Case Information
*1 Before REYNALDO G. GARZA, DAVIS and JONES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Baldwin Foster (“Foster”), a Jamaican native who sued Immigration and Naturalization Service (“INS”) officials for wrongfully removing him from the country, appeals the district court’s dismissal for lack of jurisdiction pursuant to 8 U.S.C. § 1252(g). Finding that 8 U.S.C. § 1252(g) precludes judicial review of Foster’s claims, we affirm.
BACKGROUND
This case arises out of the INS’s deportation of Foster while his case was pending in the Board of Immigration Appeals (BIA). In November 1996, Foster was issued an order to show cause why he should not be deported after his conviction for an aggravated felony. Foster posted bond and was released from custody in March of 1997. The next month, his attorney, appearing telephonically for a scheduled hearing before the Immigration Judge, requested a continuance for the purpose of filing a motion to change venue. Although the Immigration Judge granted the motion and continued the proceedings, no motion for a change of venue was filed. In June of 1997, neither Foster nor his attorney appeared in New York for a scheduled hearing. Consequently, after determining that proper notice was provided and that deportability had been established, the Immigration Judge ordered that Foster, in absentia, be deported. In September 1997, through new counsel, Foster filed a motion to reopen the proceedings. The Immigration Judge denied his motion in November 1997. Foster appealed this decision to the BIA in December of 1997. In July of 1998, Foster submitted a motion to remand for the consideration of new evidence.
That November, Foster filed a petition for a writ of mandamus in federal court to compel the BIA to rule on his appeal. *3 The magistrate judge, in December of 1998, recommended that the petition be denied.
Foster was deported to Jamaica in December of 1998, while his appeal with the BIA was still pending. In February 1999, the BIA sustained Foster’s appeal and ordered that proceedings be reopened and the record remanded to the Immigration Judge. BIA found that the Immigration Judge had erred in denying Foster’s motion to reopen the in absentia deportation order because there was a lack of evidence that written notice was sent to Foster’s attorney via certified mail, as required by statute. The next month, Foster sought to re-enter the United States pending a decision on his appeal to the BIA. He was returned to the United States in May 1999.
Upon his return, Foster filed a complaint seeking
monetary damages in the amount of five million dollars and
declaratory relief for alleged constitutional deprivations pursuant
to Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics,
Townsley filed a motion to dismiss, arguing inter alia that the district court lacked jurisdiction under 8 U.S.C. § 1252(g) to review any claims challenging the INS officers’ decision to order Foster removed. Basham filed a similar motion to dismiss.
After painstaking efforts by both the magistrate judge and district court, the district court adopted the magistrate *5 judge’s recommendation to dismiss Hooks and Lavalais, [1] and as to Townsley, Underdown and Basham, concluded that it lacked jurisdiction under § 1252(g) and this court’s decision in Humphries v. Various Federal USINS Employees, 164 F.3d 936, 942 (5 Cir. 1999). The court reasoned that although Foster had not asserted a direct or habeas challenge to his removal, his challenge had to be authorized by 8 U.S.C. § 1252(a)-(f). The court stated that nothing in those sections contemplated an alien’s challenging his removal via civil rights actions against INS officials. In addition, the court held that because Foster’s claims against Townsley, Underdown and Basham “arise under” the INS’s decision to execute a removal order deporting Foster to Jamaica, § 1252(g) applies to those claims and precludes judicial review. Therefore, the district court dismissed the claims against Townsley, Underdown and Basham without prejudice for lack of jurisdiction.
Foster has appealed and been granted IFP status.
DISCUSSION
On appeal, Foster argues that the district court has jurisdiction to review his claims. The violation of a non- discretionary stay order, he argues, is distinct from the discretionary decision to execute a removal order. His alleged *6 liberty interest in not being removed for five months in violation of a stay order, therefore, is not specifically precluded by the statute. The defendants respond that, under Humphries and § 1252(g), this court lacks jurisdiction to review issues surrounding Foster’s removal. [2]
Thus, the issue that we must resolve is whether 8 U.S.C.
§ 1252(g) precludes judicial review only of discretionary actions
taken by the Attorney General, or whether it also covers decisions
that may be non-discretionary. This court reviews the district
court’s legal conclusions on jurisdiction de novo. Requena-
Rodriguez v. Pasquarell,
The Supreme Court discussed the scope of the transitional rules in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936 (1999)(“AADC”). The Court held that judicial review of transitional cases is governed only by § 1252(g). This provision states:
Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
8 U.S.C. § 1252(g). The Court stated that this clause does not
preclude judicial review in all transitional cases involving
deportation. Rather, it held that the “provision applies only to
three discrete actions that the Attorney General may take: her
‘decision or action’ to ‘commence proceedings, adjudicate cases, or
execute removal orders.’” AADC,
Foster’s challenge concerns the INS officer’s decision to execute his deportation despite non-discretionary regulations requiring that his deportation be stayed. 8 C.F.R. § 3.6 provides that, while an appeal is pending before the BIA, in cases where the deportation order was entered in absentia pursuant to the provisions of 8 C.F.R. § 3.23(b)(4)(iii), an automatic stay of the deportation applies. 8 C.F.R. §§ 3.6(b). [3]
Foster asserts that AADC’s interpretation of the statute requires that judicial review be precluded only when the Attorney General makes discretionary decisions. We disagree. Although the *9 Court emphasized the importance of preserving the Attorney General’s discretionary functions in the three enumerated categories, it did not explicitly state that the provision applies only to review of discretionary decisions by the Attorney General in these areas and not to review of non-discretionary decisions. The Court further stated that “[i]t is entirely understandable . . . why Congress would want only the discretion-protecting provision of § 1252(g) applied even to pending cases: because that provision is specifically directed at the deconstruction, fragmentation, and hence prolongation of removal proceedings.” Id . at 486, 119 S.Ct. at 945. The Court contrasted the three actions where Congress precluded review in transitional cases to those which Congress chose to also limit in permanent cases. The Court does not, however, state that the provision exclusively governs review of discretionary actions. [4] Indeed, there is no discussion of review over non-discretionary actions. The provision itself does not distinguish between discretionary and non-discretionary decisions. *10 Rather, the statute refers to “any cause or claim” that “aris[es] from the decision or action by the Attorney General” in the three areas. 8 U.S.C. § 1252(g). Therefore, while it may be true that the officials executed the order despite the regulation’s requirement of an automatic stay of his deportation, this distinction is not critical because a plain reading of the statute demonstrates that Congress did not exclude non-discretionary decisions from this provision limiting judicial review.
The final question is whether Foster’s claims “arise from” the actions which § 1252(g) precludes from judicial review. “[C]laims that clearly are included within the definition of ‘arising from’ . . . [are] those claims connected directly and immediately with a ‘decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders.” Humphries, 164 F.3d at 943. In Humphries, for example, we held that the court had no jurisdiction under § 1252(g) to review the plaintiff’s claim that INS agents conspired to exclude him in retaliation for the exercise of his First Amendment rights. The particular acts that form the basis of Foster’s lawsuit arise from the officials’ decision to execute his removal order. His claims of excessive force, denial of due process, denial of equal protection and retaliation are all directly connected to the execution of the deportation order. Therefore, their acts fall *11 within the ambit of section 1252(g) and are precluded from judicial review. The district court correctly concluded that it lacked jurisdiction to review Foster’s claims. [5]
CONCLUSION
For the foregoing reasons, the district court’s judgment dismissing the claims against Townsley, Basham, and Underwood for lack of jurisdiction is AFFIRMED .
Notes
[1] The district court found that Hooks was not involved in Foster’s case and that Lavalais did not use excessive force. Foster, having failed to brief his disagreement with these decisions on appeal, waived it.
[2] We note that Humphries does not control the outcome of this case
because its interpretation of the IIRIRA preceded the Supreme Court’s narrow
construction of the statute in Reno v. American-Arba Anti-Discrimination
Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.E.2d 940 (1999) (“AADC”). In
Humphries, this court reviewed the jurisdictional question under all of the
provisions of 8 U.S.C. § 1252, permanent and transitional, rather than just §
1252(g) although it appears that the IIRIRA would not apply to his case at all
because the entry of Humphries’ final order of exclusion occurred before
September 30, 1996. Humphries,
[3] 8 C.F.R. § 3.23(b)(4)(iii) applies to orders entered in absentia in deportation or exclusion proceedings. The regulation states that “orders entered in absentia may be rescinded only upon a motion to reopen filed” either when the alien demonstrates that the failure to appear was because of exceptional circumstances beyond his control or in situations where the alien demonstrates that he did not receive notice or that he was in federal or state custody and the failure to appear was not his own. § 3.23(b)(4)(iii)(A)(1),(2). The filing of such a motion “shall stay the deportation of the alien pending decision on the motion and the adjudication of any properly filed administrative appeal.” § 3.23(b)(4)(iii)(C). The regulation makes this a mandatory, non-discretionary stay of deportation.
[4] We note that cases following AADC focus on the Attorney General’s
discretionary decisions. See e.g. Zadvydas v. Underdown,
[5] Foster also seeks permission from this court to proceed against the
five immigration officers. He sought to have the officers served after the
district court dismissed the claims against the other parties, indicating that
he recently learned the names of the officers through discovery responses from
Townsley. We lack jurisdiction to review this claim because Foster did not file
a notice of appeal regarding this issue. See Barber v. Security Benefit Life
Ins. Co.,