Background
Jorge Felix Ibarra-Perez filed a suit under the Federal Tort Claims Act for damages resulting from his removal to Mexico. The Immigration Judge had ordered removal to Cuba but withheld removal to Cuba due to persecution risks. After the proceedings concluded, the government designated Mexico as the country of removal. The panel held that this post-hearing decision to remove to Mexico was not barred by the jurisdiction-stripping provision of the Immigration and Nationality Act.
The court’s reasoning
The panel majority reasoned that the statutory bar applies only to the three discrete actions of commencing proceedings, adjudicating cases, or executing removal orders as listed in the statute. Since the removal order did not mention Mexico and the decision to remove to Mexico was made after the hearing, it was not an execution of the removal order. The dissent argued that this interpretation ignores clear statutory language and allows aliens to bypass the exclusive petition-for-review process by alleging a lack of legal authority.
The dissent
What it means going forward
The denial of rehearing en banc leaves the panel’s decision in place, allowing district courts to exercise jurisdiction over claims alleging the government lacked legal authority to remove noncitizens to third countries, potentially leading to injunctions against removal orders.