Viterbo Liranzo was a U.S. citizen through section 321 of the Immigration and Naturalization Act (INA), which conferred derivative citizenship on children of U.S. citizens, even though neither parent nor the child requested it. Liranzo was unaware of his citizenship, having carried his "resident alien card" or "green card" most of his life. Federal immigration records mistakenly showed him to be a lawful permanent resident.

In 2005, Liranzo was convicted of criminal sale of a controlled substance, a felony; an offense which subjected him to possible deportation. He was detained by immigration agents, which resulted in him being in custody for seven months beyond his release date. He was then transported to the Federal Detention Center in Oakdale, Louisiana, where his attorney convinced the government that he was, in fact, a U.S. citizen.

Liranzo exhausted his administrative remedies with the Department of Homeland Security and filed his complaint in U.S. District Court in New York in 2008, seeking five million dollars for "false arrest and imprisonment" and other tortious conduct. After two years of discovery, the government filed a motion alleging sovereign immunity from suit based on the limited nature of the Federal Tort Claim Act's waiver of sovereign immunity. Wake v. U.S., 89 F.3d.1.53 (2d Cir. 1996). "Absent a waiver, sovereign immunity shields the federal Government and its agencies from suit...The waiver extends only to claims for which a private analogue exists -- that is, the waiver extends only to claims that could be brought against a "private individual under like circumstances," 28 U.S.C. Section 2674.

Government attorneys argued that since immigration detentions are an exclusively federal function, there could be no private analogue, and hence no waiver of sovereign immunity. The district court adopted this argument, dismissing the suit in 2010 for lack of subject matter jurisdiction pursuant to Rule 12(h)(3).

The Second Circuit's de novo review noted the history of the Federal Tort Claims Act, and said that a 1974 amendment waived sovereign immunity for "any claim arising...out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution." 28 U.S.C. Section 2680(h). The court then noted that the case of Indian Towing Co. v. U.S., 350 U.S. 61 (1955) expanded the breadth of government liability, stating that "To say that the challenged action is one that only the federal government does in fact perform does not necessarily mean that no private analogue exists." The court went on to note that "the proper analogy seems to us to be a person who, entirely in his or her private capacity, places someone under arrest for an alleged violation of the law -- a so-called 'citizen's arrest.'"

Recognizing the ambiguity in the federal case law that recognized the "special status" of immigration agents, the court turned to applicable state case law for assistance, and tried to reconcile that with cases such as U.S. v. Muniz, 374 U.S. 150 (1963), and limiting the reach of Feres v. U.S., 340 U.S. 135 (1950). "The fact that a complained of action occurs in a quintessentially federal context...does not necessarily mean that no private analogue exists ... The case before us is ... more closely akin to Muniz than Feres ... it does not follow from the fact that immigration is a quintessentially federal function that immigration detention is without a private non-federal officer analogue. Even for alleged torts occurring in quintessentially federal contexts, the question remains whether analogous private liability exists under state law -­and here, we conclude that it does." The Second Circuit then remanded the case to the district court for further proceedings, and to specifically consider what federal standards govern the issue of whether the government's actions were privilege.

See: Liranzo v. U.S., 11-61, U.S. Court of Appeals, 2d Cir., (2012).

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