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Silva v. United States

United States Court of Appeals, Eighth Circuit

August 9, 2017

Jesus Eduardo Lopez Silva, Plaintiff- Appellant,
v.
United States of America, Defendant-Appellee. American Immigration Council; National Immigration Project of the National Lawyers Guild, Amid on Behalf of Appellant.

          Submitted: February 7, 2017

         Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before LOKEN, COLLOTON, and KELLY, Circuit Judges.

          COLLOTON, CIRCUIT JUDGE

         Jesus Eduardo Lopez Silva sued the government under the Federal Tort Claims Act and the Constitution, seeking compensation for harms arising from his alleged wrongful removal to Mexico. The district court[1] concluded that it lacked subject matter jurisdiction over the action and dismissed Lopez Silva's complaint. We conclude that 8 U.S.C. § 1252(g) precludes the exercise of jurisdiction and therefore affirm.

         I.

         Lopez Silva is a Mexican citizen who entered the United States as a lawful permanent resident in 1992. He was convicted of two criminal offenses in Minnesota, and the government initiated removal proceedings against him in April 2012. An immigration judge ordered Lopez Silva removed to Mexico, but he filed a timely appeal to the Board of Immigration Appeals. An appeal automatically stays the execution of a removal order while the appeal is pending. 8 C.F.R. § 1003.6(a).

         Despite the stay of the removal order, the government removed Lopez Silva to Mexico on July 17, 2013. After realizing the mistake, agents of the government returned Lopez Silva to the United States in September 2013. An immigration judge ultimately granted Lopez Silva's application for cancellation of removal, so he remained lawfully in the United States.

         Lopez Silva then sued the government to seek compensation for harm allegedly arising from an unlawful removal. He brought several claims under the Federal Tort Claims Act and several claims alleging violations of his rights under the Fourth and Fifth Amendments. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

         The government moved to dismiss for lack of subject matter jurisdiction based on 8 U.S.C. § 1252(g). The district court granted the motion and dismissed the complaint. Lopez Silva appeals, and we review the decision on jurisdiction de novo. Allen v. United States, 590 F.3d 541, 544 (8th Cir. 2009).

         II.

         This dispute concerns the scope of the limitation on a district court's jurisdiction set forth in 8 U.S.C. § 1252(g). That provision states in relevant part that "no 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 [Secretary of the Department of Homeland Security] to commence proceedings, adjudicate cases, or execute removal orders against any alien."[2] The government's position, accepted by the district court, is that Lopez Silva's claims arise from a decision to execute a removal order against an alien, so the court lacked jurisdiction to hear the claims.

         Lopez Silva and his supporting amici respond that the alien's claims do not arise from a decision or action to execute a removal order, but rather from a violation of the stay of removal proceedings. We disagree with this characterization. The governing regulations provide that a removal order "shall not be executed" while an administrative appeal is pending. 8 C.F.R. § 1003.6(a). But the removal order here still existed after the administrative appeal was filed, and the authorities mistakenly executed the order. A claim that is "connected directly and immediately" to a decision to execute a removal order arises from that decision. Humphries v. Various Fed. USINS Emps., 164 F.3d 936, 943 (5th Cir. 1999). Although the execution of this removal order happened to be in violation of a stay, the alien's claims are directly connected to the execution of the removal order. See Foster v. Townsley, 243 F.3d 210, 214-15 (5th Cir. 2001); see also Gupta v. McGahey, 709 F.3d 1062, 1065 (11th Cir. 2013) (per curiam). We therefore conclude that Lopez Silva's claims arise from a decision or action to execute a removal order.

         Lopez Silva contends alternatively that even if his claims arise from a decision to execute a removal order, the limitation on jurisdiction in § 1252(g) applies only to discretionary decisions of the Secretary. He argues that the Secretary and his subordinates had no discretion to ignore the stay of removal while Lopez Silva's administrative appeal was pending. The statute, however, makes no distinction between discretionary and nondiscretionary decisions. So ...


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