Riccy Enriquez-Perdomo v. Ricardo Newman ( 2022 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0259p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
RICCY MABEL ENRIQUEZ-PERDOMO,
│
Plaintiff-Appellant, │
> No. 20-6393
│
v. │
│
RICARDO A. NEWMAN, et al., │
Defendants-Appellees. │
┘
Appeal from the United States District Court for the Western District of Kentucky at Louisville.
No. 3:18-cv-00549—Charles R. Simpson, III, District Judge.
Argued: July 22, 2021
Decided and Filed: December 5, 2022
Before: BATCHELDER, WHITE, and DONALD, Circuit Judges.
_________________
COUNSEL
ARGUED: Benjamin T. D. Pugh, PUGH & ROACH ATTORNEYS AT LAW, PLLC,
Covington, Kentucky, for Appellant. Timothy D. Thompson, UNITED STATES
ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellees. ON BRIEF: Benjamin T. D.
Pugh, Christopher D. Roach, PUGH & ROACH ATTORNEYS AT LAW, PLLC, Covington,
Kentucky, Michael J. O’Hara, O’HARA, TAYLOR, SLOAN & CASSIDY, Crestview Hills,
Kentucky, for Appellant. Timothy D. Thompson, UNITED STATES ATTORNEY’S OFFICE,
Louisville, Kentucky, for Appellees.
WHITE, J., delivered the opinion of the court in which DONALD, J., joined.
BATCHELDER, J. (pp. 19–21), delivered a separate dissenting opinion.
No. 20-6393 Enriquez-Perdomo v. Newman, et al. Page 2
_________________
OPINION
_________________
HELENE N. WHITE, Circuit Judge. Plaintiff-Appellant Riccy Enriquez-Perdomo
appeals the district court’s dismissal of her claims against Defendants-Appellees United States
Immigration and Customs Enforcement (ICE) officers Ricardo Newman, Joseph Phelps, John
Korkin, and Shawn Byers (collectively, “Defendants”), brought under the First, Fourth, and Fifth
Amendments to the United States Constitution. The district court dismissed Enriquez-Perdomo’s
complaint for lack of subject-matter jurisdiction under 8 U.S.C. § 1252(g). We AFFIRM the
dismissal of Enriquez-Perdomo’s First Amendment retaliation claim, VACATE the judgment
with respect to her other claims, and REMAND for further proceedings consistent with this
opinion.
I.
A. Factual Background
Enriquez-Perdomo is a Honduran national and resident of Florence, Kentucky. In August
2004, when Enriquez-Perdomo was nine years old, an immigration judge in Harlingen, Texas,
ordered that she be removed to Honduras after she failed to appear at her removal hearing. The
next month, on September 16, 2004, an Immigration and Naturalization Service (INS) official
signed a warrant of removal/deportation. The INS directed Enriquez-Perdomo to report to
Harlingen in October 2004, but never removed her.
In 2012, the Department of Homeland Security (DHS) instituted an immigration-relief
program called Deferred Action for Childhood Arrivals (DACA). Under DACA, certain young
immigrants may apply for a renewable two-year deferral of removal. DACA applies only to
persons who immigrated to the United States when they were under the age of sixteen; were
under the age of thirty-one in 2012; have continuously resided in the United States since 2007;
are currently in school, have completed high school, have obtained a general-education-
development certificate, or are honorably discharged veterans; have not been convicted of a
felony, a significant misdemeanor, or multiple misdemeanors; and pose no threat to national
No. 20-6393 Enriquez-Perdomo v. Newman, et al. Page 3
security or public safety. DHS “exercis[es] its prosecutorial discretion” to defer removal under
DACA “on an individual basis.” R. 29-1, PID 152–53. The Secretary of Homeland Security’s
memorandum announcing DACA (the “DACA Memorandum”) explained that “[a]s part of this
exercise of prosecutorial discretion, the above criteria are to be considered whether or not an
individual is already in removal proceedings or subject to a final order of removal.” Id.In March 2013, United States Citizenship and Immigration Services (USCIS) approved
Enriquez-Perdomo for DACA. She renewed her DACA status in March 2015 and January 2017.
As of the events giving rise to this lawsuit, Enriquez-Perdomo had DACA status that was active
through January 30, 2019. DHS never terminated her DACA status.
On August 17, 2017, Enriquez-Perdomo went to an ICE office in Louisville, Kentucky,
to post bond for ICE detainees. Enriquez-Perdomo’s complaint alleges that during her visit,
Defendants checked the government’s database and confirmed that she had received DACA, but
nevertheless arrested and detained her. According to the complaint, Defendants did not obtain a
warrant for her arrest or inform her of the reason for her arrest. She claims that her arrest was
motivated in part by her ethnicity and in part by her assistance of ICE detainees.1
Enriquez-Perdomo alleges that prior to her arrest, she had visited the ICE office
frequently, was on a first-name basis with many of the ICE agents and staff, and had provided
free interpretation services to ICE agents; that during her visits to that office, ICE agents,
including Newman, had confirmed her immigration status; and that when Phelps, Korkin, and
Byers arrested her, Newman informed them that there was no lawful basis to do so. Enriquez-
Perdomo further alleges that Defendants transported her between several different facilities in
three states and deprived her of sleep and food during her eight days in custody.
B. Procedural History
Enriquez-Perdomo sued Defendants in their individual capacities, asserting five claims
for money damages under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388(1971): (1) unconstitutional arrest and imprisonment under the Fourth Amendment,
1
These claims are not relevant to our analysis.
No. 20-6393 Enriquez-Perdomo v. Newman, et al. Page 4
(2) unconstitutional pretrial detention under the Fourth Amendment, (3) First Amendment
retaliation, (4) violation of due process under the Fifth Amendment, and (5) violation of equal
protection under the Fifth Amendment.
Defendants filed a “motion to dismiss/motion for summary judgment” under Rules
12(b)(1), 12(b)(6), and 56 of the Federal Rules of Civil Procedure, arguing that 8 U.S.C.
§ 1252(g) deprived the court of jurisdiction to consider Enriquez-Perdomo’s claims. They also
asserted that Enriquez-Perdomo failed to state a claim because no Bivens remedy is available for
the claims she asserts, and that Defendants are entitled to qualified immunity.2
Defendants submitted evidence to “challeng[e] the factual existence” of subject-matter
jurisdiction. R. 20-1, PID 61. Newman submitted a declaration, asserting that on August 17,
2017, his office conducted searches in USCIS’s “Computer-Linked Application Information
Management System” (CLAIMS) and “Person Centric Query Service” (PCQS) databases, which
revealed that Enriquez-Perdomo was “subject to an active removal order and warrant of removal
and, further, did not have any current legal status.” R. 20-4, PID 86. He also stated that he
reviewed the CLAIMS, PCQS, and “ENFORCE Alien Removal Module” (EARM) databases,
which “confirmed that [Enriquez-Perdomo] was subject to an existing removal order from 2004
and that her [DACA] expired in March 2017.” Id. at PID 86–87. Newman asserted that he could
not confirm that Enriquez-Perdomo had DACA status in his search of the databases. Id. at PID
87. He also claimed that he notified Enriquez-Perdomo that “she was being charged under
8 U.S.C. § 1182.” Id. Newman further declared that after Enriquez-Perdomo was detained and
transferred to Chicago for removal, “it was discovered that USCIS had begun inputting DACA
information into the Electronic Immigration System (ELIS) [database,] and CLAIMS and PCQS
no longer had the most up-to-date information.” Id.Korkin submitted declarations confirming that the CLAIMS, PCQS, Enterprise
Document Management System, and Central Index System databases all failed to reveal that
Enriquez-Perdomo had active DACA status. He asserted that he was not aware that USCIS had
2
The district court did not address these additional issues, finding no jurisdiction.
No. 20-6393 Enriquez-Perdomo v. Newman, et al. Page 5
begun entering DACA information into ELIS, nor that the databases he searched had not been
updated.
Enriquez-Perdomo opposed Defendants’ motion, submitting a declaration that conflicted
with Newman’s. Enriquez-Perdomo then filed a motion for a stay pending discovery under Rule
56(d) of the Federal Rules of Civil Procedure. The district court granted the stay, limiting
discovery to the issue of subject-matter jurisdiction, and specifically to “(1) document discovery
to obtain the electronic and other documents that Defendants relied upon in deciding to detain
and transport [Enriquez-Perdomo] on August 17, 2017; (2) evidence regarding what information
Defendants relied upon in deciding to detain and transport [Enriquez-Perdomo;] . . . and
(3) information regarding the authenticity of the warrant of removal/deportation.” R. 37, PID
474.
After jurisdictional discovery, Enriquez-Perdomo filed a supplemental opposition to
Defendants’ motion, attaching an expert declaration from Mark Lanterman, Chief Technology
Officer of Computer Forensic Services. Lanterman stated that “Newman conducted a person and
activity search of CIS, CLAIMS3, CLAIMS4, ELIS[,] and ELIS 2” on August 17, 2017, and
Enriquez-Perdomo’s DACA status was listed in the ELIS 2 database as of January 5, 2017.
R. 60-2, PID 553–54.
In response, Defendants submitted a declaration from Jeffrey A. Wilson, the Unit Chief
of the Information Technology Management for Enforcement and Removal Operations at ICE.
According to Wilson, Newman conducted a search for Enriquez-Perdomo in the EARM
database, which displayed “Yes” in the “Proceed With Removal” field. Wilson stated that the
“Proceed With Removal” field was updated to “No” on August 30, 2017. Newman submitted
another declaration clarifying the information that he reviewed. He asserted that he reviewed the
EARM database, which listed Enriquez-Perdomo’s “case category” as “8C,” meaning “subject to
a final order of removal”; listed her “processing disposition” as “Bag and Baggage,” meaning
that she had been ordered removed by an immigration judge; showed a “Current/Active Alert”
indicating that she was “subject to a final order of removal and, if located, [she] should be
detained and removed”; and displayed “Yes” in the “Proceed With Removal” field. R. 61-3, PID
583–84. Newman also declared that he did “not recall requesting [PCQS] to search [the ELIS or
No. 20-6393 Enriquez-Perdomo v. Newman, et al. Page 6
ELIS 2 databases] for information about . . . Enriquez-Perdomo”; “[a]t the time that Ms.
Enriquez-Perdomo was detained, [he] was unfamiliar with ELIS and ELIS 2”; and he “believed
[that] CLAIMS and CLAIMS 2 contained the most up-to-date DACA information.” Id. at PID
584.
C. District Court’s Decision
The district court dismissed Enriquez-Perdomo’s claims, concluding that it was deprived
of jurisdiction by 8 U.S.C. § 1252(g), which states, in relevant part, that “no court shall have
jurisdiction to hear any cause or claim by . . . any alien arising from the decision or action by the
Attorney General to . . . execute removal orders against any alien under this chapter.” The
district court reasoned:
It is undisputed that Enriquez-Perdomo’s profile showed that she was subject to a
final order of removal because her “Case Category” was an “8C,” her “Processing
[Disposition]” was labeled “Bag and Baggage,” there was a “Current/Active
Alert[]” that showed “F.O[.] of Removal,” and the word “Yes” was listed beside
the words “Proceed With Removal.” It is also undisputed that the populated table
under EARM’s tab labeled “Actions/Decisions” provided a description that
Enriquez-Perdomo was “Ordered Excluded / Deported / Removed.” It should be
noted that later, the word “No” was listed beside the phrase “Proceed With
Removal,” but this did not appear in the EARM database until after Enriquez-
Perdomo was arrested.
Based on this information, Newman ordered that Enriquez-Perdomo be detained.
He then recorded on Form I-213 that “[a]n extensive search of DHS databases
revealed ENRIQUEZ [sic] to be subject of [] a final order [Bag and Baggage],”
Enriquez-Perdomo “had DACA which expired on 03/19/2017,” and that she was
“removable in accordance with . . . 8 [U.S.C. §] 1182.”
Enriquez-Perdomo disputes neither (1) that she was subject to a valid removal
order nor (2) that Newman’s review of her file in EARM revealed that she was
subject to a valid removal order. But she contends that her claims do not arise
from a decision or action to execute a removal order because her DACA status
prevented the Defendants from executing an order of removal against her. We
disagree with her circular reasoning. The 2004 order of removal still existed after
Enriquez-Perdomo initially obtained DACA status in 2013, no court had filed an
order that stayed her removal, and the Defendants mistakenly executed the valid
removal order after reviewing Enriquez-Perdomo’s profile in the EARM database
that provided numerous indications that she was actively subject to removal. In
fact, one of the exhibits offered by Enriquez-Perdomo confirms that her “Case
Category” was an “8C.” Although the execution of the removal order should not
No. 20-6393 Enriquez-Perdomo v. Newman, et al. Page 7
have been carried out, Enriquez-Perdomo’s claims are directly connected to the
Defendants’ decision to execute a valid removal order against her. Thus,
Enriquez-Perdomo fails to demonstrate that her claims do not stem from the
enforcement of a valid removal order.
R. 62, PID 602–03 (citations omitted).
II.
A. Facial Versus Factual Attack
A defendant can challenge subject-matter jurisdiction in one of two ways: a facial attack
or a factual attack. Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir. 2012).
“A facial attack on the subject-matter jurisdiction alleged in the complaint questions merely the
sufficiency of the pleading.” Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320,
330 (6th Cir. 2007). When considering a facial attack, we “tak[e] the allegations in the
complaint as true,” and “[i]f those allegations establish federal claims, jurisdiction exists.” Id.We review de novo a district court’s resolution of facial challenges to subject-matter jurisdiction.
Wayside Church v. Van Buren County, 847 F.3d 812, 817 (6th Cir. 2017), abrogated on other
grounds by Knick v. Township of Scott, 139 S. Ct. 2162, 2167–68 (2019). “A factual attack, by
contrast, is advanced when the movant contests the alleged jurisdictional facts by introducing
evidence outside the pleadings.” Gaetano v. United States, 994 F.3d 501, 505 (6th Cir. 2021).
“In such a case, the district court has wide discretion to allow affidavits, documents, and even a
limited evidentiary hearing to resolve jurisdictional facts, and the court can actually weigh
evidence to confirm the existence of the factual predicates for subject-matter jurisdiction.” Id.(citations and internal quotation marks omitted). When considering a factual attack, we review
for clear error the district court’s factual findings and review de novo the district court’s
application of law to facts. See id. at 505–06. The district court concluded that Defendants’
challenge to subject-matter jurisdiction was a factual attack.
Defendants agree that their motion was a factual attack on subject-matter jurisdiction.
They argue that “[t]hey filed with their motion to dismiss declarations and Enriquez-Perdomo’s
final order of removal and warrant of deportation/removal establishing that the district court
lacked subject matter jurisdiction”; that “Enriquez-Perdomo responded to Defendants’ motion to
No. 20-6393 Enriquez-Perdomo v. Newman, et al. Page 8
dismiss and presented her own evidence”; and that “the district court weighed all of the evidence
put before it and made factual findings in its memorandum opinion dismissing Enriquez-
Perdomo’s [c]omplaint.” Appellees’ Br. at 12–13.
Enriquez-Perdomo argues that the motion was a facial attack. She asserts that
“Defendants have not challenged the existence of the primary factual prerequisite, i.e., that
Plaintiff, in fact, had approved DACA status at the time of her arrest”; that there is “no factual
dispute regarding the fact that there was no active order of removal at the time of her arrest in
that [she] had approved DACA status”; and that “the district court rendered no specific findings
of fact regarding material facts that were disputed by the parties, i.e., whether any facts support
Defendants’ contention that they had no knowledge of Plaintiff’s active DACA status.”
Appellant’s Br. at 18–19.
On the one hand, Defendants sought to demonstrate facts showing that 8 U.S.C.
§ 1252(g) applies—namely, that Enriquez-Perdomo “was detained because of her order of
removal.” R. 61, PID 559. The district court granted limited jurisdictional discovery of, among
other things, “the electronic and other documents that Defendants relied upon in deciding to
detain and transport [Enriquez-Perdomo] on August 17, 2017.” R. 37, PID 474. And, the district
court found that “Newman ordered that Enriquez-Perdomo be detained” at least in part “[b]ased
on th[e] information” regarding her removal order in the government databases. R. 62, PID 602.
On the other hand, the district court could have resolved the jurisdictional issue by considering
only the undisputed fact—alleged in the complaint and conceded by Defendants—that Enriquez-
Perdomo had DACA status when Defendants arrested and detained her. See infra Section II.B.
We need not characterize Defendants’ challenge as a facial or factual attack for purposes
of this appeal because, in any event, we review de novo the district court’s resolution of the
central legal issue underlying subject-matter jurisdiction in this case: whether 8 U.S.C. § 1252(g)
bars Enriquez-Perdomo’s suit even though her DACA status rendered her removal order
unenforceable.
No. 20-6393 Enriquez-Perdomo v. Newman, et al. Page 9
B. Subject-Matter Jurisdiction
8 U.S.C. § 1252(g) provides:
(g) Exclusive jurisdiction
Except as provided in this section and notwithstanding any other provision of law
(statutory or nonstatutory), including section 2241 of Title 28, or any other habeas
corpus provision, and sections 1361 and 1651 of such title, 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 General3 to commence proceedings,
adjudicate cases, or execute removal orders against any alien under this chapter.
Congress initially passed the provision as part of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009, and amended the
provision as part of the REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 231.4
1.
To assess § 1252(g)’s scope, we first consider the statute’s text. See Nebraska v. Parker,
577 U.S. 481, 488 (2016). For purposes of this case, we focus on the meaning of the statute’s
phrase “execute removal orders.” Because the statute does not define the term, we “give the
term its ordinary meaning.” United States v. Riccardi, 989 F.3d 476, 486 (6th Cir. 2021)
(quoting United States v. Zabawa, 719 F.3d 555, 559 (6th Cir. 2013)); see also Bostock v.
Clayton County, 140 S. Ct. 1731, 1738 (2020) (“This Court normally interprets a statute in
accord with the ordinary public meaning of its terms at the time of its enactment.”). “To discern
that ordinary meaning, [a statute’s] words must be read and interpreted in their context, not in
isolation.” Southwest Airlines Co. v. Saxon, 142 S. Ct. 1783, 1788 (2022).
Considering the term “removal orders” in § 1252(g) in context alongside the preceding
word “execute,” we read “removal orders” as referring to executable removal orders—that is,
3
The statute’s reference to the “Attorney General” is now synonymous with the “Secretary of DHS.”
Elgharib v. Napolitano, 600 F.3d 597, 607 (6th Cir. 2010). The Homeland Security Act of 2002 “transferred the
Attorney General’s immigration enforcement responsibilities to the Secretary of DHS.” Arce v. United States, 899
F.3d 796, 799 n.4 (9th Cir. 2018) (citing 6 U.S.C. § 202(3); Clark v. Martinez, 543 U.S. 371, 374 n.1 (2005)).
4
The REAL ID Act amended § 1252(g) by adding “(statutory or nonstatutory), including section 2241 of
title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title” after
“notwithstanding any other provision of law.” REAL ID Act of 2005, Pub. L. 109-13, § 106(a), 119 Stat. 231, 311.
No. 20-6393 Enriquez-Perdomo v. Newman, et al. Page 10
existing and enforceable removal orders subject to execution. But Enriquez-Perdomo’s removal
order was not subject to execution because she had DACA status when Defendants arrested and
detained her.
As the Supreme Court has explained, “DACA is not simply a non-enforcement policy”—
that is, “the DACA Memorandum did not merely refus[e] to institute proceedings against a
particular entity or even a particular class.” Dep’t of Homeland Sec. v. Regents of Univ. of Cal.,
140 S. Ct. 1891, 1906 (2020) (internal quotation marks omitted). Rather, the DACA
Memorandum “directed USCIS to establish a clear and efficient process for identifying
individuals who met the enumerated criteria,” and established an adjudicative process for
“conferring affirmative immigration relief.” Id. (internal quotation marks omitted).
Notwithstanding her removal order, Enriquez-Perdomo was eligible to be considered for
DACA relief. When she became a DACA recipient, she was granted “affirmative . . . relief”
from removal. See Regents, 140 S. Ct. at 1906. Although the government was free to terminate
that relief, it did not, and Enriquez-Perdomo’s arrest and detention despite that relief were
unauthorized. Accordingly, § 1252(g) does not preclude Enriquez-Perdomo’s claims because
her removal order was not executable.5
2.
“[I]f the text [of a statute] is unclear, we may look at ‘[t]he broader context’ of the statute
and statutory purpose together to resolve the ambiguity.” United States ex rel. Felten v. William
Beaumont Hosp., 993 F.3d 428, 431 (6th Cir. 2021) (quoting Robinson v. Shell Oil Co., 519 U.S.
337, 345–46 (1997)); see also John F. Manning, What Divides Textualists from Purposivists?,
106 Colum. L. Rev. 70, 84 (2006) (“Because speakers use language purposively, textualists
recognize that the relevant context for a statutory text includes the mischiefs the authors were
addressing. Thus, when a statute is ambiguous, textualists think it quite appropriate to resolve
that ambiguity in light of the statute’s apparent overall purpose.”). Accounting for the possibility
that the phrase “execute removal orders” in § 1252(g) is ambiguous, we also assess § 1252(g)’s
5
In concluding that Enriquez-Perdomo’s removal order was not “executable,” we do not draw any
conclusions about other circumstances in which removal orders may not be “executable.” Rather, our analysis is
limited to the circumstances of this case.
No. 20-6393 Enriquez-Perdomo v. Newman, et al. Page 11
applicability in light of Congress’ purpose in enacting it. The statutory purpose supports
jurisdiction.
In Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999)
[hereinafter AADC], the Supreme Court interpreted § 1252(g) “narrow[ly],” holding that the
jurisdictional bar applies “only to three discrete actions that the Attorney General may take: her
‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’”
Id. at 482 (quoting 8 U.S.C. § 1252(g)). The Court noted that the provision does not preclude
“all claims arising from deportation proceedings,” including challenges to “decisions to open an
investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include
various provisions in the final order that is the product of the adjudication, and to refuse
reconsideration of that order.” Id. The Court also addressed Congress’ motivation in enacting
the provision:
There was good reason for Congress to focus special attention upon, and make
special provision for, judicial review of [the three discrete actions enumerated in
§ 1252(g)]—which represent the initiation or prosecution of various stages in the
deportation process. At each stage the Executive has discretion to abandon the
endeavor, and at the time IIRIRA was enacted the INS had been engaging in a
regular practice (which had come to be known as “deferred action”) of exercising
that discretion for humanitarian reasons or simply for its own convenience. . . .
Since no generous act goes unpunished, however, the INS’s exercise of this
discretion opened the door to litigation in instances where the INS chose not to
exercise it. . . .
Section 1252(g) seems clearly designed to give some measure of protection to “no
deferred action” decisions and similar discretionary determinations, providing that
if they are reviewable at all, they at least will not be made the bases for separate
rounds of judicial intervention outside the streamlined process that Congress has
designed.
Id. at 483–85; see also id. at 485 n.9 (explaining that § 1252(g) “was directed against a particular
evil: attempts to impose judicial constraints upon prosecutorial discretion”); id. at 486
(describing the “theme” of IIRIRA as “protecting the Executive’s discretion from the courts”);
id. at 487 (referring to the provision as a “discretion-protecting provision . . . specifically
directed at the deconstruction, fragmentation, and hence prolongation of removal proceedings”).
No. 20-6393 Enriquez-Perdomo v. Newman, et al. Page 12
Congress’ purpose, as articulated in AADC, supports our interpretation that “execute
removal orders” contemplates removal orders that are subject to execution. By definition, when
a removal order is not subject to execution, government officials have no authority, discretionary
or otherwise, to execute it. As noted previously, when Enriquez-Perdomo became a DACA
recipient, she was granted “affirmative . . . relief” from removal. See Regents, 140 S. Ct. at
1906. Consequently, her removal order was not subject to execution, and Defendants did not
have authority to arrest or detain her. And, because our textual interpretation does not allow for
judicial review of governmental decisions that Congress intended to shield from review, our
reading of § 1252(g) comports with Congress’ purpose in enacting it.
We note that, in considering the provision’s purpose, we find it unnecessary to take a
position on the circuit split regarding whether § 1252(g) applies only to discretionary decisions
and actions. Rather, we rely on AADC’s discussion of Congress’ purpose to assess whether our
reading is consistent with that purpose. We conclude that it is.6
6
Although not argued by the parties, a “familiar principle of statutory construction”—the “presumption
favoring judicial review of administrative action”—also supports jurisdiction. See Guerrero-Lasprilla v. Barr,
140 S. Ct. 1062, 1069 (2020) (quoting Kucana v. Holder, 558 U.S. 233, 251 (2010)). “Under that ‘well-settled’ and
‘strong presumption,’ when a statutory provision ‘is reasonably susceptible to divergent interpretation, we adopt the
reading that accords with traditional understandings and basic principles: that executive determinations generally are
subject to judicial review.’” Id. (quoting McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 498 (1991); Kucana,
558 U.S. at 251). The presumption “‘may be overcome by specific language’ in a provision or evidence ‘drawn
from the statutory scheme as a whole.’” Patel v. Garland, 142 S. Ct. 1614, 1627 (2022) (quoting Block v.
Community Nutrition Inst., 467 U.S. 340, 349 (1984)).
The Supreme Court has “consistently applied” the presumption to immigration statutes. Guerrero-
Lasprilla, 140 S. Ct. at 1069 (citing Kucana, 558 U.S. at 251). For example, in Guerrero-Lasprilla, the Supreme
Court interpreted the “limited-review provision” of the Immigration and Nationality Act (INA)—8 U.S.C.
§ 1252(a)(2)(D)—which provides that, in immigration cases involving non-citizens who are removable for having
committed certain crimes, a court of appeals may consider only “constitutional claims or questions of law.” See 140
S. Ct. at 1068–73. The Court held that “questions of law” “include[] the application of a legal standard to
undisputed or established facts.” Id. at 1068. The Court relied in part on the presumption of judicial review of
administrative action. Id. at 1068–70; see also Kucana, 558 U.S. at 251–52 (relying on the presumption to interpret
8 U.S.C. § 1252(a)(2)(B)(ii), and noting that the Court has “consistently applied that interpretive guide to legislation
regarding immigration, and particularly to questions concerning the preservation of federal-court jurisdiction”).
In Patel, the Supreme Court interpreted 8 U.S.C. § 1252(a)(2)(B)(i), which states, in relevant part, that “no
court shall have jurisdiction to review . . . any judgment regarding the granting of relief under section . . . 1255 of
this title.” The Court held that the provision “precludes judicial review of factual findings that underlie a denial of
relief.” 142 S. Ct. at 1618. The Court reasoned in part that the provision applies to “any judgment,” and
“encompasses not just ‘the granting of relief’ but also any judgment relating to the granting of relief,” which
“plainly includes factual findings.” Id. at 1622. The Court also rejected the government’s argument that the word
“judgment” refers only to “discretionary” decisions, reasoning in part that “[h]ad Congress intended instead to limit
No. 20-6393 Enriquez-Perdomo v. Newman, et al. Page 13
3.
We recognize that two decisions of our sister circuits found no jurisdiction in similar
circumstances. In Silva v. United States, 866 F.3d 938 (8th Cir. 2017), an immigration judge
ordered the plaintiff removed to Mexico, and the plaintiff appealed to the Board of Immigration
Appeals. Id. at 939. Although the appeal automatically stayed the plaintiff’s removal under
federal regulations, the government removed the plaintiff to Mexico. Id. The government
returned the plaintiff to the United States when it realized its mistake. Id. The plaintiff brought
suit in federal court, asserting claims under the Federal Tort Claims Act (FTCA) and the
Constitution. Id. The Eighth Circuit, holding that § 1252(g) deprived it of jurisdiction, rejected
the plaintiff’s argument that the provision applies only to discretionary decisions, reasoning that
the provision “makes no distinction between discretionary and nondiscretionary decisions.” Id.
at 940. “So long as the claim arises from the decision to execute a removal order,” the court
concluded, “there is no jurisdiction.” Id. The court relied in part on the Fifth Circuit’s decision
in Foster v. Townsley, 243 F.3d 210 (5th Cir. 2001), which held that § 1252(g) deprived the court
of jurisdiction to consider the plaintiff’s challenge to her removal in violation of an automatic
stay. Id. at 214.
In contrast, the Ninth Circuit found jurisdiction in Arce v. United States, 899 F.3d 796(9th Cir. 2018). There, United States Customs and Border Protection officers detained the
plaintiff, a Mexican citizen, in California. 899 F.3d at 798. An immigration judge ordered him
removed, but he filed a motion for a stay of removal, which the Ninth Circuit granted. Id. at 799.
Despite the stay, the government removed the plaintiff to Mexico, where he remained until the
Ninth Circuit ordered his return. Id. He sued the government, alleging violations of the FTCA.
Id. The Ninth Circuit held that the federal courts had jurisdiction to consider the plaintiff’s
the jurisdictional bar to ‘discretionary judgments,’ it could easily have used that language—as it did elsewhere in the
immigration code.” Id. at 1624 (citing 8 U.S.C. §§ 1226(e), 1252(b)(4)(D)). The Court added that the presumption
favoring judicial review of administrative action did not apply because the “text and context” of the provision
“clearly indicates” that the provision precludes judicial review of factual findings underlying a denial of relief under
8 U.S.C. § 1255. Id. at 1627.
Although § 1252(g) refers to “any cause or claim,” the language following that phrase cabins its
application, as discussed in AADC. See 525 U.S. at 482. Thus, unlike the provision in Patel, § 1252(g) does not
“clearly indicate” that the federal courts cannot consider Enriquez-Perdomo’s claims. See 142 S. Ct. at 1627. And,
Defendants have not offered “evidence drawn from the statutory scheme as a whole” suggesting that we have no
jurisdiction. See id. (internal quotation marks omitted).
No. 20-6393 Enriquez-Perdomo v. Newman, et al. Page 14
claims. Id. at 798. The court reasoned that the plaintiff was “not attacking the removal order
itself, as he [did] not challenge the validity of his removal order, or claim that the Attorney
General should have exercised discretion to delay his removal.” Id. at 800. Rather, because “the
Attorney General lacked the authority to execute the removal order,” the plaintiff’s claims arose
“from the violation of [the court-ordered stay].”7 Id.
Neither Silva nor Foster explicitly engaged with the meaning of the term “execute
removal orders.” And, our interpretation of § 1252(g)’s text does not depend on the premise—
rejected in Silva and Foster—that the provision precludes only claims arising from discretionary
decisions and actions. Rather, our interpretation of the text is limited to the conclusion that the
statute contemplates “executable” removal orders, and a removal order rendered unenforceable
by a grant of DACA that has not been rescinded or terminated is not subject to execution.
In sum, because § 1252(g)’s text establishes that the provision does not bar Enriquez-
Perdomo’s claims, the district court erred in dismissing the case for lack of subject-matter
jurisdiction.
C. Bivens Claims
Defendants argue that “[t]he absence of a Bivens remedy in this context is an alternative
basis for affirming the district court’s dismissal of this action.” Appellees’ Br. at 33. Although
the Supreme Court has held that there is no Bivens remedy for First Amendment retaliation
claims, we decline to address whether a Bivens remedy is available for Enriquez-Perdomo’s
Fourth Amendment and Fifth Amendment claims as part of this appeal.
7
The court added:
[E]ven if we agreed with the government that [the plaintiff’s] claims tangentially “arise from” the
execution of his removal order, we would still retain jurisdiction because the Attorney General
entirely lacked the authority, and therefore the discretion, to remove him. “Follow[ing] the
[Supreme] Court’s instruction to interpret § 1252(g) narrowly,” United States v. Hovsepian,
359 F.3d 1144, 1155 (9th Cir. 2004) (en banc), we have limited the statute’s jurisdiction-stripping
power to actions challenging the Attorney General’s discretionary decisions to initiate
proceedings, adjudicate cases, and execute removal orders.
Arce, 899 F.3d at 800.
No. 20-6393 Enriquez-Perdomo v. Newman, et al. Page 15
42 U.S.C. § 1983 enables a person to seek money damages for constitutional violations
by State officials. Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017). However, no analogous
federal statute authorizes similar suits against federal officials. Id. In Bivens, the Supreme Court
recognized for the first time “an implied private action for damages against federal officers
alleged to have violated a citizen’s constitutional rights.” Corr. Servs. Corp. v. Malesko, 534
U.S. 61, 66 (2001). Specifically, Bivens recognized a damages remedy for alleged violations of
the Fourth Amendment by federal officers. See 403 U.S. at 397. Bivens alleged that Federal
Bureau of Narcotics agents entered his apartment, arrested him for narcotics violations,
“manacled” him, and searched his apartment. Id. at 389. He sued the agents, asserting that they
had no warrant for the arrest or search, used unreasonable force, and lacked probable cause for
the arrest. Id.“The purpose of Bivens is to deter individual federal officers from committing
constitutional violations.” Malesko, 534 U.S. at 70. But a money-damages remedy is not
available for all constitutional violations by federal officers. The Supreme Court has noted that
“expanding the Bivens remedy is now considered a ‘disfavored’ judicial activity,” Ziglar, 137 S.
Ct. at 1857 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)), and “in all but the most
unusual circumstances, prescribing a cause of action is a job for Congress,” Egbert v. Boule, 142
S. Ct. 1793, 1800 (2022). Since Bivens, the Supreme Court has only twice extended the
availability of the Bivens remedy: first, to a sex-discrimination claim brought against a member
of Congress under the Fifth Amendment, see Davis v. Passman, 442 U.S. 228, 245–49 (1979),
and second, to a claim of deliberate indifference to a prisoner’s medical needs brought against
federal prison officials under the Eighth Amendment, see Carlson v. Green, 446 U.S. 14, 17–23
(1980).
The Supreme Court has established a two-step inquiry for determining whether a Bivens
remedy is available in a particular context. See Egbert, 142 S. Ct. at 1803. First, a court asks
“whether the case presents ‘a new Bivens context’—i.e., is it ‘meaningful[ly]’ different from the
three cases in which the Court has implied a damages action.” Id. (quoting Ziglar, 137 S. Ct. at
1859). Second, “if a claim arises in a new context, a Bivens remedy is unavailable if there are
‘special factors’ indicating that the Judiciary is at least arguably less equipped than Congress to
No. 20-6393 Enriquez-Perdomo v. Newman, et al. Page 16
‘weigh the costs and benefits of allowing a damages action to proceed.’” Id. (quoting Ziglar,
137 S. Ct. at 1858). The Court recently noted that “those steps often resolve to a single question:
whether there is any reason to think that Congress might be better equipped to create a damages
remedy.” Id.; see also id. at 1805 (“The Bivens inquiry does not invite federal courts to
independently assess the costs and benefits of implying a cause of action. A court faces only one
question: whether there is any rational reason (even one) to think that Congress is better suited to
‘weigh the costs and benefits of allowing a damages action to proceed.’” (quoting Ziglar, 137 S.
Ct. at 1858)); id. at 1809 (framing the inquiry as “whether ‘there are sound reasons to think
Congress might doubt the efficacy or necessity of a damages remedy’ at all”) (quoting Ziglar,
137 S. Ct. at 1858)). Additionally, “a court may not fashion a Bivens remedy if Congress already
has provided, or has authorized the Executive to provide, ‘an alternative remedial structure.’” Id.
at 1804 (quoting Ziglar, 137 S. Ct. at 1858).
In Egbert, the plaintiff, who owned an inn on the U.S.-Canada border and was a
confidential informant for federal agents, notified a U.S. Border Patrol agent that a Turkish
national had scheduled transportation to the inn. Id. at 1800–01. Later that day, the agent
followed the plaintiff’s vehicle to the inn. Id. at 1801. The plaintiff instructed the agent to leave
his property, but the agent allegedly refused and threw the plaintiff to the ground. Id. The
plaintiff filed a grievance with the agent’s supervisors and an administrative claim with Border
Patrol. Id. at 1801–02. He alleged that the agent retaliated against him by reporting the
plaintiff’s license plate—which read “SMUGLER”—to the Washington Department of
Licensing, and by contacting the Internal Revenue Service, which prompted an audit of the
plaintiff’s tax returns. Id. at 1802. Border Patrol took no action against the agent and denied the
plaintiff’s administrative claim. Id. The plaintiff sued the agent in federal court, alleging
excessive force under the Fourth Amendment and retaliation under the First Amendment. Id.
The Supreme Court held that Bivens did not extend to the plaintiff’s claims. Id. at 1800.
Rejecting the excessive-force claim, the Court reasoned that “[t]he special-factors inquiry . . .
shows here . . . that the Judiciary is not undoubtedly better positioned than Congress to authorize
a damages action in this national-security context.” Id. at 1805. The Court explained, “That this
case does not involve a cross-border shooting, as in [Hernández v. Mesa, 140 S. Ct. 735 (2020)],
No. 20-6393 Enriquez-Perdomo v. Newman, et al. Page 17
but rather a more ‘conventional’ excessive-force claim, as in Bivens, does not bear on the
relevant point. Either way, the Judiciary is comparatively ill suited to decide whether a damages
remedy against any Border Patrol agent is appropriate.” 142 S. Ct. at 1805. The Court added
that aggrieved parties in the plaintiff’s position had alternative remedies, including the ability to
file a grievance with Border Patrol. Id. at 1806. The Court further held that “there is no Bivens
action for First Amendment retaliation,” reasoning that Congress is in a better position to decide
whether to provide a damages action in part because “[f]ederal employees ‘face[d with] the
added risk of personal liability for decisions that they believe to be a correct response to
improper [activity] would be deterred from’ carrying out their duties.” Id. at 1807 (quoting Bush
v. Lucas, 462 U.S. 367, 389 (1983)).
Enriquez-Perdomo’s First Amendment retaliation claim is not viable after Egbert.
Because we can affirm the district court’s decision on any ground supported by the record, M.J.
ex rel. S.J. v. Akron City Sch. Dist. Bd. of Educ., 1 F.4th 436, 451 (6th Cir. 2021), we affirm the
district court’s dismissal of Enriquez-Perdomo’s First Amendment retaliation claim.
Egbert, however, does not appear to explicitly foreclose Bivens’ potential extension to
Enriquez-Perdomo’s Fourth and Fifth Amendment claims, each of which allege different
constitutional violations than those alleged in Egbert, and none of which are brought against
Border Patrol agents.
“[Q]uestions regarding the proper scope of Bivens are complex, often involving thorough
analyses of alternative remedy schemes created by Congress or factors counselling hesitation in
the absence of such action.” Butts v. Martin, 877 F.3d 571, 588 (5th Cir. 2017). Other appellate
courts have declined to address the availability of a Bivens action where it was not addressed by
a lower court because of the complexity of the question presented and the need for
comprehensive briefing. See, e.g., Ziglar, 137 S. Ct. at 1865 (“Given the absence of a
comprehensive presentation by the parties, and the fact that the Court of Appeals did not conduct
the analysis, the Court declines to perform the special factors analysis itself. The better course is
to vacate the judgment below, allowing the Court of Appeals or the District Court to do so on
remand.”); Butts, 877 F.3d at 584 (declining to analyze the plaintiff’s Bivens claim and
No. 20-6393 Enriquez-Perdomo v. Newman, et al. Page 18
remanding “[g]iven the complexity of the issue and the dearth of arguments available to th[e]
[c]ourt”).
The same reasons for remand apply here. Although the parties briefed the Bivens issue in
the district court, the district court limited discovery to the issue of subject-matter jurisdiction,
and its ruling was limited to that issue; the district court did not address whether a Bivens remedy
is available for Enriquez-Perdomo’s claims. In her opening brief on appeal, Enriquez-Perdomo
addresses the potential availability of a Bivens remedy only with respect to her First and Fourth
Amendment claims. Her reply brief addresses only “the most critical points” of the Bivens issue.
Reply Br. at 13. Neither party addressed the issue at oral argument. And, since briefing and
argument, the Supreme Court has provided additional guidance for courts to consider when
assessing potential extensions of Bivens. See Egbert, 142 S. Ct. at 1804–09. Without the benefit
of analysis by the district court, comprehensive briefing from both parties, and oral argument, we
decline to analyze at this time whether a Bivens remedy is available for each of Enriquez-
Perdomo’s remaining, distinct constitutional claims.
III.
We emphasize that our only concern today is the jurisdictional question whether
§ 1252(g) deprives the federal courts of jurisdiction to adjudicate Enriquez-Perdomo’s wrongful
removal claims. We do not assess the merits of those claims or any defenses to those claims.
Instead, we remand to the district court to consider the parties’ arguments in the first instance.
For the foregoing reasons, we AFFIRM IN PART and VACATE IN PART the district
court’s judgment, and REMAND for further proceedings consistent with this opinion.
No. 20-6393 Enriquez-Perdomo v. Newman, et al. Page 19
_________________
DISSENT
_________________
ALICE M. BATCHELDER, Circuit Judge, dissenting.
The text of 8 U.S.C. § 1252(g) precludes the court’s jurisdiction over the Secretary’s
decision or action to “execute removal orders.” Enriquez-Perdomo’s claims arose from such a
decision. Her claims are therefore barred by the statute. Because the majority sees it otherwise,
I must respectfully dissent.
I.
In the ordinary course of immigration proceedings, an immigration judge determines
whether an alien should be removed from the United States and, upon determining that the alien
should be removed, issues a final order of removal. 8 U.S.C. §§ 1229, 1229a; 8 C.F.R. § 1241.1.
DHS, through its ICE officers, then executes that removal order. Under the IIRIRA,
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 Secretary of DHS] to commence
proceedings, adjudicate cases, or execute removal orders against any alien under
this chapter.
8 U.S.C. § 1252(g). Simply put, the courts cannot review the Secretary’s discretionary decisions
to remove or not remove an alien the immigration court has ordered removed. Id.; Reno v. Am.-
Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999).
Under DACA, the Secretary possesses the prosecutorial discretion to defer removing
certain aliens who entered the United States illegally as children. Janet Napolitano, Department
of Homeland Security Memorandum, Exercising Prosecutorial Discretion with Respect to
Individuals Who Came to the United States as Children, June 15, 2012 (“Memo”); April 4, 2013
DACA National Standard Operating Procedures (“SOP”). The Secretary determined that, based
on certain criteria, this prosecutorial discretion should be exercised regardless of whether or not
“an individual is already in removal proceedings or subject to a final order of removal.” Memo
at 3. “Deferred action is a discretionary determination to defer removal action for an individual
No. 20-6393 Enriquez-Perdomo v. Newman, et al. Page 20
as an act of prosecutorial discretion. Deferred action does not confer any lawful status.” SOP at
8. DACA, therefore, does not change whether the alien has a removal order that can be
enforced, but merely allows deferral of enforcement. Exercising prosecutorial discretion does
not render a valid final order of removal unenforceable.
II.
Enriquez-Perdomo sued four ICE officers in their individual capacities under Bivens,
alleging violations of her First, Fourth, and Fifth Amendment rights. The district court dismissed
her claims for lack of subject-matter jurisdiction for three reasons: (1) her removal order from
2004 was still a valid final order of removal, even though it was deferred pursuant to DACA,
(2) there are no court orders staying her removal, and (3) the defendants mistakenly executed the
valid (but deferred) final order of removal from 2004 because the databases they reviewed
indicated that she was actively subject to removal. The main question here is whether the court
has subject-matter jurisdiction over the claims stemming from defendants’ decision to begin
removing her when the databases allegedly did not show her deferred DACA status. The answer
is no.
Enriquez-Perdomo’s argument that her removal order is unenforceable because of her
DACA status is incorrect. “An individual with an unexecuted final removal order is still in
removal proceedings.” SOP at 74. Because DACA did not change or otherwise abrogate the
valid order of removal, DACA status does not affect the IIRIRA’s scope. While DACA status
may defer removal, DACA status does not mean the alien cannot be removed in the future. Nor
does it mean that the alien’s status cannot change during the deferred time period. For example,
deferred status can be terminated if the alien was deferred in error, if the alien committed fraud
in obtaining deferral under DACA, or if the alien commits disqualifying criminal offenses or
becomes a public safety or national security concern. SOP at 132-33. Deferring removal does
not mean a valid removal order does not exist or cannot be enforced.
In this case, defendants decided to execute a valid final order of removal against
Enriquez-Perdomo, depriving this court of jurisdiction over her claim. Her claims are
“‘connected directly and immediately’ to a decision to execute a removal order.” Silva v. United
No. 20-6393 Enriquez-Perdomo v. Newman, et al. Page 21
States, 866 F.3d 938, 940 (8th Cir. 2017). The fact that she had DACA status does not matter
because it does not affect the validity or enforceability of that order. Id. Nor does it matter
whether the defendants made a mistake in determining whether Enriquez-Perdomo had DACA
status. A possible mistake in the exercise of discretion cannot be enough to give the court
jurisdiction over her claims because it would destroy the purpose of the IIRIRA. Moreover, no
court had issued a stay or cancelled her removal order, so her claim is not rooted in some other
possible violation. Although mistakes may have been made, the defendants were acting pursuant
to her valid final order of removal from 2004. This court therefore has no jurisdiction over her
claims because they arise directly from the Secretary’s prosecutorial discretion to execute her
valid final order of removal. 8 U.S.C. § 1252(g).
III.
For the foregoing reasons, I would affirm the district court. Therefore, I respectfully
dissent.