Kyle Greene, Associate Member, University of Cincinnati Law Review
As an immigration crisis ensues with caravans of people marching towards the United States for a better life, the topic of immigration has emerged as a hot button issue for many Americans. The President and politicians exacerbate the issue with powerful rhetoric, and now more than ever, it is important to know what rights aliens have if they are wrongfully removed from the United States. The problem however, is that the federal courts cannot decide amongst themselves exactly how far those rights extend. A major concern many aliens may have after reaching the U.S. is what relief is available when they believe the United States government wrongfully removed them from the country. This particular circumstance usually arises when a stay of removal order is issued for an immigrant within the U.S., but they are nonetheless removed by the Attorney General (by proxy of Homeland Security). The primary vehicle aliens typically use is the Federal Torts Claims Act (“FTCA”). A fundamental difference in how the courts analyze if there is a FTCA claim available stems from the statutory construction judges apply to U.S.C. § 1252 (g) (“1252g”). 1252g strips jurisdiction from aliens if the claim “arises from” a removal decision by the Attorney General. This creates the absurd result where the federal government can be held tortuously liable under the FTCA to an alien in one part of the country, and immune in another. Recent case law exemplifies the circuit split between federal courts. Ultimately, Congress needs to address the issue by amending 1252g to better guide the courts on legislative intent.
The Federal Torts Claims Act and U.S. Code 1252 (g) in the context of wrongful removal cases.
The Federal Torts Claims Act provides a cause of action against the federal government for intentional torts and negligent acts by U.S. officials working in the scope of their employment. The relevant provisions states: “the district courts . . . shall have exclusive jurisdiction against the United States . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment.” Frequently, when aliens are wrongfully removed by the federal government they sue under the FTCA alleging false imprisonment, emotional distress, or negligence. In the alien removal context, however, circuit courts are split on if 8 U.S.C. 1252g (“1252g”) strips aliens from having jurisdiction under the FTCA. 1252g states: “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from a decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any aliens.” In an ordinary removal action, the plain language clearly would strip aliens of their jurisdiction. However, cases alleging an FTCA violation frequently deal with a situation where a stay of removal or some caveat exists in the facts. Under certain circumstances it is less clear that the cause or claim “arises” from a legal action by the Attorney General. Herein lies the split.
The argument against jurisdiction under 1252g in a wrongful removal suit.
In Silva v. United States, Lopez Silva, a Mexican citizen who entered the United State as a lawful U.S. resident was convicted of two criminal offenses. The government initiated removal proceedings against Silva, and the judge ordered U.S. Officials to remove Silva from the United State. Silva filed a timely appeal, which automatically stayed the execution of her removal order pending her appeal. Despite the stay of removal order, the government removed Silva to Mexico. The U.S. government realized their mistake and returned Silva to U.S. soil. After appeal, an immigration judge canceled the removal order, so Silva remained in the U.S. as a lawful citizen. Silva then brought suit against the U.S. government under the FTCA, claiming false imprisonment, emotional distress, and negligence. The Eighth Circuit dismissed the case for lack of jurisdiction pursuant to 1252g. The Eighth Circuit held that the Supreme Court ruled 1252g only applies to the three specific actions enumerated in the provision, and thus, it does not apply to deportation cases more generally.” Since in Silva’s case the Attorney General technically did not have the discretion to remove Silva (the stay of removal order took that discretion away), it would not fall under the three actions in 1252g. However, the Eight Circuit further explained that “this reference to discretionary decisions did not say that [1252g] applies only to discretionary decision, notwithstanding plain language that includes no such limitation.” Moreover, the Eighth Circuit cited the Supreme Court decree that “Congress often passes statutes that sweep more broadly than the problem they were designed to address.” Taken together, the Supreme Court never expressly said 1252g applies only to discretionary decisions, and since Congress passes statutes that can sweep more broadly than intended, the removal action by the Attorney General, while not technically discretionary in this case, can still fall under 1252g as an action or decision to remove by the Attorney General.
The Argument for jurisdiction under 1252g in a wrongful removal suit
Judge Kelly’s dissenting opinion in Silva saw things differently. Judge Kelly reasoned that the removal order was barred while his appeal was pending. The pending appeal automatically took away any source of authority the Attorney General had to remove him. Judge Kelly reasoned that “Silva’s claims resulting from this violation cannot be fairly characterized as ‘arising from’ the government decision or action to execute a removal order. . . . they cannot arise from the government execution of a removal order because there was no enforceable removal order for the government to execute.” Instead, Silva’s claim arose from the violation of the automatic stay of removal, therefore, it did not fall under the three actions taken by the Attorney General under 1252g that strip jurisdiction.
In Arce v. United States, The Ninth Circuit Court of Appeals echoed the reasoning of Judge Kelly’s dissenting opinion. Similar to Silva’s facts, the Attorney General ordered removal of Anaya Arce from the United States to Mexico. Arce appealed, and the order of removal was automatically stayed while the appeal was pending. The U.S. government disregarded the stay order and removed Arce from the United States. Pursuant to a court order, U.S. Officials returned Arce to the U.S. and he suited under the FTCA. After citing much of the same language from Reno v. United States as the Eight Circuit, the Ninth Circuit took a narrow interpretation of 1252g reasoning that it only applied to discretionary decisions by the Attorney General. Moreover, The Ninth Circuit cited Judge Kelly’s dissent in Silva and agreed that the case does not “arise from” an action of removal by the Attorney General, but instead, from the violation of a mandatory stay order. They continued that “[p]ut differently, but for the violation of the stay of removal, Anaya would not have an FTCA claim at all.”
Both sides of the split underwent statutory construction to
determine the breadth of 1252g by looking at the plain language of the
provision in conjunction with Supreme Court cases on the subject. Notably,
Judge Kelly’s dissent and the Ninth Circuit seem to take a narrower approach in
interpreting the plain language of the statue. 1252g appears to aim at avoiding
an endless stream of judicial intervention in straight forward alien removal
It is less likely that the legislaturer intended for the U.S. government the
ability to disobey stay on removal orders with no repercussions or remedy for
those harmed. The Ninth Circuit goes to some length to decide that 1252g must
apply not just to a discretionary removal decision by the Attorney General, but
any removal decision, even when it directly contradicts a court order. The
result of this reasoning will lead to inequitable cases where aliens are
unlawfully thrown out of the country, into possibly dangerous conditions, only
to be told they were not supposed to leave the U.S. in the first place. It is
doubtful that lawmakers intended for such a result. It is up to the legislative
branch to draft laws in a manner that the judicial branch can clearly discern
their meaning and intent (within constitutional bounds of course). Federal
courts will continue to disagree on the scope of 1252g unless the provision is
amended. In the meantime, aliens
unlawfully removed from the country will be at whim of their jurisdiction. In
some parts of the country, they will be provided recourse, and in others, they
are at the full disposal of the U.S. government. Our government should strive
for transparency and clear direction as to what the law is. In regard to the
FTCA and 1252g, they have failed in that respect.
 28 U.S.C. § 1346 (b) (2013).
 8 U.S.C. § 1252 (2005).
 28 U.S.C. § 1346(b) (2013).
 E.g., Arce v. U.S., 899 F.3d 796, 799 (9th Cir. 2018); See also, Avalos-Palma v. U.S., 2014 WL 3524758, at 1 (D.N.J. July 16, 2014).
 8 U.S.C.A. § 1252(g) (2005).
 Silva v. U.S., 866 F.3d 938 (8th Cir. 2017).
 Id. at 939.
 Id. See also 8 C.F.R. § 1003.6(a).
 Id. (citing Reno v. American Arab Anti-Discrimination Committee, 525 U.S. 471 (1999)).
 Id. at 941.
 Gonzales v. Oregon, 546 U.S. 243, 288 (2006).
 See Silva, 866 F.3d at 941-942.
 Id. at 942 (Kelly, J., dissenting) (citing Nken v. Holder, 556 U.S. 418, 428-29 (2009)).
 Arce, 899 F.3d at 800.
 Id. at 800.
 Silva, 866 F.3dat941.