Amicus Curiae Brief — Ded Rranxburgaj, Petitioner v. Alejandro N. Mayorkas, Secretary of Homeland Security, et al.

No. 20-1010

IN THE

Supreme Court of the United States

_______________

DED RRANXBURGAJ,

Petitioner

v.

ALEJANDRO MAYORKAS,

U.S. SECRETARY OF HOMELAND SECURITY, ET AL.

Respondents

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_______________

BRIEF OF AMICI CURIAE RAPID DEFENSE

NETWORK AND JUSTICE ACTION CENTER

IN SUPPORT OF PETITIONER

_______________

RICHARD W. MARK

Counsel of Record

JOSEPH EVALL

AMER S. AHMED

TIMOTHY SUN

DORAN J. SATANOVE

ERIC M. HORNBECK

ADRIENNE LIU

GIBSON, DUNN & CRUTCHER LLP

200 Park Ave.

New York, NY 10166

(212) 351-4000

rmark@gibsondunn.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ................................1

SUMMARY OF ARGUMENT .....................................1

ARGUMENT ...............................................................4

I.

This Court’s Guidance Is Needed To

Restore The Balance Between Executive

Discretion And Judicial Review That

Congress Struck In Enacting Section

1252(g) ................................................................. 4

II.

Confusion Over The Scope Of Section

1252(g) Has Proliferated Across The

Lower Courts ....................................................... 7

A.

Lower courts are divided on the

applicability of Section 1252(g) to a wide

range of claims .............................................. 8

B.

The confusion over the reach of Section

1252(g) leads to unfair disparities in

outcomes and nationwide variation in

the balance of power between the

Executive and the Judiciary ....................... 17

III. The Sixth Circuit’s Decision

Misinterprets Section 1252(g) .......................... 19

A.

The Sixth Circuit’s holding shields from

judicial review far more than claims

“arising from” discretionary Executive

action ........................................................... 20

ii

TABLE OF CONTENTS

(continued)

Page

B.

The Sixth Circuit’s broad reading of

Section 1252(g) contravenes this

Court’s jurisdiction-stripping

jurisprudence ............................................... 21

CONCLUSION ..........................................................23

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Ahmad v. Whitaker,

2018 WL 6928540 (W.D. Wash. Dec.

4, 2018) ........................................................... 14, 18

Alam v. Nielsen,

312 F. Supp. 3d 574 (S.D. Tex. 2018) ............ 14, 18

Beltran Prado v. Nielsen,

379 F. Supp. 3d 1161 (W.D. Wash.

2019) ............................................................... 11, 18

Calderon v. Sessions,

330 F. Supp. 3d 944 (S.D.N.Y. 2018) ..................... 9

Camarena v. Director, Immigration and

Customs Enf’t,

-- F.3d --, 2021 WL 627411 (11th Cir.

Feb. 18, 2021) ................................................. 10, 11

Chhoeun v. Marin,

306 F. Supp. 3d 1147 (C.D. Cal.

2018) ..................................................................... 11

D.A.M. v. Barr,

474 F. Supp. 3d 45 (D.D.C. 2020) ............ 12, 14, 17

De Jesus Martinez v. Nielsen,

341 F. Supp. 3d 400 (D.N.J. 2018) ........................ 9

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Dep’t of Homeland Sec. v. Regents of

Univ. of Calif.,

140 S. Ct. 1891 (2020) ............................................ 6

Diaz-Ceja v. McAleenan,

2019 WL 2774211 (D. Colo. July 2,

2019) ..................................................................... 15

E.F.L. v. Prim,

2020 WL 586803 (N.D. Ill. Feb. 6,

2020), aff’d, 2021 WL 244606 (7th

Cir. Jan. 26, 2021) .......................................... 10, 18

Gomes v. Smith,

381 F. Supp. 3d 120 (D. Mass. 2019) ................... 10

Guerrero-Lasprilla v. Barr,

140 S. Ct. 1062 (2020) .............................. 21, 22, 23

Jennings v. Rodriguez,

138 S. Ct. 830 (2018) ....................................... 6, 21

Karr v. Meade,

447 F.Supp.3d 1293 (S.D. Fla. 2020) ..................... 9

Khorrami v. Rolince,

493 F. Supp. 2d 1061 (N.D. Ill. 2007) ...... 16, 17, 19

Kucana v. Holder,

558 U.S. 233 (2010) .............................................. 22

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Ma v. Holder,

860 F. Supp. 2d 1048 (N.D. Cal.

2012) ............................................................... 11, 18

Mach Mining, LLC v. EEOC,

575 U.S. 480 (2015) ...................................... 1, 2, 23

Mamadjonova v. Barr,

2019 WL 6174678 (D. Conn. Nov. 20,

2019) ..................................................................... 10

McNary v. Haitian Refugee Ctr., Inc.,

498 U.S. 479 (1991) .......................................... 2, 22

Michalski v. Decker,

279 F. Supp. 3d 487 (S.D.N.Y. 2018) ................... 12

Nino v. Johnson,

2016 WL 6995563 (N.D. Ill. Nov. 30,

2016) ................................................................. 5, 14

Nken v. Chertoff,

559 F. Supp. 2d 32 (D.D.C. 2008) ........................ 11

Nken v. Holder,

556 U.S. 418 (2009) ................................................ 4

Pena v. Meade,

2020 WL 7647022 (S.D. Fla. Dec. 3,

2020), report and recommendation

adopted, 2020 WL 7641054 (S.D. Fla.

Dec. 23, 2020) ......................................................... 9

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Pomaquiza v. Sessions,

2017 WL 4392878 (D. Conn. Oct. 3,

2017) ....................................................................... 5

Prado v. Perez,

451 F. Supp. 3d 306 (S.D.N.Y. 2020) ............. 16, 19

Probodanu v. Sessions,

387 F. Supp. 3d 1031 (C.D. Cal.

2019) ....................................................................... 9

Rene Morales v. United States,

2018 WL 8368658 (N.D. Ga. Aug. 6,

2018) ............................................................... 16, 19

Reno v. American-Arab AntiDiscrimination Comm.

525 U.S. 471 (1999) ...................................... passim

Rranxburgaj v. Wolf,

825 F. App’x 278 (6th Cir. 2020) ......................... 20

S.N.C. v. Sessions,

2018 WL 6175902 (S.D.N.Y. Nov. 26,

2018) ................................................................. 9, 18

Salinas v. U.S. R.R. Ret. Bd.,

141 S. Ct. 691 (2021) ........................................ 7, 21

Sied v. Nielsen,

2018 WL 1142202 (N.D. Cal. Mar. 2,

2018) ..................................................................... 11

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Singh v. Cole,

2020 WL 7655276 (W.D. La. Nov. 17,

2020), report and recommendation

adopted, 2020 WL 7647537 (W.D.

La. Dec. 23, 2020) ......................................... 8, 9, 10

Tazu v. Att’y Gen. U.S.,

975 F.3d 292 (3d Cir. 2020) ..................... 13, 14, 18

Vargas v. Beth,

378 F. Supp. 3d 716 (E.D. Wis. 2019) ........... 14, 15

Yearwood v. Barr,

391 F. Supp. 3d 255 (S.D.N.Y. 2019) ....... 12, 13, 17

You v. Nielsen,

321 F. Supp. 3d 451 (S.D.N.Y. 2018) . 11, 12, 14, 17

Zadvydas v. Davis,

533 U.S. 678 (2001) .............................................. 22

Statutes

8 U.S.C. § 1252(a) ........................................................ 5

8 U.S.C. § 1252(a)(2)(B)(ii) ........................................ 22

8 U.S.C. § 1252(a)(2)(D) ............................................ 23

8 U.S.C. § 1252(g) .............................................. passim

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

Other Authorities

Outcomes of Deportation Proceedings in

Immigration Court, Transactional

Records Access Clearinghouse,

https://trac.syr.edu/phptools/immigra

tion/court_backlog/deport_outcome_c

harge.php (last visited Feb. 15, 2021) ................. 19

1

INTEREST OF AMICI CURIAE1

Rapid Defense Network (“RDN”) is a nonprofit

legal services organization that provides pro bono

representation to noncitizens who are detained or on

a fast track to be deported.

RDN monitors

developments in immigration law that affect the

rights of noncitizens, and partners with law firms and

law school clinics to bring impact litigation and

habeas corpus claims on behalf of noncitizens. RDN

has extensive experience litigating jurisdictional

issues involving immigration laws before the federal

appellate and district courts and has a distinct

interest in ensuring that the immigration laws are

applied correctly and consistently.

The Justice Action Center (“JAC”) is a nonprofit

organization dedicated to advancing the civil and

human rights of immigrants through a combination of

impact litigation, communications, and digital

strategies. It provides support to select nonprofit

organizations that have immigrant members or that

provide direct legal services to immigrant

communities. As an organization litigating on behalf

of immigrant communities in numerous jurisdictions

nationwide, JAC has a strong interest in the accurate

and consistent application of immigration laws

throughout the federal courts.

SUMMARY OF ARGUMENT

Judicial review of agency action “is the norm in

our legal system.” Mach Mining, LLC v. EEOC, 575

1 All parties have consented to the filing of this brief. Amici

state that this brief was not authored in whole or in part by

counsel for any party, and that no person or entity other than

amici or their counsel made a monetary contribution intended to

fund the preparation or submission of this brief.

2

U.S. 480, 495 (2015). “Absent such review, the

[agency’s] compliance with the law would rest in [its]

hands alone,” a result contrary to basic principles of

administrative law. Id. at 488. Legislating against

this “well-settled presumption” of judicial review of

administrative action, McNary v. Haitian Refugee

Ctr., Inc., 498 U.S. 479, 496 (1991), Congress passed

the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”) to streamline

removal proceedings by, among other things, limiting

judicial review of certain government acts. One such

jurisdiction-limiting provision, 8 U.S.C. § 1252(g), was

tailored to preserve the Executive’s “prosecutorial

discretion” to commence proceedings, adjudicate

cases, and execute removal orders. Reno v. AmericanArab Anti-Discrimination Committee, 525 U.S. 471,

482-84, 485 n.9 (1999) (“AADC”).

This Court,

consistent with the presumption in favor of judicial

review and Section 1252(g)’s text and purpose, has

repeatedly read that provision narrowly to preclude

non-final-order review of only these three

discretionary acts.

In so doing, the Court has maintained the balance

Congress struck between protecting Executive

discretion and preserving judicial review. The Sixth

Circuit upset that balance by shielding from judicial

review a legal determination that the Executive

makes independent of performing any discretionary

act within Section 1252(g). This holding finds no

support in the law and subverts the presumption of

judicial review, essentially allowing the Executive’s

“compliance with the law” to “rest in [its] hands

alone.” Mach Mining, 575 U.S. at 488.

The Sixth Circuit’s broad reading of Section

1252(g) is far from the only lower court decision to

3

stray from this Court’s teachings, Congress’s intent,

and the longstanding presumption of judicial review

over agency action.

Rather, many courts have

advanced similarly expansive interpretations of

Section 1252(g), clashing with their more restrained

sister courts.

The interpretations of Section 1252(g) vary not

just between circuits, but also among and even within

district courts. Accordingly, the court will be open (or

not), depending on geography (or the judge assigned),

to hearing various types of claims, including:



whether noncitizens are entitled to have their

motions to reopen or applications for

provisional relief heard before they are

removed;



whether ICE is lawfully detaining noncitizens

before removal;



whether ICE followed its own procedures in

revoking orders of supervision;



whether noncitizens may challenge the

immigration courts’ jurisdiction over their

removal proceedings; and



whether individual officers may be liable for

constitutional torts against noncitizens.

The result is that challenges by similarly situated

noncitizens have different outcomes depending on

where they are brought—and Executive acts are

subject to different judicial oversight depending on

where the challenge is brought.

In light of this widespread confusion over the

scope of Section 1252(g), this Court should grant the

Petition for Certiorari to restore the balance that

Congress struck between Executive discretion and

4

judicial review, and provide much-needed guidance to

the lower courts on maintaining it.

ARGUMENT

I.

THIS COURT’S GUIDANCE IS NEEDED TO

RESTORE THE BALANCE BETWEEN EXECUTIVE

DISCRETION AND JUDICIAL REVIEW THAT

CONGRESS STRUCK IN ENACTING SECTION

1252(g)

In 1996, Congress enacted IIRIRA to streamline

removal proceedings by limiting judicial review of

certain agency acts. See Nken v. Holder, 556 U.S. 418,

423-24 (2009). The “theme” of IIRIRA was protecting

“Executive discretion” from interference by the courts.

AADC, 525 U.S. at 486. Section 1252(g) was “directed

against” one such “particular evil: attempts to impose

judicial constraints upon prosecutorial discretion.”

Id. at 485 n.9.

Before

IIRIRA,

the

Immigration

and

Naturalization Service (“INS”) had “engag[ed] in a

regular practice”—known as “deferred action”—of

“declin[ing] to institute proceedings, terminat[ing]

proceedings, or declin[ing] to execute [] final order[s]

of deportation” against otherwise deportable

noncitizens. AADC, 525 U.S. at 483-84. Often

grounded

in

humanitarian

concerns,

these

discretionary decisions—reflecting what this Court

called an “exercise of prosecutorial discretion”—led to

litigation “in instances where the INS chose not to

exercise” its discretion to defer action against

potentially removable individuals. Id. at 484, 485 n.9.

With IIRIRA, and specifically Section 1252(g),

Congress sought to “give some measure of protection

to [these] ‘no deferred action’ decisions and similar

discretionary determinations.” Id. at 485. Section

5

1252(g) thus specifically provides that, “[e]xcept as

provided [elsewhere in Section 1252] . . . 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.” 8 U.S.C. § 1252(g)

(emphasis added).

The “discretion-protecti[on]” of Section 1252(g)

was not crafted to bar non-final-order review of “all

claims arising from deportation proceedings.” AADC,

525 U.S. at 482, 487 (emphasis added).2 In AADC,

this Court explicitly rejected such a broad reading of

the statute, holding that Section 1252(g) is “much

narrower.” Id. at 482. Justice Scalia, writing for the

2 On its own terms, Section 1252(g) does not purport to strip

all federal court jurisdiction over claims that fall within its

purview. Rather, the provision “channels” such claims into the

courts of appeals, in connection with their jurisdiction to review

final orders of removal. See 8 U.S.C. §§ 1252(a), 1252(g)

(qualifying jurisdiction-stripping clause by stating “Except as

provided in this section . . .”); AADC, 525 U.S. at 483, 485; id. at

495 (Ginsburg, J.) (concurring). In Petitioner’s case, however,

and others like it, the Sixth Circuit’s holding effectively

forecloses all judicial review, as the events giving rise to his

claim did not occur until nine years after his removal order

became final. See, e.g., Pomaquiza v. Sessions, 2017 WL

4392878, at *2 (D. Conn. Oct. 3, 2017) (petition for review already

denied, challenge only to arbitrary denial of stay of removal, not

to order of removal); Nino v. Johnson, 2016 WL 6995563, at *4

(N.D. Ill. Nov. 30, 2016) (petition for review already denied,

challenge only to revocation of order of supervision, not to order

of removal). Notably, Petitioner does not challenge the validity

of the final order, but seeks only a stay of removal in order to care

for his ill wife. The Sixth Circuit’s decision thus shields the

Executive from any judicial check, and deprives Petitioner of any

judicial review of ICE’s invocation of the fugitive disentitlement

doctrine.

6

Court, explained that Section 1252(g) 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’”—that is, the discrete areas over which the

Executive may exercise its “prosecutorial discretion”

to “initiat[e]. . . prosecut[e] . . . [or] abandon” removal

proceedings. Id. at 482-83, 485 n.9. As Justice Scalia

noted, “[t]here are of course many other decisions or

actions that may be part of the deportation process”

that do not fall within those three acts, “such as the

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. at 482.

More recently, a plurality of this Court reiterated

that although Section 1252(g) by its terms covers

claims “arising from” the “decision or action” by the

Executive to “commence proceedings, adjudicate

cases, or execute removal orders,” the “arising from”

language “refer[s] to just those three specific actions

themselves.” Jennings v. Rodriguez, 138 S. Ct. 830,

841 (2018) (Alito, J.). It does not “sweep in any claim

that can technically be said to ‘arise from’ the three

listed actions of the Attorney General.” Id.

And just last term, the Court again emphasized

that Section 1252(g) is “narrow” and does not cover

“all claims arising from deportation proceedings” or

impose “a general jurisdictional limitation.” Dep’t of

Homeland Sec. v. Regents of Univ. of Calif., 140 S. Ct.

1891, 1907 (2020).

Despite this Court’s repeated limitation of Section

1252(g) to its text and targeted purpose, lower courts

have not followed suit—their application of the

7

statute creates a patchwork of rules. In addition to

the circuit split illustrated by Petitioner, see Pet. for

Cert. 11-15, varying interpretations of Section 1252(g)

have proliferated among the lower courts, sometimes

even within the same districts.

The Court should use this case as a vehicle to

clarify the scope of Section 1252(g) for the benefit of

lower courts struggling with inconsistent and

contradictory precedents.

II. CONFUSION OVER THE SCOPE OF SECTION

1252(g) HAS PROLIFERATED ACROSS THE

LOWER COURTS

Courts are divided over precisely what claims are

included in or arise from the “three discrete actions”

covered by Section 1252(g). AADC, 525 U.S. at 482.

The wide variation in approach to Section 1252(g) is

fundamentally unfair. Courts that read Section

1252(g) broadly to bar jurisdiction—despite this

Court’s repeated admonitions that the statute is

narrow and the “strong presumption favoring judicial

review of administrative action,” Salinas v. U.S. R.R.

Ret. Bd., 141 S. Ct. 691, 698 (2021)—shield from

review numerous government actions that, had they

occurred in other districts, would face judicial

scrutiny.

Disparities in the balance between

Executive discretion and judicial review proliferate

arbitrarily across jurisdictions, and similarly-situated

noncitizens thus receive wildly different treatment

depending on accidents of geography and judicial

assignment. This Court’s guidance on the proper

scope of Section 1252(g) is sorely needed.

8

A. Lower courts are divided on the

applicability of Section 1252(g) to a wide

range of claims

Section 1252(g) issues arise in a broad array of

contexts, leaving courts divided as to what claims they

may hear. The following sections illustrate the

discordant judicial approaches and conclusions that

have proliferated.3

1. Claims challenging the

Executive’s legal authority to act

A principal issue about which lower courts

disagree is whether Section 1252(g) bars a

noncitizen’s claim that the Executive lacked any

predicate legal authority to exercise its purported

discretion in one of the three specific areas set forth in

Section 1252(g). This issue often arises in connection

with petitions for writs of habeas corpus in which a

petitioner seeks a stay of removal while pursuing

provisional waivers or similar types of relief that

would allow them to remain in the United States.4

The court in Singh v. Cole recently summarized

the divergence in case law on this issue. 2020 WL

7655276, at *5-6 (W.D. La. Nov. 17, 2020), report and

recommendation adopted, 2020 WL 7647537 (W.D.

La. Dec. 23, 2020). The Singh court reviewed several

decisions holding that Section 1252(g) did not strip

3 Amici in this brief focus on the need for the Court to explain

the standard for applying Section 1252(g). This brief does not

address the specific errors that amici believe infect many of the

decisions discussed herein.

4 Such relief includes provisional unlawful presence waivers,

“T-Visas” for victims of human trafficking, and relief under the

Violence Against Women Act (“VAWA”) for victims of domestic

violence.

9

courts of jurisdiction over a request for a stay of

removal pending petitioner’s exhaustion of the

provisional waiver process. Id. Such claims were

construed to present a “purely legal” question

concerning “the legal authority of ICE to exercise such

discretion when the subject of the removal order also

has a right to seek relief made available by the DHS,”

and were not construed as a challenge to “ICE’s

prosecutorial discretion in executing removal orders.”

Id. at *6 (citing, e.g., De Jesus Martinez v. Nielsen, 341

F. Supp. 3d 400, 406 (D.N.J. 2018), and Calderon v.

Sessions, 330 F. Supp. 3d 944, 954 (S.D.N.Y. 2018))

(emphasis added); see also, e.g., Pena v. Meade, 2020

WL 7647022, at *5 (S.D. Fla. Dec. 3, 2020) (finding

jurisdiction where “Petitioner challenges ICE’s legal

authority to exercise its discretion in removing him

before he has had a chance to avail himself of the

provisional

waiver

process”),

report

and

recommendation adopted, 2020 WL 7641054 (S.D.

Fla. Dec. 23, 2020); S.N.C. v. Sessions, 2018 WL

6175902, at *4-5 (S.D.N.Y. Nov. 26, 2018) (APA and

due process challenge to execution of removal order

before adjudication of T-Visa and VAWA applications

did “not challenge the wisdom of ICE’s decision to

remove her, but dispute[d] ICE’s legal authority . . . to

remove her while her visa applications are being

adjudicated”).

Other decisions, also discussed in Singh, reached

the opposite conclusion—typically characterizing

similar claims as seeking to “override the Executive’s

discretion to execute a valid removal order.” 2020 WL

7655276, at *6 (citing, e.g., Karr v. Meade, 447 F.

Supp. 3d 1293, 1302 (S.D. Fla. 2020); Probodanu v.

Sessions, 387 F. Supp. 3d 1031, 1040-43 (C.D. Cal.

2019) (government’s decision to execute removal order

despite pending waiver application process was

10

unreviewable); Mamadjonova v. Barr, 2019 WL

6174678, at *7 (D. Conn. Nov. 20, 2019) (same); Gomes

v. Smith, 381 F. Supp. 3d 120, 122-24 (D. Mass. 2019)

(relief sought “emanate[d] from his removal

proceedings” thus precluding review)); see also, e.g.,

E.F.L. v. Prim, 2020 WL 586803, at *6 & n.3 (N.D. Ill.

Feb. 6, 2020) (removing petitioner while her VAWA

application was pending was an unreviewable “act of

discretion”), aff’d, 2021 WL 244606 (7th Cir. Jan. 26,

2021).

After setting forth this nationwide split in

authority, the Singh court held that Section 1252(g)

barred the petitioner’s claim, reasoning that, even

though the petitioner was not challenging removal

and sought only “the opportunity to complete the steps

of the process that can be applied for stateside prior to

his removal,” the “arising from” language of Section

1252(g) insulated the Executive’s decision “as to when

to execute Singh’s removal order.” 2020 WL 7655276,

at *8.

Recently, the Eleventh Circuit waded into the

conflict, siding with courts that have held that Section

1252(g) bars jurisdiction. Camarena v. Director,

Immigration and Customs Enf’t, -- F.3d --, 2021 WL

627411 (11th Cir. Feb. 18, 2021). In Camarena, the

petitioners sought stays of removal while applying for

provisional unlawful presence waivers. Id. at *1-2.

The petitioners argued that they were not challenging

the Executive’s “discretion” in executing their removal

orders, but its “underlying authority” to do so in light

of their claimed “regulatory right” to remain in the

country until their provisional waiver processes are

resolved. Id. at *3. The Eleventh Circuit disagreed,

broadly holding that Section 1252(g) “does not offer

any discretion-versus-authority distinction of the sort

11

. . . claim[ed],” and that the petitioners were simply

“attack[ing] . . . the government’s execution of their

removal orders.” Id. at *4. Because this “attack”

“runs afoul of § 1252(g),” the court ruled that it lacked

jurisdiction. Id. at *4.

Lower courts similarly disagree as to whether a

district court may entertain a claim to request a stay

of removal pending resolution of a motion to reopen.

In Beltran Prado v. Nielsen, 379 F. Supp. 3d 1161,

1166 (W.D. Wash. 2019), the petitioner argued that

his due process rights would be violated if he were to

be removed before his motion to reopen was

adjudicated. The court held that Section 1252(g) did

not bar the claim because the petitioner was “not

directly challenging the government’s discretionary

decision to execute his removal order. Rather, he is

raising collateral legal and constitutional challenges

to the process by which the government seeks to

remove him; he asserts ‘a due process right to

challenge the [removal] order[] in the appropriate

court.’” Id. at 1168 (quoting Chhoeun v. Marin, 306 F.

Supp. 3d 1147, 1158 (C.D. Cal. 2018)). In so holding,

the court noted that courts were split on the issue. See

id. at 1167-68 (comparing Ma v. Holder, 860 F. Supp.

2d 1048, 1057-60 (N.D. Cal. 2012) (request for stay of

removal pending adjudication of motion to reopen was

barred) and Nken v. Chertoff, 559 F. Supp. 2d 32, 3637 (D.D.C. 2008), with Sied v. Nielsen, 2018 WL

1142202, *14-15 (N.D. Cal. Mar. 2, 2018) (staying

execution of removal order pending resolution of

motion to reopen)).

Other cases challenging the Executive’s authority

to act focus on the legal limits that constrain the

Executive’s exercise of its prosecutorial discretion.

In You v. Nielsen, 321 F. Supp. 3d 451, 455

12

(S.D.N.Y. 2018), a noncitizen subject to a final order

of removal petitioned for habeas relief after the

government, without warning, arrested and detained

him for removal when he appeared for an adjustmentof-status interview based on his wife’s citizenship. Id.

at 455. The petitioner argued that his arrest and

detention violated the INA, due process, and the APA.

Id. at 455-56. The court rejected the government’s

jurisdictional objections, holding that while Section

1252(g) barred challenges to “why” the government

“chose to execute the removal order,” the petitioner’s

claim was different, asking instead whether the “way

[officials] acted accords with the Constitution and the

laws of the country.” Id. at 457. Whether the steps

taken by the agency to remove the petitioner were

legal “is not a question of discretion,” and therefore

fell “outside the ambit of § 1252(g).” Id. at 457-58.

“Put another way,” the court explained, while the

Executive has unreviewable discretion to remove

noncitizens, it “cannot do so in any manner they

please.” Id. at 457; see also, e.g., D.A.M. v. Barr, 474

F. Supp. 3d 45, 60 (D.D.C. 2020) (recognizing that

Section 1252(g) does not bar review over

“nondiscretionary decisions, such as physically

deporting noncitizens in an unconstitutional manner”

and holding that the court had jurisdiction to hear

claims regarding “how to transport deportees during

the [COVID-19] pandemic” because such claims

challenged “the physical manner of their

deportation[s] [and] do[] not implicate the agency’s

discretionary decision to execute their removal

orders”); Michalski v. Decker, 279 F. Supp. 3d 487, 495

(S.D.N.Y. 2018) (“[T]he decision or action to detain an

individual” is different from “the decision or action to

commence a removal proceeding.”).

In Yearwood v. Barr, 391 F. Supp. 3d 255, 263

13

(S.D.N.Y. 2019), however, the court came to the

opposite conclusion. There, the detained petitioner

suffered from serious medical conditions and had

obtained a physician’s opinion that he should not

travel by airplane. Id. at 258. The petitioner

subsequently arranged, with ICE’s approval, for a

medical specialist to examine him at the detention

facility in support of an anticipated application for a

stay of removal. Id. at 258-59. Two nights before the

scheduled medical appointment, officials removed

him via airliner to his country of origin, denying him

a phone call to legal counsel until they arrived at the

airport for departure. Id. at 259. The petitioner

suffered a heart attack during the flight. Id. at 260.

The petitioner asserted due process and APA

violations challenging the manner of the removal

order’s execution. Id. at 263. The court rejected the

petitioner’s framing of his claims and held that

Section 1252(g) barred jurisdiction because the claim

purportedly amounted to a challenge to the removal

order itself. Id. at 263-64.

Third Circuit courts have also found that Section

1252(g) bars courts from hearing claims directed to

the steps the agency took for removal. In Tazu v.

Attorney General United States, 975 F.3d 292, 294 (3d

Cir. 2020), the petitioner was released from detention

on an order of supervision (“OSUP”). See Brief for

Pet’r in Tazu, No. 19-1715 at 1 (3rd Cir. Jan. 15, 2020).

Nearly a decade later, while in the middle of the

process of obtaining a provisional waiver, he was redetained for the purpose of removal. Tazu, 975 F.3d

at 295. The petitioner filed a habeas petition arguing

that his re-detention violated the agency’s own rules

and due process. Id. at 298. The court disagreed,

holding that “[r]e-detaining Tazu was simply the

enforcement mechanism the Attorney General picked

14

to execute his removal,” and Tazu’s challenge to that

discretionary act was covered by Section 1252(g). Id.

at 298-99. This is in stark contrast to You, D.A.M.,

and similar decisions in other courts, which teach that

the analysis should focus on “[w]hether [the

Executive’s] actions were legal,” rather than as “a

question of discretion.” You, 321 F. Supp. 3d at 457;

see also D.A.M., 474 F. Supp. 3d at 60.

Courts are split even on the specific legal issue

presented in Tazu: whether Section 1252(g) bars a

challenge to ICE’s process in re-detaining noncitizens

upon revoking OSUPs. See, e.g., Ahmad v. Whitaker,

2018 WL 6928540, at *4 (W.D. Wash. Dec. 4, 2018)

(challenging the revocation of an OSUP “does not

attack ICE’s decision to execute [the] removal order”;

it challenges the ICE detention prior to removal, and

“[s]uch claims may be brought through a habeas

petition”); Alam v. Nielsen, 312 F. Supp. 3d 574, 57981 (S.D. Tex. 2018) (finding jurisdiction over challenge

to process ICE followed in cancelling OSUP). But see

Nino v. Johnson, 2016 WL 6995563, at *4 (N.D. Ill.

Nov. 30, 2016) (decision to revoke OSUP “arose from”

the decision to execute the removal order and was

thus within the ambit of Section 1252(g)).

2. Claims challenging the agency’s

jurisdiction over the removal

proceedings

Section 1252(g) has also been asserted in

challenges to the immigration court’s jurisdiction over

the removal proceedings. Again, courts have come to

different conclusions. For example, in Vargas v. Beth,

378 F. Supp. 3d 716, 723 (E.D. Wis. 2019), the

petitioner claimed that the immigration court lacked

jurisdiction to issue the order of removal against him

because the charging document that was served on

15

him—the “notice to appear” (“NTA”)—lacked certain

information required by statute. The court held that

this claim “is precisely the sort of claim that is barred

by § 1252(g). Resolution of that claim in Vargas’ favor

would necessarily amount to an invalidation of his

order of removal, and the jurisdiction-stripping

provisions of the INA manifestly prohibit this court

from granting such relief.” Id.

The court in Diaz-Ceja v. McAleenan, 2019 WL

2774211, at *12-14 (D. Colo. July 2, 2019), reached the

opposite conclusion. The petitioner there also claimed

that the immigration judge lacked jurisdiction over

his removal proceedings due to a defective NTA. The

court determined that it had jurisdiction over the

claim notwithstanding Section 1252(g) because the

petitioner was “not challenging the Attorney

General’s discretionary decision to begin removal

proceedings, but rather whether jurisdiction properly

attached due to the alleged defect in the NTA.” Id. at

*13. The court specifically noted its disagreement

with Vargas, stating that a finding that the

immigration court lacked jurisdiction “would not . . .

invalidat[e]the removal order but rather recogniz[e]

that the order is a nullity and was never valid.” Id. at

*13 n.13.

3. Bivens claims and other claims

sounding in tort

Finally, individual defendants have asserted

Section 1252(g) as a bar to noncitizens’ Bivens claims

and other claims sounding in tort. Here, too, there is

confusion among courts as to whether the conduct

complained of “arises from” one of Section 1252(g)’s

three discretionary actions. For example, as noted by

Petitioner, the circuit courts are split as to whether

Section 1252(g) bars tort claims against officers

16

alleging that they wrongfully removed the plaintiff in

violation of a stay order or similar regulation. See Pet.

for Cert. at 12-13.

Similar discrepancies have developed with regard

to allegedly illegal arrests, detentions, and searches

and seizures. For example, in Prado v. Perez, 451 F.

Supp. 3d 306, 310-11 (S.D.N.Y. 2020), a noncitizen

brought Bivens, Federal Tort Claims Act (FTCA), and

other claims alleging that ICE agents unlawfully

arrested him and negligently provided him medical

care while he was detained. Id. at 310. The court held

that it had jurisdiction to consider his “unlawful

arrest or detention” claims because “those claims are

too distinct to be said to ‘arise from’ the

commencement of removal proceedings.” Id. at 312.

But in Khorrami v. Rolince, 493 F. Supp. 2d 1061

(N.D. Ill. 2007), the court went the other way. There,

the plaintiff alleged that his arrest and months-long

detention following the revocation of his immigration

parole—which was based on what turned out to be

false information—violated the Fourth Amendment.

Id. at 1065, 1067. The court reasoned that because

the plaintiff’s arrest and detention “was a direct

outgrowth of the decision to commence proceedings,”

the claim therefore “arises from the decision to

commence removal proceedings” and is barred by

Section 1252(g). Id. at 1067-68; see also, e.g., Rene

Morales v. United States, 2018 WL 8368658, at *5

(N.D. Ga. Aug. 6, 2018) (Section 1252(g) bars

jurisdiction over FTCA claims against ICE agents who

allegedly

seized

plaintiffs

“by

means

of

misrepresentations and disregard for policy” because

Section 1252(g) bars “challenge[s] [to] the methods

17

that ICE use[s] to detain [noncitizens]”).5

Section 1252(g) issues arise in other contexts, as

well. This Court’s guidance is needed to facilitate a

more uniform interpretation of the provision.

B. The confusion over the reach of Section

1252(g) leads to unfair disparities in

outcomes and nationwide variation in

the balance of power between the

Executive and the Judiciary

These discrepancies in the interpretation of

Section 1252(g) are not merely academic. Each split

in authority manifests in inconsistent results for

similarly-situated

noncitizens

and

regional

disparities between Executive discretion and judicial

review.

In You, for example, the Southern District of New

York explained that it had jurisdiction to hear the

noncitizen’s habeas claim because even though ICE

agents have discretion to remove noncitizens, “they

cannot do so in any manner they please. . . . [They]

could not, for example, execute removal by dropping

[the p]etitioner on a life raft in the middle of the

Atlantic Ocean” or detain him indefinitely. You, 321

F. Supp. 3d at 457; see also D.A.M., 474 F. Supp. 3d at

60 (same, in District of Columbia); but see Yearwood,

391 F. Supp. 3d at 263 (Southern District of New York

holding that Section 1252(g) bars jurisdiction over

challenge to method of removal). Courts in the Third

Circuit, by contrast, effectively insulate whatever

“enforcement mechanism” the government “pick[s]” to

execute a removal—even if, presumably, the

5 The holding in Khorrami was announced with reluctance.

See id. at 1068-69 (“I am not at all certain that this is the type of

claim Congress sought to bar when it enacted § 1252(g).”).

18

mechanism is to abandon the noncitizen at sea. Tazu,

975 F.3d at 298-99.

Likewise, if the Executive is operating in the

Third Circuit or the Northern District of Illinois, it

may revoke a noncitizen’s OSUP and re-detain him

however it wishes, secure that federal courts in those

jurisdictions shield such actions from review because

they are deemed to “arise from” the commencement of

removal proceedings. Tazu, 975 F.3d at 298-99. In

Seattle or Houston, however, courts are open to

review OSUP revocations and re-detentions. Ahmad,

2018 WL 6928540, at *4; Alam, 312 F. Supp. 3d at

579-81.

A woman subject to human trafficking and

domestic abuse seeking a T-Visa or VAWA waiver

would also face different outcomes depending on

where she happened to be detained. In New York,

district courts hear habeas petitions seeking stays of

removal based on the pendency of such applications.

S.N.C., 2018 WL 6175902, at *5. But in Chicago, a

similarly situated woman would have no recourse if

the Executive decides to remove her without giving

her an opportunity to pursue the relief that the law

provides. E.F.L., 2020 WL 586803, at *6 and n.3.

Basic questions of whether the Executive has the

legal authority to remove a petitioner when a motion

to reopen is still pending would not be heard by some

judges in San Francisco, but would be heard by some

judges in Seattle. Compare Ma, 860 F. Supp. 2d at

1057-60, with Beltran Prado, 379 F. Supp. 3d at 116668.

Individual executive officers could operate under

less constraint in Illinois and Georgia, knowing that

their conduct may be viewed as “arising from”

19

discretionary removal actions and thus not subject to

federal or constitutional tort claims in district court,

while colleagues in New York may be more

constrained, knowing that their actions could be

subject to suit. Compare Khorrami, 493 F. Supp. 2d

at 1067-68 and Rene Morales, 2018 WL 8368658, at

*5, with Prado, 451 F. Supp. 3d at 312.

These disparities in the law affect many people.

Immigration courts ordered more than 181,000 people

removed in the last fiscal year—during a global

pandemic. See Outcomes of Deportation Proceedings

in Immigration Court, Transactional Records Access

Clearinghouse,

https://trac.syr.edu/phptools/immigration/court_backl

og/deport_outcome_charge.php (last visited Feb. 26,

2021). Where so many individuals are involved, and

so much is at stake, the balance between Executive

discretion and judicial review is a crucial one. And if,

as the Sixth Circuit did here, courts are permitted to

sweep more and more Executive conduct under the

“narrow” confines of Section 1252(g), the more

unfettered from the law the Executive’s actions may

grow to be, and the more likely it is that noncitizens

will be removed unjustly without any meaningful day

in court. AADC, 525 U.S. at 487.

III. THE SIXTH CIRCUIT’S DECISION MISINTERPRETS

SECTION 1252(g)

The Sixth Circuit’s decision in this case is typical

of the impermissibly broad interpretations of Section

1252(g) that should be reined in.

20

A. The Sixth Circuit’s holding shields from

judicial review far more than claims

“arising from” discretionary Executive

action

The Sixth Circuit’s capacious reading of “arising

from” precludes judicial review of not just the agency’s

discretionary decisions, but all legal determinations

antecedent to these decisions. In holding that it lacked

jurisdiction to hear Petitioner’s claims, the Sixth

Circuit reasoned that whether ICE correctly invoked

the fugitive disentitlement doctrine went directly to

“ICE’s decision to execute an order of removal.”

Rranxburgaj v. Wolf, 825 F. App’x 278, 283 (6th Cir.

2020). But ICE’s collateral designation of Petitioner

as a “fugitive” did not “arise from” executing an order

of removal. Far from it: ICE invoked the fugitive

disentitlement doctrine to dismiss as “moot”

Petitioner’s application to stay removal on collateral

grounds that had nothing to do with the grounds for

his original removal order. See Pet. for Cert. 3. ICE

was not “executing” anything; rather, it was making

an erroneous legal decision, the effect of which was to

prevent Petitioner’s stay application from being heard

on the merits. Petitioner’s APA suit challenged that

error of law, not a “discretionary” action taken by the

agency to “execute” a removal order. See Pet. for Cert.

20.

If ICE’s erroneous invocation of the fugitive

disentitlement doctrine to moot a stay application is

shielded from review under Section 1252(g), that logic

would encompass virtually any agency action or

decision connected to an eventual removal of a

noncitizen, no matter how legally indefensible or

tangential to the exercise of discretion.

This is not the law. As a plurality of this Court

21

explained in Jennings, the phrase “arising from” in

Section 1252(g) does not “sweep in any claim that can

technically be said to ‘arise from’ the three listed

actions of the Attorney General. Instead, we read the

language to refer to just those three specific actions

themselves.” 138 S. Ct. at 841 (Alito, J.) (emphasis

added). ICE’s purely legal determination as to the

applicability of the fugitive disentitlement doctrine is

not one of “those three specific actions themselves.”

Id. To allow the Sixth Circuit’s decision to stand

would transform Section 1252(g) from a “narrow”

provision intended to protect the Executive’s

“prosecutorial discretion” into a free pass for the

Executive to interpret and flout the law at will, free

from judicial constraint.

B. The Sixth Circuit’s broad reading of

Section 1252(g) contravenes this Court’s

jurisdiction-stripping jurisprudence

This Court has repeatedly acknowledged the

“strong presumption favoring judicial review of

administrative action.” Salinas, 141 S. Ct. at 698.

This “presumption of reviewability” can only be

overcome by “clear and convincing evidence of

congressional intent to preclude judicial review.”

Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1069

(2020).

Here, if anything, the plain text and

legislative history of IIRIRA “clear[ly] and

convincing[ly]” reflect Congress’s intent not to sweep

so broadly. The “particular evil” Congress sought to

prevent with Section 1252(g)—judicial constraints on

three specific discretionary acts—does not apply to

review of ICE’s erroneous application of a legal

doctrine to moot a stay application. AADC, 525 U.S.

at 485 n.9.

22

To hold otherwise would ignore this Court’s

“consistent[] appli[cation]” of the presumption of

reviewability

to

immigration

statutes

and

concomitant narrow reading of jurisdiction-stripping

provisions. Guerrero-Lasprilla, 140 S. Ct. at 1069. In

McNary, for example, this Court held that 8 U.S.C.

§ 1160(e)(1), which bars “judicial review of a

determination respecting an application for

adjustment of status,” did not preclude review over

“collateral challenges,” including the respondents’

constitutional and statutory challenge to the agency’s

policies and practices. 498 U.S. at 491-94. A contrary

holding would have resulted in “the practical

equivalent of a total denial of judicial review,” which,

in light of the “well-settled presumption” of judicial

review, could not have been what Congress intended.

Id. at 496-97.

Similarly, in Kucana v. Holder, 558 U.S. 233

(2010), this Court rejected the Seventh Circuit’s broad

reading of another of IIRIRA’s jurisdictional

limitations, which precludes review of any Executive

action “specified under this subchapter to be in the

discretion of the Attorney General.” 558 U.S. at 237

(quoting 8 U.S.C. § 1252(a)(2)(B)(ii)). The Seventh

Circuit had interpreted the provision to foreclose

review not only of determinations made discretionary

by statute, but also those made discretionary by the

Attorney General himself through regulation. See id.

In reversing, this Court emphasized that the “basic

principle[] that executive determinations generally

are subject to judicial review” counseled in favor of

subjecting to judicial scrutiny decisions deemed

discretionary by regulation. Id. at 251; see also

Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (same

23

provision only precludes review of discretionary acts,

not the extent of the Attorney General’s legal

authority).

In Guerrero-Lasprilla, this Court interpreted the

phrase “questions of law” in another IIRIRA

provision, 8 U.S.C. § 1252(a)(2)(D), to preserve review

over not just “pure” questions of law, but also the

“application of a legal standard to settled facts.” 140

S. Ct. at 1068-70. That a contrary holding would pose

a “barrier to meaningful judicial review” served as a

“strong indication” that “questions of law”

encompassed more than just pure questions of law.

Id. at 1070.

The Sixth Circuit’s decision stands in stark

contrast to these precedents, upending the

presumption of judicial review and depriving

Petitioner of the opportunity to challenge ICE’s nondiscretionary legal determination that he is a

“fugitive.”

Section 1252(g)’s purpose is to ensure the

Executive can exercise discretion in carrying out three

delimited

actions

without

undue

judicial

interference—not to empower agencies to determine

unreviewably the meaning of the law and the extent

of their own authority. The Sixth Circuit’s decision

should be reversed to ensure that the Executive’s

“compliance with the law” does not “rest in [its] hands

alone.” Mach Mining, 575 U.S. at 488.

CONCLUSION

For the reasons stated above and in the Petition,

the Petition for a Writ of Certiorari should be granted.

24

Respectfully submitted,

RICHARD W. MARK

Counsel of Record

JOSEPH EVALL

AMER S. AHMED

TIMOTHY SUN

DORAN J. SATANOVE

ERIC M. HORNBECK

ADRIENNE LIU

GIBSON, DUNN & CRUTCHER LLP

200 Park Ave.

New York, NY 10166

(212) 351-4000

rmark@gibsondunn.com

Counsel for Amici Curiae

February 26, 2021