Bazuaye v. Page et al

Filing 16

OPINION AND ORDER: The Amended Complaint is dismissed with prejudice as to all defendants. So Ordered (Signed by Judge Robert P. Patterson on 12/29/2010) Copies Sent By Chambers. (js)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------X JEROMI H. BAZUAYE, Plaintiff, 10 Civ. 1362 (RPP) - against OPINION AND ORDER ALAN L. PAGE, et. al., Defendants. ---------------------------------------------------------X ROBERT P. PATTERSON, JR., U.S.D.J. Defendants Alan L. Page, Immigration Judge, Deportation Officer Garaffa and Deportation Officer Achilles Shinas, and Security Officer Barrington, sued individually, move to dismiss Plaintiff's Amended Complaint alleging that Defendants conspired to detain him on November 18, 2009, pursuant to 8 U.S.C. §1226(c). The other named defendants have not been served. The only allegations in the Amended Complaint against the Defendants pertaining to Plaintiff being detained on November 18, 2009 are as follows: 1) "On or about November 18, 2009...Defendant Barrington called [Plaintiff] and led him to a room where Defendant Garaffa and other unknown ICE officials arrested and took Plaintiff into custody in blatant violation of 8 C.F.R. §§ 236.1[(c)](9) and (11) and 8 C.F.R. § 241.4 (L) [sic]."1 (Am. Compl. at ¶ 23; See Exhibit F.) 2) "Defendant Garaffa told Plaintiff that Defendant `Unknown Staff Attorney' told him to take Plaintiff into immigration custody. (Am. Compl. at ¶ 23.) The Amended Complaint alleges "The Acts of Defendant Unknown Staff Attorney, which are the
8 C.F.R. §§ 236.1(c)(9) and (11) and § 241.4(l) address the authority of immigration officials to revoke the release of aliens from detention pursuant to the immigration laws.
1

1

subject of this lawsuit, were undertaken in the course of her official duty." (Am. Compl. at ¶ 6.) 3) "A warrant of arrest and Notice of custody determination issued and signed by Defendant Achilles Schinas without authority under 8 C.F.R. § 236.1[(c)](11)2 and 241.4(L) [sic]3 was served on the Plaintiff by Defendants." (Am. Comp.at ¶ 23, Ex. F) "The acts of Defendant Achilles Shinas which are the subject of this lawsuit were undertaken in the regular course of his official duty." (Am. Compl. at ¶ 7.) 4) "DHS filed additional charge of removal against Plaintiff based on his 2005 federal conviction on the ground that it constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i)." (Am. Compl., ¶ 24.) Judgment in the federal prosecution for four counts of bank fraud was entered on November 10, 2004, affirmed on April 27, 2005 with instructions to resentence, and an amended judgment was entered on September 29, 2005 requiring restitution of over $30,000 to three banks. See United States v. Bazuaye, 03 Cr. 12, Amended Judgment, September 29, 2005, ECF 81.) On July 13, 2010, this Court found that the amended judgment indicated that one of Plaintiff's victims lost over $10,000 and that therefore this conviction was an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i). Bazuaye v. Napolitano, 10 Civ. 4618, July 13, 2010 Hearing, Tr. at 18-19.

8 C.F.R. § 236.1(c)(11) limits the authority of an immigration judge to redetermine conditions of custody of or aliens in deportation or removal proceedings pursuant to 8 C.F.R. § 3.19(h) (now § 1003.19(h)).
3

2

8 C.F.R. § 241.4(l) governs revocations of release.

2

DISCUSSION The Amended Complaint alleges that Defendant Shinas, named in the caption as Deportation Officer Achilles Shinas, issued and signed the warrant for Defendant's arrest on November 18, 2009 based on Plaintiff's 2005 federal conviction for bank fraud, in which restitution to Chase Bank of over $10,000 was included in the final judgment entered on September 29, 2005. (Am. Compl. at ¶¶ 23-24, Ex. F). The Amended Complaint alleges that Defendant Garaffa took Plaintiff into custody based on the warrant signed by Defendant Shinas. (Am. Compl. at ¶ 23.) The Complaint also alleges that the acts of Defendant Garaffa which are the subject of this lawsuit were undertaken in the regular course of his official duty. (Id. at ¶ 8.) Defendant Barrington's acts as a security officer are alleged to have been undertaken in the regular course of her official duty. (Id. a