15-2793-cv
Nwozuzu v. United States of America


                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 10th day of October, two thousand seventeen.

PRESENT: REENA RAGGI,
         PETER W. HALL,
         SUSAN L. CARNEY,
                                                    Circuit Judges.
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KELECHI GERALD NWOZUZU,
                                               Plaintiff-Appellant,
                 v.                                                        No. 15-2793-cv

UNITED STATES OF AMERICA,
                                              Defendant-Appellee.
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FOR APPELLANT:                                    Kelechi Gerald Nwozuzu, pro se, Jamaica,
                                                  New York.

FOR APPELLEE:                                    Natasha W. Teleanu, Christopher Connolly,
                                                 Assistant United States Attorneys, for Joon H.
                                                 Kim, Acting United States Attorney for the
                                                 Southern District of New York, New York,
                                                 New York.

         Appeal from a judgment of the United States District Court for the Southern District

of New York (Lorna G. Schofield, Judge).



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       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on August 14, 2015, is AFFIRMED.

       Plaintiff Kelechi Gerald Nwozuzu, proceeding pro se, sues the United States under

the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671–2680, alleging false

imprisonment for two periods of immigration detention between 2005 and 2012. 1

Nwozuzu here appeals the dismissal of his complaint for lack of subject matter jurisdiction.

See Fed. R. Civ. P. 12(b)(1). On appeal from such a dismissal, we review a district court’s

legal conclusions de novo, see Haber v. United States, 823 F.3d 746, 751 (2d Cir. 2016),

and its factual findings for clear error, see Cortlandt St. Recovery Corp. v. Hellas

Telecomms., S.à.r.l, 790 F.3d 411, 417 (2d Cir. 2015). In so doing, we take as true the

complaint’s material allegations and draw all reasonable inferences in the plaintiff’s favor.

See Mantena v. Johnson, 809 F.3d 721, 727 (2d Cir. 2015). In applying these standards

here, we assume the parties’ familiarity with the underlying facts and procedural history of

the case, which we reference only as necessary to explain our decision to affirm.

       “The FTCA waives the government’s sovereign immunity in actions for money

damages arising out of injury, loss of property, personal injury or death caused by the

‘negligent or wrongful’ act or omission of a government employee ‘while acting within the

scope of his office or employment, under circumstances where the United States, if a

private person, would be liable to the claimant in accordance with the law of the place

where the act or omission occurred.’” Fountain v. Karim, 838 F.3d 129, 135 (2d Cir.


1
  Nwozuzu was detained pursuant to 8 U.S.C. § 1226(c), which mandates the detention of
certain “aliens” with criminal convictions.

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2016) (quoting 28 U.S.C. § 1346(b)(1)). The FTCA’s waiver of sovereign immunity is

inapplicable, however, to “[a]ny claim based upon an act or omission of an employee of the

Government, exercising due care, in the execution of a statute or regulation, whether or not

such statute or regulation be valid . . . .” 28 U.S.C. § 2680(a). Exercising due care

“implies at least some minimal concern for the rights of others.” Myers & Myers, Inc. v.

U.S. Postal Serv., 527 F.2d 1252, 1262 (2d Cir. 1975) (citing Hatahley v. United States,

351 U.S. 173, 181 (1956)).

       The district court concluded that the FTCA’s waiver of sovereign immunity did not

apply to Nwozuzu’s false imprisonment claims because government officials acted with

“due care” in interpreting the derivative citizenship statute as requiring lawful permanent

resident (“LPR”) status, which Nwozuzu lacked.2 See 28 U.S.C. § 2680(a).

       In urging error, Nwozuzu contends that the government did not act with due care

because it should have known that he had acquired United States citizenship from his

parents without regard to LPR status. The argument fails because it was only in 2013 that

this court determined, contrary to the Board of Immigration Appeals, that an alien,

specifically, Nwozuzu, could obtain citizenship pursuant to the previous derivative

citizenship statute, 8 U.S.C. § 1432(a) (Immigration and Nationality Act (“INA”)

§ 321(a)), despite lacking LPR status. See Nwozuzu v. Holder, 726 F.3d 323, 334 (2d Cir.

2
   Former INA § 321(a), the derivative citizenship statute in effect when Nwozuzu’s
parents naturalized, provided that “[a] child born outside the United States of alien parents
. . . becomes a citizen of the United States upon fulfillment of,” inter alia, “the following
conditions: (1) The naturalization of both parents; . . . and (5) Such child is residing in the
United States pursuant to a lawful admission for permanent residence at the time of the
naturalization . . . or thereafter begins to reside permanently in the United States while
under the age of eighteen years.” 8 U.S.C. § 1432(a) (1994) (repealed 2000).

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2013). Before that decision, this court had expressed strong reservations about such a

predicate requirement, but had left the question unresolved. See Ashton v. Gonzales, 431

F.3d 95, 98–99 (2d Cir. 2005) (disagreeing with government’s argument that statute

required LPR status, but stating that “proper interpretation of INA § 321(a) is a question we

need not reach”); id. at 99 (“We have no doubt from the structure and context of § 321(a) as

a whole that a child who acquires lawful permanent residency would certainly satisfy

§ 321(a)’s requirements, and we do not rule out that some lesser official objective

manifestation might also be sufficient.”); see also Nwozuzu v. Holder, 726 F.3d at 333

(recognizing that Ashton “strongly suggested” statute did not require LPR status).

Meanwhile, at the time of Nwozuzu’s second detention, other circuits had determined that

the statute did, in fact, require LPR status. See, e.g., United States v. Forey-Quintero, 626

F.3d 1323, 1326–27 (11th Cir. 2010); Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1062 (9th

Cir. 2008). In light of such legal uncertainty when Nwozuzu was detained as to whether

derivative citizenship could be acquired even absent LPR status, the district court properly

concluded that the government acted with due care in interpreting that statute as

inapplicable to Nwozuzu due to his lack of LPR status and in interpreting 8 U.S.C.

§ 1226(c) to mandate detention.

       We have considered Nwozuzu’s remaining arguments and conclude that they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

                                          FOR THE COURT:
                                          Catherine O’Hagan Wolfe, Clerk of Court




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