Jesus Lopez Silva v. United States

866 F.3d 938
CourtCourt of Appeals for the Eighth Circuit
DecidedAugust 9, 2017
Docket16-1870
StatusPublished
Cited by39 cases

This text of 866 F.3d 938 (Jesus Lopez Silva v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jesus Lopez Silva v. United States, 866 F.3d 938 (8th Cir. 2017).

Opinions

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 court1 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 immi.gration 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, 91 S.Ct. 1999, 29 L.Ed.2d 619 (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).

[940]*940II.

This dispute concerns the scope of the limitation bn 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 governmént’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 am-ici 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 mis-, takenly 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 eonnected 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 executp a removal order, the limitation on jurisdiption 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 long as the claim arises from a decision to execute a removal order, there is no jurisdiction. Accord Foster, 243 F.3d at 214-15.

Lopez Silva urges that Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999), requires us to narrow the scope of § 1252(g) to discretionary decisions of the Secretary. The Court in AADC addressed whether § 1252(g) applied to aliens who were already in either exclusion or deportation proceedings on the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The Court explained that § 1252(g) “applies only to three discrete actions that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adju[941]*941dicate cases, or execute removal orders’” it does not apply to deportation cases more generally. Id. at 482, 119 S.Ct. 936.- In explaining the history of the provision, the Court at one point observed that § 1252(g) “seems clearly designed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process that Congress has designed.” Id. at 485,119 S.Ct. 936. But this reference to discretionary decisions did not say that § 1252(g) applies only to discretionary decisions, notwithstanding plain language that includes no such limitation. “Congress often passes statutes that sweep more broadly than the main problem they were designed to address.” Gonzales v. Oregon, 546 U.S. 243, 288, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006). The terms of the statute, not the principal concerns of the enacting legislators, must govern. Id.

Lopez Silva contends that the district court’s ruling conflicts with Jama v. Immigration & Naturalization Service, 329 F.3d 630 (8th Cir. 2003), aff'd,

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866 F.3d 938, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jesus-lopez-silva-v-united-states-ca8-2017.