Camarena v. Dir., Immigration & Customs Enforcement, 19-13446

988 F.3d 1268

Keila Rosa CAMARENA, Plaintiff-Appellant,

v.DIRECTOR, IMMIGRATION AND CUSTOMS ENFORCEMENT, ERO Tampa Field Office, Secretary, United States Department of Homeland Security, Acting Secretary, Defendants-Appellees.

Javier Barrios, Liliana Mariela Pato, Plaintiffs-Appellants,

v.Act. Sec. Dept. DHS Kevin K. McAleenan, in his official capacity as Acting Secretary of Homeland Security, Acting Director Matthew T. Albence, in his official capacity as Acting Director, U.S. Immigration and Customs Enforcement, et al., Defendants-Appellees.

No. 19-13446

No. 19-14331

United States Court of Appeals, Eleventh Circuit.

February 18, 2021

Anthony Richard Dominguez, Mark Andrew Prada, Prada Urizar, PLLC, Miami, FL, Eduardo Rigoberto Soto, Eduardo Soto & Associates, Coral Gables, FL, for Plaintiffs - Appellants.

Jennifer Waugh Corinis, U.S. Attorney's Office, Tampa, FL, Mary Larakers, U.S. Department of Justice, Office of Immigration Litigation, Court Section, Washington, DC, U.S. Attorney Service - Middle District of Florida, U.S. Attorney's Office, Tampa, FL, for Defendants - Appellees Director, U.S. Immigration and Customs Enforcement (ICE), ERO Tampa Field Office, and Secretary, U.S. Department of Homeland Security, Acting Secretary.

Nicole Patrice Grant, David White, U.S. Department of Justice, Civil Division, Washington, DC, Mary Larakers, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Emily M. Smachetti, U.S. Attorney's Office, Miami, FL, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, Miami, FL, for Defendants - Appellees Act.Sec. Dept. DHS Kevin K. McAleenan, Matthew T. Albence, Kenneth T. Cuccinelli, Michael W. Mead, and U.S. Citizenship and Immigration Services Southeast Region.

Before WILSON, GRANT, and TJOFLAT, Circuit Judges.

GRANT, Circuit Judge:

These consolidated appeals involve two immigrants who admit that they are subject to valid removal orders. Still, when the government moved to execute those orders, they sued. Both had applied for provisional unlawful presence waivers; those waivers, if granted, would give them an easier time getting back into the United States in the future. They say that the government cannot remove them just yet because that would interfere with their "regulatory rights" to remain in the United States while they apply for the waivers. But their applications do not give us jurisdiction to interfere with the execution of their removal orders. We therefore affirm the district courts’ orders dismissing their petitions.

I.

A.

Keila Camarena, a native and citizen of the Dominican Republic, entered the United States on a tourist visa in March 2002. That visa authorized her to stay for only six months. But soon after her arrival, U.S. Citizenship and Immigration Services approved a change of status request and issued her an H1B1 visa. Her new H1B1 visa permitted her to remain in the United States until June 2005.

Three years after her departure deadline, Camarena—still in the United States—petitioned to become a permanent resident. When Citizenship and Immigration Services denied her petition, the Department of Homeland Security initiated removal proceedings against her. Those proceedings ended roughly four years later, when an immigration judge ordered her removed. Camarena never appealed that decision to the Board of Immigration Appeals and never petitioned this Court for review.

Instead of removing her immediately, Immigration and Customs Enforcement (ICE) issued her an order of supervision. That order required that she periodically check in at the agency's Tampa office. This arrangement lasted nearly six years, until the agency decided to execute her outstanding removal order, requiring that she depart the United States the next month.

But shortly before her final departure date, Camarena sought to stay her removal by filing a petition for writ of habeas corpus and an emergency motion for a temporary restraining order. In her petition, she argues that she is "in the process of fixing her legal status" by seeking a provisional unlawful presence waiver. She contends that she has the right to remain in the United States while applying for that waiver. If approved, the waiver would relieve Camarena of a statutory bar on reentry that would otherwise apply to her.¹ See 8 U.S.C. § 1182(a)(9)(B)(v) ; 8 C.F.R. § 212.7(e).

The district court dismissed Camarena's petition, concluding that it lacked subject matter jurisdiction over her claims. She appealed, and we stayed her removal pending appeal.

B.

Javier Barrios is a native and citizen of Argentina. He entered the United States in December 2001 under a visa waiver program. See 8 U.S.C. § 1187. He has remained in the United States since then despite being authorized to stay only a few months.

In 2009, ICE detained Barrios and ordered him removed under 8 C.F.R. § 217.4(b). But it did not immediately remove him. Instead, Barrios remained in the United States under an order of supervision. But ten years later, the agency advised Barrios that it was executing his removal order, and that he must depart the United States within a few months.

The day before he was required to depart, however, Barrios filed a habeas petition and an emergency motion to halt the execution of his removal order. Like Camarena, he contends that he has the right to remain in the United States while he applies for a provisional unlawful presence waiver. And like in Camarena's case, the district court concluded that it lacked jurisdiction over his claim. It therefore denied his emergency motion. He appealed, and we stayed his removal pending appeal.

II.

We review de novo a district court's dismissal for lack of subject matter jurisdiction. See Bejacmar v. Ashcroft , 291 F.3d 735, 736 (11th Cir. 2002).

III.

As the familiar maxim goes, federal courts are "courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). After all, we "possess only that power authorized by Constitution and statute." Id. For that reason, we "cannot extend the court's hand to seize topics Congress has put beyond our reach." Bourdon v. U.S. Dep't of Homeland Sec. , 940 F.3d 537, 546 (11th Cir. 2019).

One such jurisdiction-stripping provision is 8 U.S.C. § 1252(g). Section 1252(g) bars federal courts from hearing "any cause or claim" by an alien "arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders." It is a "discretion-protecting provision" designed to prevent the "deconstruction, fragmentation, and hence prolongation of removal proceedings." Reno v. Am.-Arab Anti-Discrimination Comm. , 525 U.S. 471, 487, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999).

Of course, § 1252(g) does not cover "the universe of deportation claims." Id. at 482, 119 S.Ct. 936. It is not a "shorthand way of referring to all claims arising from deportation proceedings." Id. Nor does § 1252(g) impose a "general jurisdictional limitation." Id. As the Supreme Court has explained, § 1252(g) lists just three "discrete actions": actions to "commence proceedings, adjudicate cases, or execute removal orders." Id. And although "many other decisions or actions" may be "part of the deportation process," only claims that arise from one of the covered actions are excluded from our review (at least by this provision). Id.

But when does a claim arise from one of the three covered actions? The Supreme Court has answered that too, cautioning us against interpreting § 1252(g) ’s "arising from" language broadly. See id. This approach ensures that § 1252(g) ’s jurisdictional bar does not "sweep in any claim that can technically be said to ‘arise from’ the three listed actions." Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 841, 200 L.Ed.2d 122 (2018). And that means that § 1252(g) bars only those claims that directly relate to the "three specific actions" it lists. Id. ; see also Gupta v. McGahey , 709 F.3d 1062, 1065 (11th Cir. 2013) (no jurisdiction when one of the three listed actions is the "basis of the claim").

With that understanding, we turn to the appeal at hand. Here, Camarena and Barrios's claims arise from the government's "decision or action" to "execute" their removal orders. 8 U.S.C. § 1252(g). As we noted above, the government told Camarena and Barrios that it was executing their removal orders, and that they must depart the country by a specified date. In response, the two filed habeas petitions seeking to halt their removal while they apply for provisional unlawful presence waivers. When "asking if a claim is barred by § 1252(g), courts must focus on the action being challenged." Canal A Media Holding, LLC v. U.S. Citizenship & Immigr. Servs. , 964 F.3d 1250, 1257–58 (11th Cir. 2020). Here, that action is the government's execution of the petitioners’ removal orders. That means their claims fall squarely within § 1252(g) ’s jurisdictional bar.

Even so, Camarena and Barrios argue that we retain jurisdiction because, as they see it, they are challenging the government's underlying authority to execute those orders, rather than its discretion to do so. They contend that the waiver process contains within it a "regulatory right" to remain until that process is resolved. And if they have a regulatory right to stay, they say, then the government has no authority to remove them.²

But this argument runs headlong into § 1252(g). The bottom line is that § 1252(g) strips us of jurisdiction to hear the claims brought by Camarena and Barrios, and that statute does not offer any discretion-versus-authority distinction of the sort they claim. The statute's words make that clear. One word in particular stands out: "any." Section 1252(g) bars review over "any" challenge to the execution of a removal order—and makes no exception for those claiming to challenge the government's "authority" to execute their removal orders. 8 U.S.C. § 1252(g) ; ...