorov. (Def.'s Resp. to Pl.'s 56.1 ¶ 36.) In making that decision, one thing DiMaggio assesses is whether the individual might have derived citizenship under the Child Citizenship Act. ( See DiMaggio Dep. II at 10--12.)
DiMaggio described the steps that he takes when considering whether to issue a detainer. First, as a routine part of his analysis, DiMaggio searches the Central Index System (" CIS" ), a database maintained by DHS that contains information about a person's citizenship status, country of birth, parents' names, and other information related to a person's legal status in the country. ( See Mayorov CIS Entry, Ex. D. to Def.'s 56.1.) If a CIS entry identified a person as a child of an asylee, DiMaggio explained that he would investigate the person's parents' citizenship status. (DiMaggio Dep. I, Ex 5 to Pl.'s 56.1 [31-5], 38:12--39:10.) Mayorov's CIS entry identified him as the child of an asylee and also listed his mother's original first name, Tatyana. ( See Mayorov CIS Entry, Ex. D. to Def.'s 56.1.) DiMaggio testified that he did not remember whether he investigated Mayorov's mother's citizenship. (DiMaggio Dep. I at 39:11--40:10.) Yet elsewhere in his testimony, he explained that he could not find Mayorov's mother in the database because she changed her name at the time of naturalization. ( Id. at 39:21--22) (" I believe that in this case the mother had changed name [sic] and I wasn't able to find her in CIS." ) He nevertheless acknowledged that a name search in the CIS database will ordinarily pick up an individual's aliases or entries for similar names. ( See DiMaggio Dep. II, Ex. 6 to Pl.'s 56.1 [31-6], 11:5--9; DiMaggio Dep. I at 40:24--41:13.) (" [T]he database sometimes catches certain names that are similar and, you know, sometimes you catch some -- you know, a different name, a different first name or a different -- you know, if the name is slightly different. Q. More of a fuzzy search, maybe? A. Correct." ). Mayorov's mother's CIS database entry states that she was naturalized on March 22, 2007 and includes her original first name, Tatyana, the same name listed on Mayorov's CIS entry.
Neither party has explained whether the CIS database allows ICE officers to search for people using a first name alone, or whether DiMaggio performed a search using Mayorov's mother's first name. It is also unclear whether any such search would have located her file after she changed her first name from Tatyana to Tanya, or even whether the name change is relevant, given that her CIS entry listed her name as Tatyana, the same name listed on Mayorov's CIS entry. Notably, Mayorov's mother's N-400 application lists her last name as " Mayorova" ( see Tanya May N-400 App., Ex. E to Def.'s 56.1), and the court is additionally uncertain whether a " fuzzy" search for " Mayorov" would have located a last name of " Mayorova." (Def.'s Resp. to Pl.'s 56.1 ¶ 42.) DiMaggio testified that " [i]f [he] had a reason to believe that the subject might have triggered citizenship," he would choose to interview a person before issuing a detainer. (DiMaggio Dep. I at 42:7--11.) He did not, however, do so in this case. ( Id. at 42:1--3.) And he admitted that he did not review the Alien file for Mayorov or his mother in this case, though such files could have been retrieved within a few weeks. (Def.'s Resp. to Pl.'s 56.1 ¶ ¶ 46--48.) Mayorov's mother's A-file showed that at the time she naturalized, Mayorov was a minor who lived at her address. (Tanya May A-File, Ex. 14 [31-15] to Pl.'s 56.1.)
According to DiMaggio, ICE issues immigration detainers to advise state and local law enforcement that ICE has started an investigation into a person's citizenship, but the investigation does not actually begin until the subject of the detainer is in ICE custody. (Pl.'s Resp. to Def.'s 56.1 ¶ 22 (citing DiMaggio Dep. I at 19:14--20:5 (" Q. Do you take any steps -- or should I say did you take any steps when issuing detainers to ensure that a potential subject was a U.S. citizen before issuing the detainer? A. We placed the detainer to start an investigation. We don't have the file in front of us. Therefore, you know, we just placed the detainer and when it [sic] comes to our custody, we would start the investigation." ).) The Government reiterates DiMaggio's position that " investigation into Mayorov's removability was to take place after he was in ICE custody," and that DiMaggio " was not under any mandatory duty to investigate Mayorov's citizenship before he came into ICE custody." (Def.'s 56.1 ¶ ¶ 38--39.) Yet DiMaggio also testified that, at least sometimes, he interviews individuals before deciding whether to issue a detainer. ( See DiMaggio Dep. I at 42:7--11.)
Based on the information he reviewed in the packet, DiMaggio chose to issue a detainer against Mayorov and faxed a copy of it to IDOC on March 16, 2011. (Pl.'s Resp. to Def.'s 56.1 ¶ ¶ 22, 26, 36.) The document is entitled: " Immigration Detainer -- Notice of Action." (Detainer for Sergey Mayorov, Ex. N to Def.'s 56.1.) It identified Mayorov as a Belarus national and stated that DHS had initiated an investigation " to determine whether this person is subject to removal from the United States." ( Id.) The documented requested that IDOC " accept this notice as a detainer," but explained that " [t]his is for notification purposes only and does not limit your discretion in any decision affecting the offender's classification, work, and quarters assignments, or other treatment which he or she would otherwise receive." ( Id.) Lastly, the detainer requested " that [IDOC] maintain custody of this individual for a period not to exceed 48 hours" after IDOC's detention authority expired, in order to allow time for ICE agents to come and take custody of him. ( Id.)
On March 16, 2011, Mayorov received a copy of the detainer, which IDOC appears to have referred to as an " immigration warrant." (Receipt for Legal Papers, Ex. ¶ to Def.'s 56.1). On that same day, IDOC held a hearing to determine whether Mayorov could remain in boot camp. (Pl.'s Resp. to Def.'s 56.1 ¶ 41.) At the hearing, Mayorov stated that he was not aware of an " immigration warrant" and that he had a " green card, social security number and graduated from high school." ( Id. ¶ 42.) It is unclear whether Mayorov believed that having a green card and social security number meant he was a United States citizen. And there is no evidence that he made a claim to citizenship at the hearing. In any event, the IDOC hearing officer concluded that Mayorov could not participate in boot camp anymore, giving the following reasons: " Mayorov  has an immigration warrant and his guilty plea to the warrant. Inmate isn't appropriate to remain at [boot camp] with the warrant."  ( Id. ¶ 43 (citing Hearing Notes, Ex. Q to Def.'s 56.1).) Mayorov committed no disciplinary infractions while in boot camp; he was disqualified solely because of the detainer. (Def.'s Resp. to Pl.'s 56.1 ¶ 58.) By the time he was disqualified and transferred to state prison, Mayorov had completed 52 of the 120 required days of boot camp. ( Id. ¶ ¶ 57, 59.) Mayorov left a voicemail for his mother the same day he was disqualified and gave her the telephone number for ICE, which was listed on the detainer. ( Id. ¶ ¶ 60--61.) She tried to contact ICE numerous times and left multiple voice mails, but no ICE official ever returned her phone calls or responded to her messages. (Def.'s Resp. to Pl.'s 56.1 ¶ ¶ 62--64.)
On November 19, 2009, then-ICE Director John Morton issued a policy memo entitled " Superseding Guidance on Reporting and Investigating Claims to United States Citizenship." In it, Director Morton stated, in part: " As a matter of law, ICE cannot assert its civil immigration enforcement authority to arrest and/or detain a [U.S. citizen]. Consequently, investigations into an individual's claim to U.S. citizenship should be prioritized[.]" (Morton Memo, Decl. Ex. 1 to Kauffman Decl., Ex. O to Def.'s 56.1, hereinafter " Morton Memo," 1.) The parties dispute whether the Morton Memo applies to investigations like the one DiMaggio conducted, or whether it applies only to persons in ICE custody. ( Compare Miller Dep., Ex. 1 to Pl.'s Resp. to Def.'s 56.1 [37-1], 80:1--81:5; 82:6--16, with Kauffman Affidavit, Ex. O to Def.'s 56.1, ¶ 8.)
On November 23, 2011, after retaining legal counsel, Mayorov sought to intervene in a putative class action, Jimenez Moreno v. Napolitano, No. 11-cv-5452 (N.D. Ill. filed Aug. 11, 2011), which challenges the constitutionality of immigration detainers and " placed ICE on further notice that the immigration detainer it lodged against [Mayorov] was causing him to serve a four year prison sentence."  (Def.'s Resp. to Pl.'s 56.1 ¶ 65.) On November 28, 2011, an ICE agent, Ronald Easterday, called the National Records Center where Mayorov and his mother's Alien files were stored and discovered that Mayorov derived United States citizenship under the Child Citizenship Act. (Def.'s Resp. to Pl.'s 56.1 ¶ ¶ 66--67.) ICE canceled the detainer the same day ( id. ¶ 67), and Mayorov was reinstated to boot camp on February 6, 2012. ( Id. ¶ 69.) He received credit for completing the first 52 days, finished the remaining days on April 14, 2012, and was then released from IDOC custody. ( Id. ¶ ¶ 69--70.) If ICE had not issued the detainer, and assuming Mayorov completed the boot camp program uninterrupted when he first started it, Mayorov claims he would have been released on May 25, 2011, or 325 days earlier. ( Id. ¶ 71.) IDOC's records confirm that Mayorov's original projected release date was May 25, 2011. (IDOC Records, Ex. 16 to Pl.'s 56.1 [31-17], 150.) It is undisputed that Mayorov suffered significant emotional distress and depression while imprisoned. (Def.'s Resp. to Pl.'s 56.1 ¶ 74.)
In June 2012, Mayorov filed an administrative tort claim with ICE, seeking $5 million in personal injury damages he maintains were caused by the Government's negligent issuance of the detainer, which allegedly caused him to spend 324 days in prison that he otherwise would not have spent. (Pl.'s Resp. to Def.'s 56.1 ¶ 50; Admin. Tort Claim, Ex. T to Def.'s 56.1.) He filed the current action on July 22, 2013, bringing negligence and false imprisonment claims against the Government under the FTCA. He seeks damages resulting from his loss of liberty, emotional ...