Pierre Genevier
423 E 7th
street (RM 528)
Los Angeles, CA 90014
Ph.: (213) 622-1508
Emails: p_genevier@yahoo.com,
pierre.genevier@laposte.net
United States District Court For the
Central District
of
California Western Division
Complaint for damages – Intentional
Misrepresentations and Suppression of Facts (involving risk of physical harm by
public employees guilty of actual fraud, corruption and malice), collateral to
negligence in performance of operational tasks.
[28 USC 1346 (b)]
Pierre Genevier
(Plaintiff) |
| No:______________
VS | Complaint For Damages:
| Amount demanded $ 1 800 000
Department of Homeland Security |
(Defendant)
|
| Demand for Jury Trial
The document contains the complaint (24
pages including the list of exhibits and a table of contents) and 10 exhibits
(46 pages). It is filed concurrently with a notice of interested party and an
affidavit to proceed in forma pauperis.
LASS stands for Los Angeles County Department of Public Social Services,
and CASS for California Department of Social Services.
Cause of action.
Plaintiff alleges
1.&2. Defendant addresses
Defendant Department of Homeland Security (DHS) (including the
former ‘INS’ office) is, and all times herein mentioned as ‘INS’ was, a public
entity existing under the laws of the State of California with its principal
place of business in Washington. (DHS,
Washington, DC 20528) (DHS-USCIS Los Angeles District Office and DHS-USICE, 300
North Los Angeles Street, Los Angeles, CA 90012) (DHS-Office of the District
Counsel, 606 South Olive Street, Room 800,Los Angeles, CA 90014) (DHS- USCIS LA
Asylum Office, 290 South Anaheim Blvd, Anaheim, CA 92805)
3. Public employees responsibilities.
Plaintiff is informed and believes and thereon alleges that Mr.
Robert Looney, Mrs. Janie Lee and Mr. Earl Dotson who made the representations
alleged below, were the Director of the Los Angeles Asylum office, the LA-‘INS’
attorney in charge of the plaintiff’s case, and the deportation officer who
studied the plaintiff case, and, at all time of the making of the
representations herein alleged and all times herein mentioned were acting
within the course and scope of their employment and authority for the defendant
DHS (formerly ‘INS’).
4. Plaintiff is ignorant of the true name of the ‘INS’ employee mentioned herein as (do)
LA-INS-duty-attorney-1, and therefore refers to this employee by such
fictitious name. Plaintiff will amend
this complaint to allege the true name and capacity when ascertained. (Plaintiff is informed and believes and
thereon alleges that the fictitious named employee is responsible in some
manner for some of the occurrences herein alleged, and that plaintiff’s damages
as herein were proximately caused by his conduct.)
4.1 Statement of Jurisdiction.
28 USC 1346 (b) gives jurisdiction to
District Court for claims against the United States, for money damages. It states ‘Subject to provision of
chapter 171 of this title, District Court,…, shall have exclusive jurisdiction
of civil actions on claims against the United States, for money damages,
accruing on or after January 1 1945, for injury or loss of property, or
personal injury or death caused by negligent or wrongful act or omission for
any employee of the government 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’.
4.2 Factual Backgrounds / Summary of Facts.
Plaintiff is a native citizen of France
who entered the United States on April 16, 2002, on the visa waiver program,
then applied for political asylum to obtain the protection guaranteed to
refugees (and to obtain indirectly a legal decision from the US justice that
could help him to obtain justice against France). The LA ‘INS’ Asylum office transferred the case to the
Immigration Court on July 16 2002. On
September 5, 2002, plaintiff applied for Los Angeles County General Relief
benefits, and as part of the application, was directed to the INS office to
obtain a verification of his immigration status. The ‘INS’ status verifier, Mr. Mahoney, identified the plaintiff
as a ‘refugee’, which entitled plaintiff to reside in the United States for
an indefinite period of time (exh. 1).
On September 25, 2002, plaintiff applied
for Refugee Cash Assistance benefits and his application was approved,
effective the same day, but certain benefits associated with the refugee status
were denied, the cash benefit and medical protection were eventually and incorrectly
terminated 2 months later on 11/30/02, and the DPSS pretended that the
plaintiff was not a refugee anymore on 12/01/02! The plaintiff contested the denial and early termination of the
benefits and the allegations concerning his refugee status in a request for
hearing at the administrative court and obtained an administrative law judge
decision mostly in his favor confirming his refugee status (exh.
3.1).
At about the same time, end of September
2002, the plaintiff went to present his verification of status at the
Immigration Court. The Clerk Supervisor
told him that it was not unusual that an asylum seeker receives his refugee
status after his case had been transferred to the Immigration Court, and
asked him to inquire about the steps to be taken to have his case closed at the
‘INS’ counsel office. The plaintiff
presented his verification of status to the 4 INS employees listed above (2 INS
attorneys, the Director of the LA INS Asylum office, and a deportation officer)
to have his case closed, and to obtain both the date his asylum was granted and
another document stating his refugee status.
These 4 INS employees pretended directly
or indirectly that the INS status verifier, Mr. Mahoney, had made a mistake in
reading the record, and that they could not see on the computer or record where
the status verifier had seen that the plaintiff had been given the refugee
status. But on November 13 2002,
several status verifiers confirmed to the plaintiff that he had been given the
refugee status and that they even had the date at which the refugee
status was granted, which contradicted without any doubt their 4 INS
colleagues affirmations (or assessments).
It seems that after November
14 2002, date at which the plaintiff filed his complaint against the social
services and wrote to the press and media to explain that he had been
granted the refugee status (and before December 1 2004), the INS record
was changed, because the status verifiers eventually said that the
plaintiff was no longer listed as a refugee on December 1st 2002
(but the plaintiff does not know for sure, if the record was changed or if the
status verifier started to lie).
This change of the record (or new lie)
conveniently ‘covered’ the lies made by the 4 INS employees, the errors made by
the LASS on the plaintiff’s case, punished the plaintiff for complaining at the
administrative court, and ‘discouraged’ the press and media from discussing
publicly the plaintiff’s case and proposals.
But the INS management never denied the validity of the initial
verification of status (listing the plaintiff as a refugee) certified by the
administrative law judge, and instead the INS Refugee center
accepted a certification made under the penalty of perjury under law stating
that the plaintiff is a refugee (att. 6).
The plaintiff alleges and the evidences
show that the INS (and related LASS and CASS) misrepresentations (and other
wrongdoings) had for objective to deprive the plaintiff from his rights and
safety, to physically harm him, to make him loose his asylum case, to diminish
the responsibility of the social services employees in the errors made on his case,
to discourage him from (and to punish him for) denouncing the dishonest
behavior of the different social services civil servants, and finally, to
‘discourage’ the press and media from discussing publicly his unusual grant of
asylum and his 2 proposals made to the international community (particularly
the 65 age limit proposal for Leaders that could still have prevented the war
in Iraq at the time).
The plaintiff asylum case was complex,
because he not only explained that he was victim of a widely ‘advertised’
political scandal in France and that he received grave threats from the
administration, but also that the persecutions he was victim of were due to the
2 special proposals he submitted to the international community. One of the proposals is a complicated
computer project proposal designed to improve the transfer and integration of
statistical data at the worldwide level (proposal that was supported by many
experts around the world, exh. 7). And
the other is a management proposal whose objective is to establish a 65-age
limit for country Leaders and I.O Chiefs (Mr. Saddam Hussein was 65 in early
03).
‘INS’
intentional misrepresentations and suppression of facts.
5. On
or about September 30,
October 31 and November 13 2002, INS-duty-attorney-1, Mr. Robert Looney, Mr.
Earl Dotson, and Mrs. Janie Lee pretended directly or indirectly (or suggested
as a fact):
1_ That the plaintiff did not have the refugee status;
2_ That the INS status verifier who had signed and stamped the verification
of status listing him as a refugee (exh.1) had made a mistake in reading the
record. They also directly or
indirectly pretended that they could not see on their computer where the status
verifier had read that the plaintiff had been given the refugee status (, which
is more than ‘surprising’ for the director of the asylum office, INS-attorneys
and a deportation officer).
6. The representations
made by these 4 ‘INS’ employees (verbally for INS-duty-attorney-1 and Mrs. Lee, in writing for
Mr. Looney, and both in writing and verbally for Mr. Doston, see exh. 2.2 and
2.3) were in fact false. The true facts
were:
1_ The plaintiff had the refugee status as the status verifier had
written it on his initial verification of status (att. 1), as several of his
colleagues status verifiers confirmed it on November 13th 2002 and
as administrative law judge Tolentino ‘certified’ it in his decision dated
February 5 03 (att. 3);
2_ The status verifier did not make a mistake in reading the record
(even after they changed their position on December 1 02, they did not
say that they had made a mistake).
Moreover, despite several complaints or
requests for information (see exh. 10), the ‘INS’ (DHS) management and ‘INS’
office of internal audit never denied the validity of the initial
verification of status listing the plaintiff as a refugee, (instead the
Nebraska refugee center accepted the plaintiff’s refugee employment
authorization application containing a certification made under the penalty of
perjury under law stating that he is a refugee in October 2003, see exh. 6).
7.1 When these 4 ‘INS’ employees made these representations, they knew them to be false, because either
they did not have the same information that the status verifier
had to establish the verification of status listing the plaintiff as a refugee,
and in this case they had no reason to doubt the status verifier’s reading of
the record and to doubt that the plaintiff had obtained the refugee status,
particularly when one knows that it can happen that asylum seekers receive
their refugee status after their case has been transferred to the immigration
court (as the clerk supervisor of the immigration court mentioned it).
Or they did have the same information that the status verifier had, and in that
case they should not have blamed the status verifier for making a mistake and
should not have pretended that the plaintiff did not have the refugee status,
because they could see on their computer that the plaintiff had been given the
refugee status.
Moreover, the Director of the Asylum
office, the INS attorneys perfectly knew that asylum seekers must be given the
benefit of the doubt, that they were not competent to judge certain
aspects of the case, and that the plaintiff had asked for the intellectual
support of several US universities (on July 16 2002, the asylum office had even
said verbally that ‘they’ could not take a decision on the case, this is why
‘they’ were transferring the case to the immigration court). The plaintiff’s application contained the
description of a computer project proposal he submitted to the international
community and around 20 letters of supports from experts and politicians around
the world, including 2 G8 leaders.
It also contained several letters he sent
to ‘Leaders’ to explain the importance of the 65 age limit for country and I.O.
leaders proposal to maintain peace around the world. One of the letters even mentioned that
the proposal could prevent a then possible war with Iraq. So the fact that someone else had judged the
case and granted the plaintiff the refugee status made sense (and since only 3
French nationals obtained the refugee status in 2002 according to the ‘INS’
statistics, the possibility of an error was very low).
7.2 These 4 ‘INS’ employees made these representations with the intention to deceive and defraud
plaintiff and to induce plaintiff (and others like the immigration judge, the
press and media,) to act in reliance on these representations in the manner
hereafter alleged, or with the expectation that plaintiff (and others) would so
act.
They (director of the asylum office,
INS-attorneys) knew that whoever had given the plaintiff his refugee status had
pointed out their wrong appreciation of the case, so in putting the
responsibility of an error in reading the record on the status verifier, they
simply wanted to hide the fact that the plaintiff’s case had been judged
already by people more competent, more willing to respect the rights of asylum
seekers, and, without any doubt, more responsive of the plaintiff’s extreme
situation.
They wanted the immigration judge to
ignore the fact that the case had been judged already and the plaintiff to
continue with the procedure at the immigration court to make him loose his
asylum case, and the possibility to obtain justice against France, to cover
their error, to hurt one individual who could not defend himself properly and
most probably for ‘political’ reasons too.
They did not want the plaintiff to obtain
any (refugee) assistance to resettle in the US, or even to live in decent
conditions until the next hearing that had been unfairly set for January 23
2003. They did not want to give any
conformation of the plaintiff refugee status that could have been used by the
press and media to report this unusual grant of asylum.
7.3 Suppression of fact. It seems that (between
November 14 and December 1 2002) someone at the INS changed the INS record
and erased the fact that the plaintiff had been given the refugee status and
the date at which the status was granted (but the plaintiff is not sure if the
record was really changed). This change
of the record (or the lies of the status verifiers) conveniently covered the
lies made by the 4 INS employees, covered or diminished the gravity of the
errors made by the social services, and avoided the INS to give any
confirmation of the plaintiff refugee status that could have been used by the
press and media to report this special and unusual grant of asylum.
In 2001 the press and media, here and in
France, had extensively reported that a Frenchman had been given the refugee
status in Los Angeles, so the press and media would have talked about the
plaintiff case, if the refugee status had been confirmed. The plaintiff had used the newspapers
articles written on this Frenchman case in his asylum application to point out
that the French justice can make grave errors on cases involving political and
corruption scandal.
The refusal of the INS management (office
of Internal Audit,…) and of the US officials (Mr. Bush, …) to respond to
the plaintiff complaint and letters demonstrates that the INS management and US
officials also did not want that the press and media talk about the important
issues raised by the plaintiff’s case (political, legal and scientific issues),
particularly the 65 age limit for leaders proposal that, at that time, could
still have prevented the war with Iraq (proposal which also has political
implications in the US). ‘They’ did
not want to ‘promote’ any peaceful solution to the Iraqi crisis, to give any
form of credit or recognition to the plaintiff for his work through a
presentation by the press of his proposals, which could have helped him to
obtain a job and to resettle.
Finally, it is possible, even probable,
that the plaintiff was granted the refugee status before the hearing of August
27 2003, and that both the immigration judge and Mrs. Lee knew it during the
hearing, but said nothing (this would certainly explain why the immigration
judge was discourteous, and why he unfairly delayed the next hearing to January
03, since the refugee benefits are given for only 8 months after the status is
granted, in delaying the hearing 5 months, the judge and Mrs. Lee may have
tried to prevent the plaintiff from getting any help to resettle).
8. Actual and justifiable actions taken by the plaintiff.
a) Status verifiers confirmation and
complaint sent to the INS.
Plaintiff at the time the INS employees
pretended (suggested as a fact) that the status verifier had made a mistake in
reading the record and that he did not have the refugee status had to believe
that they could be right (everyone can make a mistake), even though the
decision to grant him asylum made sense, and the probability of an error was
low as stated above; and he had to try to obtain an explanation, because it is
not possible that two different entities of the same organization have a
different point of view on such an important matter (again the refugee
status is a matter of life and death for the one who asks for it and obtains
it).
This is why the plaintiff went back to see
the status verifier on November 13 2002 and mentioned that several of their
colleagues had questioned their reading of the record. After that several other status verifiers
confirmed that the document was valid, that Mr. Mahoney did not make a mistake
in reading the record, and that they even had the date at which the
plaintiff was given the refugee status (but that they could not give this
date to him, because the social services had to ask for it in writing), it was
obvious that a fraud was taking place and that the plaintiff could
not trust the point of view of the INS attorneys, of the director of the asylum
office, and soon after of the deportation officer.
But the plaintiff still had to trust the
administration (INS, DHS, defendant) and to rely on its capacity to resolve
this grave problem (cheating and lying on a matter of life and death is nothing
else than an attempted murder, so their behavior was criminal). The plaintiff first asked to see the
supervisor of the deportation officer and information officer, but they refused
to let the plaintiff see anyone else and asked a security officer to escort the
plaintiff to the door! Then on January
14, 2003, he sent a complaint for employees misconduct to the ‘INS’ office of
Internal Audit.
First this office said that it had not
received the documents, then the plaintiff sent the same documents (plus the
decision of the administrative law judge certifying his refugee status) in a
registered letter, and they still said that they had not received the
letter! Finally, he sent a fax (that
was received) in which he explained that the status verifier had issued an altered
verification of status that was used by the social services to deny him his
refugee benefits, but the investigation branch gave no explanation for the
described problems, they only forwarded the complaint to the management without
saying to which manager they had sent it to (see exh. 10.1)! Their response was not fair at all, and the
INS manager to whom the complaint was forwarded never responded.
b) Procedures at the immigration courts
and administrative court.
For the plaintiff (and according to
some ‘INS’ attorneys), he should not have had to go in front of the
immigration judge with a document listing him as a refugee (moreover an
Immigration Judge does not judge cases ‘INS’ against ‘INS’, he judges case
asylum seekers against INS, and the problem was clearly a problem within the
‘INS’), but at the same time the plaintiff needed a proper decision, which
confirmed that he had suffered persecutions and a great prejudice in France to
have his case reopened at the international justice (the ECHR had rendered an unmotivated
decision on his case) and to obtain justice against France. And he was not sure of the role of the
immigration judge in these errors also, even if his behavior had been more than
questionable when he refused to hear the case on August 27 02 and delayed (so
much) the hearing until January 23 2003.
The plaintiff filed a ‘motion’ to close
the case on November 25 02 thinking that it was the ‘INS’ that should have
asked to close the case, the motion was ignored. The decision of the judge on a recommendation of the INS
Attorney, Mr. Lee, to deny the plaintiff the asylum because he was sick and
could not attempt the hearing, was the proof of their dishonesty, because they
totally ignored the fact that the plaintiff had already been granted the
refugee status. The plaintiff sent an
appeal to the Board of Immigration Appeal to denounce the bad behavior of the
judge and the INS attorney and to try to obtain a decision which confirmed his
grant of asylum and the fact that he had been victim of persecutions in France,
but his appeal was not studied (the problem was a problem within the ‘INS’
anyway).
The plaintiff also denounced this fraud
and the INS wrongdoings to the administrative law judge with the same words he
used to explain the problems to the INS Office of Internal Audit. The decision of Judge Tolentino (exh. 3.1)
certifying the plaintiff refugee status confirmed, in some way, that
a fraud was taking place at the INS, but the LASS refused to comply with
this decision and to follow the appropriate procedure to criticize it. The plaintiff filed several complaints to
have the LASS comply with the decision or follow the correct legal procedure
to criticize it at the Superior court, but they refused. He also complained to the CASS management
and to the Governor ‘who’ suggested him to file a formal complaint
against the LA Presiding Judge and the Chief Administrative Law Judge at the
Commission on Judicial Performance (,which he did), but this agency pretended
that they did not have jurisdiction.
c) Letters to the INS management, to
politicians and other officials.
On January 14 03, the plaintiff also wrote
a letter to several politicians (Mr. Bush, Mr. Frist, Mr. Daschle,…) and
administration officials including Mr. Garcia (the ‘INS’ director at the time)
to explain the problems he had with the INS and the social services and to
present (again for some) his proposals that are important for everyone. He stressed the importance of his 65 age
limit proposal for Leaders and the role it could play to prevent a then
imminent conflict with Iraq. He
also explained that the development and presentation of his two proposals
created him many unfair problems although he was working in the best interest
of everyone and had received the support of well known international experts
and some high level politicians (2 G8 Leaders). But he received no response.
More recently in October 03, the plaintiff
wrote to Mr. Aguirre, the new Director of the USCIS. The customer service responded to the letter, but did not give
any explanation of what happened (see exh. 10.2 ). Only the Nebraska refugee center accepted the refugee employment
authorization application containing a certification made under the penalty
of perjury under law that the plaintiff is a refugee (exh. 6). He also wrote (in November 03, March and
April 04) to the same US officials (Mr. Bush, Senators, representatives,…) he
had contacted on January 03, to describe the wrongdoings, the prejudice he
suffered and the implications or the consequences of the silence on his
proposals, but received no answer.
d) Complaint for damages filed at the
State court against the USCIS, LA County DPSS, CA Department of Social service
on February 04/04.
On February 4 2004, the plaintiff filed a
complaint for damages at the LA Superior Court against the INS (USCIS), the LA
County DPSS, and the California Department of Social Services, but the
Assistant US Attorney removed the case to the Federal Court and the claim
against the INS was eventually dismissed because the complaint did not follow
the FRCP 8. The judge asked the
plaintiff to file a new complaint.
The plaintiff files this new complaint
against the DHS and filed an appeal against the dismissal of the claims against
the LASS and the CASS, but since the DHS refused to be judged at the state
court with the other defendants, it must assume the responsibility for the
entire damage ($1 800 000). The 3
defendants have a joint responsibility in the damage, but the plaintiff cannot
determine the level of responsibility for each of them without an appropriate
joint legal procedure.
9._As a proximate result of the fraudulent conduct of the ‘INS’ (and of the LASS and CASS employees) as
herein alleged, plaintiff was sent in the street or forced to change shelters
more than 16 times since September 5 2002, he was forced to sleep in the street
several nights (exh. 8.2), and to live in homeless shelters for several months
with a great risk of catching the tuberculosis or other serious diseases, of
being robed or even being killed (the plaintiff was threatened to be killed by
another homeless for refusing to buy a small bottle of water for 25
cents!).
He also was/is not able to cook or to
store food, and therefore could not / cannot nourish himself properly and
suffered (es) health problems on a regular basis; he became sick every month or
more (chronicle bronchitis, stomach aches, hart problems due to the high
stress, etc.). Recently he broke his
right elbow and was not even able to have any physical therapy or to buy
medicine to cover the pain, and the swelling.
He was also forced to complain constantly
to defend his rights at the administrative court, the immigration courts, and
at the INS, and spent a lot of time (under difficult conditions) writing the
complaints and finding the articles of law that referred to his case, so he was
(is) greatly handicapped in his search for work. Moreover, the doubt on his refugee (permanent) status makes it
impossible to find an appropriate job, because employers need to know that the
job seeker can work here and stay here on a permanent basis to offer a job). He is also victim of constant ‘pressure’,
surveillance, discrimination, … (often associated with this kind of cases and
situation) that makes it even harder to find a job and make the plaintiff life
miserable.
Finally, the plaintiff never received a
document confirming that he suffered a grave prejudice in France (document that
could help him to obtain justice against France), by reason of which plaintiff
has been damaged in the sum of $1 800 000.
Subdivided as follow:
1_ Wage loss, estimated at $400 000 (from November 02 to July 04, 20
months) and increasing by $20 000 every month until the dispute is resolved.
2_ Loss of years of life expectancy. The plaintiff was put in extremely difficult living condition
that caused him health problems and great stress, which means that his life
expectancy will be reduced significantly (according to different statistics the
life expectancy of people who are exposed to great stress, difficult living
condition and long unemployment is greatly lowered). The damage is estimated at $380 000.
3_ Loss of earning capacity.
The plaintiff did not receive any decision confirming his refugee status
and the fact that he suffered severe persecutions in France. Decision that should have helped him to
obtain justice against France and a compensation, he has then suffered a loss
of ‘earning’ capacity estimated at $1 000 000.
4_ ‘Psychological’ damage.
The plaintiff felt very unwelcome and has lost his trust in the
administrations, because of a small group of people did everything to make his
life absolutely miserable. This is a
terrible feeling to have for someone who studied here, and had always had a
great respect for this country. The
damage is estimated at $20 000.
10._The aforementioned conduct of defendant was an intentional
misrepresentation, deceit,
and suppression of material facts known to the defendant with the intention on
the part of the defendant of thereby depriving plaintiff of ‘property’
(intellectual, …), legal rights and otherwise causing injury, and was despicable
conduct that subjected plaintiff to a cruel and unjust hardship in conscious
disregard of plaintiff’s rights.
Defendant also intentionally avoided to inform the public on a proposal,
which obviously not only could have prevented the war with Iraq, but also could
help solve some other difficult problems of society.
The ‘INS’ (DHS) employees who lied about
the plaintiff’s status (and reviewed the plaintiff’s case) have demonstrated an
extreme cruelty, because they knew that the refugee status is a matter of life
and death, that the plaintiff had waited for a long time (in extremely
difficult living condition in refugee or homeless shelters in two other
countries) for this refugee status, and that this refugee status was given
among other reasons to improve his living conditions. To create a doubt after the ‘INS’ had finally granted the asylum
was/is not only a real torture for the plaintiff, but also a criminal behavior
from these employees. They were guilty
of malice, oppression, corruption, and fraud, and deserve no immunity for their
misrepresentations according to Government code 822.2.
The INS (DHS) management and US officials
(Mr. Bush, ..) who were informed on the wrongdoings without any doubt and who,
it seems, at first granted the plaintiff his refugee status, also had
‘questionable’ behavior. It was very
easy for them to explain what happened and erase the doubt created by these 4
‘INS’ employees, instead of remaining silent.
They did not just deprive the plaintiff from his legal rights (the right
to housing assistance, and other RCA benefits, intellectual property rights for
his two ‘original’ proposals, … ), and subject him to cruel and unjust hardship
in conscious disregard of his right and safety, they also hurt the US and the world.
[They could not / cannot ignore that his 65 age limit proposal
could have prevented the war with Iraq and the immediate death of hundred of
thousands of people including US soldiers (a war which, we know now, was
without any doubt motivated by wrong intelligence from the CIA according to a
recent Senate report)].
Moreover, the processing of asylum
applications and the resettlement of refugees are operational tasks, that the
US has voluntarily accepted when it signed the 1951 Refugee Geneva convention, and
it has performed them negligently.
Two INS offices not even ten meters apart from each other could not
agree on the status of the plaintiff although this is a matter of life and
death (the deportation officer even said that ‘status verifier are clerks,
they are lower than nothing’, when the plaintiff reminded him that several
status verifiers had just confirmed that he had been given the refugee
status).
And it was not possible to see a
supervisor to have an explanation. Then
the status verifier issued an altered document although the INS,
itself, does not accept altered document as valid document (exh. 4). And the INS management never responded to
the plaintiff’s complaints or request for information, although they knew that
an administrative proceeding was going on.
Therefore, the described intentional misrepresentations involving risk
of physical harm, are collateral to negligence in operational tasks, and are
not covered by the immunity granted by 28 USC 2680 (h) (see paragraph below).
11. Statutes, Jurisprudences and Claim Requirement.
a) State Statutes and cases.
Government Code 815.2 stating that
‘ a public entity is liable for injury proximately caused by an act or
omission of an employees of the public entity within the scope of his
employment if the act or omission would, apart from this section, have given
rise to a cause of action against that employees or his personal representative’,
and GC 822.2 stating that ‘a public employee acting in the scope of
his employment is not liable for an injury caused by his misrepresentation,
whether or not such misrepresentation be negligent or intentional, unless
he is guilty of actual fraud, corruption, or actual malice.’,
render the defendant liable for the wrongdoings described in the complaint
because, as mentioned above, employees are guilty of actual malice, and
corruption in this case.
The
immunity for misrepresentation given by Government Code (GC) 818.8 is
not ‘absolute’ in this case, because it does not apply for:
1)
Misrepresentations in the social service area [see note and decision 6
of the West annotated California Code of Government 1-939, ,Michael J. V. Los Angeles County, Dept.
Of adoption (app. 2 Dist 1988) 247 Cal. Rptr..];
2)
Misrepresentations involving risk of physical harm, [see California Form of Pleading
and Practice volume 40 page 118.7, jurisprudences
Johnson v. State of California (1968) 69 cal. 2d 782.., Garcia v. Superior
Court (1990) (citing Johnson; case remanded to permit plaintiff leave to amend
complaint to state cause of action for negligent misrepresentation involving
risk of physical harm…]; and
3)
Misrepresentations of civil servant who are also guilty of corruption and
actual malice [see California Form of Pleading and Practice volume 40 page 123, jurisprudence
Schonfeld v. City of Vallejo (1974) 50 cal App. 3d 401, 404 411, 123 Cal. Rptr.
669]!
Moreover according to the
California Form of Pleading and Practice volume 40 page 118.7: ‘The Supreme
Court has interpreted the term ‘misrepresentations’ to mean interference in the
nature of the common law action for deceit with financial or commercial
interests and not any conduct that literally could be called a
misrepresentation such as misleading turn signal by a driver or the failure of
state authorities to disclose the criminal and violent tendencies of a juvenile
parole having placed in a forth home [Johnson v. State of California (1968) 69
cal . 2d 782..].’ The court has
stated that the immunity from liability for misrepresentations does not
apply to intentional misrepresentations involving a risk of physical harm.
b) Federal
cases.
Similarly USCA 28 section 2680 (h) which
gives immunity for misrepresentation to federal agencies, has several important
exceptions that applies in this case.
For example, the notes on 28 USCA section 2680 explains that the
immunity does not apply ‘for personal injury or property damages arising
from negligent performance of operational tasks’, which is the case here.
(It applies only ‘for injury resulting from commercial decisions taken in
reliance on governmental misrepresentation’, which is not the case here).
Several jurisprudences described in the
USCA 28 notes for section 2860 confirmed also that the immunity does not apply
in this case. For example it states: ‘Designing
and planning dam and reservoir was an operational task and the government
performed it negligently and any communication of misinformation in connection
therewith was collateral; thus misrepresentation exception to federal tort
Claim Act did not apply since in essence of complaint was one for failure to
take due care in performance of voluntary task. [Guild v. US, CA 9 (cal)
1982,685 F.2d 304].’
Or ‘Claim for damages sustained as
result of Social Security Administration’s stopping payment on benefits checks
was not claim covered by misrepresentation ‘exception to this chapter and
section 1346 (b) of this title, even though harm occurring was caused by
keypunching error resulting in entry into a social security record erroneous
‘facts’ of the date of recipient’s death, where such false keypunch statement
was not made to plaintiff and he did not rely upon it. [Jimenez- Nieves V. US,
CA 1 (Puerto Rico) 1982, 682 F. 2d1, remand 618 F. supp. 66].’
The exceptions to the immunity for
misrepresentation described in federal jurisprudences are similar to the
exceptions described in State jurisprudences (in some ways), and it appears
clearly that this immunity does not apply in the social services area, when the
misrepresentation leads to the termination of social benefits (which is the
case here). We also clearly see that
the Government performed negligently his duty related to the asylum application
process, and therefore that it is liable for the wrongdoings described.
c) Claim requirement.
USC 2675 states that ‘an action shall
not be instituted upon a claim against the United States for money damages for
injury or loss of property or omission …., unless the claimant shall have first
presented the claim to the appropriate agency….’. The plaintiff made
several efforts to encourage the ‘INS’ to start an investigation, by sending
letters and complaints that described the problems and valued the grave
prejudice he suffered, and can be considered as claim. His complaint of employee misconduct sent to
the INS office of internal Audit on January 14 2004, for example, can be
considered as a claim, because it encouraged the INS to start an investigation
and described the prejudice.
The plaintiff also sent a letter to the US
president and other US officials on November 11 2003 in which he described the
problems and valued the prejudice, this letter can therefore be considered as a
claim also. Finally, he sent a more
‘formal’ claim to the USCIS on March 25 2004 describing in the same term as the
complaint the wrongdoing and the damages he suffered, but never received any
response (see exh. 9.1). Recently
on July 14 2004, the plaintiff sent an updated or amended claim to Mr. Ridge,
Mr. Ashcroft, Mr. Bush, and other US officials written in the same term as this
complaint (exh. 9.2).
Wherefore, plaintiff prays judgment as follows:
1.
For general
damages in the sum of $ 400 000 increasing by $20 000 every month until the
dispute is resolved.
2.
For special
damages for loss of earning capacity, loss of years of life expectancy, and
psychological damage in the sum of $1 400 000.
3.
For Cost of
suits incurred herein.
4.
For an order
on the DHS to change the erroneous information kept on the official record
under the plaintiff’s name, and to list him as a refugee (if it is not the
case); and
5.
For such
other and further relief as the court may deem proper.
Dated: September , 2004
By:______________
Pierre Genevier
Demand for jury trial
Plaintiff hereby demands a jury trial as provided by rule 38(a) of
the Fed. R. Civ. Procedure.
Table of contents
1.&2. Defendant
addresses. P.
2
3. Public employees
responsibilities. P. 2
4. Plaintiff is ignorant
of some of the true name of the defendant P. 2
41. Statement of
jurisdiction.
4.2 Factual Backgrounds
/ Summary of Facts P. 3
‘INS’
intentional misrepresentations and suppression of facts.
5. On
or about September 30. P.
6
6._The representations
made by defendants. P.
6
7.1 When the defendants
made these representations. P. 7
7.2 The defendants made
these representations. P.
8
7.3
Suppression of fact. P.
9
8. Actual and
justifiable actions taken by the plaintiff. P. 10
a) Status
verifier confirmation and complaint to the INS. P. 10
b) Procedure
at the immigration courts and administrative court. P.
12
c) Letter
sent to the INS management, and US officials. P. 13
d) Complaint
for damages filed at Superior court. P.
14
9. As a proximate result of the fraudulent
conduct of defendants. P.
15
10._The aforementioned
conduct of defendants was an intentional... P.
16
11. Statutes,
Jurisprudences and Claim Requirement. P. 18
Table of contents. P.
23
Exhibits
list. p. 24
Exhibits.
Exh. 1:
Verification of status listing the plaintiff as a refugee (1 page double sided,
2 pages).
Exh. 2:
Response from Mr. Looney dated October 31 2002 (2.2, 1 page), response made on
November 13 2002 by the Deportation officer (2.3, 1 page).
Exh. 3: Decision of Judge Tolentino dated February 5
2003 (6 pages).
Exh. 4: G845S and G845 Supplement forms (2 pages).
Exh. 5: Notice of action dated 03/13/03 (5.1, 1
page), notice of action dated 04/02/03 (5.2, 1 page), notice of action
terminated GR (5.3, 1 page), altered verification of status sent at the end of
March (5.4, 2 pages).
Exh. 6:
Employment authorization application confirming the plaintiff refugee status (4
pages).
Exh. 7:
Computer project proposal and letters of support (8 pages), special facts (3
pages).
Exh. 8:
Article concerning the violence on homeless (1 page).
Exh. 9: First pages of the Claim sent to the USCIS
(4 pages), and firs t page of amended claim (3 pages).
Exh.
10: Response sent by this INS office of
internal audit (10.1, 1 page), letter sent to the director of the BCIS (10.2, 2
p), response sent by the customer service office (10.3, 1 p).
(Total pages = 44)
Los Angeles,
the
Pierre
Genevier