Jesus Lopez Silva v. United States
866 F.3d 938
| 8th Cir. | 2017Background
- Lopez Silva, a Mexican national and lawful permanent resident, faced removal after criminal convictions; an IJ ordered removal and he timely appealed to the BIA, which automatically stayed execution of the removal order.
- Despite the administrative stay, federal agents removed Lopez Silva to Mexico in July 2013 and later returned him to the U.S.; an IJ eventually granted cancellation of removal.
- Lopez Silva sued under the Federal Tort Claims Act and Bivens, alleging harms from the wrongful removal.
- The government moved to dismiss for lack of subject‑matter jurisdiction under 8 U.S.C. § 1252(g); the district court granted the motion.
- The Eighth Circuit majority affirmed, holding § 1252(g) bars jurisdiction over claims "arising from" the decision or action to execute a removal order even if the execution violated a stay.
- A dissent argued § 1252(g) is narrower: because the automatic stay divested authority to execute the order, the claims did not "arise from" a valid execution and thus § 1252(g) did not bar jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1252(g) bars district court jurisdiction over Lopez Silva’s claims | Lopez Silva: claims arise from violation of an automatic stay, not from a decision to execute a removal order | Government: claims arise directly from the action to execute the removal order, so § 1252(g) strips jurisdiction | Held: § 1252(g) precludes jurisdiction because the claims are directly connected to execution of the removal order |
| Whether § 1252(g) applies only to discretionary decisions | Lopez Silva: § 1252(g) should be limited to discretionary decisions (stay left no discretion to remove) | Government: statute contains no discretionary/nondiscretionary distinction; applies to any claim arising from execution of removal orders | Held: statute contains no such limitation; applies regardless of whether decision was discretionary |
| Whether FTCA or Bivens causes of action are exempt from § 1252(g) | Lopez Silva: § 1252(g) does not list FTCA or Bivens, so those claims survive | Government: § 1252(g) bars “any cause or claim by or on behalf of any alien” arising from execution of a removal order | Held: statutory language covers any cause or claim arising from execution of a removal order, so FTCA and Bivens claims are barred in this context |
Key Cases Cited
- Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (§1252(g) confines jurisdiction over three discrete actions: commence, adjudicate, execute)
- Jama v. Immigration & Naturalization Serv., 543 U.S. 335 (2005) (distinguished pure legal statutory‑construction habeas claims from discretionary action challenges)
- Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (recognized implied damages remedy against federal officers for constitutional violations)
- Nken v. Holder, 556 U.S. 418 (2009) (automatic stay of removal pending appeal divests enforceability of removal order)
- Gonzales v. Oregon, 546 U.S. 243 (2006) (statutory text controls even if broader than the legislative problem addressed)
- Humphries v. Various Fed. USINS Emps., 164 F.3d 936 (5th Cir. 1999) (claim "connected directly and immediately" to execution of removal order arises from that action)
- Foster v. Townsley, 243 F.3d 210 (5th Cir. 2001) (claims tied to execution of removal orders fall within §1252(g))