Kong v. United States, 62 F.4th 608

Background

Kong, a Cambodian refugee, received a deportation order and a deportation warrant in 1996 after a 1995 felony conviction; Cambodia initially refused repatriation and he remained in U.S. custody before being released on supervised release in 2000.
His supervised release required cooperation with ICE and appearance on request; he complied and thereafter avoided new convictions, married, and worked for years.
The U.S. and Cambodia signed a repatriation agreement in 2002; in 2018 ICE began mass enforcement of Cambodian nationals under final orders and sought interviews to secure travel documents.
ICE interviewed Kong in February 2018 (he was not told the interview’s purpose), requested a travel document, and arrested him without notice in April 2018; he was detained for over fifty days and later released after filing habeas and reopening proceedings.
Kong sued under the FTCA (false arrest and false imprisonment) and asserted a Massachusetts Civil Rights Act claim (failure to give notice/hearing), and the district court dismissed for lack of jurisdiction under 8 U.S.C. §1252(g); the First Circuit reversed and remanded, holding §1252(g) does not bar collateral challenges to the legality of detention.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §1252(g) bars Kong's FTCA/MCRA claims challenging detention	Kong: detention challenge is collateral to the decision to execute removal and thus not barred	Gov: detention arose from decision to execute removal, so §1252(g) strips jurisdiction	Court: §1252(g) does not bar collateral challenges to the legality of detention; jurisdiction exists
Whether a 1996 deportation warrant supplied probable cause for 2018 arrest	Kong: decades-old warrant alone was insufficient; ICE needed a new individualized finding	Gov: the 1996 warrant remained valid and provided probable cause	Court: district court erred in treating the 1996 warrant as dispositive; appellate court refused to adopt that conclusion and remanded for further analysis
Whether ICE complied with 8 C.F.R. §241.13(i)(2) (individualized foreseeability finding) before re-detaining Kong	Kong: ICE failed to make the required individualized determination that removal was significantly likely in the reasonably foreseeable future	Gov: removal was reasonably foreseeable, justifying re-detention	Court: district court wrongly made the foreseeability determination itself; remanded to permit factual/legal review of whether ICE made the required finding
Whether ICE violated regulations requiring notice and an informal hearing (MCRA claim)	Kong: ICE failed to give reasons for detention or provide an informal hearing as required by regulation	Gov: claims are barred by §1252(g) or justified by detention authorities	Court: preserved jurisdiction over the claim and remanded for merits review (no final merits decision)

Key Cases Cited

Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (narrow reading of §1252(g) protecting prosecutorial discretion)
Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (reaffirmed Reno’s narrow construction of §1252(g))
Zadvydas v. Davis, 533 U.S. 678 (2001) (limits on post-removal detention; constitutional-avoidance principles)
Aguilar v. U.S. Immigr. & Customs Enf't Div. of the Dep't of Homeland Sec., 510 F.3d 1 (1st Cir. 2007) (district courts retain jurisdiction over collateral challenges to detention)
Arce v. United States, 899 F.3d 796 (9th Cir. 2018) (FTCA claim for unlawful removal/detention not barred by §1252(g))
Parra v. Perryman, 172 F.3d 954 (7th Cir. 1999) (detention challenges may be resolved without affecting removal proceedings)
Garcia v. Attorney General, 553 F.3d 724 (3d Cir. 2009) (distinguishing challenges to authority to commence proceedings from discretionary removal decisions)
Madu v. Attorney General, 470 F.3d 1362 (11th Cir. 2006) (challenge to detention distinct from prosecutorial decision to execute removal)
Tazu v. Attorney General, 975 F.3d 292 (3d Cir. 2020) (brief "door-to-plane" detentions integral to executing removal may be barred by §1252(g))
Spector v. Landon, 209 F.2d 481 (9th Cir. 1954) (older Ninth Circuit decision addressing lapse of time and deportation orders; court questioned its applicability here)