54 F.4th 855
6th Cir.2022Background
- Plaintiff Riccy Enriquez-Perdomo, a Honduran national, had a 2004 final order of removal but received DACA beginning in 2013 and had active DACA status through January 30, 2019; DHS never terminated her DACA.
- On August 17, 2017, ICE officers arrested and detained her at an ICE office despite database entries that later were shown to list DACA; she alleges wrongful arrest, deprivation of food/sleep, and retaliatory/ethnic motives.
- She sued four ICE officers in their individual capacities under Bivens for Fourth Amendment (false arrest/pretrial detention), Fifth Amendment (due process/equal protection), and First Amendment (retaliation) violations seeking money damages.
- Defendants moved to dismiss for lack of subject-matter jurisdiction under 8 U.S.C. § 1252(g) and alternatively argued no Bivens remedy and qualified immunity; the district court granted dismissal under § 1252(g).
- The Sixth Circuit majority held § 1252(g) did not bar Enriquez-Perdomo’s claims because her DACA made the 2004 removal order not "executable," affirmed dismissal of the First Amendment claim (no Bivens remedy under Egbert), vacated dismissal as to the Fourth and Fifth Amendment claims, and remanded for further proceedings; Judge Batchelder dissented.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 8 U.S.C. § 1252(g) bars suit arising from ICE’s arrest/detention when plaintiff had a prior final removal order but active DACA | DACA conferred affirmative relief that rendered the 2004 removal order unenforceable, so claims do not arise from executing an executable removal order | §1252(g) strips jurisdiction over claims "arising from" decisions to execute a final removal order; DACA does not negate the removal order’s validity and officers relied on records showing a final order | Majority: §1252(g) does not bar suit because "execute removal orders" targets executable orders; active, unrescinded DACA made the order non-executable here, so jurisdiction exists |
| Whether defendants’ jurisdictional challenge was a facial or factual attack and standard of review | Characterized as a facial attack; core facts (DACA active) undisputed | Characterized as a factual attack supported by declarations and database evidence | Court did not decide classification as outcome controlled by de novo review of §1252(g) question; reviewed legal issue de novo |
| Whether a Bivens remedy is available for First Amendment retaliation claim | Seeks damages under Bivens for retaliation | Bivens is disfavored; recent precedent forecloses First Amendment Bivens claims | Held: First Amendment retaliation claim dismissed—no Bivens remedy after Egbert |
| Whether Bivens remedies are available for Fourth and Fifth Amendment claims (false arrest/pretrial detention; due process/equal protection) | Requests Bivens damages for Fourth/Fifth Amendment violations | Defendants argue Bivens is inapplicable or special factors counsel hesitation; qualified immunity may apply | Court declined to decide; vacated dismissal and remanded for district court to address availability of Bivens and related issues in the first instance |
Key Cases Cited
- Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (interprets §1252(g) narrowly and explains Congress’ aim to protect prosecutorial discretion in removal process)
- Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (recognized implied damages remedy against federal officers for Fourth Amendment violations)
- Dep’t of Homeland Sec. v. Regents of Univ. of Cal., 140 S. Ct. 1891 (2020) (describes DACA as an administrative process conferring affirmative relief)
- Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (establishes two-step framework for whether to extend Bivens to a new context)
- Egbert v. Boule, 142 S. Ct. 1793 (2022) (refuses to extend Bivens; holds no Bivens remedy for First Amendment retaliation)
- Silva v. United States, 866 F.3d 938 (8th Cir. 2017) (applied §1252(g) to bar claims arising from execution of a removal order despite a wrongful removal)
- Arce v. United States, 899 F.3d 796 (9th Cir. 2018) (found jurisdiction where removal violated a court-ordered stay and the Attorney General lacked authority to execute removal)