OPINION & ORDER

MICHAEL R. BARRETT, District Judge.

This matter is before the Court upon Defendant United States Motion for Summary Judgment (Doc. 31) and Plaintiff Natalia Ivanovna Kareva's Motion for Summary Judgment (Doc. 32). These Motions have been fully briefed. (Docs. 34, 35, 36, 37). In addition, Plaintiff has filed a Motion for Oral Arguments on the Motions for Summary Judgment (Doc. 38), which the Government opposes (Doc. 39).

The Court does not deem that oral argument is essential to the fair resolution of this case pursuant to S.D. Ohio Civ. R. 7.1(b)(2). Therefore, Plaintiff's Motion for Oral Arguments on the Motions for Summary Judgment (Doc. 38) is DENIED.

I. BACKGROUND

The parties do not dispute the facts of this case. Plaintiff is a citizen of Russia who entered the United States on June 19, 2003 pursuant to a "nonimmigrant student visa." (Doc. 16-2). However, Plaintiff did not carry a full course of study, which made her subject to removal. (Id.)

After arriving in the United States, Plaintiff filed an application for asylum and withholding of deportation. (Doc. 14, ¶ 13). Plaintiff was interviewed, but because there were inconsistencies in her testimony, her application was referred to an immigration judge. (Doc. 1-1, at 39).

Plaintiff also filed an I-130 petition based on an individual she claimed to have married while in the United States. (Doc. 1-1, at 5). After Plaintiff was granted several continuances, the I-130 petition was denied. (Id.) On December 11, 2007, the immigration judge denied Plaintiff a further continuance to file a new I-130 petition based on the same marriage. (Id.) The immigration judge noted that Plaintiff had a valid passport and no known criminal record. (Id.) Therefore, the immigration judge granted Plaintiff's application for post-decision voluntary departure. (Id.)

The immigration judge's order stated:

(Id. at 6). This order serves as the basis for Plaintiff's detention almost three years later.

Plaintiff appealed this order to the Board of Immigration Appeals. (Doc. 1-1, at 13). Plaintiff asked the BIA to reopen the matter and permit her to withdraw her plea of Voluntary Departure, strike any order of removal for failure to post the voluntary departure bond, and amend her pleading to reflect her asylum claim. (Id. at 17). Plaintiff explained that she had not posted the bond and "for this reason, she is facing a[n] Order of Removal." (Doc, 1-1, at 26).

On June 30, 2009, the BIA rejected most of Plaintiff's arguments, including her request to reopen her case and reinstate her asylum application. (Doc. 1-1, at 53). However, the BIA did agree with Plaintiff that the immigration judge erred in granting voluntary departure:

(Id. at 52). The BIA made it clear that the remand was "for the sole purpose of allowing the respondent to designate a country of removal." (Id. at 54).

However, on remand Plaintiff attempted to argue other issues. Plaintiff filed a successive asylum petition arguing "changed circumstances" in Russia. (Doc. 1-1, at 56, 59). After a hearing and oral decision on September 23, 2009, the immigration judge issued a written order noting that Russia was designated as the country for removal and that Plaintiff's motion to reopen was denied. (Doc. 1-1, at 77). On September 24, 2009, Plaintiff appealed this order to the BIA. (Doc. 1-1, at 80). A copy of the appeal was served on Immigration and Customs Enforcement ("ICE") in Cleveland, Ohio. (Doc. 14, ¶ 23).

On March 23, 2010, ICE employees, believing that Plaintiff was subject to a final order of removal, processed Plaintiff for detention under 8 U.S.C. § 1231 but allowed Plaintiff to be released on her own recognizance. ICE Special Agent Brian Gerson testified that he had previously received information from the ICE Regional Counsel's Office that Plaintiff was under a final order of removal. (Doc. 31-2, Brian Gerson Dep. at 19-20, 35).

On May 12, 2010, Plaintiff was detained for removal when she appeared in ICE's office in Columbus for her regular reporting. (Doc. 14, ¶ 25).

On May 13, 2010, Plaintiff filed a motion for stay of removal with the BIA. (Doc. 1-1, at 99). On May 19, 2010, the BIA denied the application for a stay of removal pending consideration of her motion to reopen. (Doc. 1-1, at 107). The BIA noted that "there is little likelihood that the motion will be granted." (Id.)

The same day, Plaintiff filed an appeal and emergency motion for stay of execution of order of removal with the Sixth Circuit Court of Appeals. (Doc. 1-1, at 109, 120). On May 28, 2010, an attorney for the Department of Justice moved to dismiss the appeal on jurisdictional grounds, arguing that there was no final order because of the BIA appeal was still pending. (Doc. 1-1, at 126). Plaintiff's attorney sent a copy of this motion to ICE. (Doc. 1-1, at 136). Upon learning of the Department of Justice's position that there was no final order, ICE changed Plaintiff's detention status and sought clarification from the BIA as to whether Plaintiff was under a final order of removal. (Docs. 16-4 & 16-5).

On June 1, 2010, Plaintiff's detention status was reclassified to being detained under 8 U.S.C. § 1226(a), which authorizes detention while an alien's removal proceedings are ongoing. (Doc. 16-4). Plaintiff was permitted to appeal this determination to an immigration judge, but there is no record that she did. Two days later, ICE filed a motion with the BIA to expedite a decision on Plaintiff's second appeal to the BIA. (Doc. 16-5). This motion requested that the BIA determine whether the September 23, 2009 order was a final order of removal. (Id.)

On June 23, 2010, the BIA issued an order remanding the record to the immigration judge, explaining: "The Immigration Judge's order does not indicate why he denied the motion to reopen based on changed country conditions." (Doc. 1-1, at 157). In addition, the BIA explained: "we conclude that there is a final order of removal issued for the respondent, and that the country of removal is Russia (although there has been no final determination regarding the respondent's motion to reopen, in view of the foregoing remand)." (Doc. 1-1, at 158). Two days later, Plaintiff filed a motion to reconsider the BIA's order to the extent that the BIA found that Plaintiff was subject to a final order of removal. (Doc. 1-1, at 166).

On September 20, 2010, while the motion for reconsideration was still pending, Plaintiff's bond was reset to $1500.00, which Plaintiff posted. (Doc. 31-1, Kareva Dep. at 51). Plaintiff was then was released from custody. (Doc. 14, ¶ 40).

On October 7, 2010, the BIA reconsidered its determination that the immigration judge's September 23, 2009 decision was a final order of removal and granted Plaintiff's motion to reconsider. (Doc. 1-1, at 175) The BIA determined that when it remanded the record to the immigration judge on June 23, 2010, there was no final order because the decision did not dispose of all the issues decided by the immigration judge. (Doc. 1-1, at 176).

Plaintiff's only remaining claim is against the United States under the Federal Tort Claims Act. Plaintiff explains that her claim is based on her wrongful arrest and detention by ICE employees.

II. ANALYSIS

A. Standard of Review

Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party has the burden of showing an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden of production, the non-moving party cannot rest on his pleadings, but must present significant probative evidence in support of his complaint to defeat the motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. Jurisdiction

While it was not raised by the parties, this Court has an obligation to determine if the Immigration and Nationality Act ("INA") deprives this court of subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."); see also Answers in Genesis, Inc. v. Creation Ministries Int'l, Ltd., 556 F.3d 459, 465 (6th Cir.2009) ("[F]ederal courts have a duty to consider their subject matter jurisdiction in regard to every case and may raise the issue sua sponte.").

Section 1252(g) of the INA, which is entitled "Exclusive Jurisdiction," provides:

8 U.S.C. § 1252(g).1 The INA defines an "alien" as "any person not a citizen or national of the United States." 8 U.S.C. § 1101(a)(3). It is undisputed that Plaintiff is a citizen of Russia. In addition, the Sixth Circuit has explained that "[w]hen Congress passed the Homeland Security Act of 2002, it transferred to DHS authority over all functions that the former Immigration and Naturalization Service ("INS") or its officers previously carried out, and therefore the statutory reference to the `Attorney General' in § 1252(g) now means `Secretary of DHS.'" Elgharib v. Napolitano, 600 F.3d 597, 606-607 (6th Cir.2010). Therefore, the sole question regarding the applicability of Section 1252(g) in this case is whether Plaintiff's claim arises from "the decision or action by the Attorney General to . . . execute removal orders."

In Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) ("AADC"), the Supreme Court gave Section 1252(g) a narrow interpretation. The Court explained that Section 1252(g) does not preclude judicial review of all "decisions or actions that may be part of the deportation process" and did not apply to "the universe of deportation claims." Instead, according to the Supreme Court:

Id. (emphasis in original).

In Foster v. Townsley, 243 F.3d 210 (5th Cir.2001), the Fifth Circuit determined that Section 1252(g) barred claims analogous to Plaintiff's claims. In Foster, the plaintiff was a Jamaican native who brought claims under the FTCA against the INS for malicious prosecution, vexatious suit, and abuse of process, stemming from his arrest and detention on suspected immigration violations. The facts of the case are as follows:

Id. at 211. The Fifth Circuit concluded that "the particular acts that form the basis of Foster's lawsuit arise from the officials' decision to execute his removal order." Id. at 214. The court explained that his claims were "directly connected" to the execution of the deportation order. Id. The court decided that because the acts of the INS officials fell within the ambit of section 1252(g), the district court correctly concluded that it lacked jurisdiction over Plaintiff's FTCA claims.

Similarly, in Sissoko v. Rocha, 509 F.3d 947 (9th Cir.2007), the Ninth Circuit held that under Section 1252(g), the district court lacked jurisdiction over the plaintiff's Fourth Amendment false arrest claim. In Sissoko, the plaintiff was a citizen of Senegal who over-stayed his visa but had applied for legalization with the INS.2 When his father died, the plaintiff travelled to Senegal to attend the funeral.3 Upon his return in the United States, an immigration inspection officer took the plaintiff into custody as an "arriving alien" without proper admission documents. The immigration officer ordered plaintiff detained after instituting expedited removal procedures against him. As a result of the immigration inspector's actions, the plaintiff spent nearly three months in detention. However, the Ninth Circuit held that because plaintiff's detention arose from the immigration inspector's decision to commence expedited removal proceedings, and therefore Section 1252(g) barred the plaintiff's claims.

Several district courts have held similarly. See, e.g., Alcaraz v. United States, C-13-511, 2013 WL 4647560, *2 (N.D.Cal. Aug. 29, 2013) (Section 1252(g) bars FTCA false arrest and imprisonment claim based on decision to execute removal after a motion to reopen was filed); El Badrawi v. Dep't of Homeland Sec., 579 F.Supp.2d 249, 265 (D.Conn.2008) (Section 1252(g) bars FTCA claims for malicious prosecution and vexatious suit, and abuse of process insofar as the process "abused" was issuance of Notice to Appear). But see Turnbull v. United States, 1:06CV858, 2007 WL 2153279 (N.D.Ohio July 23, 2007) (Section 1252(g) does not bar FTCA false imprisonment claim because plaintiff is not bringing a challenge based on the order of removal but instead is claiming damages that flowed from defendants' refusal to abide by order staying deportation issued in his habeas proceeding); De La Paz v. Coy, 954 F.Supp.2d 532, 544-45 (W.D.Tex. 2013) (Section 1252(g) does not bar claim based on Fourth Amendment violations because injuries preceded the decision to commence removal proceedings); Polanco v. United States, 10CV1705, 2014 WL 795659, *2 (E.D.N.Y. Feb. 27, 2014) (Section 1252(g) does not bar FTCA false arrest and imprisonment claim where DHS agents conducting a transportation check in a train station arrested plaintiff after they were unable to locate his immigration record).

The Court finds that Section 1252(g) does apply in this case because Plaintiff's claim for false arrest and imprisonment arises from "the decision or action by the Attorney General to . . . execute removal orders." Pursuant to 8 U.S.C. § 1231, when an alien is subject to a final order of removal, "the Attorney General shall remove the alien from the United States within a period of 90 days." 8 U.S.C. § 1231(a)(1)(A). During this 90-day removal period, "the Attorney General shall detain the alien." 8 U.S.C. § 1231(2). While it was later determined that the September 23, 2009 order of removal was not final at the time, there is no dispute that as of May 12, 2010—the date Plaintiff was detained for removal—Plaintiff was subject to an order of removal and Plaintiff's motion to reopen was denied. Plaintiff's claims that she was wrongfully arrested and detained arise from the Government's decision or action to execute the September 23, 2009 removal order. Therefore, Section 1252(g) of the INA deprives this Court of jurisdiction over Plaintiff's FTCA claim.

C. Federal Tort Claims Act

In the alternative, the Court finds that the Government is entitled to summary judgment on Plaintiff's FTCA claim.

The United States cannot be sued unless Congress expressly and unequivocally waives the government's sovereign immunity. United States v. Bormes, ___ U.S. ___, 133 S.Ct. 12, 16, 184 L.Ed.2d 317 (2012). As the United States Supreme Court has recently explained:

Levin v. United States, ___ U.S. ___, 133 S.Ct. 1224, 1228, 185 L.Ed.2d 343 (2013). Therefore, "the extent of the United States' liability under the FTCA is generally determined by reference to state law." Molzof v. United States, 502 U.S. 301, 305, 112 S.Ct. 711, 116 L.Ed.2d 731 (1992).

While Ohio recognizes claims for both the tort of false arrest and the tort of false imprisonment, "[t]he tort of false imprisonment concerns `purely a matter between private persons for a private end,' as opposed to a false arrest, which is an unlawful detention `by reason of an asserted legal authority to enforce the process of law'." Vasquez-Palafox v. United States, No. 3:12 CV 2380, 2013 WL 1500472, at *3 (N.D.Ohio Apr. 10, 2013) (quoting Rogers v. Barbera, 170 Ohio St. 241, 164 N.E.2d 162, 164-65 (1960)). Accordingly, this Court has held that any claim for false imprisonment against a government actor must fail. Snyder v. United States, 1:13-CV-00284, 990 F.Supp.2d 818, 828-29, 2014 WL 47952, *5 (S.D.Ohio Jan. 7, 2014). Therefore, Plaintiff can only proceed on her FTCA claim to the extent that it is based on Ohio's tort of false arrest.

The elements of the tort of false arrest under Ohio law are: "(1) a detention of the person, and (2) an unlawful detention." Thacker v. City of Columbus, 328 F.3d 244, 261 (6th Cir.2003) (quoting Faulkner v. Faulkner, 2000 WL 5910, at *1 (Ohio Ct.App.2000)). "The tort does not require proof of malice, motive or lack of probable cause." Id. (quoting Tucker v. Kroger Co., 133 Ohio App.3d 140, 726 N.E.2d 1111, 1115 (1999)).

The United States has specifically waived its immunity "with regard to acts or omissions of investigative or law enforcement officers of the United States Government, . . . to any claim arising . . . out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution." 28 U.S.C. § 2680(h).4 However, under the due care exception, the FTCA does not apply 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). The reservation of immunity in Section 2680(a) and the waiver of immunity in Section 2680(h) create a conflict when law enforcement officers commit intentional torts while performing discretionary functions. There is a split among the circuits whether a plaintiff asserting an intentional tort must also show that the law enforcement officer's conduct was not discretionary. See Milligan v. United States, 670 F.3d 686, 695, n. 2 (6th Cir.2012) (recognizing disagreement among the circuits regarding the interaction between § 2680(a) and § 2680(h) but finding it unnecessary to reach the issue).

The Court finds it unnecessary to reach a conclusion on this issue because even if Plaintiff was permitted to proceed with her claim for false arrest, that claim fails.

The Government argues that Plaintiff was not unlawfully detained because ICE had two grounds to detain her. First, the Government explains that 8 U.S.C. § 1231 provides that an alien under a final order of removal may be detained. Second, the Government explains that if Plaintiff was not under a final order of removal, she still could have been detained at the discretion of the Attorney General or his designee under 8 U.S.C. § 1226, which provides:

8 U.S.C. § 1226.

Plaintiff argues that while there may have been some "confusion" as to whether the immigration judge entered an initial order of removal, on May 28, 2010, the Department of Justice moved to dismiss her appeal on jurisdictional grounds, arguing that there was no final order because of the BIA appeal was still pending.5 The Government responds that after ICE employees learned of this argument, the Government evaluated her detention and determined that Plaintiff should remain detained. The Government believed that if released, Plaintiff would not remain in the area because she had few ties to the area. (Doc. 31-2, Gerson Dep. at 28-30). Plaintiff has not presented any evidence to demonstrate that this determination was incorrect or contrary to the law. Therefore, the Court finds that Plaintiff has not proven that her detention was unlawful. Accordingly, the Government would be entitled to summary judgment on any claim under the FTCA which was not barred by 8 U.S.C. § 1252(g).

III. CONCLUSION

Based on the foregoing, Plaintiff's Motion for Oral Arguments on the Motions for Summary Judgment (Doc. 38) is DENIED; Defendant United States Motion for Summary Judgment (Doc. 31) is GRANTED; and Plaintiff Natalia Ivanovna Kareva's Motion for Summary Judgment (Doc. 32) is DENIED. This case shall be CLOSED and TERMINATED from the docket of this Court.

IT IS SO ORDERED.