Metropolitan News-Enterprise


Friday, August 10, 2018


Page 1


Ninth Circuit:

Court Has Jurisdiction in Action Brought by Man Deported in Violation of Stay


By a MetNews Staff Writer


A District Court judge erred in dismissing an action by a Mexican citizen who was deported in violation of a stay order based in his view that jurisdiction was lacking, the Ninth U.S. Circuit Court of Appeals held yesterday.

The man, Claudio Anaya Arce, was apprehended by U.S. Customs and Border Patrol officers in Adelanto, Calif. in 2014. He claimed that he would be persecuted and tortured if he were returned to Mexico, but an asylum officer found his claim unsubstantiated, and the request for asylum was affirmed by an immigration judge.

Anaya Arce filed an emergency petition for review and motion for a stay of removal with the Ninth Circuit, the stay was granted on the morning he filed the papers. Nonetheless, the Department of Homeland Security (“DHS”) removed the man from the United States that same afternoon.

He was returned to the U.S. two weeks later, and sued the United States for false arrest and imprisonment, intentional infliction of emotional distress, and negligence.

Deprivation of Jurisdiction

U.S. District Judge Philip S. Gutierrez of the Central District of California dismissed the action. Although Anaya Arce had complied with the prerequisites of the Federal Tort Claims Act (“FTCA”)—which required him to file a claim with DHS before bringing the suit in the District Court—Gutierrez noted that 8 U.S.C. §1252(g) deprives that court of jurisdiction over any cause or claim arising from, among other things, a removal order by the U.S. attorney general.

The per curiam opinion, signed by Circuit Judges Kim McLane Wardlaw, Jacqueline H. Nguyen, and John B. Owens, notes that Congress transferred the attorney general’s immigration enforcement responsibilities to the secretary of DHS, but in keeping with the language of §1252(g), refers to the secretary as the “attorney general” throughout.

In reversing the dismissal, the panel rejected the government’s contention that the language of §1252(g) serves to strip the district courts of jurisdiction over any action taken in connection with a removal order.

Arise from Violation

The opinion says:

“We do not believe that the statute sweeps as broadly as the government contends. Anaya is not attacking the removal itself, as he does not challenge the validity of his removal order, or claim that the Attorney General should have exercised discretion to delay his removal. Instead, he points out—correctly—that the Attorney General lacked the authority to execute the removal order because of the stay of removal issued by our court. Thus, his claims arise not from the execution of the removal order, but from the violation of our court’s order….Put differently, but for the violation of the stay of removal, Anaya would not have an FTCA claim at all.”

The opinion notes the drastic results suggested by the government’s argument, remarking:

“As government counsel conceded at argument, in its view, the district court would lack jurisdiction even to sanction DHS for intentionally deporting a subpoenaed witness while under a court order not to do so. There is no support for the government’s claim that Congress intended to prohibit federal courts from enforcing any court order so long as it is related to or in connection with an immigration proceeding.”

Yesterday’s decision creates a split between the Eighth and Ninth Circuits. The Eighth U.S. Circuit Court of Appeals reached a contrary result in in 2017.

That case, Silva v. United States, 866 F.3d 938, resulted in a split decision. The panel yesterday adopted the view of the dissenter in that case, Judge Jane L. Kelly.

Kelly wrote that the underlying claims in Silva “cannot be fairly characterized as ‘arising from’ the government’s decision or action to execute a removal order...because there was no enforceable removal order for the government to execute.”

The case is Anaya Arce v. United States, No. 16-56706.


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