                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-4-2007

Tavares-Castillo v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3185




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Recommended Citation
"Tavares-Castillo v. Atty Gen USA" (2007). 2007 Decisions. Paper 1814.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1814


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DLD-65                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 06-3185


                               PEDRO JUAN TAVARES,
                                             Appellant

                                            v.

                         ATTORNEY GENERAL USA;
                  IMMIGRATION & NATURALIZATION SERVICE


                    On Appeal From the United States District Court
                             For the District of New Jersey
                             (D.C. Civ. No. 04-CV-00302)
                      District Judge: Honorable William H. Walls


           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                  December 7, 2006


            Before: BARRY, AMBRO AND FISHER, CIRCUIT JUDGES

                                 (Filed: January 4, 2007)


                                        OPINION


PER CURIAM

       Pedro Juan Tavares appeals from an order of the United States District Court for

the District of New Jersey, dismissing his civil rights complaint. We will similarly

dismiss the appeal pursuant to 28 U.S.C. § 1915(e).
       Tavares initially filed a habeas petition pursuant to 28 U.S.C. § 2241 in January

2004 in the District Court. That petition challenged his continued detention and his

removal proceedings. In May of 2005, Tavares filed a civil rights complaint, alleging that

the Immigration and Naturalization Service and former Attorney General John Ashcroft

violated his rights in five ways: (1) by failing to properly investigate his petition for

naturalization in 1976; (2) by wrongfully failing to proceed with his immigration

proceedings in 1983; (3) by falsely reporting his death in 1983; (4) by delaying his

immigration proceedings for six years between 1996 and 2002; and (5) by wrongfully

keeping him in mandatory pre-removal-order detention without granting him a hearing

pursuant to In re Joseph, 22 I&N Dec. 799 (BIA 1999), in 2002 and 2003.

       In October 2005, the District Court severed and transferred to the United States

Court of Appeals for the Second Circuit any claims relating to Tavares’ order of removal.

In March 2006, Tavares informed the District Court that he had been released from

detention. Thus, in its opinion in June of 2006, the District Court dismissed Tavares’

claim based on his post-removal order detention.1 Of the remaining claims, the District

Court found that all claims were time-barred, except for his civil rights challenge to his

pre-removal-order detention.

       The District Court noted that the United States has sovereign immunity except

where it consents to be sued, and that federal employees, with very limited exceptions,


   1
    To the extent Tavares appeals that dismissal, we hereby affirm the District Court’s
decision to dismiss the claim as moot.
                                               2
are immune from liability if they commit negligent or wrongful acts within the scope of

their employment. The District Court concluded that Tavares’ claim concerning his pre-

removal-order detention could proceed only if one of the exceptions to immunity found in

28 U.S.C. § 2679(b)(2) applied or if the claim was otherwise valid against the United

States under the Federal Tort Claims Act. The Court found that Tavares’ claims did not

meet either of these prerequisites, and thus dismissed the complaint with prejudice for

failure to state a claim. Tavares timely appealed.

       We have little to add to the District Court’s thorough opinion. We agree that all of

Tavares’ claims, save his claim regarding pre-removal-order detention, were time-barred.

The District Court correctly applied New Jersey’s two-year period of limitations to bar

Tavares’ claims that accrued more than two years before his complaint was filed.

Montgomery v. DeSimone, 159 F.3d 120, 126 n.4 (3d Cir. 1998). Tavares’ remaining

claim, that his due process rights were violated by his pre-removal-order detention, is

without merit. As the District Court noted, even if the Attorney General were not

immune or Tavares could otherwise sue the United States, Tavares had no basis for a

claim. He conceded that he had committed an aggravated felony. Thus, he was subject to

mandatory detention pursuant to 8 U.S.C. § 1226(c). Although his detention was

somewhat lengthy, it was prolonged because, as the Court noted, the proceedings

involved “two rounds of IJ decisions and appeals.” We agree that Tavares’ complaint




                                             3
fails to state a claim upon which relief may be granted.2




   2
     We note that the District Court order dismissing Tavares’ complaint contains the
following paragraph:

              “ORDERED that the dismissals of Petitioner’s civil rights claims
       shall count as a ‘strike’ for purposes of 28 U.S.C. § 1915(g) . . . .”

As Tavares was an immigration detainee and therefore not a “prisoner” for purposes of
the Prison Litigation Reform Act, we hereby modify the District Court’s order and delete
the quoted paragraph. Andrews v. King, 398 F.3d 1113, 1121-22 (9th Cir. 2005)
(dismissals of actions brought while plaintiff was in custody of INS do not count as
“strikes” within the meaning of § 1915(g), so long as detainee did not also face criminal
charges); Ojo v. I.N.S., 106 F.3d 680, 682 (5th Cir. 1997) (§ 1915(h) does not apply to
INS detainees).
