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Arce v. United States

United States Court of Appeals, Ninth Circuit

August 9, 2018

Claudio Anaya Arce, Plaintiff-Appellant,
v.
United States of America, Defendant-Appellee.

          Argued and Submitted May 15, 2018 Pasadena, California

          Appeal 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

          Stacy Tolchin (argued) and Megan Brewer, Law Offices of Stacy Tolchin, Los Angeles, California, for Plaintiff-Appellant

          Joseph 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 Defendant-Appellee.

          Before: Kim McLane Wardlaw, Jacqueline H. Nguyen, and John B. Owens, Circuit Judges.

         SUMMARY [*]

         Immigration

         The 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.

         After 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.

         Anaya 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.

         Section 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 orders."

         The 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.

         The 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.

         The 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.

         Finally, the panel rejected the government's alternative argument that Anaya's claims were barred by the FTCA's foreign country exception, concluding that ...


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