PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-1862
JUAN CARLOS BLANCO AYALA,
Plaintiff – Appellant,
v.
UNITED STATES OF AMERICA,
Defendant – Appellee.
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AMERICAN IMMIGRATION COUNCIL; NATIONAL IMMIGRANT JUSTICE CENTER,
Amici Supporting Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T.S. Ellis, III, Senior District Judge. (1:18-cv-01012-TSE-JFA)
Argued: October 29, 2020 Decided: December 2, 2020
Before WILKINSON, HARRIS, and RICHARDSON, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Harris and Judge Richardson joined. ARGUED: Mark Alastair Stevens, MURRAY OSORIO PLLC, Fairfax, Virginia, for Appellant. Elizabeth A. Spavins, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Tamara L. Jezic, JEZIC & MOYSE, LLC, Wheaton, Maryland, for Appellant. G. Zachary Terwilliger, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Mark Fleming, NATIONAL IMMIGRANT JUSTICE CENTER, Chicago, Illinois; Mary Kenney, Washington, D.C., Trina Realmuto, Emma Winger, AMERICAN IMMIGRATION COUNCIL, Brookline, Massachusetts, for Amici American Immigration Council and The National Immigrant Justice Center.
2 WILKINSON, Circuit Judge:
Juan Carlos Blanco Ayala brings this Federal Tort Claims Act (FTCA) suit against
the United States for wrongful investigation, arrest, and detention. The district judge held
that the discretionary function exception to the FTCA’s waiver of sovereign immunity
operated to defeat plaintiff’s claims. See 28 U.S.C. § 2680(a). For the following reasons,
we affirm.
I.
Plaintiff Blanco was born in El Salvador in 1978 and moved to the United States as
a young child. In 1983, his parents divorced without a decree of custody. He became a
lawful permanent resident in 1987, and his father was naturalized in 1995. At the time of
his father’s naturalization, Blanco lived with his father in Washington, D.C.
In February 2004, Blanco traveled from the United States to El Salvador. Upon his
return to the United States, he was questioned several times by Customs and Border
Protection (CBP) about his criminal convictions. He allegedly informed the officers that
he lived with his father as a lawful permanent resident, that his father was a U.S. citizen,
and that his parents had divorced without a custody decree. Blanco also claimed he asked
the officers to investigate whether he was a U.S. citizen.
According to CBP emails, the officers concluded that Blanco was not a U.S. citizen
because “his father d[id] not have legal custody in writing” and therefore Blanco “did not
3 qualify for derivative citizenship.” 1 J.A. 9. The CBP informed Blanco of this, took him
into immigration detention, and began removal proceedings. At the removal hearing,
Blanco allegedly conceded all charges against him, including that he was not a U.S. citizen.
In September 2004, an immigration judge ordered him removed, after which Blanco did
not seek relief from removal or appeal the decision. He was removed from the United
States to El Salvador in December.
Shortly after his removal, Blanco returned to the United States. U.S. Immigration
and Customs Enforcement (ICE) officers took him into custody and detained him in
November 2015. His 2004 removal order was reinstated. While he was in custody, his
attorney presented evidence that Blanco was a citizen to the government, and ICE released
him in April 2016. After his release, Blanco obtained a certificate of citizenship from the
U.S. Citizenship and Immigration Services that showed a date of citizenship of June 8,
1995.
Blanco filed an administrative claim for damages with the Department of Homeland
Security (DHS) in 2017. DHS denied his claims. Thereafter, he sued the United States
under the FTCA in the Eastern District of Virginia in August 2018 for (1) assault and
battery, (2) false arrest and imprisonment, (3) intentional infliction of emotional distress,
1 Under the statute operative when Blanco’s father was naturalized in 1995, “[a] child born outside of the United States of alien parents . . . becomes a citizen of the United States upon . . . [t]he naturalization of the parent having legal custody of the child when there has been a legal separation of the parents” if the “naturalization takes place while such child is unmarried and under the age of eighteen; and [s]uch child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent.” 8 U.S.C. § 1432(a) (1994) (repealed 2000).
4 (4) negligence, and (5) negligent infliction of emotional distress. The district court
dismissed the case under Rule 12(b)(1) for lack of subject matter jurisdiction, finding that
the allegedly tortious conduct fell within the discretionary function exception to the
FTCA’s waiver of sovereign immunity. Blanco Ayala v. United States, 386 F. Supp. 3d
635, 637 (E.D. Va. 2019).
Plaintiff timely appealed the district court’s decision. We have jurisdiction under
28 U.S.C. § 1291 to review the final judgment of the district court. We review this Rule
12(b)(1) dismissal de novo. Holbrook v. United States, 673 F.3d 341, 345 (4th Cir. 2012).
II.
As a general rule, the United States is immune from claims for money damages in
civil suits. See Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 686–90
(1949). The FTCA waives the United States’ sovereign immunity for civil suits for money
damages “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.” 28 U.S.C. § 1346(b)(1). Where the FTCA’s waiver
is operative, the government is liable in tort “in the same manner and to the same extent as
a private individual under like circumstances.” Id. § 2674. However, this broad waiver of
sovereign immunity is cabined by a list of exceptions. See id. § 2680. As relevant to the
instant case, the FTCA’s waiver does not apply to “[a]ny claim . . . based upon the exercise
or performance or the failure to exercise or perform a discretionary function or duty on the
part of a federal agency or an employee of the Government, whether or not the discretion
involved be abused.” Id. § 2680(a).
5 The exceptions to the FTCA’s immunity waiver work to defeat the subject matter
jurisdiction of the federal courts. Indemnity Ins. Co. of N. Am. v. United States, 569 F.3d
175, 180 (4th Cir. 2009). Thus, the burden is on the plaintiff in such a civil suit to establish
“that the discretionary function exception does not foreclose their claim.” Seaside Farm,
Inc. v. United States, 842 F.3d 853, 857 (4th Cir. 2016).
This exception represents one limit to the extent of “Congress’ willingness to
impose tort liability upon the United States.” United States v. S.A. Empresa de Viacao
Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984). It exists to prevent
interference by the judiciary in the policy-laden balancing that accompanies the exercise
of executive discretion. See Baum v. United States, 986 F.2d 716, 720 (4th Cir. 1993);
Tiffany v. United States, 931 F.2d 271, 276 (4th Cir. 1991). Most importantly, the
exception protects that “discretion of the executive . . . to act according to [his] judgment
of the best course, a concept of substantial historical ancestry in American law.” Dalehite
v. United States, 346 U.S. 15, 34 (1953). Taken together, these considerations make
manifest the important separation-of-powers principles that animate the discretionary
function exception. See Holbrook v. United States, 673 F.3d 341, 345 (4th Cir. 2012).
To determine whether the exception applies, we must first ascertain whether the acts
in question “are discretionary in nature,” such that they “involv[e] an element of judgment
or choice.” United States v. Gaubert, 499 U.S. 315, 322 (1991) (quoting Berkovitz v.
United States, 486 U.S. 531, 536 (1988)). The exception does “not apply when a federal
statute, regulation, or policy specifically prescribes a course of action for an employee to
follow.” Berkovitz, 586 U.S. at 536.
6 Second, we must determine whether the challenged “governmental actions and
decisions” were “based on considerations of public policy.” Id. at 537. When statutes,
regulations, or agency guidelines grant discretion to a government agent, “it must be
presumed that the agent’s acts are grounded in policy when exercising that discretion.”
Gaubert, 499 U.S. at 324. In conducting this analysis, we do not “inquire whether policy
considerations were actually contemplated in making a decision.” Smith v. Wash. Metro.
Area Transit Auth., 290 F.3d 201, 208 (4th Cir. 2002). Rather, we consider only whether
“the nature of the challenged decision in an objective, or general sense, . . . is one which
we would expect inherently to be grounded in considerations of policy.” Baum, 986 F.2d
at 721.
III.
Having reviewed the discretionary function exception’s framework, we now turn to
Blanco’s claims in the instant case. He has alleged that DHS officers are liable for assault,
battery, false arrest, false imprisonment, intentional infliction of emotional distress,
negligence, and negligent infliction of emotional distress arising out of their arrest,
detention, transportation, and incorrect citizenship determination of Blanco. See J.A. 11–
13. Plaintiff argues that DHS officers do not have discretion to arrest, detain, and deport
U.S. citizens, and thus the discretionary function exception does not apply. We are
unpersuaded. Discretion lies at the heart of the DHS law enforcement function. See Arpaio
v. Obama, 797 F.3d 11, 16 (D.C. Cir. 2015) (recognizing DHS enforcement discretion). In
deciding whom to investigate, detain, and then remove, DHS officers must make all the
kinds of classic judgment calls the discretionary function exception was meant to exempt
7 from tort liability. See Suter v. United States, 441 F.3d 306, 311 (4th Cir. 2006)
(recognizing discretion in FBI’s investigative choices); see also Tsolmon v. United States,
841 F.3d 378, 382–84 (5th Cir. 2016) (recognizing discretion in CBP’s investigation and
detention of H1-B temporary worker).
A.
We begin by considering the first Berkovitz prong—whether the government
conduct “involves an element of judgment or choice.” 486 U.S. 531, 536 (1988). Plaintiff
and the government offer two different frames for analyzing the DHS officers’ decisions
to investigate, arrest, detain, and deport in this case. Blanco claims we should segment this
sequence. While he concedes that investigation may be a discretionary undertaking, he
claims that the same cannot be said for arrest and detention. The government frames these
actions as a single immigration enforcement process. We think plaintiff’s attempt to slice
up the process is unfounded.
The law enforcement function is a continuum where the products of the
investigation are integrally related to the decision on whether to proceed further with
detention and removal. “No one can doubt that the investigation of (potential) crimes” is
a “discretion-laden subject[].” Linder v. United States, 937 F.3d 1087, 1091 (7th Cir.
2019). The later steps of detention and removal depend in part upon facts gathered during
the investigation and the conclusions drawn from those facts. Thus, the decisions to detain
and remove are discretionary because they are bound up in the decisions surrounding the
investigatory step.
8 But that is not the only way in which the decisions to detain and remove are
discretionary. They are discretionary even independently of the investigation because they
depend on a further decision to prosecute and remove. See Medina v. United States, 259
F.3d 220, 227 (4th Cir. 2001) (recognizing INS’ prosecutorial discretion). There may be
many situations with similar facts and legal considerations that lead to different decisions
depending, in part, on “whether [a] particular enforcement action . . . best fits the agency’s
overall policies.” Heckler v. Chaney, 470 U.S. 821, 831 (1985). Thus, this process is
infused with discretion thrice-over—whether to investigate a possible violation of
immigration law, how to conduct that investigation, and then whether to bring an
enforcement action after drawing factual and legal conclusions. And none of those
discretion-laden questions can be disentangled from the other two.
The statutory language supports the government’s view of the discretion afforded
to DHS officers. The grant of arrest authority to DHS officers is when he or she “has
reason to believe that the alien so arrested is in the United States in violation of” federal
law. 8 U.S.C. § 1357(a)(2); see also id. § 1357(a)(4). When there is a warrant, “an alien
may be arrested and detained.” Id. § 1226(a) (emphasis added). Plaintiff attempts to locate
a mandatory directive that no law enforcement officer may arrest and detain a U.S. citizen.
It would be an odd corpus of law, however, that did not contain somewhere within it some
provision that could be seen as a mandatory directive. But we must “construe the nature
of the statutory and regulatory regime as a whole,” not isolate an individual provision from
its context. Seaside Farm, Inc. v. United States, 842 F.3d 853, 859 (4th Cir. 2016); see
also Holbrook v. United States, 673 F.3d 341, 348 (4th Cir. 2012) (recognizing that “[t]he
9 existence of some mandatory language does not eliminate discretion” (quoting Miller v.
United States, 163 F.3d 591, 595 (9th Cir. 1998))). In this case, federal law has explicitly
underscored the discretion of law enforcement by using a “reason to believe” standard.
Such a standard recognizes that judgment calls must be made about the significance of the
evidence DHS officers have collected.
Plaintiff’s argument fails for a second, related reason. Having recognized that the
DHS officers’ choice to investigate Blanco and how they conducted that investigation were
discretionary, he nonetheless argues that they did not have discretion to “incorrectly appl[y]
the law to the facts and wrongly identif[y] Blanco as a noncitizen.” Opening Br. of
Appellant at 24; see also id. at 24–25. This is effectively arguing that the officers’ actions
were not discretionary because they were negligent in executing their mandate. But the
discretionary function exception protects government decisions “even when made
negligently.” Wood v. United States, 845 F.3d 123, 128 (4th Cir. 2017). And the statutory
language goes further—it provides protection from suit “whether or not the discretion
involved be abused.” 28 U.S.C. § 2680(a); see also Holbrook, 673 F.3d at 350 (noting that
the “exception applies ‘even if the discretion has been exercised erroneously’” (quoting
United States v. Gaubert, 499 U.S. 315, 338 (1991) (Scalia, J., concurring in part and
concurring in the judgment)). The ultimate decisions of law enforcement officers need not
be correct in order to be exempted from the FTCA’s waiver of sovereign immunity under
the discretionary function exception. Plaintiff’s position would be akin to concluding that
a district court did not exercise discretion in applying law to facts when its decision is later
10 overturned on appeal. This misunderstands both the nature of discretion and how human
judgment is exercised.
It is of course the case that many grants of immunity expressly contemplate that a
mistake may be made without loss of a legal shield. See, e.g., Bradley v. Fisher, 80 U.S.
(13 Wall.) 335, 347–51 (1871) (discussing judicial immunity). In this particular case, there
is a dispute over the DHS officers’ mistake as to plaintiff’s derivative citizenship and
plaintiff’s alleged concession of alienage before the immigration judge. We do not,
however, see the debate over these particular facts as one that is dispositive. An immunity
expresses a willingness to tolerate the occasional mistake in the service of a larger public
good. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (including public goods
such as protecting the public fisc from “the expenses of litigation,” preventing “the
diversion of official energy from pressing public issues,” and avoiding “the deterrence of
able citizens from acceptance of public office”). The discretionary function exception’s
language—“whether or not that discretion be abused”—makes perfectly clear that the
FTCA regime accepts a similar tradeoff. And, for immunity to have meaning, it must work
to protect the government from the burdens of litigation, not just the burdens of an adverse
judgment. See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 526–27 (1985).
The common good here is, in part, grounded in the need for effective enforcement
of immigration policy—a policy which touches upon vital national interests in law
enforcement at the borders. See, e.g., United States v. Flores-Montano, 541 U.S. 149,
152–53 (2004) (recognizing heightened government interest in law enforcement at its
borders). And while it may not appear that an individual arrest and detention has broad
11 policy implications, it is inescapable that when considered in the aggregate, the drawbacks
of accepting plaintiff’s position are quite large. A system in which every instance of
mistaken arrest or detention could give rise to a suit in tort would seriously hamstring DHS
in its efforts to enforce immigration law. Not surprisingly, Judge Learned Hand put it best:
“[T]o submit all officials, the innocent as well as the guilty, to the burden of a trial and to
the inevitable danger of its outcome, would dampen the ardor of all but the most resolute,
or the most irresponsible, in the unflinching discharge of their duties.” Gregoire v. Biddle,
177 F.2d 579, 581 (2d Cir. 1949).
B.
Next, we turn to the second Berkovitz prong—whether the DHS officers’ actions
were “based on considerations of public policy.” Berkovitz, 486 U.S. at 537. The relevant
inquiry here is not whether the decisions in question occurred at a “planning” level or
“whether policy considerations were actually contemplated in making a decision,” Smith
v. Wash. Metro. Area Transit Auth., 290 F.3d 201, 208 (4th Cir. 2002); rather, the proper
inquiry is whether, considering “the inherent, objective nature of the challenged
decision[s],” they are “actions of the type normally thought to involve policy choices,”
Baum, 986 F.2d at 721. As the Supreme Court has noted, the grant of discretion “creates
a strong presumption that a discretionary act” so authorized “involves consideration[s]” of
public policy. Gaubert, 499 U.S. at 324.
In the instant case, it is clear for many of the reasons above discussed that plaintiff
has failed to meet his burden of establishing that there are no considerations of public
policy in this case. DHS officers’ decisions in investigating and responding to potential
12 violations of immigration law are infused with public policy considerations. See Medina,
259 F.3d at 228–29 (holding that the decision to arrest and detain immigrant was “clearly
clothed in public policy considerations”); see also Gray v. Bell, 712 F.2d 490, 513 (D.C.
Cir. 1983) (“Prosecutorial decisions as to whether, when and against whom to initiate
prosecution are quintessential examples of governmental discretion in enforcing the
criminal law, and, accordingly, courts have uniformly found them to be immune under the
discretionary function exception.”). First, since they cannot catch all violators, DHS
officials must allocate limited agency resources so as to prioritize the most important cases.
See Borzilleri v. Mosby, 874 F.3d 187, 191 (4th Cir. 2017) (recognizing in the First
Amendment context that prosecutors must make policy judgments in allocating limited
resources). In deciding how to investigate Blanco’s claims and what to do with that
information, the officers exercised discretion in allocating their time, legal resources, and
detention capacity. Second, in making these immigration enforcement decisions, the
executive must confront issues which have “the natural tendency to affect diplomacy,
foreign policy, and the security of the nation.” Tun-Cos v. Perrotte, 922 F.3d 514, 526 (4th
Cir. 2019) (quoting Mirmehdi v. United States, 689 F.3d 975, 983 (9th Cir. 2012)). Taken
together, these resource and foreign policy considerations demonstrate that Blanco has not
met his burden on the second Berkovitz prong.
C.
Plaintiff is correct that this decision, combined with our Tun-Cos opinion on the
availability of a Bivens suit, leaves potential victims of allegedly tortious actions by
immigration officials without recourse to money damages. But that absence is not due to
13 the judiciary, but rather Congress, which need not have waived immunity at all. Going
back to the English Chancery, waivers of immunity have always been acts of grace, not of
right. See 1 William Blackstone, Commentaries *243 (“[I]f any person has, in point of
property, a just demand upon the king, he must petition him in his court of chancery, where
his chancellor will administer right as a matter of grace, though not upon compulsion.”).
The safeguards against unfortunate mistakes in this whole field lie not in a tort action
but in the elaborate administrative removal process, which involves multiple proceedings
before an immigration judge, the Board of Immigration Appeals, and, finally, the federal
courts. See 8 U.S.C. §§ 1229a, 1252; 8 C.F.R. §§ 1003.1–.3.
Finally, we note that plaintiff’s position would throw us into conflict with other
courts, which is never desirable in an area such as immigration, where the national interest
across many different regions is the same as we have annunciated here. See Arteaga-Ruiz
v. United States, 705 F. App’x 597, 598 (9th Cir. 2017). Discretionary decisions by DHS
officials lie at the heart of national immigration policy and the potential interference of
plaintiff’s tort suit with the effectuation of that policy is clear.
IV.
The government advances many other reasons why Blanco’s claim should be
defeated: the FTCA’s due care exception, the FTCA’s judicial immunity exception, the
FTCA’s statute of limitations, and the Immigration and Nationality Act’s jurisdictional bar.
Because the discretionary function exception applies so plainly here, we need not consider
the government’s other arguments. For the foregoing reasons, the judgment is
AFFIRMED.