and Submitted May 15, 2018 Pasadena, California
from the United States District Court for the Central
District of California Philip S. Gutierrez, District Judge,
Presiding D.C. No. 2:16-cv-02419-PSG-MRW
Tolchin (argued) and Megan Brewer, Law Offices of Stacy
Tolchin, Los Angeles, California, for Plaintiff-Appellant
A. Darrow (argued), Trial Attorney; Stacey I. Young, Senior
Litigation Counsel; William C. Peachey, Director; Chad A.
Readler, Principal Deputy Assistant Attorney General; Office
of Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for
Before: Kim McLane Wardlaw, Jacqueline H. Nguyen, and John B.
Owens, Circuit Judges.
panel reversed the district court's dismissal for lack of
jurisdiction of Claudio Anaya Arce's complaint under the
Federal Tort Claims Act for damages suffered as a result of
his removal from the United States in violation of this
court's temporary stay of removal, holding that the
district court erred in concluding that 8 U.S.C. §
1252(g) deprived it of jurisdiction, and remanded.
an immigration judge determined that Anaya had not
established a reasonable fear of persecution or torture, he
filed an emergency petition for review and motion for a stay
of removal with this court. Upon filing, the order of removal
was temporarily stayed until further order of this court.
Despite the issuance of automatic electronic notice of the
stay, a faxed copy of the stay from Anaya's attorney, and
calls by his attorney to the deportation officer assigned to
the case, the Department of Homeland Security removed him to
Mexico where he remained until DHS returned him to the United
States pursuant to this court's order.
sued the United States under the FTCA in district court,
raising claims of false arrest and imprisonment, intentional
infliction of emotional distress, and negligence. The
district court dismissed Anaya's case on the ground that
8 U.S.C. § 1252(g) deprived it of jurisdiction.
1252(g) provides, in part, that "no court shall have
jurisdiction to hear any cause or claim by or on behalf of an
alien arising from the decision or action by the [Secretary
of the Department of Homeland Security] to commence
proceedings, adjudicate cases, or execute removal
panel held that a decision or action to violate a court order
staying removal falls outside of the jurisdiction-stripping
reach of § 1252(g), explaining that Anaya's claims
arise not from the execution of the removal order, but from
the violation of the court's order staying removal. The
panel noted that its interpretation is supported by the
express instructions of the Supreme Court, this court's
precedent, and common sense, all of which require the court
to read the statute narrowly.
panel also noted that, even if it agreed that Anaya's
claims tangentially arise from the execution of the removal
order, the court would retain jurisdiction because the agency
lacked the authority, and therefore the discretion, to remove
Anaya. In this regard, the panel noted that this court has
limited § 1252(g)'s jurisdiction-stripping power to
actions challenging discretionary decisions to
initiate proceedings, adjudicate cases, and execute orders.
panel also acknowledged that the Eighth Circuit, in Silva
v. United States, 866 F.3d 938 (8th Cir. 2017), reached
a contrary result, holding that it lacked jurisdiction over
the FTCA claims of a noncitizen who was wrongfully removed in
violation of stay issued by the BIA.
the panel rejected the government's alternative argument
that Anaya's claims were barred by the FTCA's foreign
country exception, concluding that ...