United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS March 31, 2003 FOR THE FIFTH CIRCUIT _____________________ Charles R. Fulbruge III Clerk No. 02-10013 _____________________

MAN KHAC NGUYEN, Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

__________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:00-CV-528-R _________________________________________________________________

Before REAVLEY, JOLLY, and JONES, Circuit Judges.

PER CURIAM:*

Man Khac Nguyen (Nguyen) appeals the district court’s

dismissal of his Federal Tort Claims Act (FTCA) negligent

investigation and false imprisonment claims against the Immigration

and Naturalization Service (INS). Because under the FTCA the

United States has not waived its sovereign immunity with respect to

the actions of the INS in this case, we AFFIRM.

It is undisputed that Nguyen satisfied the statutory

requirements of

(a)(repealed) for derivative

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 citizenship when he entered the United States in 1993: at the time

of his legal entry he was unmarried, his father had died before he

was eighteen and his mother was a United States citizen. However,

Nguyen did not claim derivative citizenship, apparently because he

was unaware that he qualified.

In 1995 and 1996, Nguyen was convicted of a number of felonies

that under INS regulations are considered aggravated felonies.

While in jail, Nguyen was identified by an INS agent as a possible

deportable alien. Nguyen affirmed his deportability when he, as a

convicted felon, told the INS officer that he was born in Vietnam,

was a citizen of Vietnam, and had permanent resident alien status.

Based on the information furnished by Nguyen, the INS officer began

a file on Nguyen. As part of the process, he requested Nguyen’s “A

file” which contained documents relating to Nguyen’s entry into the

United States. However, Nguyen’s “A file” was unavailable because

of a building closure where the file was located.

After Nguyen served his sentence, the INS instituted

deportation proceedings against him. At the deportation

proceedings, Nguyen was represented by counsel and was assisted by

an interpreter. At no time did he make a claim of derivative

citizenship or challenge the allegations against him. At the

conclusion of the hearings, the immigration judge ordered

deportation. The decision was based on ample evidence undisputed

by Nguyen or his attorney. That decision was not appealed.

2 Pending deportation, Nguyen was held in INS custody. Approximately

fifteen months later, a new attorney made an appearance on behalf

of Nguyen. At last, the new attorney asserted a claim of

derivative citizenship for Nguyen. The INS released Nguyen ten

days later. Nguyen thereafter applied for and obtained a

certificate of citizenship.

In March 2000, Nguyen brought suit under the FTCA seeking

damages. He alleged that the INS agents were negligent in not

investigating properly and in not recognizing that he was a

derivative citizen and that he was unlawfully detained. After a

two-day bench trial, the district court dismissed the case with

prejudice for lack of jurisdiction.

This court reviews a district court’s finding that it lacked

jurisdiction de novo. Foster v. Townsley,

(5th

Cir. 2001). Although the district court found that it lacked

jurisdiction on several grounds, we address and affirm only the

sovereign immunity ground.

Congress has waived the sovereign immunity of the United

States for particular kinds of tort suits under the FTCA. That

waiver, however, is subject to several express limitations, which

means that in those express situations the federal courts have no

jurisdiction over the United States in FTCA cases. One of these

limitations is the discretionary function exception, which provides

that courts have no jurisdiction over claims against the United

3 States “based upon the exercise or performance or the failure to

exercise or perform a discretionary function or duty on the part of

a federal agency or an employee of the Government, whether or not

the discretion involved be abused.”

(a). Decisions

to investigate, how to investigate and whether to prosecute

generally fall within this exception. See Sutton v. United States,

(5th Cir. 1987); Smith v. United States,

(5th Cir. 1967). However, the discretionary

function exception does not necessarily shield the government from

liability for intentional torts, such as false imprisonment,

perpetrated by its investigative or law enforcement officers. See

(h). This court has recognized that §§ 2860 (a)

and (h) exist in tension with each other and that their purposes

must be harmonized in each individual case, so as to give each

provision meaning without abrogating either provision. Sutton,

. In this connection, this court has not “hesitated

to conclude that [an] action does not fall within the discretionary

function of § 2680(a) when governmental agents exceed the scope of

their authority as designated by statute or the Constitution.”

Sutton,

.

In harmonizing the two provisions in this case, it is

significant that the INS officers did not commit a constitutional

violation nor did they engage in any conduct that could be

described as in bad faith. No regulation or statute prevented the

4 INS agents from pursuing deportation proceedings against Nguyen

based on the information available to them. Regulations expressly

allow INS agents to make arrests if the agent “has reason to

believe that the person to be arrested...is an alien illegally in

the United States.”

(c)(2)(i). The INS agents in

this case had sufficient reason to believe, based on repeated

admissions, explicit and implicit, by both Nguyen and his attorney,

that Nguyen was an alien. Consequently, the detention is not of a

character for which a court should refer to § 2680(h) for an

exception to the discretionary function. With respect to the claim

of negligence in investigating, the only basis asserted is failing

to obtain Nguyen’s “A file” and failing to otherwise determine from

various documents that Nguyen was entitled to derivative

citizenship. Because there is no allegation or evidence of

intentional misconduct, this is essentially a claim that the INS

officers failed to adequately perform a discretionary duty, which

falls squarely within the discretionary function exception.

Because the INS agents in this case did not exceed their authority

either in investigating the case or in detaining Nguyen, their

actions are protected by the discretionary function exception of

the FTCA.

For the foregoing reasons, the judgment of the district court

is

AFFIRMED.

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