The Federal Tort Claims Act
The Federal Tort Claims Act (FTCA) allows those who have suffered an injury, or whose property is damaged, to file a claim with the federal government for reimbursement for that injury or damage. Under 28 U.S.C. § 2674, the federal government recognizes its liability for the negligent or wrongful acts or omissions of its employees acting within the scope of their official duties. The FTCA positions the United States—not the individual employee—as the defendant, and transfers all liability to the federal government. Therefore, the United States is liable the same way that a private party would be liable in a normal civil action.
Two cases, each with similar factual backgrounds, help illustrate the question at hand. In both cases, the plaintiffs—Lopez Silva and Claudio Anaya Arce—were erroneously deported and subsequently sued the federal government under the FTCA. In Silva’s case, he was a Mexican citizen who resided in the United States as a lawful permanent resident since 1992. After he was convicted of two criminal offenses in Minnesota, the Department of Homeland Security commenced removal proceedings against him in 2012. Silva appealed to the Board of Immigration Appeals, which issued a stay of Silva’s removal while his appeal was pending. However, in July 2013, DHS mistakenly removed Silva to Mexico before the BIA heard his appeal. DHS subsequently returned Silva to the United States several months later. An immigration judge subsequently granted Silva’s application for cancellation of his removal—allowing him to lawfully remain in the country.
In Arce’s case, he was apprehended by Customs and Border Patrol and detained in Adelanto, California in April 2014. He expressed a fear of harm if he was removed to Mexico, but an asylum officer determined that he had not demonstrated a reasonable fear of persecution or torture. This decision was affirmed by an immigration judge on February 4, 2015, and the DHS began the process of removing him to Mexico. However, on February 6, Arce filed an emergency petition for review and a motion for a stay of removal with the Ninth Circuit. The court immediately issued a temporary stay of removal, but Arce was removed to Mexico later that day—despite the fact that Arce’s counsel put DHS on notice of the stay. Arce remained in Mexico until February 20, when he was returned to the United States.
Both Silva and Arce sued the federal government for harm arising from their unlawful removal. The District Courts of Minnesota and the Central District of California dismissed both cases on the ground that Section 242(g) of the Immigration and Nationality Act deprived them of jurisdiction. Specifically, they held Section 242(g), which applies to agency decisions or actions to “commence proceedings, adjudicate cases, or execute removal orders” divested them of subject-matter jurisdiction. Silva and Arce appealed to the Eighth and Ninth Circuits, respectively.
The Circuit Split
Both cases raise the question: do federal courts have jurisdiction over civil actions brought under the FTCA by immigrants alleging wrongful removal from the United States?
In Silva v. United States (2017), the Eighth Circuit affirmed the district court’s decision in a 2-1 ruling that it lacked jurisdiction under the FTCA. The court held that Silva’s claims were directly connected to the execution of the removal order, and that Section 242(g) applied to bar the plaintiff’s civil action.
Judge Kelly dissented, however, and argued that the United States Supreme Court rejected the assumption that Section 242(g) covered that kind of deportation claim in Reno v. American-Arab Anti-Discrimination Committee (1999). She would have held that the mandatory automatic stay in Silva’s case “suspended the source of authority for the agency to act” on the removal order and therefore “temporarily divested the order of enforceability.” Accordingly, Silva’s claims did not arise “from the government’s decision or action to execute a removal order,” because a valid removal order did not exist at the time he was removed. She noted that the Third Circuit had held in Garcia v. Attorney General (2009), that Section 242(g) doesn’t apply when the petitioner is challenging the government’s authority to commence removal proceedings, not the discretionary decision to commence proceedings.
The Ninth Circuit charted a different course than the Eighth Circuit, and instead embrace the position that Judge Kelly articulated in dissent. In Arce v. United States (2018), the court rejected the government’s argument that Arce’s claims were foreclosed by Section 242(g) because they arose from the Attorney General’s decision or action to execute the removal order. Citing Judge Kelly’s dissent in Silva, the court held that the statute does not “sweep as broadly as the government contends.” Arce, it found, was not attacking the removal itself but the authority of the Attorney General to execute the removal order in light of the stay of removal that the court had issued.
Though these cases have mostly flown under the radar—especially given the recency of the Ninth Circuit’s opinion—they raise important ramifications for those who wish to bring claims under the FTCA for wrongful removal. In many ways, this split is a perfect embodiment of the reason that the Supreme Court wishes to avoid circuit splits in the first place. In some parts of the country, the federal government is financially liable for actions that it is not liable for in other parts of the country, raising the need for the Supreme Court to resolve the split.