898 F.3d 644
5th Cir.2018Background
- Martin Duron Esparza, a Mexican national and 20-year Mississippi resident, was ordered removed after an IJ and the BIA found he failed the 10‑year continuous presence requirement for cancellation of removal.
- The BIA dismissed his appeal in 2013; ICE later placed him on an Order of Supervision and in 2017 denied a stay of removal and gave a leave-by date of June 1, 2017.
- Two of Martin’s U.S. citizen minor children sued ICE officials seeking a TRO to enjoin Martin’s deportation, alleging violations of familial‑association rights and selective enforcement based on national origin.
- The district court held it lacked subject‑matter jurisdiction and dismissed the suit the same day; the children appealed.
- The appellate decision addresses whether 8 U.S.C. § 1252 bars judicial review of the children’s claims, and whether the children sued "on behalf of" their father for purposes of § 1252(g).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1252(b)(9) bars review of the familial‑association claim | Children: claim challenges constitutionality of removal and is reviewable now to prevent harm to family | Government: claim arises from removal proceedings and must be channeled through statutory review of final orders | §1252(b)(9) bars jurisdiction; claim must be raised through administrative/final‑order review |
| Whether § 1252(g) bars review of selective‑enforcement claim when brought by U.S. citizen children | Children: §1252(g) applies only to suits "by or on behalf of any alien," so citizens may assert their own rights | Government: claim "arises from" execution of a removal order and is therefore barred by §1252(g) even if brought by citizens when effectively on behalf of an alien | Court: children’s selective‑enforcement claim is "on behalf of" their father and is barred by §1252(g) absent an extraordinary showing |
| Whether the children asserted distinct constitutional rights separable from their father’s claim | Children: they assert their own liberty/familial‑association and equal‑protection interests | Government: the harms asserted arise from discrimination against the father, so children’s claim depends on father’s rights | Held for Government: children did not plead separate rights for selective‑enforcement claim and relied on father’s rights |
| Whether the case falls within the AADC exception to nonreviewability of discretionary removal/execution decisions | Children: alleged discriminatory, selective enforcement should overcome jurisdictional bar | Government: allegations are not the "outrageous" discrimination needed to overcome prosecutorial discretion bar | Court: allegations were not sufficiently outrageous; the AADC exception does not apply |
Key Cases Cited
- Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (§1252 consolidates and channels review of removal decisions; narrow exception for extraordinary claims)
- Aguilar v. I.C.E., 510 F.3d 1 (1st Cir. 2007) (§1252(b)(9) does not cover claims only remotely connected to removal; courts must look beyond labels)
- Hamdi v. Napolitano, 620 F.3d 615 (6th Cir. 2010) (interpretation of "by or on behalf of any alien" language in §1252(g))
- Payne-Barahona v. Gonzáles, 474 F.3d 1 (1st Cir. 2007) (parents can assert constitutional claims affecting children in immigration context)