Last August, a divided panel of the Ninth Circuit held (in Ibarra-Perez v. United States) 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” did not bar an alien’s lawsuit arising from enforcement of his removal order. As I highlighted back then, Judge Ryan Nelson in dissent condemned the holding as “radical and sweeping.”
Today the Ninth Circuit denied en banc rehearing in the case. Judge Carlos Bea, joined by eleven of his colleagues, objected vigorously to the denial and explained at length how wrong the panel holding is—it “makes no sense on its own terms and has been rejected by every other circuit that has considered it”—and how disruptive it has already been.
It’s a safe bet that the Supreme Court will reverse the panel ruling.