988 F.3d 1268
11th Cir.2021Background
- Keila Camarena and Javier Barrios are noncitizens subject to valid, unappealed removal orders; ICE initially supervised them but later set removal dates.
- Both filed for provisional unlawful presence waivers (which, if granted, ease future reentry) and argued they have a regulatory right to remain in the U.S. while those waivers are processed.
- Each filed habeas petitions and emergency motions to stop execution of their removal orders the day before their scheduled departures.
- District courts dismissed both petitions for lack of subject-matter jurisdiction; the Eleventh Circuit stayed removals pending appeal.
- The panel considered whether 8 U.S.C. § 1252(g) bars federal-court review of their claims challenging removal during the waiver process.
- The court held § 1252(g) strips jurisdiction over any claim arising from the government’s decision to execute removal orders and distinguished Madu as inapplicable here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1252(g) bars judicial review of habeas petitions seeking to halt execution of removal orders while provisional-waiver applications are pending | Camarena/Barrios: They have a regulatory right to remain during the waiver process, so removal now is unauthorized | Government: § 1252(g) bars any claim arising from executing removal orders, including these habeas petitions | Held: § 1252(g) bars jurisdiction; claims are challenges to execution of removal orders and must be dismissed |
| Whether Madu v. Attorney General permits review because petitioners challenge the government’s authority to remove | Petitioners: Madu allows review when petitioner attacks the government’s authority to remove | Government: Madu applies only where no valid removal order exists; here orders are valid | Held: Madu inapplicable — removal orders exist, so § 1252(g) controls and precludes review |
Key Cases Cited
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (limited jurisdiction principle)
- Bejacmar v. Ashcroft, 291 F.3d 735 (11th Cir. 2002) (standard of review for jurisdictional dismissal)
- Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (§ 1252(g) scope and purpose)
- Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (narrow interpretation of § 1252(g)’s "arising from" language)
- Gupta v. McGahey, 709 F.3d 1062 (11th Cir. 2013) (no jurisdiction when one of § 1252(g) actions is basis of claim)
- Madu v. U.S. Attorney General, 470 F.3d 1362 (11th Cir. 2006) (distinguished; concerned absence of any removal order)
- Bourdon v. U.S. Dep’t of Homeland Sec., 940 F.3d 537 (11th Cir. 2019) (respecting statutory jurisdictional limits)
- Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524 (2019) (courts cannot create exceptions to statutory text)
- Alvarez v. U.S. Immigr. & Customs Enf’t, 818 F.3d 1194 (11th Cir. 2016) (treatment of statutory grounds for removal)
- Patel v. U.S. Att’y Gen., 971 F.3d 1258 (11th Cir. 2020) (cannot dress up claims to invoke jurisdiction)
- Canal A Media Holding, LLC v. U.S. Citizenship & Immigr. Servs., 964 F.3d 1250 (11th Cir. 2020) (focus on the action being challenged under § 1252(g))