899 F.3d 796
9th Cir.2018Background
- In February 2015, after an IJ affirmed a negative reasonable-fear finding, DHS prepared to remove Claudio Anaya Arce pursuant to a reinstated prior removal order.
- Anaya filed an emergency petition for review and a motion for a stay with the Ninth Circuit; the court’s filing automatically issued a temporary stay of removal.
- Despite electronic notice of the Ninth Circuit stay, faxed notice from counsel, and counsel’s calls to the assigned deportation officer, DHS removed Anaya to Mexico the same day.
- The Ninth Circuit later ordered DHS to return Anaya to the United States; he was returned two weeks later.
- Anaya exhausted administrative remedies and sued the United States under the FTCA for false arrest/imprisonment, intentional infliction of emotional distress, and negligence.
- The district court dismissed for lack of jurisdiction under 8 U.S.C. § 1252(g); the Ninth Circuit reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1252(g) strips federal courts of jurisdiction over FTCA claims arising from wrongful removal in violation of a court-issued stay | Anaya: claims arise from DHS’s violation of the Ninth Circuit stay, not from execution of a valid removal order, so § 1252(g) does not bar jurisdiction | Government: claims “arise from” the decision/action to execute a removal order, so § 1252(g) divests courts of jurisdiction | Ninth Circuit: § 1252(g) does not bar jurisdiction where claims challenge action violating a court stay because the agency lacked authority to remove |
| Whether § 1252(g) applies even when removal “tangentially” arises from execution of the removal order | Anaya: even if tangential, the agency lacked authority (no discretion) to remove while stay was in effect, so § 1252(g) is inapplicable | Government: statutory language covers any claim that arises from execution of removal orders, regardless of stay | Ninth Circuit: § 1252(g) is limited to discretionary decisions the agency has authority to make; it does not cover actions where the agency lacked authority to act |
| Whether § 1252(g) should be read broadly or narrowly | Anaya: statute must be read narrowly; otherwise courts could not enforce their orders | Government: plain language reaches actions connected to removal orders | Ninth Circuit: interpret ambiguities narrowly and preserve judicial review; broad reading would undermine court authority |
| Whether the FTCA foreign-country exception bars recovery | Anaya: injury occurred in the U.S. when he was removed from Adelanto; exception inapplicable | Government: argued the removal/harms occurred abroad | Ninth Circuit: rejected government—last act causing liability (the removal from Adelanto) occurred in the U.S., so exception does not bar the claim |
Key Cases Cited
- Nken v. Holder, 556 U.S. 418 (2009) (stay of removal suspends source of removal authority)
- Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (§ 1252(g) interpreted narrowly; preserves review of many actions related to deportation)
- Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (court cautioned against reading § 1252(g) to sweep in all claims that "arise from" listed actions)
- Barahona-Gomez v. Reno, 236 F.3d 1115 (9th Cir. 2001) (§ 1252(g) does not remove review of actions violating mandatory duties)
- Catholic Social Servs., Inc. v. INS, 232 F.3d 1139 (9th Cir. 2000) (en banc) (limits § 1252(g) to the specific discretionary actions in its text)
- Silva v. United States, 866 F.3d 938 (8th Cir. 2017) (contrary holding: § 1252(g) barred FTCA claims after removal in violation of BIA stay)
- S.H. by Holt v. United States, 853 F.3d 1056 (9th Cir. 2017) (FTCA injury occurs where it is first suffered)
- INS v. St. Cyr, 533 U.S. 289 (2001) (strong presumption in favor of judicial review)