Guadalupe Castillo Pereyra v. United States ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 03 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
GUADALUPE ISABEL CASTILLO No. 08-17575
PEREYRA, surviving spouse of the
deceased, Juan Pinacho Rodriguez, on D.C. No. 4:03-cv-00267-JMR
behalf of herself and Luis Armando
Pinacho, a minor chid,
MEMORANDUM *
Plaintiffs - Appellants,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
John M. Roll, Chief District Judge, Presiding
Argued and Submitted December 9, 2009
San Francisco, California
Before: O’SCANNLAIN, RAWLINSON, and BEA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Guadalupe Isabel Castillo Pereyra and Luis Armando Pinacho (collectively
Appellants) appeal from the district court’s decision that it lacked jurisdiction over
Appellants’ wrongful death action.
If the discretionary function exception to the Federal Tort Claims Act
applies, the district court correctly determined that it lacked subject matter
jurisdiction. See Sigman v. United States, 217 F.3d 785, 793 (9th Cir. 2000), as
amended. The exception applies if: 1) the government action involves exercise of
discretion, and 2) the discretion involves “considerations of social, economic, and
political policy . . .” Alfrey v. United States, 276 F.3d 557, 561 (9th Cir. 2002)
(citation omitted). Whether and when to remove an illegal alien from within this
country’s borders is a matter committed to the sole discretion of immigration
officials. See Martinez-Garcia v. Ashcroft, 366 F.3d 732, 735 (9th Cir. 2004).
Moreover, immigration matters affect core political considerations. See Mercado-
Zazueta v. Holder, 580 F.3d 1102, 1112 (9th Cir. 2009). Finally, the INS
Detention Standard did not “specifically prescribe[ ] a course of action” so as to
deprive the Border Patrol agents of discretion. Alfrey, 276 F.3d at 561 (citation
omitted).
AFFIRMED.
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