Flores v. United States, 885 F.3d 119

Background

Eduardo Flores, an Ecuadorian national, received an INS passport stamp on July 3, 1979 indicating temporary evidence of lawful permanent residence (LPR). INS later denied his adjustment application in November 1979, and removal proceedings followed; an IJ ordered deportation in 1994 and the BIA dismissed Flores’ appeal in 2000.
In August 2008 Flores was arrested and placed in immigration detention, then released on supervision; he later moved to reopen his removal proceedings.
On December 2, 2010 the IJ found Flores had LPR status based on the 1979 passport stamp and terminated proceedings; the Government withdrew its appeal and the BIA closed the case on May 3, 2011.
USCIS scheduled an interview for Flores on November 11, 2011; the record shows USCIS stamped his passport at the interview confirming LPR status, and Flores received a green card in November 2012.
Flores submitted FTCA administrative claims on November 11, 2013; after agency denials, he and his wife sued in federal court in November 2014 alleging various torts. The Government moved for dismissal/summary judgment on statute-of-limitations and exhaustion grounds.
The district court granted summary judgment for the Government, holding Flores’ FTCA claims were time-barred under the two-year administrative-presentment rule, the continuing-violation doctrine did not apply, equitable tolling was not warranted, and Mrs. Flores failed to exhaust administrative remedies.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Flores’ FTCA claims were timely presented within the two-year administrative-presentment period	Flores argued the continuing-violation doctrine tolled accrual until he received his green card (Nov 2012), so his Nov 2013 administrative claims were timely	Government argued accrual occurred when the IJ/BIA decision became final (May 3, 2011) and Flores’ claims were presented after the two-year limit	Court held claims accrued no later than May 3, 2011; administrative claims filed in Nov 2013 were untimely
Whether the continuing-violation doctrine delayed accrual	Flores contended a continuous policy/practice injured him through the interview and ongoing supervision up to issuance of the green card	Government maintained Flores’ injuries ceased when the IJ decision became final and he was no longer subject to removal/supervision	Court rejected continuing-violation: no ongoing violation after May 3, 2011; the November 2011 interview was not shown to be a revocation attempt
Whether equitable tolling saved Flores’ claim	Flores implied tolling was appropriate because later events (interview, green card) prevented earlier filing	Government argued no basis for equitable tolling; Flores had final IJ/BIA decision and no facts showing extraordinary circumstances preventing timely filing	Court held Flores failed to establish equitable tolling entitlement
Whether Mrs. Flores exhausted administrative remedies	Plaintiffs proceeded jointly; Mrs. Flores did not file her own administrative claim	Government argued Mrs. Flores failed to present an administrative claim as required by §2675(a)	Court held Mrs. Flores failed to exhaust and her FTCA claims were barred

Key Cases Cited

Cornwell v. Robinson, 23 F.3d 694 (2d Cir. 1994) (continuous practice/policy may delay accrual under continuing-violation doctrine)
Syms v. Olin Corp., 408 F.3d 95 (2d Cir. 2005) (discussing continuing-violation doctrine in FTCA context and state-law considerations)
Spak v. Phillips, 857 F.3d 458 (2d Cir. 2017) (standard of review for summary judgment)
Terry v. Ashcroft, 336 F.3d 128 (2d Cir. 2003) (summary judgment requires drawing inferences for nonmoving party)
Kulak v. City of New York, 88 F.3d 63 (2d Cir. 1996) (conclusory allegations cannot defeat summary judgment)