INA section 242(g): immigration agents, immunity, and damages suits.

• Author: Ahmed, Sameer
• Position: Immigration and Nationality Act

Six days after 9/11, Immigration and Naturalization Service (INS) agents ransacked, threatened, interrogated, and arrested Ahmed Farid Khorrami, an Iranian-born British citizen, at his office in Chicago, despite the fact that he was legally authorized to be in the United States. (1) Dr. Khorrami was detained for three months before an immigration judge granted his request for permanent resident status based on his marriage to a U.S. citizen. (2) After his release, Dr. Khorrami filed a Bivens action in federal district court, claiming monetary damages to redress his injuries based on the constitutional violations committed by the INS agents during his wrongful arrest and detention. (3) If the unlawful actions had been committed by FBI agents investigating a federal crime, the government would have conceded that a federal court has jurisdiction to hear the damages claims. However, because the acts were committed by immigration officials attempting to deport a foreign national, the government argued that section 242(g) of the Immigration and Nationality Act (INA) completely bars judicial review of such claims. Section 242(g) states:

Except as provided in this section and notwithstanding any other provision of law ... 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 chapter [dealing with removal orders]. (4) The district court agreed with the government's broad interpretation of the jurisdiction-stripping provision, and barred Dr. Khorrami's Fourth Amendment Bivens claim challenging his false arrest and detention. (5)

Dr. Khorrami's case is just one of many immigration-related lawsuits where the government has used section 242(g) in an attempt to bar judicial review of monetary damages claims, brought under Bivens and the Federal Tort Claims Act (6) (FTCA), for injuries stemming from the unlawful actions of immigration agents. While these lawsuits were rare in the past, the Bush Administration's abuse of immigration law after 9/11 (7) and recent events like inhumane immigration raids (8) have energized civil rights lawyers to pursue damages claims. In return, in almost every lawsuit alleging wrongful conduct by immigration agents, the government has argued that section 242(g) bars review.

Ever since the jurisdiction-stripping provision was enacted in 1996, federal courts have struggled over whether section 242(g) prohibits damages claims. On the one hand, the Third, Fifth, and Ninth Circuits have precluded damages claims under section 242(g), holding that the conduct alleged arose from actions to commence proceedings, adjudicate cases, or execute removal orders. (9) On the other hand, the Tenth Circuit, and district courts in the Second, Sixth, and Fourth Circuits have rejected the applicability of section 242(g), construing the provision narrowly and permitting the claims in order to avoid "grave constitutional issues." (10)

This Comment argues that the government's reading of section 242(g) not only contravenes congressional intent, but also contradicts the Supreme Court's ruling in Reno v. American-Arab Anti-Discrimination Committee (11) (AADC) to interpret the provision narrowly. Because section 242(g) bars neither legal challenges to nondiscretionary government action nor challenges that do not directly contest the removal process, courts should have jurisdiction to hear monetary damages claims brought by foreign nationals against immigration agents.

1. CONGRESSIONAL INTENT UNDERLYING SECTION 242(g)

   While the federal government has urged courts to read section 242(g) broadly to eliminate judicial review of almost all removal-related damages actions, it is doubtful that Congress intended the provision to be interpreted in such a way when enacting the section as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (12) (IIRIRA).

   1. Legislative History of Section 242(g)

      On its face, section 242(g) appears broad, as to abolish judicial review of practically every claim of a noncitizen challenging aspects of his detention or removal not specifically authorized under the INA. However, IIRIRA's legislative history demonstrates that Congress never intended for section 242(g) to strip federal court jurisdiction over damages actions brought by noncitizens against immigration officials. In fact, the little legislative history on this issue confirms that Congress never considered barring these lawsuits. Instead, the intent of the provision was to reinforce one of the major purposes of section 242 and the statute as a whole: "to streamline removal proceedings and enhance enforcement of immigration laws that had gone largely unchanged since 1952." (13)

      In the months leading up to IIRIRA's enactment, the legislative history confirms that the Act's jurisdiction-stripping provisions were created to make it easier to remove deportable noncitizens. For example, in congressional testimony in March 1995, the INS general counsel stated that "[t]he Administration is committed to ensuring that aliens in deportation proceedings are afforded appropriate due process; however, the availability of multiple layers of judicial review has frustrated the timely removal of deportable aliens." (14) Similarly, in April 1996, the Senate Report of the Act stated that the judicial review provisions were intended to "expedit[e] the removal of excludable and deportable aliens." (15) In fact, the Act's section on judicial review was originally entitled: "Streamlining Judicial Review of Orders of Exclusion or Deportation." (16) Finally, in September 1996, the Act's joint conference report reinforced the streamlining purpose of section 242, stating that the INA was amended "to improve deterrence of illegal immigration to the United States ... by reforming exclusion and deportation law and procedures." (17)

      Notwithstanding the Act's seemingly good intentions of streamlining the review process, a few members of Congress had warned about the dangers of restricting judicial review of removal orders. For example, Congressman Nadler stated: "The bill eliminates judicial review for most INS actions. Just think, a Federal bureaucracy with no judicial accountability ... No government agency should be allowed to act, much less lock people up or send them back to dictatorships, without being subject to court review." (18)

   2. Understanding Section...