United States District Court, D. Maryland
J. MESSITTE UNITED STATES DISTRICT JUDGE
Jagun has brought this suit, pro se, against
León Rodríguez, Director of U.S. Citizenship
and Immigration Services, and ostensibly against James Comey,
Director of the Federal Bureau of Investigation (FBI),
alleging somewhat nebulous claims that the Court will
construe as falling under the U.S. Privacy Act, 5 U.S.C.
§ 552a, and Federal Tort Claims Act (FTCA), 28 U.S.C.
§ 1346(b). Jagun’s claims relate to his attempts
to amend and expunge information in an FBI criminal history
database. The Government has moved to dismiss the suit on the
grounds that the Court lacks jurisdiction, and that Jagun has
failed to state a claim upon which relief can be granted.
Def.’s Mot. Dismiss, ECF No. 11. In the alternative,
Rodríguez asks to Court to enter summary judgment in
his favor. Id. Because the Court finds it lacks
jurisdiction over any of Jagun’s claims, his lawsuit is
Court focuses principally on facts necessary to decide
whether it has subject matter jurisdiction over this
case. Accordingly, the following factual
background is drawn variously from Jagun’s Complaint
(“Compl.”), ECF No. 1, his Amended Complaint
(“Am. Compl.”), ECF No. 9, and its Exhibits, and
from the Government’s Motion to Dismiss or in the
Alternative for Summary Judgment (“Mot.
Dismiss”), ECF No. 11, and the attached Exhibits.
Encounter with U.S. Immigration and Naturalization
an erstwhile citizen of Nigeria, entered the United States on
an F-1 student visa in 1972. See Am. Compl. ¶
1. In January or March of 1975, Jagun had contact with
Immigration and Naturalization Service (INS) agents in
Boston. He claims he voluntarily walked in to INS offices to
request a change to his immigration status that would allow
him to work full time to support his wife and young son, who
had been recently born with a congenital heart defect.
Id. ¶ 2-5. The record does not show whether
Jagun was arrested, apprehended, or presented himself to INS
voluntarily at this time.
as a result of his contact with INS, Jagun was granted
Voluntary Departure status. Id.; see also
Mot. Dismiss, Ex. 7, ECF No. 11-9. Jagun claims the status
was “open-ended, with no specified date of
departure.” Am. Compl. ¶ 5. He claims INS told him
that he could stay in the U.S. “for as long as
required, and as dictated by [his] son’s health
condition.” Id. He also claims INS told him he
could “engage in any lawful activity, including
full-time employment.” Id. The Government
denies that Jagun’s status was open-ended. See
Mot. Dismiss at 5.
record includes a form titled “Record of Deportable
Alien” filled out by an INS investigator at around this
time. Id., Ex. 7, ECF No. 11-9. The investigator,
Richard Cummings, gave the following summary of the encounter
between Jagun and INS:
SUBJECT is employed as an “Inspector” earning
approximately $140. per week: full-time, evening shift.
He is also a full time student at Southeastern Massachusetts
University. He will graduate in June 1975 with a B.A. degree
in Political Science.
He has a [U.S. citizen] child born March 1974 in New Bedford
who suffers from a congenital heart defect. SUBJECT claims he
only worked full-time to pay the bills for his child. He had
received permission to work part-time.
Per instructions of DD, 3/21/75 SUBJECT will be given VD
[voluntary departure] until 5/30/75. A complete review of his
case will be made then.
His child will receive a complete medical examination in May.
I requested a copy of the examination for our review.
March 25, 1975, INS sent a Form I-210 to Jagun at his address
in New Bedford, Massachusetts. Mot. Dismiss, Ex. 9, ECF No.
11-11. It states that “[in] accordance with a decision
made in your case you are required to depart from the United
States at your own expense on or before June 30, 1975.”
Id. The form states that INS issued no order to show
cause, which would formally place him in deportation
proceedings. See Mot. Dismiss, Ex. 6 at 3,
ECF No. 11-8; id., Ex. 9, ECF No. 11-11.
point over the next few years, Jagun was granted permission
to delay his voluntary departure until February 11, 1978
because of his child’s medical condition. See
Mot Dismiss, Ex. 8, ECF No. 11-10. Then, in February 1978,
Jagun apparently applied to convert his voluntary departure
status back into an F-1 student visa. Am. Compl. ¶ 7.
The request was denied. Mot. Dismiss, Ex. 8, ECF No, 11-10.
INS eventually granted Jagun an extension of his voluntary
departure deadline until September 15, 1978, and then again
until March 15, 1979. Id. at 6. Jagun departed the
United States on December 14, 1978 and returned lawfully the
following month. Am. Compl. ¶ 8-9; Mot. Dismiss, Ex. 6
¶ 12, ECF No. 11-8. Jagun later left the United States
for Nigeria in 1979 and remained there until October 1995,
when he returned to the United States. Compl. ¶ 21-22.
26, 2002, Jagun was naturalized as a U.S. citizen. Mot.
Dismiss, Ex. 11, ECF No. 11-13.
Criminal History Record
above-described contact between Jagun and INS apparently
formed the basis of Jagun’s FBI Identification Record,
which is the subject of his Complaint.
Identification Record (known as a “criminal history
record” or “rap sheet”) contains
information from fingerprint submissions received by the FBI
from other government authorities in connection with arrests.
28 C.F.R. § 16.31; see Mot. Dismiss, Ex. 12
¶ 3, ECF No. 11-14. The information includes the agency
that submitted the fingerprints, the date the person was
arrested or received by the agency, the charge, and the
disposition of the arrest. Id. It is produced by the
FBI’s Criminal Justice Information Services Division
time Jagun filed his Complaint, his criminal history record
showed the following:
- FBI IDENTIFICATION RECORD - FBI NO-915779 1- ARRESTED OR
RECEIVED 1975/03/21 AGENCY - USINS BOSTON (MAINSBS00) AGENCY
CASE - A20750987 CHARGE 1- VIOLATION OF IMMIGRATION LAWS
ADDITIONAL ARREST DISPOSITION - DEPORTATION PROCEEDINGS
Am. Compl., Ex. 4, ECF No. 9-5; see also Mot.
Dismiss, Ex. 12 ¶ 6, ECF No. 11-14.
immigration file contains a “Final Disposition
Report” which states that Jagun was “arrested or
received” on March 24, 1975, and lists his
“arrest no.” as A20 750 987. Mot. Dismiss Ex. 10,
ECF No, 11-12. It states the “offenses charged at
arrest” to be “violation of Immigration
laws.” Id. The form contains instructions for
sending the form to the FBI. Id. According to the
Declaration of Craig Raynsford, legal advisor to U.S.
Immigration and Customs Enforcement (ICE), this is a
“copy of the form that would have been sent to the FBI
for creation of the record that now exists in the FBI
Criminal Justice Information System.” Mot. Dismiss, Ex.
6 ¶ 9, ECF No. 11-8.
has consistently maintained there was “never any arrest
of, or deportation proceedings commenced against, him by the
U.S. Immigration Service in 1975, or ...