Well, this one sure looks suspicious.
Jorge Felix Ibarra-Perez, an alien who sought asylum in the United States in 2019, sued the United States for damages under the Federal Tort Claims Act on the ground that it improperly removed him to Mexico in 2020. In a divided ruling today (in Ibarra-Perez v. United States), a Ninth Circuit panel majority holds that a federal statute, 8 U.S.C. § 1252(g), that deprives federal courts of jurisdiction “to hear any cause or claim by or on behalf of any alien arising from the decision or action . . . to commence proceedings, adjudicate cases, or execute removal orders” does not bar Ibarra-Perez’s lawsuit.
Judge William Fletcher, who is probably the successor to Stephen Reinhardt as the most aggressively liberal judge on the Ninth Circuit, wrote the majority opinion, which Judge Michael Hawkins joined. (Both are Clinton appointees.) Fletcher maintains that Ibarra-Perez’s objection to his removal to Mexico is not a challenge to the “execut[ion]” of a removal order under section 1252(g) because Ibarra-Perez “raises purely legal arguments in challenging his removal” and “does not challenge ICE’s discretionary authority to decide ‘when’ or ‘whether’ to execute a removal order.” I’m having difficulty making any sense of these arguments.
In dissent, Judge Ryan Nelson (a Trump appointee) argues that Ibarra-Perez “has improperly repackaged a challenge to his removal proceedings as tort claims”:
[B]y asking us to decide whether the government erred in enforcing his removal order, Ibarra-Perez asks us to do what Congress forbids: review the government’s decision or action to “execute removal orders.”
To hold otherwise, the majority invents an exception to Congress’s commands. Under the majority opinion, legal questions about the government’s removal authority are exempt from § 1252(g). This exception is foreclosed by the statutory text and Supreme Court precedent. And every circuit to address the majority’s exception has rejected it. Congress meant what it said: “any cause or claim” arising from the execution of removal orders is barred.
The majority’s holding is radical and sweeping. Under the majority’s rule, any deportee can evade § 1252(g) and raise any claim about the government’s authority to deport him.
The result? The majority intrudes where Congress said, “Keep out.” Our backlogged immigration docket will now overflow more than ever with meritless collateral challenges to removal orders. And the Ninth Circuit will stand in the way as the Executive Branch attempts to faithfully execute the People’s law. Because Congress has stripped our authority, I would affirm the district court’s order dismissing Ibarra-Perez’s suit for lack of jurisdiction.