Breaking Down the Wall Around Judicial Review in the Immigration Context: Examining Whether § 1252(g) Precludes Review of Noncitizen FTCA Claims for Wrongful Removal in Violation of a Court Order

Abstract

On August 9, 2018, the Ninth Circuit Court of Appeals in Arce v. United States held that a jurisdiction-stripping provision of the Immigration and Nationality Act does not preclude judicial review of damages claims brought by noncitizens. The Ninth Circuit’s holding opened the door for noncitizens who were wrongfully removed from the United States in violation of a court order or automatic stay to pursue damages. In doing so, the Ninth Circuit departed from the Eighth Circuit Court of Appeals, which held that the Act precluded noncitizens’ damages claims. This Comment argues that the Ninth Circuit’s holding was correct because the ability of noncitizens to bring damages claims for their wrongful removal serves as a meaningful check on the power of immigration agencies to carry out immigration policy. Further, the ability of noncitizens to bring damages claims aligns with the policy goals of the Federal Tort Claims Act.