Reported / Citable
Background
Jorge Felix Ibarra-Perez received a removal order from an immigration court but the order did not specify a country of removal. The government nonetheless removed him to Mexico. He sued the United States under the Federal Tort Claims Act (FTCA), claiming damages for the government’s decision to remove him to Mexico specifically, arguing that removal amounted to negligence or other tortious conduct by federal officials.
The central legal question was whether 8 U.S.C. § 1252(g) — a jurisdiction-stripping provision that bars courts from hearing “any cause or claim by or on behalf of any alien arising from the decision or action by the [Attorney General] to . . . execute removal orders” — blocked the federal district court from hearing the case. The government argued the removal to Mexico was simply execution of the removal order and thus shielded by § 1252(g). The panel disagreed and allowed the FTCA suit to proceed. The government petitioned for rehearing en banc.
The Court’s Holding
The Ninth Circuit denied en banc rehearing. The denial produced dueling statements from the judges. Judges Hawkins and Fletcher, respecting the denial, wrote that the panel correctly applied the Supreme Court’s repeated instruction to read § 1252(g) narrowly. Because Ibarra-Perez’s removal order did not mention Mexico, removal to Mexico was not “execution” of that order within the meaning of the statute. A broad reading of § 1252(g), they warned, would insulate from any judicial review the government’s choice to send a noncitizen to a country not named in the removal order — including countries where the person faces persecution, torture, or death.
Judge Bea, joined by eleven colleagues in dissent, wrote that the panel’s decision effectively nullified § 1252(g). In their view, removal is removal: the government’s decision to select Mexico as the destination was inextricably part of the execution of the removal order, not a separate tortious act. They argued the panel’s interpretation opens the floodgates for district court injunctions filed by noncitizens with final removal orders seeking last-minute relief — a disruption already visible in lower courts citing the panel’s decision to exercise jurisdiction they would previously have lacked.
The split — twelve judges dissenting from the en banc denial — signals the issue may ultimately require Supreme Court resolution.
Key Takeaways
- For now, the Ninth Circuit’s panel ruling stands: § 1252(g) does not bar FTCA district court suits for damages when the government removes a noncitizen to a country not specified in the removal order.
- The deep 12-judge dissent from en banc denial signals this ruling is unstable and may be challenged at the Supreme Court; practitioners should treat it as good law for now but monitor closely.
- Noncitizens who believe they were removed to a country not authorized by their removal order may have an FTCA damages claim against the federal government in district court — separate from and in addition to any petition-for-review process.
- The decision has immediate relevance to third-country removal situations — where the government sends a person to a country other than their native country, including as part of agreements with cooperating nations.
- Immigration counsel representing clients facing removal should document the country or countries specified in any removal order, as that specificity (or lack thereof) may determine what judicial remedies remain available after the fact.
Why It Matters
This ruling matters well beyond its individual facts. The federal government has increasingly used third-country removal agreements — sending noncitizens to countries that are not their country of origin — as an immigration enforcement tool. The Ninth Circuit’s panel decision, left in place by this en banc denial, creates a pathway for noncitizens who were removed to a third country not named in their removal orders to seek FTCA damages in federal district court. That is a novel and significant avenue of judicial oversight over the executive’s removal choices.
For immigration practitioners in California — the state with the country’s largest noncitizen population and the circuit that handles the most immigration appeals — the practical lesson is to obtain and preserve removal orders in their full text, note whether a destination country is specified, and evaluate whether a wrongful removal claim is viable under FTCA. The sharp ideological split on the en banc vote also suggests this issue will remain contested, and attorneys should anticipate that the law in this area could shift if the Supreme Court weighs in.