954 F.3d 901
6th Cir.2020Background
- Plaintiff, a U.S. citizen child (suing through his mother), challenged his noncitizen father’s removal from the U.S., seeking declaratory relief that the removal and related ICE interview were unconstitutional.
- Father is a Pakistani national and a prior lawful permanent resident who was removed pursuant to a removal order; the complaint did not identify the removal proceeding details.
- Plaintiff alleged violations of multiple constitutional provisions (Fifth Amendment due process and equal protection, Eighth, Ninth) and treaty-based rights (UDHR, ICESCR, CRC), and alleged racially derogatory ICE statements during interviews.
- The district court dismissed treaty claims for lack of subject-matter jurisdiction (treaties non-self-executing) and dismissed constitutional claims under Rule 12(b)(6), finding removal of a parent does not deprive a citizen child of constitutional rights and that review of removal is channeled to the petition-for-review regime.
- The district court also dismissed the selective-enforcement claim; the Sixth Circuit affirmed, holding treaty claims non-justiciable, constitutional claims foreclosed by INA review limits and precedent, and the selective-enforcement claim barred by §1252(g).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Treaty-based claims (UDHR, ICESCR, CRC) | Treaties support judicial declaration considering children’s/family-rights context | Treaties are not self-executing and create no judicially enforceable cause | Dismissed for lack of subject-matter jurisdiction (treaties non-self-executing) |
| Constitutional challenge to father’s removal (Due Process, Equal Protection, Eighth, Ninth) | Removal violated child’s constitutional rights and family unity | Review of removal is channeled to petition for review under INA §1252; removal of parent does not deprive child of constitutional rights | Court had jurisdiction but dismissed under Rule 12(b)(6): §1252(b)(9) precludes relief and precedent forecloses substantive constitutional claims |
| Selective enforcement / racial discrimination during interviews | ICE’s allegedly racist statements show selective targeting and unconstitutional removal | §1252(g) bars judicial review of claims brought on behalf of an alien arising from removal decisions | Dismissed for lack of jurisdiction under §1252(g) because claim is brought on behalf of father |
| Forfeiture of appellate arguments (failure to oppose district motion) | Plaintiff offered no opposition below but appeals | Defendants contend arguments forfeited | Court declined to enforce forfeiture because complaint provided sufficient notice; reviewed merits where appropriate |
Key Cases Cited
- Hamdi ex rel. Hamdi v. Napolitano, 620 F.3d 615 (6th Cir. 2010) (citizen-child claims against a parent’s removal; §1252(b)(9) limits relief even if child’s claims are distinct)
- Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (high bar for selective-enforcement defenses to deportation)
- Nken v. Holder, 556 U.S. 418 (2009) (§1252 channels review and streamlines challenges to removal orders)
- Kucana v. Holder, 558 U.S. 233 (2010) (Congress amended INA to expedite removals; limits on judicial review)
- Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (international declarations do not of themselves create enforceable U.S. causes of action)
- Roper v. Simmons, 543 U.S. 551 (2005) (noting U.S. has not ratified the CRC)
- INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) (deportation is not criminal punishment; limitations on applying criminal‑law protections)
- Newton v. I.N.S., 736 F.2d 336 (6th Cir. 1984) (deportation of a noncitizen parent does not constitute unconstitutional de facto deportation of a citizen child)
- Duron v. Johnson, 898 F.3d 644 (5th Cir. 2018) (children’s selective‑enforcement claims brought on behalf of parent barred by §1252(g))
- Aguilar v. U.S. Immigration & Customs Enf’t, 510 F.3d 1 (1st Cir. 2007) (courts must look past labels to the substance of claims when §1252 applies)