Durbin v. Reno ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50742
Summary Calendar
LUCRECIA PILAR DURBIN and
DAVID LEON DURBIN,
Plaintiffs-Appellants,
versus
JANET RENO et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-98-CV-35
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July 1, 1999
Before POLITZ, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Lucrecia and David Durbin appeal the district court’s
dismissal of their complaint arising out of deportation
proceedings brought against Lucrecia Durbin. On March 5, 1997,
an immigration judge ordered Lucrecia Durbin deported.
Subsequently, the Durbins requested a writ of mandamus ordering
the appellees to issue a certificate of citizenship to Lucrecia
Durbin. The Durbins contend that Lucrecia, who is a native of
Guatemala, is a United States citizen by virtue of her marriage
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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to David. The Durbins also seek money damages for alleged
constitutional violations committed by the appellees during
Lucrecia’s application for citizenship and during deportation
proceedings. They claimed that appellees discriminated against
the class of women who derived United States citizenship from the
citizenship of their husbands, and discriminated against the
class of men whose wives derived United States citizenship from
the citizenship of their husbands. David Durbin also alleged
that he was unlawfully arrested by border patrol officials Larry
Nichols, J.M. Kohlman, and Mike Wilson, giving rise to a claim
under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388
(1971).
Pursuant to 8 U.S.C. § 1252(g), “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 Attorney General
to commence proceedings, adjudicate cases, or execute removal
orders against any alien under this Act.” The Durbins’ request
for mandamus arises from the Attorney General’s initiation of
deportation proceedings against Lucrecia Durbin. The district
court properly concluded that it did not have subject-matter
jurisdiction to hear the Durbins’ request for mandamus. See Reno
v. American-Arab Anti-Discrimination Comm., 119 S. Ct. 936
(1999); see also Humphries v. Various Federal USINS Employees,
164 F.3d 936, 942 (5th Cir. 1999).
The Durbins claim for money damages based on discrimination
also arose from the Attorney General’s initiation of deportation
proceedings. The district court properly concluded that it did
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not have subject-matter jurisdiction on that issue. Id.
Accordingly, On these issues, the district court’s decision is
AFFIRMED.
David Durbin’s claim of unlawful arrest, however, is not
jurisdictionally barred under § 1252(g). See Humphries, 164 F.3d
at 941 (holding that appellant’s claims of involuntary servitude
and mistreatment while in detention were not barred by § 1252(g).
Accordingly, the district court’s decision is VACATED and the
case REMANDED for consideration of the merits of David Durbin’s
claim of unlawful arrest.
AFFIRMED in part, VACATED and REMANDED in part.