Arce v. United States: the Ninth Circuit Correctly Interpreted Section 1252(g) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 While the Eighth Circuit Ignored Supreme Court Precedent in Silva v. United States

• Publication year: 2022

53 Creighton L. Rev. 239. ARCE V. UNITED STATES: THE NINTH CIRCUIT CORRECTLY INTERPRETED Section 1252(G) OF THE ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996 WHILE THE EIGHTH CIRCUIT IGNORED SUPREME COURT PRECEDENT IN SILVA V. UNITED STATES

ARCE V. UNITED STATES: THE NINTH CIRCUIT CORRECTLY INTERPRETED § 1252(G) OF THE ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996 WHILE THE EIGHTH CIRCUIT IGNORED SUPREME COURT PRECEDENT IN SILVA V. UNITED STATES

-Justice A. Simanek '21

I. INTRODUCTION

Solving the undocumented immigrant problem has plagued United States politics since the late nineteenth century. ^[1] There have been countless attempts by the United States Congress in the past 150 years to curb undocumented immigration and to put procedures in place to aid those who seek to enter the country legally. ^[2] In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act ^[3] ("IIRIRA") in an attempt to respond to America's immigration problem. ^[4] The IIRIRA was an amendment to the Immigration and Nationality Act of 1952. ^[5] One of the provisions of the 500-page congressional bill, § 1252(g), was designed to strip the federal district courts of jurisdiction to hear deportation appeals regarding certain actions by the Attorney General. ^[6] Following the passing of the IIRIRA, one federal court interpreted § 1252(g) to strip the federal district courts of jurisdiction in any and all deportation proceedings while another court interpreted § 1252(g) to only apply to the three categories listed in the statute. ^[7] The Supreme Court of the United States granted certiorari to Reno v. American-Arab Anti-Discrimination Committee ^[8] ("AADC II") in order to resolve this split in circuit opinion. ^[9] However, twenty years after AADC II was decided, circuit courts are still quibbling over how to interpret the IIRIRA jurisdiction-stripping statute. ^[10]

In Arce v. United States, ^[11] Claudio Anaya Arce sought asylum in the United States. ^[12] However, an asylum officer determined that Arce did not express enough fear of persecution if he returned to his home country. ^[13] After an immigration judge affirmed the officer's findings, the Attorney General ordered Arce to be deported to Mexico. ^[14] Arce filed an emergency petition for review and a motion for a stay of removal with the United States Court of Appeals for the Ninth Circuit. ^[15] The Ninth Circuit granted Arce's motions, but just hours later, Arce was deported to Mexico by the Department of Homeland Security ("DHS"). ^[16] After Arce's return to the United States, he brought a tort action for wrongful removal against the United States. ^[17] The Ninth Circuit determined that, while the action may have arisen from the Attorney General's execution of a removal order, the federal courts still retained jurisdiction to hear Arce's claim. ^[18]

This Note will first examine the facts and holding of Arce . ^[19] This Note will also discuss the importance of Judge Kelly's dissenting opinion in Silva v. United States ^[20] to the Arce decision. ^[21] Next, this Note will dive into the background and precedent leading to the Arce and Silva decisions. ^[22] Finally, this Note will analyze both the Ninth Circuit and the Eighth Circuit decisions and will conclude that Arce v. United States was correctly decided while Silva v. United States ignored United States Supreme Court precedent in order to advance the Eighth Circuit's own interpretation of § 1252(g). ^[23]

II. FACTS AND HOLDING

In April 2014, Claudio Anaya Arce, a Mexican citizen, was detained by United States Customs and Border Patrol officers in Adelanto, California. ^[24] Arce sought asylum, but officers did not believe he demonstrated a reasonable fear of persecution or torture in his home country. ^[25] On February 4, 2015, an immigration judge affirmed the findings made by the asylum officer. ^[26] Two days later, Arce filed an emergency petition for review and a motion for a stay of removal in the United States Court of Appeals for the Ninth Circuit. ^[27] The order of removal was temporarily stayed by the Ninth Circuit on February 6, 2015. ^[28] However, even though the Department of Homeland Security ("DHS") was notified by both Arce's attorney and the court through several faxes and phone calls, the stay was ignored Arce was deported to Mexico mere hours after the temporary stay was issued. ^[29] Arce was returned to the United States pursuant to a court order issued from the Ninth Circuit on February 20, 2015. ^[30]

Arce filed a claim for wrongful deportation and removal with DHS. ^[31] After DHS denied his claim, Arce brought claims of false arrest, false imprisonment, intentional infliction of emotional distress, and negligence against the United States under the Federal Tort Claims Act ^[32] ("FTCA") in the United States District Court for the Central District of California. ^[33] At the district court level, the United States argued that the federal courts did not have jurisdiction to hear Arce's case. ^[34] They stated that United States Supreme Court precedent under Reno v. American-Arab Anti-Discrimination Committee ^[35] ("AADC II") prohibited federal courts from hearing cases in which the Attorney General commenced proceedings, adjudicated cases, or executed removal orders. ^[36] The defendant argued the federal courts could not hear Arce's case as the controversy arose out of the Attorney General's execution of Arce's removal order. ^[37]

The United States cited Lopez v. United States, ^[38] in which a mother brought an action against the United States on behalf of her son who she claimed was wrongfully deported. ^[39] Lopez argued that the deportation was wrongful because a mandatory stay of deportation was granted by statute and was acknowledged by Immigration and Customs Enforcement ("ICE") prior to his removal. ^[40] Lopez's son was later tortured and died in Honduras. ^[41] In Lopez, the United States District Court for the Central District of California determined that the federal courts did not have jurisdiction to hear the plaintiff's claim as her son's deportation arose from the Attorney General's decision to execute the deceased's removal order. ^[42] With this precedent in mind, the district court agreed with the defendant and dismissed Arce's case for lack of jurisdiction under 8 U.S.C. § 1252(g) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ^[43] ("IIRIRA"). ^[44]

Arce appealed the district court's judgment to the Ninth Circuit. ^[45] Once again, the United States argued that the language of § 1252(g) prohibits federal courts from obtaining jurisdiction over cases which arise from an Attorney General's execution of a removal order. ^[46] The United States argued it did not matter that the Attorney General violated the court's stay of removal order because § 1252(g) extends broadly to any and all actions which stem from a removal order. ^[47]

The Ninth Circuit disagreed, positing that § 1252(g) is much narrower than the government painted it. ^[48] Arce challenged the execution of the removal order, not its validity. ^[49] The court explained that because the Ninth Circuit issued a stay of removal, there was no order for the Attorney General to execute. ^[50] The Attorney General violated the Ninth Circuit's stay of removal when he ordered Arce's deportation to Mexico. ^[51] As the deportation violated the Ninth Circuit's order, the Attorney General had not acted within his authority to execute removal orders under § 1252(g). ^[52]

The court cited two United States Supreme Court cases, which state that § 1252(g) should be construed narrowly. ^[53] In AADC II, the Supreme Court noted that § 1252(g) does not prohibit the federal courts from hearing cases that stem from the Attorney General's removal authority. ^[54] The Ninth Circuit determined that actions challenging the government's violation of a stay of removal do fall within the federal courts' jurisdiction. ^[55] If § 1252(g) was as broad as the federal government argued, the federal courts would have no jurisdiction to exercise their own orders. ^[56] The Ninth Circuit noted that subsection (g) had not been interpreted to broadly sweep jurisdiction away from the courts in cases merely arising from one of the Attorney General's available actions. ^[57] As this was not what Congress intended, the Ninth Circuit determined that the federal courts do have jurisdiction under § 1252(g) when the Attorney General violates stays of removal. ^[58]

The Ninth Circuit also took some time to analyze and acknowledge Judge Kelly's dissent in Silva v. United States ^[59] from the United States Court of Appeals for the Eighth Circuit. ^[60] In Silva, the Eighth Circuit determined that § 1252(g) should be read broadly so as not to grant the federal courts jurisdiction to hear cases challenging wrongful deportations in violation of stays of removal. ^[61] Judge Kelly respectfully dissented and argued that the Supreme Court's holding in AADC II narrowed the scope of § 1252(g). ^[62] As the Eighth Circuit issued a stay of removal, there was no order to execute, and the Attorney General had no authority to deport Silva under § 1252(g). ^[63] The Ninth Circuit agreed with Judge Kelly's analysis and concluded that Arce's claims could proceed. ^[64] The Ninth Circuit then reversed and remanded the case to the district court. ^[65]

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