Ibarra-perez v. USAIbarra-perez v. USA
FOR PUBLICATION
OPINION
Argued and Submitted April 2, 2025 Phoenix, Arizona
Filed August 27, 2025
Opinion by Judge W. Fletcher; Dissent by Judge R. Nelson
SUMMARY*
Immigration
The panel reversed the district court’s dismissal, for lack of jurisdiction, of Jorge Felix Ibarra-Perez’s suit for damages under the Federal Tort Claims Act, and remanded.
Ibarra-Perez’s suit was based on his claim that he had been improperly removed to Mexico after completion of his removal proceedings, in which he had been granted withholding of removal to Cuba. Because withholding of removal is country specific, Immigration and Customs Enforcement (“ICE”) retained the authority to remove Ibarra-Perez to any other country authorized by statute. Ibarra-Perez objected to the removal, repeatedly telling the officials that he feared what would happen to him if he were removed to Mexico. After his removal, Ibarra-Perez was recruited and threatened by gang members in Mexico. He returned to the United States two days after his removal and was ultimately granted asylum.
The panel held that
The panel addressed the dissent’s argument that the petition-for-review process was the proper pathway for Ibarra-Perez to challenge his post-hearing removal. Noting that the dissent relied on
Dissenting, Judge R. Nelson concluded that
Judge R. Nelson also wrote that, even if the decision to remove Ibarra-Perez to Mexico were unlawful,
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
COUNSEL
Trina A. Realmuto (argued), Mary A. Kenney, and Aidan Langston, National Immigration Litigation Alliance, Brookline, Massachusetts; Laura Belous, Rocio C. Acosta, Florence Immigrant and Refugee Rights Project, Tucson, Arizona; for Plaintiff-Appellant
Matt Adams and Christopher Strawn, Northwest Immigrant Rights Project, Seattle, Washington, for Amicus Curiae Northwest Immigrant Rights Project.
OPINION
W. FLETCHER, Circuit Judge:
After a hearing before an Immigration Judge (“IJ”), at which he had sought relief based on persecution in Cuba, plaintiff-appellant Jorge Felix Ibarra-Perez was granted withholding of removal to Cuba. Ibarra-Perez had stayed briefly in Mexico after he left Cuba and before he came to the United States. At his hearing before the IJ, Ibarra-Perez had described not only persecution in Cuba but also threats and extortion in Mexico. The government had not asked for an order removing Ibarra-Perez to Mexico, and the IJ did not designate Mexico as a country to which he could be removed. Neither the government nor Ibarra-Perez appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”).
After completion of proceedings before the IJ, federal immigration officials removed Ibarra-Perez to Mexico. Ibarra-Perez vehemently objected to the removal, repeatedly telling the officials that he feared what would happen to him if he were removed to Mexico. While in Mexico after his removal, Ibarra-Perez was recruited and threatened by gang members. He was able to return to the United States two days after his removal. Upon his return to the United States, he was detained for six months before being granted asylum.
Ibarra-Perez brought suit for damages under the Federal Tort Claims Act (“FTCA”), contending that he was improperly removed to Mexico. The district court dismissed Ibarra-Perez’s suit for lack of subject matter jurisdiction under
The merits of Ibarra-Perez’s FTCA suit are not before us. The question before us is jurisdictional—whether the limitation contained in
We therefore reverse.
I. Background
Because Ibarra-Perez’s suit was dismissed under
Ibarra-Perez fled Cuba after two decades of beatings, surveillance, threats, and harassment because of his opposition to the Castro regime. Before arriving at the United States, Ibarra-Perez spent several months in Mexico. While in Mexico, Ibarra-Perez was “extorted by Mexican police officers and other authorities on multiple occasions, and forced to pay officers money in order to avoid detention and deportation to Cuba.” Ibarra-Perez applied for asylum in Mexico. Mexico denied asylum but granted a one-year humanitarian visitor permit.
To escape the threats and extortion in Mexico, Ibarra-Perez presented himself at the DeConcini Port of Entry in Nogales, Arizona in August 2019, seeking asylum in the United States. In September 2019, U.S. Customs and Border Protection took Ibarra-Perez into immigration custody and issued a Notice to Appear, charging him with removability under
Ibarra-Perez filled out a pro se application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) on a Form I-589. Because Ibarra-Perez has limited ability to read and write in English, he had another detained person help him fill out the application. He indicated on the form that “he did not consider Mexico to be a ‘safe country.’” In addition to his Form I-589, Ibarra-Perez submitted a declaration in Spanish that was translated into English. In that declaration, he “detailed the multiple times [he had been] threatened and extorted while in Mexico.” Ibarra-Perez’s Form I-589 and declaration were submitted to the immigration court, and an Immigration and Customs Enforcement (“ICE”) attorney received copies.
On January 10, 2020, Ibarra-Perez had a hearing before IJ Jennifer I. Gaz. Ibarra-Perez appeared pro se. At the hearing, Ibarra-Perez described the persecution he had suffered in Cuba. He explained if he had not received a humanitarian visa from Mexico, he “might have been jailed by the government or deported back to Cuba” or “maybe [he] might have been kidnapped.” He also stated that he feared removal to Mexico. The IJ found that Ibarra-Perez had suffered past persecution in Cuba on account of his political opinion and granted him withholding of removal to Cuba. At no point did the IJ designate Mexico, or any other country, as an alternative country of removal. Government counsel never mentioned Mexico as a possible country of removal during proceedings before the IJ.
In her order withholding removal to Cuba, the IJ wrote that she would have granted asylum to Ibarra-Perez if she had not been prevented from doing so by the Transit Ban then in effect. That ban required migrants who passed overland through another country or countries on their way to the southern border of the United States to first seek asylum in one of those countries. See
Continuing to act pro se and believing that the IJ’s order granting him withholding of removal to Cuba “prevented him from being deported from the United States,” Ibarra-Perez did not appeal the
The government continued to detain Ibarra-Perez. Because withholding of removal is country specific, the government “retain[ed] the authority to remove [Ibarra-Perez] to any other country authorized by statute.” Johnson v. Guzman Chavez, 594 U.S. 523, 536 (2021). On January 14, 2020, an ICE officer contacted consular representatives from Mexico, Nicaragua, and Colombia to inquire whether they would allow Ibarra-Perez entry into their countries. The next day at 12:35 p.m., Mexico agreed to accept him. At about 2:00 p.m. that day, while Ibarra-Perez was in a holding
cell, an ICE agent told him in English that he would be deported to Mexico. Ibarra-Perez, who understood some English, told the officer that he could not go back to Mexico and asked if he could be removed to Spain or Canada instead. The ICE officer promised to return with more information but never came back. Later that day, while Ibarra-Perez was still in the holding cell, an ICE officer with a computer translation program, wrote on the computer that Ibarra-Perez would be deported to Mexico. Ibarra-Perez told the officer that he was afraid to be deported to Mexico. The officer left without providing any further information.
An ICE officer later asked a Spanish speaking guard to translate for Ibarra-Perez. The guard told Ibarra-Perez that he would be deported “whether he liked it or not.” Ibarra-Perez panicked and raised his voice, saying he could not be deported because he had won his case. ICE officers handcuffed Ibarra-Perez, bound him at the ankles and waist, and took him in a van to Florence, Arizona. Ibarra-Perez told an ICE officer at Florence that we was “afraid to be deported to Mexico.” The officer ignored him.
At about 6:00 a.m. on January 16, ICE officers delivered Ibarra-Perez to Mexican officials in Nogales, Sonora, Mexico. At 9:00 a.m., Ibarra-Perez was released from Mexican custody. It was “cold and rainy,” and he was dressed only in the light clothing he had worn when he came to the United States border seeking entry. Ibarra-Perez went to a Mexican government office at about 11:00 a.m. A woman at the office told him to go look for work. At about noon, Ibarra-Perez contacted his daughter in Florida who wired approximately $100 to a bank in Mexico. He slept that night in a church-affiliated shelter.
The next day, January 17, Ibarra-Perez left the shelter to look for work. As he was walking, a truck with three men slowed down next to him. One of the men said he wanted to talk to Ibarra-Perez. Ibarra-Perez tried to keep walking. Another man opened his jacket and showed a gun. The men forced Ibarra-Perez into their truck. One of the men showed Ibarra-Perez photographs taken the day before, including a photograph of him getting the money his daughter had wired to him. The men told Ibarra-Perez that he had two options—to work for them as a drug mule or to pay them $500 per month. Ibarra-Perez told the men that he would give them an answer the next day. He asked them where he could find them. They responded, “We’ll find you.”
Ibarra-Perez went to a food hall run by the “Kino Border Initiative” and told “other immigrants” there what had happened. “They told him he could pay, work for the criminal groups, disappear and end up dead, or turn himself in at the U.S. border.” An attorney from the Florence Immigration & Refugee Rights Project was providing legal services to the Kino Border
On January 21, a new Notice to Appear was issued, charging Ibarra-Perez with removability under
designated during or after removal proceedings—to provide a meaningful opportunity to be heard on asylum and withholding claims regarding any potential country of removal.”
While the reopened proceeding was pending before the IJ, our court held on July 6, 2020, that the Transit Ban was invalid. See E. Bay Sanctuary Covenant v. Barr, 964 F.3d 832 (9th Cir. 2020), amended by, 994 F.3d 962 (9th Cir. 2021). On July 16, the IJ granted asylum to Ibarra-Perez based on his past persecution in Cuba and dismissed his withholding and CAT claims as moot. The government did not appeal. Ibarra-Perez was held in continuous custody from the time of his reentry in January until the IJ’s decision in July.
Ibarra-Perez brought suit under the FTCA for damages suffered as a result of what he contends was an illegal removal to Mexico. He alleges false imprisonment, negligence, abuse of process, and intentional infliction of emotional distress. The district court dismissed his complaint because it concluded it lacked subject matter jurisdiction under
II. Standard of Review
We have appellate jurisdiction under
III. Discussion
A. Country-of-Removal Designations
The statute that governs determination of countries to which a noncitizen can be removed is
After immigration court proceedings have ended, “DHS retains the authority to remove the alien to any other country authorized by the statute.” Johnson, 594 U.S. at 536. If DHS “is unable to remove the alien to the specified or alternative country or countries, the order of the [IJ] does not limit the authority of [DHS] to remove the alien to any other country as permitted by [§ 1231(b)].”
which they will be deported”; otherwise, DHS violates their constitutional right to due process. Andriasian, 180 F.3d at 1041; see also Wani Site v. Holder, 656 F.3d 590, 594 (7th Cir. 2011) (“We recognize that the government retains broad discretion to designate a country of removal . . . . But it must exercise that authority in the appropriate way . . . .”).
B. Section 1252(g)
The only question presented in this case is whether
Section 1252(g) provides in relevant part: “[N]o 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.” (Emphasis added.).
The Supreme Court has given a “narrow reading” to
execute removal orders.’” AADC, 525 U.S. at 482 (emphasis in original) (quoting
The Court has characterized
The government argues that Ibarra-Perez’s FTCA suit, objecting to his removal to Mexico by ICE, falls “squarely” within
Ibarra-Perez raises purely legal arguments in challenging his removal. He does not contend that ICE was categorically forbidden to remove him to Mexico. Rather, he contends that he had a right to meaningful notice and an opportunity to present a fear-based claim before he was removed to Mexico. ICE officials removed Ibarra-Perez to Mexico despite Ibarra-Perez’s Form I-589, declaration, and testimony before the IJ, all of which indicated that he had good reason to fear returning to Mexico, and despite Ibarra-Perez having repeatedly told ICE officials that he so feared. Ibarra-Perez alleges that in removing him to Mexico, ICE officials violated the Due Process Clause of the Fifth Amendment, the Immigration and Nationality Act (“INA”), and international law. For example, he points to our holding
in Andriasian that a “last minute” country of removal designation “violated a basic tenet of constitutional due process.” 180 F.3d at 1041. He also contends that ICE did not have the statutory authority to remove him to Mexico without having first given him an opportunity to present a fear-based claim, pointing out that ICE’s removal authority under
Ibarra-Perez does not challenge ICE’s discretionary authority to decide “when” or “whether” to execute a removal order. See Jimenez-Angeles v. Ashcroft, 291 F.3d at 599; Rauda v. Jennings, 55 F.4th 773, 777 (9th Cir. 2022). He does not claim, for example, that ICE should have delayed his removal or exercised its discretion not to remove him. Instead, he challenges ICE’s separate decision about where to send him. Cf. Johnson, 594 U.S. at 536–40 (removal orders are “separate” from withholding-of-removal orders that limit “where” a noncitizen can be removed). His removal order designated Cuba as his country of removal and did not list an alternative country of removal. Because Mexico was not mentioned in the order of removal, Ibarra-Perez does not challenge the “execution” of his removal order.
There is a reason the Supreme Court has instructed that the jurisdictional bar of
decision by ICE to remove noncitizens to third countries where they would be in danger of persecution, torture, and even death.
Our cases decided under
orders were simply a consequence of the violations, not the basis of the claims.” Id.
Arce, a recent case decided in our circuit, also supports our subject matter jurisdiction. Anaya Arce expressed a fear of harm if removed to Mexico. Arce, 899 F.3d at 798. An asylum officer determined that he had not established a reasonable fear of persecution or torture. Id. An IJ agreed with that determination. Id. at 799. Anaya Arce then obtained a temporary stay of removal from our court. Id. Despite the stay of removal, DHS officials removed him to Mexico. Id. Our court ordered that he be brought back to the United States. Id. Once back in the United States, Anaya Arce brought suit under the FTCA, alleging false arrest and imprisonment, intentional infliction of emotional distress, and negligence. Id. He sought “damages suffered as a result of the wrongful removal.” Id. at 798.
The government argued that the claims in Anaya Arce’s FTCA suit “f[e]ll squarely within the scope of
Ibarra-Perez’s FTCA suit is similarly premised on a lack of legal authority to remove him to Mexico. He argues that before he could be removed to a country not named in his removal order, he had due process and statutory rights to present evidence supporting his contention that he would
suffer cognizable harm if he were removed to that country. He brings nearly identical tort claims to those brought by Anaya Arce, who also sought damages for wrongful removal. Arce forecloses our dissenting colleague’s argument that Ibarra-Perez cannot bring tort claims based on his allegedly wrongful removal to Mexico. Our dissenting colleague attempts to narrow Arce to its facts, arguing that its holding only applies to violations of court orders. However, we see no reason to treat a violation of a Ninth Circuit court order any differently from a violation the Constitution, INA, or international law.
The government relies on our recent decision in Rauda, to argue that
Rauda made no new law. It fits easily into a long series of decisions in our circuit and sister circuits holding that discretionary decisions are shielded from review. See, e.g., Arce, 899 F.3d at 800–01; Hovsepian, 359 F.3d at 1155; Ali,
346 F.3d at 878–79; Barahona-Gomez, 236 F.3d at 1119–21; Cath. Soc. Servs., 232 F.3d at 1150; Kong, 62 F.4th at 617; Madu, 470 F.3d at 1368; Jama v. INS, 329 F.3d 630, 632 (8th Cir. 2003), aff‘d sub nom. Jama v. ICE, 543 U.S. 335 (2005); Bowrin, 194 F.3d at 488. Unlike Rauda, Ibarra-Perez does not challenge ICE‘s discretionary authority about “when” to remove him or “whether” to remove him. Rather, Ibarra-Perez objects to ICE‘s separate decision about “where” to send him. Specifically, he objects to the lack of process afforded him in connection with having been sent to a country not designated in the IJ‘s removal order, despite his vehement and repeated objections that he feared being sent there.
Our dissenting colleague argues at length that
C. Sections 1252(a)(5) and (b)(9)
The government makes no argument under
Despite the refusal of the government to make any argument based on these provisions, our dissenting colleague relies on them to argue that the petition-for-review process in the immigration court was the proper pathway for Ibarra-Perez to challenge his post-hearing removal. We briefly address
Because Ibarra-Perez challenges ICE‘s actions taken after his removal proceedings before the IJ and BIA had ended, neither section applies. Section 1252(a)(5) does not apply because Ibarra-Perez does not seek review of his removal order. See Aden v. Nielsen, 409 F. Supp. 3d 998, 1006 (W.D. Wash. 2019) (holding that a habeas petitioner‘s challenge to a country-of-removal designation was not barred by
Instead, Ibarra-Perez challenges ICE‘s separate and post-hearing decision to remove him to Mexico. He could not have contested this decision through the normal petition-for-review process because it was made after his removal proceedings had ended. The government attorney never mentioned Mexico as a possibility during Ibarra-Perez‘s proceedings before the IJ, and the IJ did not designate Mexico as an alternative country of removal. To state the obvious, Ibarra-Perez could not seek review of a decision that had not been made.
Our dissenting colleague suggests that a motion to reopen is the proper procedural pathway for Ibarra-Perez to challenge his removal to Mexico. He suggests that once Ibarra-Perez had notice that Mexico was his proposed country of removal, he could have moved to reopen his removal proceedings to present a new fear-based claim addressed to Mexico. The suggestion blinks reality. The actions of ICE officials made that impossible. Ibarra-Perez made clear to ICE officials, loudly and repeatedly, that he feared removal to Mexico. Instead of pausing to allow him to file a motion to reopen, they immediately removed him.
In sum, Ibarra-Perez had no reasonable opportunity for judicial review of ICE‘s designation decision through the standard petition-for-review process. Under the dissent‘s expansive interpretation of
The dissent tries to distract us from the jurisdiction question that is before us by focusing on the merits of Ibarra-Perez‘s claims. We repeat: The merits of Ibarra-Perez‘s case are not before us. The question before us is whether the district court
IV. Conclusion
For the foregoing reasons, we reverse the district court‘s dismissal of Ibarra-Perez‘s complaint for lack of subject matter jurisdiction and remand for further proceedings.
REVERSED AND REMANDED.
R. NELSON, Circuit Judge, dissenting:
Ibarra-Perez‘s claims are meritless. In any event, we lack jurisdiction over them. He has improperly repackaged a challenge to his removal proceedings as tort claims. And by asking us to decide whether the government erred in enforcing his removal order, Ibarra-Perez asks us to do what Congress forbids: review the government‘s decision or action to “execute removal orders.”
To hold otherwise, the majority invents an exception to Congress‘s commands. Under the majority opinion, legal questions about the government‘s removal authority are exempt from
The majority‘s holding is radical and sweeping. Under the majority‘s rule, any deportee can evade
The result? The majority intrudes where Congress said, “Keep out.” Our backlogged immigration docket will now overflow more than ever with meritless collateral challenges to removal orders. And the Ninth Circuit will stand in the way as the Executive Branch attempts to faithfully execute the People‘s law. Because Congress has stripped our authority, I would affirm the district court‘s order dismissing Ibarra-Perez‘s suit for lack of jurisdiction. I dissent.
I
Jorge Ibarra-Perez is a Cuban national who lived in Mexico. He alleges that he faced persecution in both countries. He presented at the southern border and sought asylum and withholding of removal. An immigration judge (IJ) found Ibarra-Perez removable, denied asylum, but granted withholding as to Cuba. Withholding of removal is country-specific relief. Johnson v. Guzman Chavez, 594 U.S. 523, 536 (2021). It prohibits the government from removing an alien to a particular country, not from the United States altogether. Id. So the IJ entered an order authorizing Ibarra-Perez‘s removal with only one restriction: Ibarra-Perez couldn‘t be sent to Cuba.
Ibarra-Perez did not appeal his removal order. He waived his right to keep seeking asylum. And he waived any argument that the IJ failed to address his alleged persecution in Mexico. As a result, Ibarra-Perez‘s removal order became final and uncontested. See
The government prepared to enforce the order and sent Ibarra-Perez to Mexico,
Officials sent Ibarra-Perez to Mexico. After he arrived, three men allegedly demanded that he work as a drug mule. The men did not physically harm Ibarra-Perez, and Ibarra-Perez did not suffer any persecution while in Mexico. Still, after only two days in Mexico, he returned to the United States and sued the federal government. He believes the government should have designated Mexico as a country of removal before enforcing his removal order. Because the government didn‘t, Ibarra-Perez argues that his removal was unlawful. He brings claims for false imprisonment, negligence, abuse of process, and intentional infliction of emotional distress under the Federal Tort Claims Act. The Biden Administration argued before the district court that
II
The district court got it right. Congress deprived the federal courts of jurisdiction over Ibarra-Perez‘s tort claims.
A
Section 1252(g) strips jurisdiction over claims “arising from” the “decision or action” to “commence proceedings, adjudicate cases, or execute removal orders.” It applies to “any cause or claim,” “any alien,” and any federal court, and it governs “notwithstanding any other provision of law.” Id. The language is clear. Federal courts should stay out of the enforcement of removal orders.
There is one exception. If another provision within
Everyone agrees Ibarra-Perez‘s suit doesn‘t fall within
Section 1252(g)‘s scope is governed by its text. The statute does not strip jurisdiction over “all deportation-related claims.” Reno v. Am.-Arab Anti-Discrim. Comm. (AADC), 525 U.S. 471, 478 (1999). “[W]hat
B
Ibarra-Perez challenges the execution of his removal order, one of the three actions listed in
Consider next “the action[s] being challenged” in his complaint. Camarena v. ICE, 988 F.3d 1268, 1272 (11th Cir. 2021) (quotation omitted). Ibarra-Perez raises four tort claims. Each is tied to the execution of his removal order. Asserting false imprisonment, Ibarra-Perez alleges that the government wrongfully deprived his liberty by “physically deporting him” to Mexico. Asserting abuse of process, he claims that the government “deport[ed] [him] to a country without lawful notice.” For his negligence claim, Ibarra-Perez argues that the government breached a duty “not to cause harm or injury” when it physically deported him. Finally, Ibarra-Perez alleges that officials intentionally inflicted emotional distress when they deported him to a country where they knew he‘d be harmed. Each claim asserts that the government wrongfully removed him. That is, each attacks the government‘s “decision or action” to “execute [his] removal order[].”
Turn to the relief sought. See Walters v. Reno, 145 F.3d 1032, 1052 (9th Cir. 1998) (considering the remedy). Ibarra-Perez doesn‘t ask for an injunction remedying a due process violation. Cf. id. at 1037, 1052; Cath. Soc. Servs., Inc. v. INS, 232 F.3d 1139, 1142, 1150 (9th Cir. 2000) (en banc). Nor does he seek damages related to conduct collateral to his deportation. He seeks “compensation for the harms and losses he suffered as the result of [his] unlawful deportation.” Put simply, he challenges the execution of his removal order.
Ibarra-Perez‘s briefing is more of the same. In his own words, “he challenges the tortious acts and omissions [of the government] in . . . removing him to Mexico.” Over and over, Ibarra-Perez claims that he “was unlawfully deported,” and that he‘s bringing “a tort claim for an unlawful removal.” Of course, Ibarra-Perez also explains why he thinks his deportation was unlawful. Because the government allegedly failed to designate Mexico as a possible country of removal, the government “lacked the authority . . . to remove him to Mexico.” But that merits-level procedural argument merely explains why Ibarra-Perez thinks the government was wrong to execute his removal order. It doesn‘t change the fact that, at bottom, Ibarra-Perez challenges the execution of that order. And claims challenging the validity of his removal order should have been brought through a motion to reopen.
“No matter how [Ibarra-Perez] frames it,” Rauda v. Jennings, 55 F.4th 773, 778 (9th Cir. 2022), he challenges “the merits of the decision to execute [a] removal order[],” Walters, 145 F.3d at 1052. We lack jurisdiction over such claims.
The majority ignores all this. The majority never describes Ibarra-Perez‘s tort claims. It never discusses Ibarra-Perez‘s concessions, requested remedy, or complaint. Instead, the majority invents an exception to
1
According to the majority,
This conclusion cannot be squared with the facts. By arguing that the government lacked authority to execute his removal order, Ibarra-Perez does just that—argue that the government wrongfully executed his removal order. If that‘s not a challenge to the “decision or action” to “execute removal orders,” what is? See
More to the point, the majority‘s conclusion conflicts with the statutory text. Section 1252(g) applies to “any cause or claim” arising from the execution of removal orders. “Any” means “any.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 218–20 (2008). The statute bars all claims, even if they raise legal questions.
Contrast
Without any textual support, the majority‘s special treatment for legal questions must rest, if at all, on an inference from Congress‘s silence. But Congress wasn‘t silent about the scope of
Even if the statute‘s scope were less clear, the majority‘s inference from silence would fall short. For one, the inference presumes that Congress‘s silent intent matters. Yet as judges, we enforce the written law—not unexpressed intentions. Oklahoma v. Castro-Huerta, 597 U.S. 629, 642–43 (2022).
For another, silence supports conflicting inferences. See United States v. Vonn, 535 U.S. 55, 65–66 (2002). The majority assumes that because Congress didn‘t specifically preclude review of legal questions in
Nor is any explanation possible. Congress has rejected the majority‘s inference from silence. In INS v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court invoked the same inference that the majority relies on here. Because
2
The majority‘s exception also conflicts with Supreme Court precedent. In its seminal
We too have applied
With all this in mind, it‘s no surprise that the majority‘s holding is an outlier. Plaintiffs around the country have argued, just like the majority, that challenges to the government‘s removal authority are exempt from
Our sister circuits gave another reason for rejecting the majority‘s rule. The majority‘s rule “would gut
removal. Or argues that the agency wrongly discounted testimony showing that he‘s entitled to asylum. Or that the agency made the wrong factual findings when rejecting his claim for relief under the Convention Against Torture. Each claim is “premised on a lack of legal authority” to execute a removal order. Maj. at 19. And under the majority‘s theory, every such claim is exempt from
3
Set aside the statutory text, Supreme Court precedent, and the wisdom of our sister circuits. The majority‘s rule still fails.
Section 1252(g) strips jurisdiction over “cause[s] or claim[s].” Thus, the issue is whether Ibarra-Perez‘s tort claims are the type of “cause or claim” that is barred. The majority doesn‘t answer that question. It identifies a single question presented by Ibarra-Perez‘s claims that is purely legal. Yet Ibarra-Perez‘s tort claims present many factual questions, which, under the majority‘s theory, are barred. Did government officials fail to act with reasonable prudence or intend to harm Ibarra-Perez? Did Ibarra-Perez suffer extreme emotional distress in Mexico? What are his damages? By focusing on one legal question and ignoring the many factual questions, the majority neglects to determine our jurisdiction over Ibarra-Perez‘s entire claims.
***
Section 1252(g) means what it says. “[A]ny cause or claim,” legal or otherwise, challenging the execution of removal orders is barred. At the very least, the statute must mean something. And under the majority‘s rule, it means nothing. Every circuit has rejected the majority‘s proposed rule. The statutory text and Supreme Court precedent demand the opposite result.
D
The majority gives five reasons to ignore the statutory text, Court precedent, and out-of-circuit authority. Each argument fails.
1
First, the majority invokes a substantive canon. Citing a “presumption in favor of judicial review,” the majority suggests that any “ambiguities” in
The majority, however, doesn‘t identify any ambiguity in
2
The majority next resorts to statutory purpose. Citing Justice Scalia‘s majority opinion in AADC, the majority notes that
This reasoning is ironic. The majority‘s purpose-based argument rests on a quote from Justice Scalia—perhaps the most vocal opponent of purposivism in living memory. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 16–17 (2012) (“If any interpretive method deserves to be labeled an ideological ‘device’ it is . . . purposivism.“). Only the Ninth Circuit could find an endorsement for a purposivist interpretation from Justice Scalia.2
The majority‘s purpose-based argument fails on three additional levels. First, statutes “often go beyond the principal evil” they are meant to address. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998). As federal courts, we credit “the text of a law” over “purported legislative intentions.” Castro-Huerta, 597 U.S. at 642. What Congress “meant to say” cannot trump “what it did say.” Zuni Pub. Sch. Dist. v. Dep‘t of Educ., 550 U.S. 81, 119 (2007) (Scalia, J., dissenting). Thus, while AADC cited the purpose of
It‘s easy to see why. “Only the written word is the law.” Bostock v. Clayton County, 590 U.S. 644, 653 (2020). The majority uses unwritten purpose to set aside statutory text. That mode of reasoning was common when courts invoked “reason“—or the natural law “written in men‘s hearts“—to
set aside or narrowly construe statutory text. Thomas Aquinas, Summa Theologica Pt. I-II, Q.94, art. 6, s.c. (referencing 2 Corinth. 3:3); id. Q.96, art. 6, co.; see, e.g., Holy Trinity Church v. United States, 143 U.S. 457, 458–59, 470–71 (1892). That mode of reasoning has no place in our interpretive practice today.
Second, the majority‘s argument rests on a false premise. The majority assumes that judicial review of the government‘s removal authority doesn‘t impact prosecutorial discretion. Yet forcing the government to answer in court every time it removes an alien who thinks his removal unlawful would thwart the government‘s discretionary removal authority. By stripping jurisdiction over challenges to the government‘s legal authority to execute removal orders,
Third, the majority‘s argument rests on another false premise. The majority reasons that because
In the end, the majority‘s purpose-based argument is a nonstarter. Purpose can‘t control over unambiguous text, especially when the purpose-based argument relies on false premises. Rather than twisting to invent an exception for Ibarra-Perez, we should have enforced the written law.
3
Third, the majority suggests that its exception is based on precedent. Not so. Our precedent is best read consistent with the statutory text.
a
Start with the case that the majority says is most directly on point, Arce v. United States, 899 F.3d 796 (9th Cir. 2018) (per curiam). There, we stayed an alien‘s removal order while we resolved his petition for review. Id. at 799. The government removed him anyway. The alien sued, and we held that
Arce is inapt. “[B]ut for the violation of the [court order in Arce],”
The majority‘s remaining cases are similarly unhelpful. The majority cites cases that follow Justice Scalia‘s observation about
The majority also quotes restatements of our early
We declined, holding that
Walters, 145 F.3d at 1052, was the first of these cases. The parties agreed that the court had jurisdiction over the underlying claims but disputed whether
Over time, panels began to describe Walters and its progeny less carefully. One panel described Walters as holding that “constitutional challenges to deportation procedures” are exempt from
In context, these restatements of circuit precedent are not as broad as they sound. Each case—both the early cases and the later cases that described them—is best read to go “no further” than limiting
The majority interprets our restatements of circuit precedent as broadly as possible. That‘s an error. The majority makes our restatements of circuit precedent inconsistent with the very cases that they purport to describe. These early cases went “no further” than limiting
Every time we‘ve created an atextual exception to
In our first published decision interpreting
Our next atextual exemption was superseded by Congress. At first, a three-judge panel correctly relied on
Later, a three-judge panel created an exception for Bivens claims. Sissoko v. Rocha, 412 F.3d 1021, 1031-32 (9th Cir. 2005). The panel there invoked the same substantive canon and purpose-based argument that the majority repeats here. Id. Fortunately, we didn‘t let our own error stand. After the government petitioned for rehearing en banc, we withdrew our opinion and replaced it with one that recognized that
Apparently for the majority, three reversals aren‘t experience enough. By creating another atextual exception to
4
The majority also concludes that Ibarra-Perez‘s removal to Mexico was unlawful because his final order of removal did not list Mexico as an alternative country of removal on it. Maj. at 17. As discussed below, the majority incorrectly tips its hand at the merits in making this conclusion. The majority also too narrowly construes the plain text of
The IJ‘s removal order authorized Ibarra-Perez‘s removal from the United States. The only restriction was that the government couldn‘t send him to Cuba. No order—either from the IJ or a court—prohibited the government executing that removal order to send him to Mexico. The government‘s decision to do so thus executed that removal order as ordinarily understood. Section
This conclusion flows naturally from both Supreme Court and Ninth Circuit precedent. The Supreme Court has explained that when “an alien applies for withholding-only relief, he does so as to a particular country.” Johnson, 594 U.S. at 535-36. If an immigration
When the government removes an alien to a country authorized under
5
Finally, the majority tries to reframe Ibarra-Perez‘s tort claims as a due process claim that
The majority cites four cases for the proposition that DHS must “notify individuals who are subject to deportation that they have the right to apply for asylum in the United States and for withholding of deportation to the country to which they will be deported.” Andriasian v. INS, 180 F.3d 1033, 1041 (9th Cir. 1999); see Himri v. Ashcroft, 378 F.3d 932, 938 (9th Cir. 2004); Hadera v. Gonzales, 494 F.3d 1154, 1156-59 (9th Cir. 2007); Dzyuba v. Mukasey, 540 F.3d 955, 957 (9th Cir. 2008) (per curiam). Whatever these cases say about due process, none supports our jurisdiction over Ibarra-Perez‘s tort claims.
To the contrary, these cases prove my point: challenges to removal belong in the petition for review process and we lack jurisdiction of these claims. In each of them, a petitioner challenged removal to a third country on appeal within the petition for review process. See Andriasian v. I.N.S., 180 F.3d at 1039-40 (petitioner appealed through normal immigration appeals to challenge destination of removal as improper); Himri, 378 F.3d at 938 (same); Hadera, 494 F.3d at 1155 (same); Dzyuba, 540 F.3d at 955 (same). Since these cases all arose within the petition for review process,
Rather than reach this conclusion, the majority opinion resorts to bizarre hyperbole as apparent scare tactics. It claims
That statement is false on many levels. ICE has no authority to send a citizen to any country. And its decision to send an alien to any country is bound by the petition for review process Congress provided. None of the provisions the majority cites authorize ICE to remove anyone to any country without review. Such a claim is patently absurd. Section
The majority also concludes that “Ibarra-Perez challenges ICE‘s separate and post-hearing decision to remove him to Mexico.” Maj. at 23.
The majority ignores, however, that ICE removed Ibarra-Perez under the final order of removal entered against him. The decision to send him to Mexico was a part of ICE executing that removal order, permitted under the INA—not a separate decision divorced from the order‘s execution. See Johnson, 594 U.S. at 536. Withholding of removal does not “vacate[] or otherwise set aside” a final order of removal since that order “remains in full force.” Id. “DHS retains the authority to remove the alien to any other country authorized by the statute,” under that final order of removal. Id. ICE‘s decision to remove Ibarra-Perez to Mexico was a choice made to execute the final order of removal entered against him. Even if such a decision were unlawful,
The majority suggests that a motion to reopen removal proceedings could not have helped Ibarra-Perez. Maj. at 23-24. This is nonsense. Ibarra-Perez obtained asylum. How? By moving to reopen, the very mechanism the majority says would not work. The majority even recognizes this. See Maj. at 11. If Ibarra-Perez did suffer an injury, it got cured through the petition for review process that the majority derides. In its excitement to curtail the INS from acting contrary to how the majority wants it to, the majority resorts to pounding square pegs in round holes. And its pegs don‘t fit.
Now Ibarra-Perez brings statutory tort claims outside of that petition for review process. His claims don‘t attempt to remedy the constitutional injury he allegedly suffered by allowing him back into the country through injunctive relief. Indeed, such relief is expressly barred by the FTCA. He instead seeks money damages.
Congress therefore was especially free to strip us of jurisdiction to hear his claims for monetary damages. The United States is “generally immune from suits seeking money damages,” and it is “Congress‘s prerogative, not ours,” to allow such money damage suits against the federal government. Dep‘t of Agric. Rural Dev. Rural Hous. Serv. v. Kirtz, 601 U.S. 42, 48-49 (2024). Although the majority tries to frame Ibarra-Perez‘s claim in terms of constitutional injury,
The two cases the majority cites on this point, Walters v. Reno, 145 F.3d at 1052-53, and Sulit v. Schiltgen, 213 F.3d at 453, do not save it. Neither permits an FTCA claim to proceed when otherwise barred by
We upheld an injunction enjoining the future deportation of aliens receiving inadequate notice under those procedures. Section
When a plaintiff seeks a substantive benefit, such as money damages, such a challenge isn‘t collateral but a direct challenge to the execution of a removal order. Id. The majority cannot rely on Walters. Walters confirms that
Sulit also proves unavailing. In Sulit we held that
The majority attempts to reframe this case as one about curing an alleged due process injury. But Ibarra-Perez‘s claims cannot cure such an injury, as injunctive relief would. Ibarra-Perez was already able to reenter the United States and has received asylum through the statutory petition for review process. In that sense, the system worked just fine for Ibarra-Perez, as Congress provided. He can only win money damages from the United States beyond that if Congress authorizes him to bring such a claim. And here Congress
***
Ibarra-Perez challenges the execution of his removal order, so
III
If
According to the majority, the provision doesn‘t apply because Ibarra-Perez doesn‘t contest the validity of his removal proceedings or removal order. Maj. at 17, 21-23. That argument is refuted by the rest of the majority opinion. Throughout, the majority recognizes that Ibarra-Perez challenges the “procedures” (or lack thereof) leading to his removal. Id. at 24. Section
In arguing otherwise, the majority backs itself into a dilemma. If Ibarra-Perez challenges the government‘s failure to provide adequate process before removing him,
As Ibarra-Perez and the majority face each horn of the dilemma, they make concessions that run headfirst into the other. Trying to avoid
The majority attempts to sidestep this issue by pointing to a footnote in the government‘s brief which states that Ibarra-Perez has disclaimed any challenge to the prior removal proceeding. The majority states that it agrees with the government and thus won‘t find
This sleight of hand gives the game away. If the majority concedes that Ibarra-Perez isn‘t bringing a challenge to his prior removal proceeding, a challenge barred under
IV
Jurisdiction is the only question on appeal. Yet the majority tips its hand on the
A
Start with Ibarra-Perez‘s statutory argument. After an alien is ordered removed,
The second track,
Both tracks carry a caveat. The government may not send an alien to a country where he is likely to be persecuted based on a protected characteristic.
All these provisions come into play only after an alien has been “ordered removed.”
Ibarra-Perez was never allowed into the United States and was placed in removal proceedings at a port of entry. He thus faced the first, less onerous track of designation procedures. See
B
The majority makes a related argument. The majority suggests that a removal order isn‘t enforceable unless it designates a valid country of removal. Removal orders that don‘t designate a valid country can be challenged based on a separate decision of where to send an alien. Maj. at 21.
The Supreme Court has said otherwise. “[T]he finality of the order of removal does not depend in any way on the outcome of [withholding] proceedings.” Johnson, 594 U.S. at 539; see also Nasrallah, 590 U.S. at 582. So has Congress. Congress defines a final removal order as one “concluding that the alien is deportable or ordering deportation.”
Thus, the majority errs in suggesting that Ibarra-Perez‘s removal order was incomplete since it didn‘t designate Mexico. Determining where to send Ibarra-Perez has “nothing to do” with the finality or enforceability of the order allowing the government to remove him. Johnson, 594 U.S. at 545-46; see Nasrallah, 590 U.S. at 582. Once the IJ ordered Ibarra-Perez removed, the government could remove him. See
C
Ibarra-Perez next searches agency regulations for a notice requirement. He first cites
This regulation, however, applies only to aliens in the second designation track, or those removed after being admitting into the United States.
Ibarra-Perez also cites
D
Finally, Ibarra-Perez suggests that due process required the government to designate Mexico before entering and enforcing his removal order.
The Fifth Amendment provides that no “person” may be deprived of “life, liberty, or property, without due process of law.”
These principles are important. Yet we should exercise caution before creating procedural hurdles for our coequal branches. Too often, when courts pick up the due process hammer, everything becomes a nail. Caution is especially important in immigration law. “[O]ver no conceivable subject is the legislative power of Congress more complete.” Reno v. Flores, 507 U.S. 292, 305 (1993) (quotation omitted).
Ibarra-Perez invites us to throw caution to the wind. Ibarra-Perez could have challenged whether he could be removed from the United States and failed in doing so. But he demands another opportunity to challenge the government‘s decision to send him to Mexico over alternative destinations.
Due process guarantees no such opportunity. Due process attaches only to the deprivation of life, liberty, or property. Paul v. Davis, 424 U.S. 693, 700-01 (1976); Kerry v. Din, 576 U.S. 86, 90-92 (2015) (plurality op.). While removal from the United States implicates a liberty interest, Bridges, 326 U.S. at 154; Kerry, 576 U.S. at 91, being sent to Mexico does not. Ibarra-Perez prefers to be sent to Spain or Canada rather than Mexico, but that preference is not “life,” “liberty,” or “property” as those phrases were originally understood. See Kerry, 576 U.S. at 91-92 (canvassing the original meaning). Nor does any statute or regulation grant Ibarra-Perez a liberty interest in being sent somewhere other than Mexico. See id. at 98; Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985). An IJ ordered Ibarra-Perez removed, and the applicable regulations and statute authorized removal to Mexico.
Thus, while due process required the “essential standards of fairness” in determining whether Ibarra-Perez could be removed from the United States, due process said nothing about how the government should have determined where to send Ibarra-Perez. See Yamataya v. Fisher, 189 U.S. 86, 101 (1903) (recognizing only a due process right to be heard on “the questions involving [the] right to be and remain in the United States“). Without an interest in being sent to Spain or Canada, Ibarra-Perez had no constitutional right to notice, or an opportunity to dispute, that he would be sent to Mexico instead.5
Perhaps that feels harsh. Four responses. First, federal judges aren‘t empowered to rectify everything that appears unfair. Deportation to Mexico is neither “a criminal proceeding” nor “punishment,” and “[n]o judicial review is guaranteed by the Constitution.” Carlson v. Landon, 342 U.S. 524, 537 (1952).
Second, aliens need not wait for a list of possible countries of removal before identifying where they fear persecution. Aliens should know the countries in which they fear persecution. Generally, the list of such countries will be short. It‘s not asking much to require aliens to identify those countries on their own.
Third, if process were required, Ibarra-Perez would at most be entitled to an opportunity to seek withholding of removal. And he lacks a meritorious withholding claim. Ibarra-Perez claims that before coming to the United States, Mexican officials required him to pay fees to stay in Mexico. After being removed to Mexico, three men demanded that he act as a drug mule or hand over a fee. At no point does Ibarra-Perez claim that he was physically harmed or subject to a pattern of serious mistreatment. See Sharma v. Garland, 9 F.4th 1052, 1061 (9th Cir. 2021). Under our precedent, Ibarra-Perez‘s vague and unrelated allegations fall short of the “extreme concept” of persecution, which is required for withholding of removal. See id. at 1062. So even if process were required, Ibarra-Perez has no basis to oppose removal to Mexico.
Fourth, Ibarra-Perez received the process that would have been required. He told the IJ that he feared persecution in Mexico, and nothing prevented him from building that argument out. If the IJ rejected his argument, Ibarra-Perez could have appealed to the BIA. If unsuccessful before the BIA, he could have petitioned for our review. And finally, if those were inadequate opportunities to establish persecution in Mexico, Ibarra-Perez could have moved to reopen his removal proceedings to introduce evidence of persecution in Mexico. See 70 Fed. Reg. at 671. The government has suggested that it may agree to reopen proceedings when aliens lack notice of the country of removal. Id. In short, Ibarra-Perez had adequate opportunity to litigate his alleged persecution in Mexico and failed to use that opportunity.
E
This merits discussion confirms that Ibarra-Perez‘s claims are barred by
V
Ibarra-Perez had a final and valid removal order. He claims the government was wrong to execute that order. Congress has precluded us from exercising jurisdiction over such claims. In any event, Ibarra-Perez is wrong that the government removed him unlawfully. Because the majority finds jurisdiction and allows this case to proceed, I dissent.