E.O.H.C. v. Secretary United States Depart, 950 F.3d 177

Background

Appellants E.O.H.C. and his 7-year-old daughter M.S.H.S., Guatemalan nationals, crossed through Mexico to the U.S.; DHS placed them in removal proceedings and, under the Migrant Protection Protocols (MPP), returned them to Mexico pending hearings.
They alleged MPP lacks statutory/APA authority as applied to them and that interim return to Mexico would (a) impede their counsel relationship (statutory and constitutional claims), (b) violate non‑refoulement obligations under the Convention Against Torture (CAT) and the Refugee Convention, and (c) violate the Flores Settlement Agreement as to the minor.
The district court dismissed all claims for lack of subject‑matter jurisdiction, treating most claims as removable to the courts of appeals under INA jurisdiction‑stripping provisions (notably 8 U.S.C. § 1252(b)(9) and § 1252(a)(4)).
After briefing, the BIA remanded on the waiver issue but the Government still threatened to return appellants to Mexico; appellants sought mandamus/habeas and preliminary relief in district court.
The Third Circuit held that most claims (MPP statutory/APA challenge, CAT non‑refoulement, Flores claim, and the constitutional right‑to‑counsel claim) are "now‑or‑never" and not barred by § 1252(b)(9) or § 1252(a)(4); it affirmed dismissal of the statutory right‑to‑counsel claim and found federal‑question jurisdiction for the Flores claim because the United States is a party to that consent decree.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 8 U.S.C. § 1252(b)(9) bars district‑court review of claims attacking temporary return to Mexico under MPP	§1252(b)(9) shouldn’t bar "now‑or‑never" claims because they cannot be meaningfully remedied after final removal	§1252(b)(9) channels removal‑related claims to the courts of appeals; district court lacks jurisdiction	Held: §1252(b)(9) does not bar now‑or‑never claims (MPP, CAT, Flores, constitutional counsel claim); it does bar statutory right‑to‑counsel claim tied to removal proceedings
Whether §1252(a)(4) makes petitions for review the exclusive means for CAT non‑refoulement claims	§1252(a)(4) limits duplicative habeas but does not eliminate review for CAT claims that cannot await a petition for review	§1252(a)(4) makes petition for review the sole and exclusive judicial remedy for CAT claims	Held: §1252(a)(4) funnels duplicative relief but does not strip district courts of jurisdiction over CAT claims that are now‑or‑never and cannot be meaningfully reviewed later
Whether §1252(a)(2)(B)(ii) bars review because returns are discretionary under statutory authority	Challenge is to the scope/validity of statutory authority (not to a discretionary exercise), so jurisdiction exists	Where statute gives the AG/Secretary discretion, courts lack jurisdiction under §1252(a)(2)(B)(ii)	Held: §1252(a)(2)(B)(ii) does not preclude review of ultra vires/scope claims; it does not bar appellants’ non‑refoulement challenge
Whether a district court other than the Central District of California can hear a Flores claim enforcing the settlement	Flores ¶24(B) allows minors to sue "in any United States District Court with jurisdiction and venue"; the U.S. is a party, so federal common law governs and §1331 jurisdiction exists	Enforcement of a consent decree belongs only to the issuing court; no independent federal jurisdiction unless other basis exists	Held: Federal‑question jurisdiction exists because the Flores settlement is a contract to which the U.S. is a party; federal common law governs breach claims, so district courts have jurisdiction (venue questions are distinct)

Key Cases Cited

Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (plurality endorsing limits on §1252(b)(9) and recognizing now‑or‑never reviewability concerns)
Nielsen v. Preap, 139 S. Ct. 954 (2019) (reiterating Jennings plurality framework on §1252(b)(9))
INS v. St. Cyr, 533 U.S. 289 (2001) (presumption favoring judicial review of habeas jurisdictional limits)
Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (describing §1252 as a "zipper" clause to consolidate review)
McNary v. Haitian Refugee Ctr., 498 U.S. 479 (1991) (holding INA should not be read to foreclose meaningful judicial review)
Zadvydas v. Davis, 533 U.S. 678 (2001) (distinguishing scope vs. discretionary exercises of statutory authority)
Kucana v. Holder, 558 U.S. 233 (2010) (presumption favoring judicial review of administrative action)
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) (consent‑decree enforcement and necessity of independent jurisdictional basis)
Clearfield Trust Co. v. United States, 318 U.S. 363 (1943) (federal common law governs contracts to which the U.S. is party)
Boyle v. United Techs. Corp., 487 U.S. 500 (1988) (federal common‑law principles apply to certain areas involving governmental interests)