11-61 Liranzo v. United States

UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2 August Term, 2011 3 (Argued: January 30, 2012 Decided: August 9, 2012) 4 Docket No. 11-61 5

------------------------------------- 6 VITERBO LIRANZO, AKA VITERBO IGNACIO LIRANZO DICENT, 7 Plaintiff-Appellant , 8

- v - 9 UNITED STATES OF AMERICA, 10 Defendant-Appellee

. 11

------------------------------------- 12 Before: SACK, RAGGI, and CHIN, Circuit Judges

. 13 14 Appeal by the plaintiff from a judgment of the United 15 States District Court for the Eastern District of New York 16 (Sandra J. Feuerstein, Judge ) dismissing for lack of subject 17 matter jurisdiction the plaintiff's claims relating to his 18 mistaken detention as a removable resident alien. The district 19 court concluded that subject matter jurisdiction was lacking over 20 the plaintiff's Federal Tort Claims Act claims because there was 21 no private analogue to the immigration detention suffered by the 22 plaintiff, as required to find a waiver of the United States' 23 sovereign immunity under the Act. Because we conclude that there 241 In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 110 Stat. 3009-546. . . .

. . . . Before IIRIRA's passage, United States immigration law established "two types of proceedings in which aliens can be denied the hospitality of the United States: deportation hearings and exclusion hearings." Exclusion hearings were held for certain aliens seeking 2 is such an analogue **,** we vacate the judgment of the district court 1 in part and remand for further proceedings. We affirm the 2 district court's judgment insofar as it dismissed the plaintiff's 3 Fourth Amendment claim, which he does not challenge on appeal. 4 Affirmed in part, reversed in part, and remanded. 5 LAWRENCE K. KATZ, Katz & Kreinces LLP, 6 Mineola, NY, forPlaintiff-Appellant

. 7 JAMES H. KNAPP (Margaret M. Kolbe, 8 Varuni Nelson, on the brief ), Assistant 9 United States Attorneys, of counsel, for 10 Loretta E. Lynch, United States Attorney 11 for the Eastern District of New York, 12 Brooklyn, NY, forDefendant-Appellee

. 13 SACK, Circuit Judge : 14 In March 2006, plaintiff Viterbo Liranzo, a United 15 States citizen, completed a term of incarceration in New York 16 State prison for felony possession of a controlled substance. 17 Before his release, United States Immigration and Customs 18 Enforcement ("ICE") erroneously identified him as a permanent 19 resident alien who had been convicted of a felony, which rendered 20 him subject to removal. 1 He was released to the custody of ICE 21entry to the United States, and deportation hearings were held for certain aliens who had already entered this country. . . .

. . . . In IIRIRA, Congress abolished the distinction between exclusion and deportation procedures and created a uniform proceeding known as "removal." See8 U.S.C. §§ 1229, 1229a. Vartelas v. Holder , 132 S. Ct. 1479, 1483-84 (2012) (citations omitted). In this opinion we therefore use the term "removal" instead of "deportation." We have not, however, changed the term "deportation" in quotations of the district court or of either party. 3 and transported to a detention center in Louisiana pending 1 removal. During removal proceedings in Louisiana, it was 2 discovered that Liranzo is a U.S. citizen, and he was therefore 3 released. 4 Thereafter, Liranzo brought the instant complaint in 5 the United States District Court for the Eastern District of New 6 York against the United States under the Federal Tort Claims Act 7 ("FTCA" or the "Act") alleging, inter alia , that federal 8 immigration officials had falsely arrested and imprisoned him. 9 Following some two years of discovery, the matter was set for 10 trial. But before trial began, the district court (Sandra J. 11 Feuerstein, Judge ) granted the government's motion to dismiss the 12 case for lack of subject matter jurisdiction because, the court 13 concluded, there was no private analogue to the immigration 14 detention suffered by plaintiff, as required for the Act to have 152The material facts relevant to the issue on appeal are not in dispute. The facts are drawn from the record in the district court, the parties' representations before this Court, and the parties' pre-trial statement of stipulated facts. See Am. Proposed Pre-Trial Order at 1-3, Liranzo v. United States , No. 08 Civ 2940 (SJF)(ARL) (E.D.N.Y. July 8, 2010), ECF No. 31. 4 worked a waiver of the United States' sovereign immunity from 1 suit. 2 Inasmuch as we conclude that there is such an analogue, 3 we reverse and remand for further proceedings. We affirm the 4 district court's judgment insofar as it dismissed the plaintiff's 5 Fourth Amendment claim, which he does not challenge on appeal. 6

**BACKGROUND 2**  7 Liranzo's Citizenship 8 Plaintiff Viterbo Liranzo was born on May 10, 1955, in 9 the Dominican Republic. He entered the United States as a lawful 10 permanent resident in 1965 when he was ten years old. On 11 February 24, 1972, pursuant to a Dominican divorce decree, the 12 plaintiff's mother, Augustina Dicent, was awarded custody of 13 Liranzo. On October 6, 1972, when Liranzo was sixteen years old, 14 his mother became a naturalized U.S. citizen. Because he was a 15 lawful permanent resident in his mother's custody when she was 16 naturalized, and he was younger than eighteen years old at the 17 time, Liranzo obtained derivative citizenship on that date under 18 the immigration laws then in force. SeeImmigration and 19 Nationality Act ("INA") § 321(a)(3), 8 U.S.C. § 1432(a)(3) 203After the events in question, on May 15, 2007, Liranzo obtained a certificate of citizenship. The government does not dispute that Liranzo obtained derivative citizenship on October 6, 1972. 5 (repealed 2000) (providing for derivative citizenship upon, inter 1 alia , the "naturalization of the parent having legal custody of 2 the child when there has been a legal separation of the 3 parents"). 4 Derivative citizenship under section 321 of the INA was 5 "automatic; that is, when certain conditions exist[ed], a child 6 bec[ame] a U.S. citizen even though neither parent, nor the 7 child, ha[d] requested it." Lewis v. Gonzales , 481 F.3d 125, 131 8 (2d Cir. 2007) (per curiam). Nonetheless, under that regime, the 9 government did not issue a certificate of naturalization to 10 children who obtained derivative citizenship until such a 11 certificate was sought by the child or a parent. 3See8 C.F.R. § 12 320.3. Thus, apparently because Liranzo did not know he had 13 become a citizen, he continued to renew his "resident alien card" 14 (or "green card") until the mid-1990s. Liranzo's last green card 15 was effective through June 10, 2006. As a result of the 16 renewals, at the time of the events in question, federal 17 immigration records erroneously listed Liranzo as a lawful 18 permanent resident rather than as a citizen. 19

204Pursuant to the Criminal Alien Program, ICE attempts to identify removable "aliens who are incarcerated within federal, state and local prisons and jails" so that it can "process[] the alien expeditiously and secur[e] a final order of removal for an incarcerated alien[, ideally] before the alien is released to ICE custody." Criminal Alien Program , ICE, http://www.ice.gov/criminal-alien-program/ (last visited July 18, 2012). By identifying removable incarcerated aliens before their release from prison, ICE endeavors to "decrease[] or eliminate[] the time spent in ICE custody [prior to the alien's removal] and reduce[] the overall cost to the federal government." Id. 6 Liranzo's New York State Conviction 1 and Subsequent Immigration Detention 2 3 In approximately September 2005, Liranzo was convicted 4 of criminal sale of a controlled substance in the fourth degree 5 in violation of New York Penal Law section 220.34 for selling 6 cocaine. He was incarcerated at the Nassau County Correctional 7 Center ("NCCC") in East Meadow, New York. His term of 8 incarceration was scheduled to end on or about March 17, 2006. 9 While Liranzo was serving his sentence, ICE agents 10 identified him as a resident alien convicted of a drug felony 11 through ICE's Criminal Alien Program. 4ICE issued an immigration 12 detainer to NCCC officials requesting that they release Liranzo 13 only into ICE's custody so that he could be removed from the 14 United States. See generally8 C.F.R. § 287.7(a) (describing the 15 nature and purpose of immigration detainers). Because of the 16 detainer, Liranzo was held at the NCCC for approximately seven 17 days beyond his projected release date. 187 According to Liranzo, he was interviewed by an ICE 1 representative at the prison. Liranzo asserts that he told the 2 ICE representative that he, Liranzo, was a United States Citizen. 3 Liranzo also alleges that his sister spoke to another ICE 4 representative and provided the representative with Liranzo's 5 mother's naturalization papers. 6 On or about March 24, 2006, ICE took Liranzo into 7 custody. ICE also served him with a Notice to Appear for removal 8 proceedings, charging him as a removable alien who had committed 9 an aggravated felony. He was first held in an ICE detention 10 facility in Manhattan for some 23 hours, then taken to a facility 11 in Freehold, New Jersey, where he was held for another seven 12 days. Thereafter, he was transported to the Federal Detention 13 Center at Oakdale, Louisiana. 14 Liranzo's removal proceedings, during which he was 15 represented by counsel, began in Oakdale. On May 3, 2006, the 16 proceedings were adjourned to allow Liranzo's attorney to gather 17 documents for the purpose of substantiating Liranzo's claim to 18 citizenship. On or about May 21, 2006, his attorney filed a 19 motion to terminate the proceedings supported by Liranzo's birth 20 certificate and his mother's naturalization certificate and 21 divorce decree. 22 Thereafter, government officials investigated the 23 validity of Liranzo's mother's divorce decree and her award of 248 custody of Liranzo to determine whether he would have met the 1 applicable requirements for derivative citizenship. These issues 2 were determined in Liranzo's favor on or about June 21, 2006. 3 On June 30, 2006, ICE released Liranzo. He was taken 4 to a bus terminal in Louisiana, where he arranged for his own 5 transportation back to New York City. With ICE's consent, 6 removal proceedings were formally terminated on or about July 20, 7 2006. 8 District Court Proceedings 9 After exhausting his administrative remedies by filing 10 a claim with the Department of Homeland Security, Liranzo filed 11 the instant complaint in the United States District Court for the 12 Eastern District of New York against the United States on July 13 18, 2008. He sought five million dollars in damages for "false 14 arrest and imprisonment" and other torts allegedly committed by 15 government officials in connection with his immigration 16 detention. On February 6, 2009, the United States answered the 17 complaint, elliptically asserting as one of its defenses that 18 Liranzo's claims were "subject to, and limited by," the FTCA. 19 Am. Answer at 4, Liranzo v. United States , No. 08 Civ. 2940 20 (SJF)(ARL) (E.D.N.Y. Feb. 6, 2009), ECF No. 9. After nearly two 21 years of discovery, a bench trial was scheduled to begin on 225With exceptions not relevant here, jury trials are not available to plaintiffs bringing claims against the United States under the FTCA. See28 U.S.C. § 2402. 9 December 13, 2010. 5 No motion to dismiss was made, and no 1 motions for summary judgment were made by either party. 2 Federal Rule of Civil Procedure 12(h)(3) provides that 3 "[i]f the court determines at any time that it lacks 4 subject-matter jurisdiction, the court must dismiss the action." 5

F ED . R. C IV . P. 12(h)(3); see alsoWeinstein v. Iran , 609 F.3d 43, 6 47 (2d Cir. 2010) ("[S]ubject matter jurisdiction may be raised 7 at any point . . . ."), cert. denied , --- S. Ct. ----, No. 10- 8 947, 2012 WL 2368690, 2012 U.S. LEXIS 4760 (June 25, 2012). On 9 December 8, 2010, just five days before the scheduled start of 10 the bench trial, the government submitted a letter motion seeking 11 dismissal of the complaint for lack of subject matter 12 jurisdiction. The government premised its motion on the 13 defendant's sovereign immunity from suit based on the limited 14 nature of the FTCA's waiver of that sovereign immunity. SeeWake 15 v. United States , 89 F.3d 53, 57 (2d Cir. 1996) ("Absent a 16 waiver, sovereign immunity shields the federal Government and its 17 agencies from suit. Thus, sovereign immunity is jurisdictional 18 in nature.") (ellipsis, brackets, and internal quotation marks 19 omitted). The waiver extends only to claims for which a private 20 analogue exists -- that is, the waiver extends only to claims 21 that could be brought against a "private individual under like 2210 circumstances," 28 U.S.C. § 2674 –- permitting the government to 1 be held liable only "under circumstances where the United States, 2 if a private person, would be liable to the claimant in 3 accordance with the law of the place where the act or omission 4 occurred," id. § 1346(b)(1). 5 The government's "chief legal argument" was that there 6 was no private analogue to immigration detentions because 7 "citizenship determinations and immigration matters are federal 8 functions reserved to the federal government, and, . . . because 9 a private individual cannot engage in such determinations, the 10 United States has not waived sovereign immunity on claims related 11 thereto." Def.'s Reply Letter Br. at 1, Liranzo v. United 12
States , No. 08 Civ. 2940 (SJF)(ARL) (E.D.N.Y. Dec. 14, 2010), ECF 13 No. 38 ("Def.'s Reply Letter Br.") (emphasis in original). 14 Although the government acknowledged that the FTCA 15 explicitly permits claims for false imprisonment to be brought 16 against the United States based on the acts of federal law 17 enforcement agents, see28 U.S.C. § 2680(h) (waiving sovereign 18 immunity for claims against "investigative or law enforcement 19 officers of the United States Government . . . arising . . . out 20 of assault, battery, false imprisonment, false arrest, abuse of 21 process, or malicious prosecution"), the government urged the 22 district court to "look beyond the labels attached by Plaintiff 23 to his claims." Def.'s Letter Br. at 3, Liranzo v. United 2411 States , No. 08 Civ. 2940 (SJF)(ARL) (E.D.N.Y. Dec. 8, 2010), ECF 1 No. 35 ("Def.'s Letter Br."). According to the government, 2 despite the label, Liranzo's claims "arise[] from the ICE agents' 3 alleged negligent/erroneous citizenship determination of 4 Plaintiff and their resultant attempts to apply federal 5 immigration statutes to effectuate his deportation." Id. 6 Further, the government asserts, Liranzo "attempt[ed] to cloth[e] 7 'federal function tort claims' (over which the United States has 8 not waived sovereign immunity) in 'law enforcement intentional 9 tort' garb (over which the United States has waived sovereign 10 immunity)." Def.'s Reply Letter Br. at 2. 11 Liranzo responded that "[h]ad a private individual held 12 plaintiff prisoner for 105 days, New York would allow plaintiff 13 to recover." Pl.'s Letter Br. at 1-2, Liranzo v. United States , 14 No. 08 Civ. 2940 (SJF)(ARL) (E.D.N.Y. Dec. 9, 2010), ECF No. 36. 15 Therefore, Liranzo argued, a private analogue to the claims 16 asserted in the complaint existed. 17 By memorandum and order dated December 15, 2010, the 18 district court dismissed the action for lack of subject matter 19 jurisdiction pursuant to Rule 12(h)(3). It reasoned that 20 "[i]mmigration and detention pending deportation are governed 21 exclusively by federal law and therefore have no private 22 analogue." Mem. & Order at 9, Liranzo v. United States , No. 08 23 Civ. 2940 (SJF)(ARL) (E.D.N.Y. Dec. 15, 2010), ECF. No. 41 ("Mem. 2412 & Order"). It also read this Court's precedents, including Caban 1 v. United States , 671 F.2d 1230 (2d Cir. 1982) ("Caban I "), and 2 Caban v. United States , 728 F.2d 68 (2d Cir. 1984) ("Caban II "), 3 as indicating that for FTCA purposes, there is no private 4 analogue for federal immigration detentions. It concluded that, 5 "[a]s plaintiff's intentional tort claims are based upon the 6 detention of plaintiff pending deportation proceedings and the 7 process the immigration agents used to determine his citizenship 8 status, plaintiff has not established that a comparable cause of 9 action would exist against a private individual pursuant to New 10 York State law." Mem. & Order at 10. 11 Liranzo appealed from the judgment of dismissal. 12

**DISCUSSION** 13 When reviewing the dismissal of a complaint for lack of 14 subject matter jurisdiction, we review factual findings for clear 15 error and legal conclusions de novo , accepting all material facts 16 alleged in the complaint as true and drawing all reasonable 17 inferences in the plaintiff's favor. Morrison v. Nat'l Austl. 18 Bank Ltd. , 547 F.3d 167, 170 (2d Cir. 2008), aff'd on other 19 grounds , 130 S. Ct. 2869 (2010). "The plaintiff bears the burden 20 of proving subject matter jurisdiction by a preponderance of the 21 evidence." Aurecchione v. Schoolman Transp. Sys., Inc. , 426 F.3d 22 635, 638 (2d Cir. 2005). The United States' waiver of immunity 23 under the FTCA "is to be strictly construed in favor of the 246The United States' sovereign immunity from suit is ultimately derived from English common law. "While the political theory that the King could do no wrong was repudiated in America, a legal doctrine derived from it that the Crown is immune from any suit to which it has not consented was invoked on behalf of the Republic and applied by our courts as vigorously as it had been on behalf of the Crown." Feres v. United States , 340 U.S. 135, 139 (1950) (footnote omitted).

7Prior to the passage of the FTCA in 1946, if a private individual was injured by a federal employee, he could only seek relief from the federal government by petitioning Congress to pass a "private bill" compensating him for his injuries. Relief was often sought and sometimes granted through private bills in Congress, the number of which steadily increased as Government activity increased. The volume of these private bills, the inadequacy of congressional machinery for determination of facts, the importunities to which claimants subjected members of Congress, and the capricious results, led to [the passage of

13 government." Long Island Radio Co. v. NLRB , 841 F.2d 474, 477 1 (2d Cir. 1988). 2 **I. The FTCA's Private Analogue Requirement** 3 "'The United States, as sovereign, is immune from suit 4 save as it consents to be sued . . . , and the terms of its 5 consent to be sued in any court define that court's jurisdiction 6 to entertain the suit.'" United States v. Mitchell , 445 U.S. 7 535, 538 (1980) (quoting United States v. Sherwood , 312 U.S. 584, 8 586 (1941)) (brackets omitted). 6In 1946, Congress enacted the 9 Federal Tort Claims Act, which "constitutes a limited waiver by 10 the United States of its sovereign immunity and allows for a tort 11 suit against the United States under specified circumstances." 7 12the FTCA in 1946, in which the government] . . . waived immunity and transferred the burden of examining tort claims to the courts.

Feres , 340 U.S. at 140; see alsoErwin Chemerinsky, F EDERAL J URISDICTION 663 (6th ed. 2012). The FTCA put an end to the "notoriously clumsy" "private bill device." Dalehite v. United States , 346 U.S. 15, 24-25 (1953), abrogation recognized by Rayonier Inc. v. United States , 352 U.S. 315, 319 (1957).
14 Hamm v. United States , 483 F.3d 135, 137 (2d Cir. 2007) 1 (quotation marks omitted). The FTCA provides jurisdiction in the 2 federal courts and waives the sovereign immunity of the United 3 States for 4 claims against the United States, for money 5 damages . . . for . . . injury or loss of 6 property, or personal injury or death caused 7 by the negligent or wrongful act or omission 8 of any employee of the Government while 9 acting within the scope of his office or 10 employment, under circumstances where the 11 United States, if a private person, would be 12 liable to the claimant in accordance with the 13 law of the place where the act or omission 14 occurred. 15 16 28 U.S.C. § 1346(b)(1); see also28 U.S.C. § 2674 ("The United 17 States shall be liable, respecting the provisions of this title 18 relating to tort claims, in the same manner and to the same 19 extent as a private individual under like circumstances."). 20 As originally enacted, the FTCA barred all suits 21 against the government "arising out of . . . false 22 imprisonment[ and] false arrest." 28 U.S.C. § 2680(h) (1970). 23 But in 1974, Congress enacted amendments to the FTCA principally 248"'[I]nvestigative or law enforcement officer' means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law." 28 U.S.C. § 2680(h).

9The FTCA's jurisdictional provision, 28 U.S.C. § 1346(b), as well as the FTCA's procedural provisions, which include the private analogue requirement set forth in 28 U.S.C § 2674, "apply" to the 1974 amendments' waiver of sovereign immunity for the enumerated intentional torts. See28 U.S.C. § 2680(h).
15 in response to abuses committed by federal law enforcement 1 officers in connection with "no-knock" drug raids in 2 Collinsville, Illinois, in which officers raided the wrong 3 families' homes. See generallyStanton R. Gallegos, Note, Are 4 Police People Too? An Examination of the Federal Tort Claims 5 Act's "Private Person" Standard as it Applies to Federal Law 6 Enforcement Activities , 76 B ROOK . L. R EV . 775, 780-82 (2011). 7 Under the 1974 amendments, the FTCA explicitly waives sovereign 8 immunity "with regard to acts or omissions of investigative or 9 law enforcement officers of the United States," 8for "any claim 10 arising . . . out of assault, battery, false imprisonment, false 11 arrest, abuse of process, or malicious prosecution." 928 U.S.C. 12 § 2680(h). 13 By waiving sovereign immunity "under circumstances 14 where the United States, if a private person, would be liable to 15 the claimant in accordance with the law of the place where the 16 act or omission occurred," id. § 1346(b)(1), the FTCA directs 17 courts to consult state law to determine whether the government 1816 is liable for the torts of its employees. SeeFDIC v. Meyer , 510 1 U.S. 471, 478 (1994) ("[The] law of the State [is] the source of 2 substantive liability under the FTCA."); Feres , 340 U.S. at 142 3 ("This provision recognizes and assimilates into federal law the 4 rules of substantive law of the several states . . . ."). The 5 FTCA does not waive sovereign immunity for claims based solely on 6 alleged violations of federal law. Meyer , 510 U.S. at 478. 7 "[T]he Act requires a court to look to the state-law 8 liability of private entities, not to that of public entities, 9 when assessing the Government's liability under the FTCA [even] 10 in the performance of activities which private persons do not 11 perform." United States v. Olson , 546 U.S. 43, 46 (2005) 12 (internal quotation marks omitted). It does not waive sovereign 13 immunity for claims against the government based on governmental 14 "action of the type that private persons could not engage in and 15 hence could not be liable for under local law." Chen v. United 16
States , 854 F.2d 622, 626 (2d Cir. 1988) (internal quotation 17 marks omitted). 18 The path of the case law on the FTCA's private analogue 19 requirement is long, winding, and sparsely marked. We therefore 20 think a rehearsal of the history of that case law may be helpful. 21

A. The Supreme Court's Private Analogue Jurisprudence 22

In Feres , one of the Supreme Court's early FTCA cases, 23 the Court considered the private analogue requirement as applied 2417 to servicemen injured in active duty "due to negligence of others 1 in the armed forces." 340 U.S. at 138. In the consolidated 2 cases comprising Feres , one plaintiff was killed in an army 3 barracks fire, one plaintiff had a towel left in his abdomen 4 following surgery performed by an Army doctor, and another 5 plaintiff died following surgery performed by Army surgeons, all 6 allegedly resulting from negligence of Army personnel. Id. at 7 136-37. All three (or their respective estates) sought damages 8 under the FTCA. Id. 9 In considering whether the FTCA waived the United 10 States' sovereign immunity for the plaintiffs' claims, the Court 11 conceded that "[i]n the usual civilian doctor and patient 12 relationship, there is of course a liability for malpractice. 13 And a landlord would undoubtedly be held liable if an injury 14 occurred to a tenant as the result of a negligently maintained 15 heating plant." Id. at 142. But the Court reasoned that such 16 analogies are sound only if one "consider[s] relevant only a part 17 of the circumstances and ignore[s] the status of both the wronged 18 and the wrongdoer." Id. Under the FTCA, "the liability assumed 19 by the Government . . . is that created by 'all the 20 circumstances,' not that which a few of the circumstances might 21 create." Id. 22 The Feres Court concluded that "there [was no] 23 liability 'under like circumstances,' for no private individual 2418 has power to conscript or mobilize a private army with such 1 authorities over persons as the Government vests in echelons of 2 command." Id. at 141-42. 3 The relationship between the Government and 4 members of its armed forces is 'distinctively 5 federal in character' . . . . To whatever 6 extent state law may apply to govern the 7 relations between soldiers or others in the 8 armed forces and persons outside them or 9 nonfederal governmental agencies, the scope, 10 nature, legal incidents and consequence of 11 the relation between persons in service and 12 the Government are fundamentally derived from 13 federal sources and governed by federal 14 authority. 15 Id. at 143-44. Thus, because "the relationship of military 16 personnel to the Government has been governed exclusively by 17 federal law," id. at 146, "the Government is not liable under the 18 Federal Tort Claims Act for injuries to servicemen where the 19 injuries arise out of or are in the course of activity incident 20 to service," id

. 21 But just five years later, the Court adopted a broader 22 view of the private analogue requirement, albeit in a non23 military context. In Indian Towing Co. v. United States , 350 24 U.S. 61 (1955), the plaintiff's tug boat went aground after the 25 battery in a lighthouse operated by the Coast Guard ran out of 26 power. Id. at 62. Indian Towing brought a negligence claim 27 against the Coast Guard under the FTCA based on the failure of 28 its employees to maintain the lighthouse in working order. Id. 29 at 61-62. The government argued that the private analogue 3019 requirement "must be read as excluding liability in the 1 performance of activities which private persons do not 2 perform[,] . . . [i.e. ,] 'uniquely governmental functions.'" Id. 3 at 64. Because only the Coast Guard operated lighthouses, the 4 government argued that this function was uniquely governmental, 5 and that no private analogue existed. Id. 6 The Court rejected the government's proposed test for 7 liability on the ground that "all Government activity is 8 inescapably 'uniquely governmental' in that it is performed by 9 the Government." Id. at 67. Conversely, "it is hard to think of 10 any governmental activity on the 'operational level,' our present 11 concern, which is 'uniquely governmental,' in the sense that its 12 kind has not at one time or another been, or could not 13 conceivably be, privately performed." Id. at 68. 14 The Court also observed that the statutory phrase 15 "under likecircumstances" does not mean "under the same 16 circumstances." Id. at 64 (emphases added). The fact that there 17 were no private lighthouses in operation at the time did not mean 18 that there was no private analogue. 19 [I]f the United States were to permit the 20 operation of private lighthouses -- not at 21 all inconceivable -- the Government's basis 22 of differentiation would be gone and the 23 negligence charged in this case would be 24 actionable. Yet there would be no change in 25 the character of the Government's activity[,] 26 . . . and [it is unlikely that Congress 27 would] predicat[e] liability on such a 2820 completely fortuitous circumstance -- the 1 presence of identical private activity. 2 Id. at 66-67. 3 The Court concluded that the relevant private analogue 4 at issue was the duty imposed on the private "good Samaritan": 5 "[O]ne who undertakes to warn the public of danger and thereby 6 induces reliance must perform his 'good Samaritan' task in a 7 careful manner." Id. at 64-65. "The Coast Guard need not 8 undertake the lighthouse service. But once it exercised its 9 discretion to operate [the] light . . . and engendered reliance 10 on the guidance afforded by the light, it was obligated to use 11 due care to make certain that the light was kept in good working 12 order . . . ." Id. at 69. Because of the existence of this 13 private analogue, "[i]f the Coast Guard failed in its duty and 14 damage was thereby caused to petitioners, the United States is 15 liable under the Tort Claims Act." Id. 16 Rayonier Inc. v. United States , 352 U.S. 315 (1957) 17 signaled a further narrowing of the Court's view of Feres 's 18 reasoning. There, the plaintiffs alleged that their property was 19 damaged by the United States Forest Service's negligent failure 20 to control a forest fire. Id. at 315-16. The government argued 21 that there was no private analogue because "neither the common 22 law nor the law of [the State of] Washington imposes liability on 23 municipal or other local governments for the negligence of their 24 agents acting in the 'uniquely governmental' capacity of public 2521 firemen." Id. at 318-19. The Court rejected the government's 1 argument because the relevant consideration is whether state law 2 would impose liability on a "private person" rather than on a 3 "municipal corporation or other public body" for "similar 4 negligence" as allegedly committed by the government in the case 5 at hand. Id. at 319. In doing so, the Court disapproved of 6 Dalehite v. United States , 346 U.S. 15, 43-44 (1953), which had 7 relied on Feres and the common law "immunity of . . . public 8 bodies for injuries due to fighting fire" to conclude that there 9 was no private analogue to the Coast Guard's firefighting 10 efforts, id. at 44. SeeRayonier , 352 U.S. at 319. The Court 11 remanded for consideration of whether state law would hold a 12 private person fighting a fire in similar circumstances liable. 13 Id. at 320-21. 14 In United States v. Muniz , 374 U.S. 150 (1963), the 15 Supreme Court continued to constrict the reach of the rationales 16 relied upon in Feres . There, the Court considered whether suit 17 could be brought under the FTCA for "personal injuries sustained 18 during confinement in a federal prison, by reason of the 19 negligence of a government employee." Id. at 150. The 20 government argued that Feres defeated a private analogy, because, 21 among other things, "the relationship between the federal 22 prisoner and his custodians" is "uniquely federal in character." 23 Br. for United States, United States v. Muniz , 374 U.S. 150 2410The Muniz Court's decision to look to the liability of jailors and the States that employ them seems to be a departure, or at least a change in emphasis in a new factual context, from Indian Towing 's and Rayonier 's admonition to examine the liability of private individuals under state law when deciding if a private analogue exists, rather than the state law liability of governmental entities. See alsoinfrasection II.B (discussing potential analogies to law enforcement and citizen's arrests).
22 (1963), 1963 WL 105602 at *19. A unanimous Court (Justice White 1 not participating) rejected the government's reliance on Feres

. 2 The Court reasoned that "[i]n the last analysis, Feres seems best 3 explained by the peculiar and special relationship of the soldier 4 to his superiors, the effects of the maintenance of such suits on 5 discipline, and the extreme results that might obtain if suits 6 under the Tort Claims Act were allowed for negligent orders given 7 or negligent acts committed in the course of military duty." Id. 8 at 162 (quotation marks and ellipsis omitted). It concluded 9 that, in the context of the federal prison system, "an analogous 10 form of liability exists. A number of States have allowed 11 prisoners to recover from their jailers [and from the States] for 12 negligently caused injuries." 10Id. at 159-60. 13 Most recently, in a brief unanimous opinion in United 14 States v. Olson , 546 U.S. 43 (2005), the Court reaffirmed the 15 principles recognized in Indian Towingand its progeny. The 16 Court vacated a Ninth Circuit decision in which that court (1) 17 had found "no private-sector analogue for mine inspections," the 18 federal activity about which suit had been brought, id . at 45 1923 (internal quotation marks omitted), but (2) had concluded that 1 because "unique governmental functions" were at issue and 2 relevant state law imposed liability on "state and municipal 3 entities" under the circumstances, the FTCA waived sovereign 4 immunity, id. (internal quotation marks omitted). The Supreme 5 Court concluded that under its jurisprudence, whether state law 6 imposed such liability on state and municipal entities was 7 irrelevant to the sovereign immunity waiver, id. at 45-46, and 8 that there was indeed a relevant private analogy to the liability 9 of "private persons who conduct safety inspections," id. at 47. 10 The Court remanded the case with instructions to "the lower 11 courts [to] decide . . . in the first instance" "precisely which 12 [State] law doctrine applie[d]." Id. at 48. 13

B. This Court's Private Analogue 14 Jurisprudence in Non-immigration Cases 15 This Court has had several occasions on which to 16 consider the FTCA's private analogue requirement. In a trilogy 17 of cases decided in the 1980s, we confronted circumstances we 18 concluded were governed exclusively by federal law, were without 19 private analogue, and with respect to which sovereign immunity 20 had therefore not been waived by the FTCA. 21 In C.P. Chemical Co. v. United States , 810 F.2d 34 (2d 22 Cir. 1987), a producer of formaldehyde-based foam insulation 23 brought suit against the federal government after the Consumer 24 Product Safety Commission announced a ban on the insulation, 2524 alleging that the Commission was "gross[ly] negligen[t]" in 1 failing to follow proper rulemaking procedures and disseminating 2 false information about the banned insulation. Id. at 35-36. 3 The Court began by reviewing the legislative history of the FTCA, 4 which expressed a clear desire that the "constitutionality of 5 legislation, or the legality of a rule or regulation, should 6 [not] be tested through the medium of a damage suit for tort." 7 Id. at 37 (quoting H.R. R EP . NO . 79-1287, at 6 (1945)). The court 8 reasoned that "quasi-legislative or quasi-adjudicative action by 9 an agency of the federal government is action of the type that 10 private persons could not engage in and hence could not be liable 11 for under local law." Id. at 37-38 (quoting Jayvee Brand v. 12 United States , 721 F.2d 385, 390 (D.C. Cir. 1983)) (quotation 13 marks and brackets omitted). Because there was "simply no 14 comparable rulemaking activity in private life," we decided that 15 "[t]he Commission's conduct clearly was a quasi-legislative 16 activity for which we find no private counterpart." Id. at 38. 17 In Chen , a printing company brought FTCA claims against 18 the government based on the General Services Administrations's 19 attempt to suspend and debar the company as a federal contractor. 20 854 F.2d at 623. Most of the plaintiff's claims were "grounded 21 in alleged negligent and willful violations of federal 22 procurement regulations, specifically, those requiring that a 23 contractor receive notice and a hearing prior to any suspension." 2411Though Birnbuampredicted that the New York Court of Appeals would recognize a common law right of privacy, we subsequently acknowledged that our prophesy had been incorrect, and found a failure to state a claim under the "same fact pattern" in Hurwitz v. United States , 884 F.2d 684, 685 (2d Cir. 1989), cert. denied , 493 U.S. 1056 (1990). 25 Id. at 626. We concluded that "violation of the government's 1 duties under federal procurement regulations 'is action of the 2 type that private persons could not engage in and hence could not 3 be liable for under local law.'" Id. at 626 (quoting Jayvee 4 Brand , 721 F.2d at 390). We contrasted Chen's claims with those 5 in Birnbaum v. United States , 588 F.2d 319, 326 (2d Cir. 1978), 6 in which we observed that the "opening and reading of sealed mail 7 by [the Central Intelligence Agency], just as if by [a] private 8 party, violates [the] common-law right of privacy." 11Chen , 854 9 F.2d at 626. We also rejected Chen's proposed private analogue, 10 "wrongful sanctions by private associations against individual 11 members," id. , because no such tort liability existed under New 12 York law. Id. at 626-27. 13 And in Akutowicz v. United States , 859 F.2d 1122 (2d 14 Cir. 1988), the plaintiff brought claims against the government 15 when the State Department decided that he had relinquished his 16 United States citizenship after obtaining French citizenship. 17 Id. at 1123-25. We noted that "the FTCA does not extend to 18 conduct governed exclusively by federal law, or to conduct of a 19 governmental nature or function, that has no analogous liability 2026 in the law of torts." Id. at 1125 (quotation marks and citations 1 omitted). We decided that although "the FTCA imposes liability 2 upon the government to the same extent, and in the same manner, 3 as a private individual under 'like,' not identical, 4 circumstances," id. at 1125, "the withdrawal of a person's 5 citizenship constitutes a quasi-adjudicative action for which no 6 private analog exists." Id. at 1126. "[N]o private citizen is 7 empowered to certify the loss of American nationality." Id. at 8 1125. Nor were we willing to "analogize the relationship between 9 the government and its citizens with that between a private 10 association and its individual members," because no "cause of 11 action in tort for alleged misconduct by the association [in 12 improperly expelling one of its members]" existed under state 13 law. Id. at 1126 (quoting Chen , 854 F.2d at 627) (emphasis and 14 quotation marks omitted). 15
C. This Court's Treatment of FTCA 16 Claims Based on Immigration Detentions 17 In 1982 and 1984, respectively, we addressed FTCA 18 claims more similar to those at issue on this appeal -- claims 19 based on an allegedly erroneous immigration detention. In Caban 20

I and II , the plaintiff was stopped at John F. Kennedy 21 International Airport upon arrival from the Dominican Republic. 22 Caban I , 671 F.2d at 1230. Illiterate, he was unable to provide 23 documentation to substantiate his claims of United States 24 citizenship, and his answers to the INS officers' questions 2512Seeinfrasection II.B (discussing the circumstances in which an arrest can be privileged under New York law). 27 regarding his past and citizenship status raised their suspicion 1 (e.g. , he denied knowing his own birthdate). Caban II , 728 F.2d 2 at 70. INS agents detained him for six days, after which they 3 determined that he was indeed a citizen. Id. Caban brought 4 claims against the United States for false arrest under the FTCA. 5 In Caban I , this Court concluded that the FTCA's 6 "discretionary function" exception -- which bars FTCA claims 7 "based upon the exercise or performance or the failure to 8 exercise or perform a discretionary function or duty," 28 U.S.C. 9 § 2680(a) -- did not apply to the INS officers' decision to 10 arrest and detain Caban because the decision did not involve the 11 "weighing of important policy choices to which discretion is 12 essential." Caban II , 728 F.2d at 70 (describing Caban I ) **.** The 13 court remanded for further proceedings, a bench trial was held, 14 and the district court determined that the complaint should be 15 dismissed because the arrest was privileged under the federal 16 standards applicable to immigration officers, a standard 17 incorporated into New York law through its requirement that a 18 plaintiff suing a private individual for false imprisonment 19 establish that his confinement was "not . . . privileged." Id. 20 at 70-71 (internal quotation marks omitted). **12** 2113We use the terms "false arrest" and "false imprisonment" interchangeably. Under New York law, "the tort of false arrest is synonymous with that of false imprisonment." Posr v. Doherty , 28 In Caban II , we affirmed the judgment of the district 1 court in favor of the government, after trial on remand from 2 Caban I . Id. at 75. We first noted that "INS agents are 3 'investigative or law enforcement officers' within the meaning of 4 [28 U.S.C. § 2680(h)]," the provisions of which waives sovereign 5 immunity for, inter alia , false arrest and imprisonment claims 6 against federal "investigative or law enforcement officers." 728 7 F.2d at 72. We then observed that "the reference in § 1346(b)[, 8 the central waiver of immunity provision of the FTCA,] to '[t]he 9 law of the place' means the 'whole law' of the state where the 10 incident took place" -- in that case, the State of New York -- 11 including any federal law that state law incorporated. Id. 12 (brackets and some quotation marks omitted). "New York state 13 courts would look to federal principles in determining the 14 standard by which INS officials' detention of a would-be entrant 15 are to be judged." Id. at 73. Because "a person seeking entry 16 into the United States has substantially less right to avoid 17 detention than does a person already lawfully within the United 18 States," id. , "far less than [the] probable cause" that is 19 ordinarily required to detain a person will suffice to render the 20 detention privileged under the New York law of false 21 imprisonment, which incorporates federal standards, id. 13 22944 F.2d 91, 96 (2d Cir. 1991); see alsoinfranote 17 (discussing potentially applicable state law). 29 We nonetheless recognized that the FTCA "speaks in 1 terms of the liability, under state law, of 'a private person.'" 2 Id. at 73. While "[a]n authorized government agent would be 3 privileged . . . to act to protect national borders, . . . it is 4 questionable . . . whether New York would extend that privilege 5 to a private person," id. , the issue that was before us under 6 section 1346(b). 7 We reasoned, however, that even if a private person 8 would be held liable under New York State law, the FTCA only 9 provides for liability "in the same manner and to the same extent 10 as a private individual under like circumstances." 28 U.S.C. 11 § 2674. We then cited Feres for the proposition that "[t]he 12 'like circumstances' language in [section] 2674 means that 'the 13 liability assumed by the Government . . . is that created by 'all 14 the circumstances,' not that which a few of the circumstances 15 might create.'" Id. at 73-74 (quoting Feres , 340 U.S. at 142). 16 [I]mmigration officers are accorded a special 17 status by law which requires them to detain 18 persons in situations also outlined by law. 19 These circumstances are far different from 20 those in which a person who is either thought 21 to have committed a crime or thought to be an 22 alien is detained by a private individual. 23 24 Id. at 74 (citing Feres , 340 U.S. at 141-42). 2530 We concluded that the "interplay among" the "like 1 circumstances" language in section 2647, "the government's 2 privilege to protect the border, and New York's recognition that 3 a privileged detention does not result in liability for false 4 imprisonment" required that "[t]he liability of the 5 government . . . be assessed in light of the liability New York 6 would impose upon one having a privilege to detain a would-be 7 entrant who did not satisfactorily establish his right to enter," 8 that is, in "conformance with the federal standards regarding 9 treatment of applicants for entry to the United States." Id. at 10 74 (quotation marks omitted). We therefore affirmed the district 11 court's ruling that under New York law, the government employees 12 who detained Caban had a "privilege to detain" him under the 13 circumstances at bar, and therefore their employer, the United 14 States, would not be liable for false imprisonment for the 15 privileged behavior. Id. at 74-75. 16 Judge Cardamone, concurring in the judgment, questioned 17 the majority's reasoning. Although he agreed that federal 18 standards applicable to immigration officers should be used to 19 assess liability, he noted the potential for confusion created by 20 the majority's citation to the "like circumstances" language of 21 section 2674 and Feres . Id. at 76 (Cardamone, J. , concurring in 22 the judgment). Judge Cardamone thought the majority's reliance 23

on Feres was "ill-advised" because "[t]he Feres doctrine plainly 2431 does not deal with substantive tort law principles" such as were 1 at issue in Caban II , "but is concerned solely with . . . [the] 2 threshold jurisdictional question" of whether a private analogue 3 exists. Id. 4 **II. Analysis** 5

A. The Meaning of Caban II 6 Before the district court, Liranzo relied on Caban II 7 for the proposition that the United States waives its sovereign 8 immunity for FTCA claims arising from immigration detentions. 9 The district court disagreed, deciding that "Caban II does not 10 require an examination of every challenged deportation proceeding 11 to determine whether a plaintiffs claim has a private analogue. 12 Where, as here, the conduct challenged by the plaintiff is 13 exclusively governed by federal law, the FTCA does not waive 14 sovereign immunity." Mem. & Order at 10. The district court 15 relied on Caban II 's statement that immigration officers are 16 "accorded a special status" "unlike any in which a private 17 individual could be involved," id. at 9 (quoting Caban II , 728 18 F.2d at 74; internal quotation marks omitted), to find the 19 absence of a private analogue and subject matter jurisdiction 20 over Liranzo's claims. 21 The reasoning in Caban II is complex. Perhaps as a 22 result, courts have diverged in their reading of the case. Some, 23 such as the district court in this case, view Caban II as 2414See alsoDoe v. United States , 58 F.3d 494, 502 (9th Cir. 1995) (construing Caban II as holding that "immigration officers have materially different duties than do private citizens, and therefore no FTCA liability exists, even if a private person could be liable for wrongfully detaining plaintiff"); Woodbridge Plaza v. Bank of Irvine , 815 F.2d 538, 543 (9th Cir. 1987) (same), superseded by statute on other grounds as stated in Senior Unsecured Creditors' Comm. of First RepublicBank Corp. v. FDIC , 749 F.Supp. 758, 773 (N.D. Tex. 1990); Lippman v. City of Miami , 622 F. Supp. 2d 1337, 1341 (S.D. Fla. 2008) (same); Schalliol v. Fare , 206 F. Supp. 2d 689, 695 n.24 (E.D. Pa. 2002) (same).

15SeeRhoden v. United States , 55 F.3d 428, 431 (9th Cir. 1995) (per curiam); Munyua v. United States , No. 03 Civ. 04538 (EDL), 2005 WL 43960, at *4, 2005 U.S. Dist. LEXIS 11499, at *12- *13 (N.D. Cal. Jan. 10, 2005) ("[T]he Cabancase does not support the sweeping conclusion that there is no jurisdiction under the FTCA here . . . ."); Nguyen v. United States , No. 00 Civ. 528-R, 2001 WL 637573, at *8-*9, 2001 U.S. Dist. LEXIS 7512, at *26-*28 (N.D. Tex. June 5, 2001) ("Cabanindicates that a lawful detention can become unlawful at the point at which the INS's decision to continue the detention is no longer reasonable."), aff'd on other grounds , 65 F. App'x 509 (5th Cir. 2003); Tovar v. United States , No. 98 Civ. 1682, 2000 WL 425170, at *7, 2000 U.S. Dist. LEXIS 5044, at *23-*24 (N.D. Tex. Apr. 18, 2000) (Caban II applied a federal standard to the merits of Caban's claim), aff'd , 244 F.3d 135 (5th Cir. 2000) (unpublished table decision); 32 authority for the proposition that the United States has not 1 waived sovereign immunity for immigration detention claims 2 because there is no relevant private analogue. 14This may arise 3 from the Caban II majority's citation to Feres , a case 4 considering only whether a private analogue existed, as authority 5 for judging federal immigration officers' conduct under a federal 6 rather than state standard. But other courts have -- in our view 7 correctly -- read Caban II as a case about the substantive 8 standard by which immigration officers' acts are to be judged -- 9 not about the presence or absence of a private analogue. 15The 10Garza v. United States , 881 F. Supp. 1103, 1106 (S.D. Tex. 1995) (describing Caban II as concluding that the "INS officer's detention of [Caban, who was] entering country[, was] privileged under New York law"); Gallegos v. Haggerty , 689 F. Supp. 93, 105 (N.D.N.Y. 1988) (denying the government's motion for summary judgment on the merits of plaintiffs' FTCA claim); Saldana v. United States , No. L-83-46, 1985 WL 5997, at *4 n.2, 1985 U.S. Dist. LEXIS 14091, at *14 n.2 (S.D. Tex. Nov. 7, 1985) ("This Court prefers the conceptual approach in the concurring opinion of Judge Cardamone in Caban[to the question of what standard to apply to the merits of FTCA claims related to immigration detentions] rather than that in the majority opinion of Judge [Kearse], but the result is the same under either approach."). Another judge of the Eastern District of New York has explicitly disagreed with the district court's reading of Caban II here. Nakamura v. United States , No. 10 Civ. 2797 (FB)(RML), 2012 WL 1605055, at *3, 2012 U.S. Dist. LEXIS 64630, at *8 (E.D.N.Y. May 8, 2012) ("Contrary to the outcome of Liranzoand defendant's arguments, Caban II does not stand for the sweeping proposition that the actions of immigration agents in detaining a person never have a private analogue, and that sovereign immunity is never waived in such cases."). 33 Caban II court never even considered the FTCA's private analogue 1 requirement, as that issue was simply not before it on appeal. 2 If indeed the Caban II court had found the absence of a 3 private analogue to immigration detentions, its inquiry would 4 have been at an end because there would have been no waiver of 5 sovereign immunity, and thus no subject matter jurisdiction over 6 Caban's FTCA claims. Instead, the Caban II court considered the 7 substantive standards under which the immigration officials' 8 conduct was to be judged -- an inquiry that would only be 9 necessary, at least in a case in Caban II 's posture, if a private 10 analogue existed. See, e.g. , Feres , 340 U.S. at 143-44, 146 11 (finding that no private analogue existed, and refraining from 1216Although other courts may have also interpreted Caban II as concerning the FTCA's private analogue requirement, the district court's reliance on Caban II to find a lack of subject matter jurisdiction over an FTCA claim based on an immigration detention is, as far as we can determine, unique. Cf. Munyua , 2005 WL 43960, at *4, 2005 U.S. Dist. LEXIS 11499, at *11 ("Defendant has cited no case, and the Court has found none, adopting such a sweeping exemption under the FTCA for conduct by immigration officers like that alleged in this case. To the contrary, courts have exercised jurisdiction over cases brought under the FTCA involving misconduct by immigration officers at the border."). 34 considering the standard to be applied on the merits); see also 1 id. at 141 (stating that generally, "[j]urisdiction is necessary 2 to deny a claim on its merits as matter of law as much as to 3 adjudge that liability exists"). We therefore do not read Caban 4

II as did the district court to indicate that there is no private 5 analogue to immigration detentions. 6 Moreover, the Caban II Court endorsed the district 7 court's statement in the case before it that "the United States 8 [is] not liable to Caban if the INS agents acted in conformance 9 with the federal standards regarding treatment of applicants for 10 entry to the United States." Caban II , 728 F.2d at 74 (emphasis 11 added; quotation marks omitted). That language apparently 12 contemplates a consideration of the facts of a particular 13 immigration detention FTCA claim on the merits, i.e. , based on 14 the particulars of the "INS agents['] act[ions]." 16Id. 1535 B. Whether a Private Analogue Exists in This Case 1 The district court concluded that "[i]mmigration and 2 detention pending deportation are governed exclusively by federal 3 law and therefore have no private analogue." Mem. & Order at 10. 4 Because Liranzo's "intentional tort claims [were] based upon the 5 detention of plaintiff pending deportation proceedings and the 6 process the immigration agents used to determine his citizenship 7 status," the district court found that he had "not established 8 that a comparable cause of action would exist against a private 9 individual pursuant to New York State law." Id. Citing Feres , 10 the government similarly argues that "[r]emoval, and the 11 regulation thereof, are federal functions -- in which private 12 citizens cannot engage -- that are exclusively reserved to [the 13 Department of Homeland Security]." Def.'s Br. 16 (emphasis in 14 original). 15 To say that the challenged action is one that only the 16 federal government does in fact perform does not necessarily mean 17 that no private analogue exists. Lighthouses, such as the one 18 that was the subject of Indian Towing , were at least at the time 19 operated only by the government. It was a function that "private 20 persons d[id] not perform." 350 U.S. at 64 (quotation marks 21 omitted). But "the presence of identical private activity" was 22 not required to find a private analogue, because the FTCA's 23 statutory phrase "under likecircumstances" does not mean "under 2436 the samecircumstances." Id. at 64, 67 (emphases added). Under 1 Olson , we are "require[d] . . . to look further afield" for a 2 private analogue when the government in fact is the only entity 3 that performs the actions complained of. Olson , 546 U.S. at 46. 4 Similarly, the fact that immigration detentions are 5 "uniquely governmental" does not mean they have no private 6 analogue for present purposes. "[A]ll Government activity is 7 inescapably 'uniquely governmental' in that it is performed by 8 the Government." Indian Towing , 350 U.S. at 67. This 9 consideration led the Indian TowingCourt to reject a 10 construction of the Act under which "there would be no liability 11 for negligent performance of 'uniquely governmental functions,'" 12 id. at 64, as such an "exception" to the FTCA's waiver of 13 sovereign immunity would threaten to swallow the waiver entirely. 14 The Supreme Court has provided us with examples of how 15 to heed its admonition to "look further afield," Olson , 546 U.S. 16 at 46, for a private analogue. In Indian Towingand Olson , the 17 proper analogy was that "[p]rivate individuals, who do not 18 operate lighthouses [or inspect mines], nonetheless may create a 19 relationship with third parties that is similar to the 20 relationship between a lighthouse operator and a ship dependent 21 on the lighthouse's beacon[, or a mine inspector and a miner 22 dependent on the inspector faithfully carrying out his duty]." 23 Id. at 47. 2417For the purposes of this discussion, we assume New York law applies because the initial arrest and detention occurred in New York. We express no opinion as to whether Louisiana law might apply to some portion of Liranzo's claims based on the time he was confined in Louisiana. 37 Here, the proper analogy seems to us be a person who, 1 entirely in his or her private capacity, places someone under 2 arrest for an alleged violation of the law -- a so-called 3 "citizen's arrest." Such a person may not execute an arrest 4 absent a legal privilege to do so. To successfully establish a 5 claim for false arrest and imprisonment under New York law, 17a 6 plaintiff must therefore prove that "(1) the defendant intended 7 to confine [the plaintiff], (2) the plaintiff was conscious of 8 the confinement, (3) the plaintiff did not consent to the 9 confinement and (4) the confinement was not otherwise 10 privileged ." Caban II , 728 F.2d at 71 (quoting Broughton v. 11
State , 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 93, 335 N.E.2d 310, 12 314, cert. denied , 423 U.S. 929 (1975)) (emphasis added); accord 13 Posr v. Doherty , 944 F.2d 91, 97 (2d Cir. 1991). And under Caban 14

II , whether the ICE agents' actions here were "otherwise 15 privileged" is determined by consulting federal privileges 1618Following the Supreme Court's statement in Olsonthat "a court [must] look to the state-law liability of private entities, not to that of public entities, when assessing the Government's liability under the FTCA," 546 U.S. at 46, the Court of Appeals for the Ninth Circuit considered whether cases envisioning the application of federal privileges in FTCA suits, such as Caban II , survive Olson . In Tekle v. United States , 511 F.3d 839 (9th Cir. 2007), a case without a majority opinion as to the FTCA issue, seeid. at 850 n.7, Judge Tashima read Olsonto require the court to hold the IRS officers at issue to the same standards as a private person executing a citizen's arrest. Id. at 850-54. In doing so, Judge Tashima called into question a line of Ninth Circuit cases relying on Caban II -- including Arnsberg v. United States , 757 F.2d 971, 978–79 (9th Cir. 1985) and Rhoden , 55 F.3d at 430-31. Tekle , 511 F.3d at 850-54. Judge Fisher, on the other hand, refused to read Olson"to support the conclusion that law enforcement privileges should not be recognized in FTCA suits, and that federal officers are left only with those privileges available to private citizens" because "Olsondid not involve such privileges, and . . . the FTCA's text does not clearly foreclose their availability." Id. at 857 (Fisher, J. , concurring). Judge Kleinfeld would have found that the FTCA claim was not preserved for appeal, but if it was, he would have joined Judge Fisher's concurrence. Id. at 861-62 (Kleinfeld, J. , concurring). This case does not require us to reach the issue of what effect, if any, Olsonhas on the continuing viability of Caban II , because the district court dismissed the case for lack of a private analogue and did not reach the merits. Thus, the district court did not have the occasion to opine on the substantive standards applicable to the ICE agents' conduct here, and we need not reach the issue now. Caban II remains the law of this Circuit. 38 applicable to federal immigration officers. 18 Caban II , 728 F.2d 1
at 71. 2 There is some suggestion in the case law that the 3 proper analogy may be to state law enforcement conducted by 4 police officers instead of a citizen's arrest. In Muniz , the 5 Court endorsed a private analogy to the liability of states and 6 state jailors. Muniz , 374 U.S. at 159-60. And at least one 739 court, the Northern District of California, has found the analogy 1 to law enforcement persuasive in the context of an FTCA claim 2 based on an immigration detention. SeeMunyua , 2005 WL 43960, at 3 *4, 2005 U.S. Dist. LEXIS 11499, at *12 ("The fact that the 4 challenged activities took place at the border does not negate 5 the analogy to law enforcement . . . ."). But in Olson , the 6 Court instructed that "a court [must] look to the state-law 7 liability of privateentities, not to that of public entities, 8 when assessing the Government's liability under the FTCA . . . ." 9 546 U.S. at 46 (emphasis added). 10 Regardless of this ambiguity, in the context of this 11 case, the distinction between analogizing to a citizen's arrest 12 and an officer's arrest is of little moment -- in both cases, the 13 defendant will be liable for false arrest under New York law if 14 the arrest is not privileged. See, e.g. , Downs v. Town of 15 Guilderland , 70 A.D.3d 1228, 1232, 897 N.Y.S.2d 264, 268 (3d 16 Dep't 2010) (police officer's arrest privileged for purposes of 17 false arrest claim if officer possessed probable cause to justify 18 arrest), appeal dismissed , 15 N.Y.3d 742, 933 N.E.2d 203, 906 19 N.Y.S.2d 804 (2010); White v. Albany Med. Ctr. Hosp. , 151 A.D.2d 20 859, 860, 542 N.Y.S.2d 834, 835 (3d Dep't 1989) ("In New York, a 21 private citizen who makes an arrest does so at his peril; if the 22 person arrested did not in fact commit the crime for which he is 23 arrested, the person who arrests him is liable [for false arrest] 2440 even if he acts in good faith or has probable cause to make an 1 arrest."). Therefore, either analogue would suffice for present 2

purposes. 3 The fact that New York law applies different 4 substantive standards to citizens' and officers' arrests, see 5 generally59 N.Y. JUR . 2 D FALSE I MPRISONMENT§ 37, is also of no 6 significance for present purposes because, under Caban II -- 7 which provides the law of this Circuit -- immigration detentions 8 executed by federal immigration officers are judged under federal 9 standards (subject to the considerations discussed supranote 10 18). 11 Our conclusion that there is a private analogue to the 12 government behavior at issue here receives further support from 13 the fact that the FTCA explicitly waives sovereign immunity for 14 "anyclaim" based on the "acts or omissions of investigative or 15 law enforcement officers" "arising . . . out of . . . false 16 imprisonment [and] false arrest." 28 U.S.C. § 2680(h) (emphasis 17 added). The plain language of the statute suggests that the 18 United States has indeed waived its sovereign immunity from suit 19 as to Liranzo's "claim," which "aris[es] . . . out of . . . false 20 imprisonment [and] false arrest." Id. In light of the 21 considerations discussed above, the government's suggestion that 22 we disregard the "false imprisonment" label Liranzo has affixed 23 to his claim so as to find it not to be encompassed by this 2441 explicit statutory language is unpersuasive. SeeDef.'s Letter 1 Br. at 3. 2 Akutowicz is not to the contrary. The district court 3 in this case relied on Akutowicz 's reasoning that "the withdrawal 4 of a person's citizenship constitutes a quasi-adjudicative action 5 for which no private analog exists," because "no private citizen 6 is empowered to certify the loss of American nationality," 859 7 F.2d at 1125-26. SeeMem. & Order at 9-10. But in Akutowicz , 8 there was no detention. The only action complained of was the 9 removal of the plaintiff's citizenship. Citizenship is a legal 10 status, which only the federal government is capable of altering. 11 A private individual cannot, without subsequent government 12 action, cause injury to another's citizenship. But a private 13 person is of course capable of falsely arresting another. See 14 generallyCaban II , 728 F.2d at 71 (quoting Broughton , 37 N.Y.2d 15 at 456, 373 N.Y.S.2d at 93, 335 N.E.2d at 314)(setting out the 16 elements of a false arrest claim). 17 As for the government's argument that immigration 18 detentions are quintessentially federal and therefore no private 19 analogue exists per Feres and its progeny, seeDef.'s Br. 14, 16, 20 although the "[p]ower to regulate immigration is unquestionably 21 exclusively a federal power," DeCanas v. Bica , 424 U.S. 351, 354 22 (1976), superseded by statute on other grounds as stated in 23 Chamber of Commerce of United States v. Whiting , 131 S. Ct. 1968, 2442 1974-75 (2011), it is not clear that immigration detentions are 1 necessarily and exclusively federal acts. For instance, under 2 current federal immigration law, "State and local law enforcement 3 officials" may be empowered (consistent with state law) to 4 "arrest and detain" aliens in certain circumstances. See8 5 U.S.C. § 1252c(a); 8 U.S.C. § 1103(a)(10); Arizona v. United 6
States , 132 S. Ct. 2492, 2506 (2012) (describing limited federal 7 statutory authorization for state immigration detentions). 8 The fact that a complained of action occurs in a 9 quintessentially federal context, moreover, does not necessarily 10 mean that no private analogue exists. While the federal military 11 is undoubtedly quintessentially federal, so is the federal prison 12 system. The Supreme Court nonetheless, in Muniz , refused to 13 extend Feres to the latter context. SeeMuniz , 374 U.S. at 162. 14 In distinguishing Feres , the Muniz Court minimized Feres 's 15 reliance on the fact that the military is quintessentially 16 federal. Id. It reasoned that "[i]n the last analysis, Feres 17 seems best explained by the peculiar and special relationship of 18 the soldier to his superiors, the effects of the maintenance of 19 such suits on discipline, and the extreme results that might 20 obtain if suits under the Tort Claims Act were allowed for 21 negligent orders given or negligent acts committed in the course 2219One commentator has construed the post-Feres case law as having abandoned reliance on the original rationales articulated in Feres , and as having replaced them with new rationales for the "Feres doctrine" barring FTCA claims by active servicemen and - women. SeeC HEMERINSKY , supra , at 674-75 ("Interestingly, the Court's explanation [for the Feres doctrine] has shifted over time. Originally, in Feres , the Court emphasized that the government could be held liable under the [FTCA] only for activities that also are undertaken by private entities . . . . But . . . the Supreme Court expressly discarded this limitation on recovery under the act [in Indian Towingand Rayonier ], permitting suits even for activities done solely by the federal government. . . . Subsequent to the Feres decision, the Court began emphasizing a different rationale for precluding recovery for injuries received incident to military service: the need to preserve military discipline."). 43 of military duty." 19Id. (quotation marks and ellipsis omitted). 1 These considerations are not present in the non-military context. 2 The case before us is thus more closely akin to Muniz than Feres

. 3 In sum, it does not follow from the fact that immigration is a 4 quintessentially federal function that immigration detention is 5 without a private non-federal officer analogue. Even for alleged 6 torts occurring in quintessentially federal contexts, the 7 question remains whether analogous private liability exists under 8 state law -- and here, we conclude that it does. 9 For these reasons, we conclude that the district court 10 erred in finding that there was no private analogue to Liranzo's 11 claims. We express no view, however, as to Liranzo's argument 12 that he is entitled to a trial on the merits on remand. See 13 Pl.'s Br. 9, 14. We leave it to the district court to consider 14 whether, under the circumstances of this case, his action is 1544 subject to dismissal on the merits on motion to dismiss or for 1 summary judgment. 2
C. Liranzo's Fourth Amendment Claim 3 Liranzo has not raised any argument against the 4 district court's dismissal of his separate Fourth Amendment 5 claim. SeeMem. & Order at 11 **.** We therefore affirm the district 6 court's ruling in this respect. SeeUniversal Church v. Geltzer , 7 463 F.3d 218, 229 (2d Cir. 2006) ("Generally[,] claims not raised 8 on appeal are deemed abandoned, at least when it is the appellant 9 who fails to do so."). 10

**CONCLUSION** 11 For the foregoing reasons, we affirm as to the district 12 court's dismissal of Liranzo's Fourth Amendment claim. We vacate 13 the district court's judgment insofar as it found an absence of 14 subject matter jurisdiction over Liranzo's FTCA claims and remand 15 for further proceedings in the district court. Because the 16 district court did not have the occasion to consider which 17 standard applies on the merits, the district court should 18 consider in the first instance on remand which federal standards 19 govern the determination of whether the government official's 20 actions here were privileged. 21