[00:00:00] Speaker 02:
in the case, the case is now submitted.

[00:00:02] Speaker 02:
And we'll move on to the second case set for argument, which is Ibarra Perez versus United States, case number 24, 631.

[00:01:03] Speaker 02:
This room, you know, yes.

[00:01:04] Speaker 00:
Good morning.

[00:01:05] Speaker 00:
May it please the court train real meadow from the National Migration Litigation Alliance, joined by my colleagues, Laura Bellos and Rocio Castaneda Acosta from the Florence project on behalf of plaintiff appellant Mr. Jorge Barra Perez.

[00:01:18] Speaker 00:
I'd like to reserve five minutes for rebuttal.

[00:01:22] Speaker 00:
The district court aired when it dismissed Mr. Barra Perez's complaint under the Federal Tort Claims Act for lack of jurisdiction under 1258 USC 1252 G.

[00:01:32] Speaker 00:
A-5 and B-9.

[00:01:34] Speaker 00:
The complaint alleges that the United States is liable for acts and admissions of ICE officers for four torts where, after Mr. Ibarra-Perez was granted protection from deportation to Cuba in the form of withholding of removal, ICE agents violated their legal mandate to afford Mr. Ibarra-Perez meaningful notice or an opportunity to contest removal before deporting him to Mexico.

[00:01:59] Speaker 00:
a country never designated in the prior proceedings, and where he experienced the very persecution he feared.

[00:02:06] Speaker 02:
So can I start?

[00:02:09] Speaker 02:
This is an unusual case in the sense that he was deported, as I understand it, five days after the IJ.

[00:02:15] Speaker 02:
Now, he didn't appeal that to the BIA.

[00:02:17] Speaker 00:
He would have no reason to.

[00:02:19] Speaker 00:
He won his case.

[00:02:21] Speaker 00:
And Cuba was the only country that was ever designated in the prior proceedings.

[00:02:28] Speaker 02:
Let's say he hadn't been deported.

[00:02:30] Speaker 02:
Let's say they had just issued a redesignation to deport him to Mexico.

[00:02:37] Speaker 02:
But he was still in the United States.

[00:02:38] Speaker 02:
They hadn't deported him.

[00:02:40] Speaker 02:
What would his relief have been at that point?

[00:02:45] Speaker 00:
So your question assumes that ICE would have issued a redesignation.

[00:02:51] Speaker 00:
We know that ICE doesn't have a policy to do that.

[00:02:54] Speaker 02:
I thought ICE said that

[00:02:56] Speaker 02:
At least what I read was at least they'd made representations to the Supreme Court that they would not do a redesignation without giving notice.

[00:03:03] Speaker 00:
Correct.

[00:03:04] Speaker 00:
And therein lies the problem.

[00:03:05] Speaker 02:
I understand that.

[00:03:06] Speaker 02:
But what's unusual about this case is he was deported.

[00:03:10] Speaker 02:
If he hadn't been deported and they had done what they have represented, they would do and they would give notice.

[00:03:16] Speaker 02:
What would his relief have been?

[00:03:18] Speaker 00:
So ICE should have moved to redesignate the country of removal to be Mexico.

[00:03:25] Speaker 00:
and ask the immigration judge to make that resignation because that's what's required to happen under the statute and regulations.

[00:03:32] Speaker 00:
They would have moved to reopen proceedings.

[00:03:34] Speaker 00:
Mr. Baraperez would have had his opportunity to raise his fair-based claim to Mexico for an immigration judge.

[00:03:41] Speaker 02:
I totally agree with you.

[00:03:42] Speaker 02:
And that is a claim that sounds in due process, right?

[00:03:46] Speaker 00:
It sounds in due process, but it's also under the statute, the INA, Section 1231B,

[00:03:53] Speaker 00:
their designation statutes both carve out B1 and B2, which are the designation statutes, carve out the government's ability to deport to a third country subject to B3.

[00:04:07] Speaker 02:
I understand, but that would then be a challenge to his removal order.

[00:04:14] Speaker 02:
He would say, you can't remove me to Cuba, which everyone agrees.

[00:04:18] Speaker 02:
And they if this had gone through the normal process he would have had an opportunity to in theory to challenge the re designation to Mexico and that would have been.

[00:04:29] Speaker 02:
A case challenging his deportation because he would have then come in and said.

[00:04:36] Speaker 02:
You can't deport me to Mexico because I have a fear of persecution.

[00:04:39] Speaker 00:
Right.

[00:04:40] Speaker 00:
I mean, of course they can re-designate the country.

[00:04:42] Speaker 00:
Nobody is challenging ISIS to re-designate.

[00:04:45] Speaker 02:
I don't know that we're disagreeing necessarily that he should have had the opportunity to do it.

[00:04:49] Speaker 02:
My point is, your claims here sound in due process and in the immigration process.

[00:04:57] Speaker 02:
I mean, ultimately all of that, that's clearly what they are.

[00:05:00] Speaker 02:
Ultimately, his claim is you

[00:05:04] Speaker 02:
wrongfully deported me to Mexico.

[00:05:08] Speaker 02:
And he should have had the opportunity to challenge that.

[00:05:12] Speaker 00:
His ultimate claim is you failed to provide the mandatory protections of notice and an opportunity.

[00:05:19] Speaker 02:
And that's a challenge to their process of deportation, correct?

[00:05:24] Speaker 00:
It's a challenge to their lack of authority to deport him to Mexico without providing those protections.

[00:05:31] Speaker 00:
And that is a nondiscretionary authority

[00:05:34] Speaker 02:
But it's still a challenge to his removal.

[00:05:39] Speaker 00:
It's a challenge to ISIS authority to execute the removal order.

[00:05:43] Speaker 00:
Exactly.

[00:05:43] Speaker 02:
But whichever way you say it, the point is... No, but that's important because if that's true, then this is barred, then the claims are barred under 1252A.

[00:05:53] Speaker 02:
If you're challenging the removal order, that's what the statute says.

[00:05:59] Speaker 04:
slightly different view of this.

[00:06:02] Speaker 04:
But can we start with this?

[00:06:04] Speaker 04:
Do you challenge the entry of a removal order?

[00:06:09] Speaker 00:
Absolutely not.

[00:06:10] Speaker 00:
In fact, at the time this claim was raised, the removal order for which it was executed no longer existed because Mr. Abara's case had been reopened and had been granted asylum to Cuba.

[00:06:22] Speaker 04:
Did he have counsel at the point in time the removal order was entered?

[00:06:28] Speaker 00:
In 2020, he did not have counsel at the time it was entered, and that was the order that they executed.

[00:06:36] Speaker 04:
Let's assume they had the full panoply of the Florence Project behind him at that point.

[00:06:41] Speaker 00:
Only after they encountered him.

[00:06:42] Speaker 04:
This is hypothetical.

[00:06:44] Speaker 04:
Let me finish my question.

[00:06:46] Speaker 04:
Sorry.

[00:06:47] Speaker 04:
I may be trying to help you, so don't interrupt me.

[00:06:53] Speaker 04:
If he'd had the Florence Project behind him at that point and he's in receipt,

[00:06:58] Speaker 04:
of an order of removal and he says, if I says to counsel, I'm afraid they're going to send me to Mexico.

[00:07:05] Speaker 04:
What can I do?

[00:07:08] Speaker 04:
What could he have done?

[00:07:10] Speaker 00:
Well, speaking with the record here shows that.

[00:07:15] Speaker 04:
he had no idea he could be deported to Mexico and so without notice that you could be deported this is hypothetical hypothetical questions are in our purview i can frame them any way that i want if you want to dispute the facts that apply to your case please don't but i'm assuming that he had counsel and he's got an order

[00:07:39] Speaker 04:
And it doesn't say where he's going.

[00:07:41] Speaker 04:
And he says to counsel, I'm afraid they're going to send me back to Mexico, or I have a history of being abused.

[00:07:49] Speaker 04:
What can I do?

[00:07:51] Speaker 04:
What could he have done?

[00:07:53] Speaker 00:
Well, I think that Florence Council would have said, we have no reason to believe that you're going to be deported to Mexico, because in the Ninth Circuit, the law is that they can't do a last minute change of designation.

[00:08:06] Speaker 04:
There was no designation.

[00:08:08] Speaker 00:
There was a designation to Cuba and that was withheld.

[00:08:12] Speaker 04:
Okay.

[00:08:12] Speaker 04:
But there was no designation.

[00:08:14] Speaker 04:
He's got a blank order of removal that doesn't say where he's going.

[00:08:19] Speaker 04:
Correct?

[00:08:20] Speaker 00:
Most order of removal say that, but assuming that hypothetical, correct.

[00:08:25] Speaker 00:
Then what kicks in?

[00:08:26] Speaker 04:
The facts of this case, did the order of removal say where he was going?

[00:08:31] Speaker 00:
It said it was withheld to Cuba.

[00:08:34] Speaker 04:
Couldn't go to Cuba.

[00:08:35] Speaker 00:
And that the immigration judge would have granted asylum to Cuba if but for this transit ban regulation that was in effect at the time.

[00:08:45] Speaker 04:
So what could he have done to avoid?

[00:08:51] Speaker 00:
He couldn't have done anything unless he had noticed that he was going to Mexico.

[00:08:56] Speaker 00:
And if they had given him notice and a meaningful opportunity, then what should have happened is what is put forth in the amicus brief here, ICE should have moved to reopen proceedings to designate Mexico.

[00:09:09] Speaker 00:
That's how it's supposed to work.

[00:09:11] Speaker 00:
And it didn't work in this case in that way.

[00:09:14] Speaker 02:
And counsel, I think you have a good point there.

[00:09:17] Speaker 02:
I'm not trying to take that away from you.

[00:09:19] Speaker 02:
But my question is, how does that turn this into a tort?

[00:09:23] Speaker 02:
I mean, how is this negligence?

[00:09:26] Speaker 02:
It might be a lack of due process, but how is it negligence?

[00:09:33] Speaker 00:
Go ahead.

[00:09:33] Speaker 02:
I apologize.

[00:09:34] Speaker 02:
No, no, no.

[00:09:35] Speaker 00:
Because it was a breach of the government's duty to first screen for a protection claim before a person is deported to a third country.

[00:09:44] Speaker 00:
And that is a duty that they have.

[00:09:46] Speaker 00:
It's mandatory.

[00:09:47] Speaker 00:
They tell the Supreme Court, they give lip service to it all the time, to the Supreme Court, that that's what they do.

[00:09:53] Speaker 00:
And so that's a breach of a mandatory duty.

[00:09:56] Speaker 00:
And it's a nondiscretionary duty, which means this is why it falls outside of the scope of 1252G.

[00:10:03] Speaker 00:
This case is on all fours with ours versus United States.

[00:10:06] Speaker 00:
In that case, this court held that an FTCA claim based on the same torts of negligence and intentional inflection of emotional distress could go forward.

[00:10:17] Speaker 03:
In a way, there's a cart before the horse, meaning we're not

[00:10:22] Speaker 03:
We're not being asked to adjudicate a Federal Tort Claims Act case, which he wants to bring.

[00:10:27] Speaker 03:
The question in front of us is, can he even file the case?

[00:10:30] Speaker 03:
So whether it's a good cause of action under the Federal Tort Claims Act or not at this point, I don't care.

[00:10:37] Speaker 03:
It's not in front of me.

[00:10:38] Speaker 03:
The question is whether or not he's barred from doing so.

[00:10:41] Speaker 03:
So I want just a factual question.

[00:10:43] Speaker 03:
The I.J.

[00:10:45] Speaker 03:
entered an order that said Cuba is not available.

[00:10:49] Speaker 03:
He was then sent to Mexico.

[00:10:51] Speaker 03:
Did the I.J.

[00:10:53] Speaker 03:
or did any I.J.

[00:10:55] Speaker 03:
have any knowledge of or anything to do with having been sent to Mexico?

[00:11:00] Speaker 00:
Absolutely not.

[00:11:01] Speaker 03:
So that takes place entirely after the adjudication by the IJ.

[00:11:05] Speaker 00:
Absolutely.

[00:11:06] Speaker 03:
So how does that then fit or not fit with the exclusion that we're given in section 1252?

[00:11:15] Speaker 00:
1252G?

[00:11:18] Speaker 00:
Yes.

[00:11:19] Speaker 03:
I mean, that's what the fight's all about.

[00:11:21] Speaker 00:
Yeah, the fight is about that.

[00:11:22] Speaker 00:
I mean, it fits within, it falls outside of the scope of 1252G because AADC and ours

[00:11:30] Speaker 00:
The courts have held that claims that do not arise from discretionary actions or decisions fall outside of the scope of 1252G.

[00:11:38] Speaker 00:
And in ARS, it was also a post removal order action, which was the impediment to ICE's authority to remove Mr. ARS.

[00:11:48] Speaker 00:
Here, the failure to provide those mandatory procedural protections is the impediment to ICE's authority to deport Mr. Caballo Perez to Cuba.

[00:11:58] Speaker 00:
In other words, ICE violated the mandatory obligation it had to provide those protections.

[00:12:05] Speaker 00:
And when it didn't provide those protections, it lacked the legal authority.

[00:12:09] Speaker 04:
And that's the discretion.

[00:12:12] Speaker 04:
What would you have us do?

[00:12:15] Speaker 00:
I would have you reverse the district court's decision, find that 1252G does not buy this claim.

[00:12:20] Speaker 04:
The jurisdiction stripping statute doesn't apply.

[00:12:24] Speaker 00:
Correct.

[00:12:24] Speaker 04:
And send it back to district court.

[00:12:26] Speaker 04:
What could the district court do?

[00:12:28] Speaker 00:
Well, if this court, and I hope this court does rule, those protections are mandatory, but based on the statute, the due process clause, the CAT statute and implementing regulations.

[00:12:40] Speaker 00:
If this court finds that 1252 doesn't apply,

[00:12:44] Speaker 00:
because his claims arise out of the violation of mandatory procedural protections, sends the case back down to the district court.

[00:12:52] Speaker 00:
The FTCA case will continue.

[00:12:54] Speaker 00:
We've already done nearly all of the discovery below.

[00:12:57] Speaker 00:
And the case would proceed to summary judgment briefing and then potentially a judge trial.

[00:13:05] Speaker 04:
In that circumstance, would the district judge be empowered

[00:13:10] Speaker 04:
to tell INS to reverse what they've done?

[00:13:17] Speaker 00:
It's too late to reverse what's done.

[00:13:19] Speaker 00:
He's actually already, subsequently, he presented back at the border with a Florence attorney.

[00:13:25] Speaker 00:
He got readmitted.

[00:13:27] Speaker 00:
He was held in custody.

[00:13:29] Speaker 00:
The transit ban that had barred his asylum claim got revoked, and the immigration judge granted him asylum.

[00:13:35] Speaker 04:
So you'd be looking to damages for what?

[00:13:37] Speaker 00:
Absolutely.

[00:13:38] Speaker 00:
This whole case is about the damages.

[00:13:40] Speaker 03:
So if you win here, basically the Federal Tort Claims Act case proceeds.

[00:13:46] Speaker 00:
Absolutely.

[00:13:47] Speaker 03:
And that's the only thing that would happen and how it proceeds, it proceeds and that has nothing to do with what we would say because we're not going to instruct as to how that case should go forward.

[00:13:55] Speaker 00:
Yeah.

[00:13:55] Speaker 00:
This is just a jurisdictional case, a motion based clearly on jurisdictional grounds.

[00:14:01] Speaker 00:
I see that my time is almost up.

[00:14:03] Speaker 02:
We'll give you time for rebuttal.

[00:14:04] Speaker 02:
Thank you.

[00:14:20] Speaker 01:
May it please the court, Josh De Santos, on behalf of the United States.

[00:14:24] Speaker 01:
I'd just like to take a moment to look at the complaint here, because I think that's the crucial document to look at, how the complaint describes the claims and how plaintiff himself describes the claims in his brief, because the jurisdictional question is the only one before this court.

[00:14:40] Speaker 01:
Page 22 of the complaint saying the government unlawfully deported him.

[00:14:45] Speaker 01:
Page 23 of the complaint, unlawfully deported him.

[00:14:48] Speaker 01:
Page 44, I'm sorry, I have the exercise of record, which is the complaint.

[00:14:51] Speaker 01:
Defendant's actions in deporting plaintiff without notice is the basis of the claim.

[00:14:56] Speaker 01:
Then that ICE was not authorized to deport plaintiff under these circumstances.

[00:15:02] Speaker 01:
Page 45, he was deprived of liberty by deporting him.

[00:15:08] Speaker 01:
Then deprivation of plaintiff's liberty arose from his deportation.

[00:15:12] Speaker 01:
Then page 46, that carrying out his deportation in this manner was illegal.

[00:15:17] Speaker 01:
That deporting plaintiff without unlawful notice was illegal.

[00:15:20] Speaker 01:
These claims are all any cause or claim arising from a decision or action to execute a removal order.

[00:15:27] Speaker 03:
So what do you do with our case law that very narrowly construes the relevant statute here in terms of what's excluded?

[00:15:33] Speaker 03:
I mean, the arse case, we've got a lot of cases that say just because it's related to, it doesn't mean that it comes within the scope of the exclusion.

[00:15:41] Speaker 01:
So I'm not saying that so long as it's causally related to, but look at this court's decision in Rauda, for example.

[00:15:47] Speaker 01:
Just at the essential level, what this court's inquiry is, is does a certain set of facts, does a certain set of claims, do they arise from these listed actions?

[00:15:59] Speaker 01:
And it's going to be a line drawing exercise, right, generally.

[00:16:02] Speaker 03:
In Rauda.

[00:16:02] Speaker 03:
So what do you do, for example, with the procurium in the Ars case?

[00:16:07] Speaker 03:
Assuming that's how I'm supposed to pronounce it.

[00:16:10] Speaker 01:
Yes, so in the Ars case, the court's reasoning was that there was a stay in place.

[00:16:15] Speaker 01:
And the court described the Supreme Court's holding in the Kennedy Holder, which was that when there's a stay in place, you go back to the beginning.

[00:16:22] Speaker 01:
It's as if the removal order wasn't in place.

[00:16:26] Speaker 01:
And therefore, the reasoning is, if there's no removal order in place, you can't really execute a removal order.

[00:16:32] Speaker 01:
Now, look at Rauda by contrast, which is very similar here.

[00:16:35] Speaker 01:
In Rauda, the plaintiff was saying, the government has no authority to remove me

[00:16:40] Speaker 01:
before I have an opportunity to raise my fear claim in a motion to reopen.

[00:16:45] Speaker 03:
I understand that the factual situation in ARS is different, but I'll just read you from the ARS language, but it's consistent with our other case law.

[00:16:52] Speaker 03:
The court writes, in the government's view, this is the procurium in ARS, in the government's view, this violation of the court's stay of removal order is irrelevant because of the jurisdiction stripping language of 1252G extending to any action taken in connection with the removal order.

[00:17:10] Speaker 03:
We do not believe that the statute sweeps as broadly as the government contends, da-da-da-da-da.

[00:17:16] Speaker 03:
And that's consistent with the case law.

[00:17:18] Speaker 03:
That is to say we do not read the language, and we have not read the language at 252G broadly.

[00:17:24] Speaker 03:
I mean, it's connected, I get that.

[00:17:26] Speaker 03:
But the mere connection is not enough.

[00:17:29] Speaker 01:
Well, I'm not saying mere connection is enough, but you do have to give effect to the statute.

[00:17:32] Speaker 01:
It does have some effect, right?

[00:17:34] Speaker 01:
And when a claim clearly arises, as in this case and as in Rauda,

[00:17:38] Speaker 03:
Well, yes and no, but we just heard as a factual matter that the I.J.

[00:17:43] Speaker 03:
had nothing to do with his going to Mexico.

[00:17:46] Speaker 03:
The I.J.'

[00:17:46] Speaker 03:
's order in itself says you can't be sent to Cuba.

[00:17:54] Speaker 03:
Entirely outside of the process in front of the IJ, we get calls to three countries.

[00:18:00] Speaker 03:
Mexico says yes, and bingo, this ended in Mexico.

[00:18:02] Speaker 03:
The IJ is not involved at all with that decision.

[00:18:05] Speaker 01:
So let me clarify this.

[00:18:06] Speaker 01:
This is, I think, an important point to clarify.

[00:18:08] Speaker 01:
The statute, the statutory provision we're talking about does also preclude

[00:18:13] Speaker 01:
challenges to adjudication, but that's not the part of the statute that's at issue.

[00:18:17] Speaker 01:
The part of the statute is execution of a removal order.

[00:18:20] Speaker 01:
After the removal proceedings and the IG proceeding was over, he had an order that said, you are removable, just not to Cuba.

[00:18:27] Speaker 04:
When the government, when there is an order of removal that does not indicate where the person is to be removed to, is the government free to remove the individual

[00:18:40] Speaker 04:
to any country willing to accept the individual?

[00:18:44] Speaker 01:
Generally, yes.

[00:18:46] Speaker 01:
So the government would walk through the different options for countries in 1231.

[00:18:50] Speaker 01:
And one of those is once you go through the list, there is an option for if a country is willing to take them.

[00:18:56] Speaker 01:
And here, Mexico was a particularly obvious one because he had a humanitarian visa.

[00:19:00] Speaker 02:
But I thought, and maybe this isn't in the statute, maybe this is just a policy.

[00:19:05] Speaker 02:
I thought the government had said, we won't do that without providing notice.

[00:19:13] Speaker 01:
So I think the statements that plaintiff has talked about or has raised at oral arguments in other cases, those were about proceedings that were ongoing.

[00:19:23] Speaker 01:
So they were in the middle of the proceedings.

[00:19:25] Speaker 01:
The removal order has been entered.

[00:19:28] Speaker 01:
He was given a notice to appear under 1229 that said, we are charging you with being removable from the United States.

[00:19:35] Speaker 01:
And the countries that you can be removed to are listed in the statute, right?

[00:19:39] Speaker 02:
So normally you wouldn't have reopened this

[00:19:43] Speaker 02:
to re-designate or you wouldn't have filed a new re-designation proceeding in some way.

[00:19:50] Speaker 01:
No, there's no proceeding because he had gotten a fine.

[00:19:53] Speaker 02:
So what would his relief be?

[00:19:55] Speaker 02:
So, okay, so you're saying that deportation was lawful, right?

[00:20:00] Speaker 02:
Because you could just re-designate this, you did that according to the statute.

[00:20:06] Speaker 02:
And if he said, hey, I fear this, I wasn't given any notice, he would have had to what?

[00:20:12] Speaker 02:
flame from Mexico saying this re designation.

[00:20:15] Speaker 02:
I mean, I'm now seeking asylum again.

[00:20:17] Speaker 02:
Wait, but she couldn't seek asylum for Mexico.

[00:20:21] Speaker 01:
No, let me ask relief be.

[00:20:24] Speaker 01:
Yeah, let me just clarify that we're not.

[00:20:27] Speaker 01:
We're not trying to make a merits argument.

[00:20:28] Speaker 01:
We're trying to make a restriction argument.

[00:20:30] Speaker 01:
But let me address your factual question.

[00:20:32] Speaker 01:
So asylum would be relief from being removed anywhere.

[00:20:36] Speaker 01:
You're granted asylum, you could stay in the United States.

[00:20:39] Speaker 01:
What he got was not asylum.

[00:20:40] Speaker 01:
What he got was withholding only to Cuba.

[00:20:43] Speaker 01:
And he didn't appeal.

[00:20:44] Speaker 01:
So at that point, he had an order that said, you are removable under the statute.

[00:20:48] Speaker 02:
And that's what I thought.

[00:20:49] Speaker 02:
Because opposing counsel said, well, he didn't have a right to appeal or he didn't have a need to appeal because he won.

[00:20:55] Speaker 02:
I didn't read that that way.

[00:20:57] Speaker 02:
He won in the sense that he couldn't be deported to Cuba.

[00:21:01] Speaker 02:
But there was an order of removal.

[00:21:04] Speaker 01:
That's right.

[00:21:04] Speaker 01:
There was an order of removal.

[00:21:05] Speaker 01:
He could have during his removal proceedings, he could have expressed and raised a fear claim about Mexico as well.

[00:21:10] Speaker 02:
Say he had appealed to the BIA.

[00:21:12] Speaker 02:
Would the government have come in and said, in that process, hey, by the way, we do plan to deport you to Mexico?

[00:21:21] Speaker 01:
Yes, I believe so.

[00:21:23] Speaker 02:
I'm not quite sure that... So there could have been another avenue to get this... Oh, I mean, absolutely.

[00:21:28] Speaker 01:
And actually what happened here in this case... I think that's one of the concerns is,

[00:21:32] Speaker 02:
Look, Congress could strip away a right to challenge a redesignation.

[00:21:39] Speaker 02:
As judges, I think we're pretty hesitant to read the statute.

[00:21:43] Speaker 02:
So I think it would provide some comfort if we understood that he actually had a claim or had an ability to challenge this redesignation.

[00:21:53] Speaker 02:
And what I'm hearing from you is you don't think there is a responsibility.

[00:21:56] Speaker 01:
Well, ordinarily, he would have to affirmatively raise a fear.

[00:22:01] Speaker 01:
Remember here, the removal proceedings have already concluded, right?

[00:22:04] Speaker 01:
There's been no appeal, it's already final, and the government is just walking through countries they can remove him to, one of which was Mexico, where he had a visa.

[00:22:12] Speaker 02:
But if he doesn't know that he's going to Mexico, I mean, is he supposed to pick out 130 countries and say, well, I have a fear of these 70, but you can remove me to these 60?

[00:22:21] Speaker 02:
I mean, it doesn't make sense that he would bring that up and say, I have a fear of going to Mexico.

[00:22:26] Speaker 01:
So just to briefly answer that, I think here, Mexico was a particularly obvious one.

[00:22:31] Speaker 01:
I think typically, if there's going to be a via claim, most people will know which countries they're afraid of going to, and you can raise that in a removal proceeding.

[00:22:40] Speaker 01:
But the fundamental point here is, regardless of what the merits are, you read the complaint here, and it is directly challenging the execution of the removal order at the time.

[00:22:51] Speaker 01:
And in Rauda, the facts of Rauda are very similar, because there, the plaintiff was saying,

[00:22:56] Speaker 01:
The government has no authority to remove me while I am trying to raise a fear claim in a motion to reopen.

[00:23:03] Speaker 01:
Because I now have evidence, there's a text that the MS-13 gang has put a hit out on me.

[00:23:09] Speaker 01:
And if I go back there, I'm going to be killed.

[00:23:12] Speaker 01:
And the government just has no authority to remove me before I can have a chance to adjudicate that.

[00:23:17] Speaker 01:
And this court said,

[00:23:18] Speaker 01:
That challenge is directly a challenge to the execution of a removal order.

[00:23:22] Speaker 01:
It is barred by 1252G.

[00:23:24] Speaker 01:
I mean, this case is on all fours with that holding.

[00:23:27] Speaker 04:
The government's position is the court has no authority under the jurisdictional stripping statute to deal with this kind of situation where there's a removal order without designation of country.

[00:23:47] Speaker 04:
in a record where the petitioner has indicated the problems he's had in Mexico, and notwithstanding that, can send him basically anywhere the government wants, assuming the country is willing to take him, correct?

[00:24:05] Speaker 01:
So you can raise a motion to reopen.

[00:24:07] Speaker 01:
You can seek a stay, and that can be litigated, and it has been, right?

[00:24:12] Speaker 01:
That's what plaintiff did in this case.

[00:24:14] Speaker 01:
He sought a motion to reopen afterward, and then eventually got asylum.

[00:24:17] Speaker 01:
So, he's now legally in the United States.

[00:24:19] Speaker 02:
So, there are vehicles for raising new claims, even after— Well, and I guess this wouldn't have happened—I mean, part of the problem is he didn't appeal to the BIA, because he wouldn't have—he would not have been deported if he had appealed to the BIA, and then this might have had time to percolate and figure out Mexico is going to be a problem.

[00:24:37] Speaker 01:
But it's hard to say exactly what would have happened if he had appealed.

[00:24:41] Speaker 01:
There would have been more time.

[00:24:44] Speaker 02:
Can I ask you, Judge Fletcher read you some of our prior case law.

[00:24:48] Speaker 02:
Whether those are holdings or whether those are dicta in the Ninth Circuit were bound by reason dicta.

[00:24:55] Speaker 02:
Why, you know, most other circuits have said there's no distinction between discretionary and non-discretionary acts.

[00:25:02] Speaker 02:
The Ninth Circuit, we have some language that suggests we have a different view of that.

[00:25:08] Speaker 02:
Are we just off base or how would you respond to that?

[00:25:13] Speaker 01:
I just don't think that you should read the discretionary language in those cases to mean that so long as a plaintiff says that a removal was unlawful, that then you get around the statute, because then the statute would just never apply.

[00:25:27] Speaker 01:
This is what the Supreme Court said in Alamand Gonzalez about a separate provision that's similar.

[00:25:31] Speaker 01:
It said, you can't say that a jurisdictional statute turns on the merits, because then so long as someone says it's unlawful, then it never applies.

[00:25:38] Speaker 02:
Well, and I think that's where, I mean,

[00:25:40] Speaker 02:
You know, one way to look at this is, well, yeah, but the district court can deal with that.

[00:25:46] Speaker 02:
Maybe these claims aren't meritorious because they're just repackaging a due process claim as a tort claim, and we don't need to decide that.

[00:25:53] Speaker 02:
But I'm not sure that is putting the carpet before the horse, because if they're just due process claims challenging the removal, doesn't that go exactly to why there's no jurisdiction in the first place?

[00:26:02] Speaker 02:
You can't just repackage claims that would be barred

[00:26:06] Speaker 02:
in a new vehicle and then say, well, now you get to deal with them.

[00:26:11] Speaker 01:
Well, I agree that you can't just repackage the claim.

[00:26:14] Speaker 01:
I think, as this court said in ROUDA, no matter how the plaintiff frames it, if the challenge is to the execution of a removal order, then there's no jurisdiction in the district court.

[00:26:23] Speaker 01:
Recall that what Congress is doing is it's trying to channel these things through the PFR process and through the Court of Appeals.

[00:26:28] Speaker 01:
It did not want these kinds of questions being litigated in the district court.

[00:26:32] Speaker 01:
Now, I mean, here, I think, as in ROUDA, if you read through the complaint,

[00:26:36] Speaker 01:
the thing being challenged itself is that he was removed before enough time had passed.

[00:26:42] Speaker 04:
Let me spring off a question that my colleague asked.

[00:26:45] Speaker 04:
In the interim, between the entry of the removal order and the execution of the removal order, was the government under any obligation to give Ibarra notice that they intended to send him to Mexico?

[00:27:01] Speaker 01:
I think

[00:27:03] Speaker 01:
We are not, again, not really litigating the merits here.

[00:27:06] Speaker 01:
I think plaintiff could certainly affirmatively raise a fear claim, and at that point, the government would provide more procedures, but I'm- That's not my question.

[00:27:15] Speaker 04:
Yeah, I- My question is, is the government under any obligation where there is an extant order of removal, but no designation has occurred, where the government intends to remove the individual

[00:27:31] Speaker 04:
in this case to Mexico to give the petitioner notice that that's their intent, the government's intent.

[00:27:41] Speaker 01:
So I'm not prepared to really tell you a definitive answer.

[00:27:45] Speaker 01:
I think a lot would depend on the circumstances as to what's going on on the ground.

[00:27:50] Speaker 04:
Let's just take the facts of this case.

[00:27:52] Speaker 04:
We don't have to deal hypothetically at all.

[00:27:55] Speaker 04:
Between the time the removal order was entered and its execution, the government

[00:28:02] Speaker 04:
intended to remove Abara to Mexico, correct?

[00:28:06] Speaker 01:
The government asked several countries in Mexico said it would take him back because of his visa.

[00:28:12] Speaker 04:
And at some point, putting him on a plane to go to Mexico, correct?

[00:28:18] Speaker 01:
That's well, yes, transported him there.

[00:28:20] Speaker 04:
Does the government have any obligation in that circumstance to advise the petitioner of the intended designation

[00:28:31] Speaker 01:
So I don't believe that plaintiff has cited anything that would require that.

[00:28:35] Speaker 01:
So there's nothing, there's no, for example.

[00:28:38] Speaker 04:
You can't answer that with a yes or no.

[00:28:41] Speaker 01:
I don't believe there wasn't in this case.

[00:28:43] Speaker 01:
Again, I'm speaking having not fully briefed this because we're here at jurisdiction.

[00:28:47] Speaker 04:
In this case, you say there was no such obligation.

[00:28:48] Speaker 04:
Is that what you're saying?

[00:28:50] Speaker 01:
I don't believe there's anything that plaintiff has cited that would create such an obligation here.

[00:28:55] Speaker 01:
But we are here in jurisdiction.

[00:28:56] Speaker 01:
And the question before you is, did the cause or claim in the complaint arise from the execution of a removal order?

[00:29:03] Speaker 01:
And the answer to that question is clearly yes.

[00:29:05] Speaker 04:
You don't think that relates to due process?

[00:29:09] Speaker 01:
The statute says, notwithstanding any other provision of law, statutory or non-statutory.

[00:29:17] Speaker 01:
So that's all claims.

[00:29:19] Speaker 01:
In Reno versus ADC, the Supreme Court said, a constitutional claim of selective prosecution fell within the jurisdictional bar.

[00:29:26] Speaker 02:
Well, but I would think that because it's a due process claim, that makes it more likely to be viewed as a challenge to a removal order.

[00:29:33] Speaker 01:
I think that's right, because those are exactly the kinds of claims that are brought through the PFR process and are supposed to be channeled to the Court of Appeals.

[00:29:40] Speaker 03:
I know you're over time, but let me ask a question or a variation of a question that's already been asked.

[00:29:46] Speaker 03:
Had he sought review in front of the BIA?

[00:29:52] Speaker 03:
would he have been able to seek review of the deportation order to mexico so i think i think that is to say it's not part of the ages order well can you get a review of that as the appeals from what the i j decided she would have had review of his asylum claim which would have prevented removal generally no no that's not my question well i'm i'm i'm answering what he could have okay it could have been one of the office and i think it's a permanently raised a few claim about mexico at any point including during

[00:30:22] Speaker 01:
an appeal, right?

[00:30:23] Speaker 03:
Why would that have been part of his appeal when it was not part of the decision from which he was appealing?

[00:30:28] Speaker 03:
He's appealing from the I.J.'

[00:30:29] Speaker 03:
's decision.

[00:30:30] Speaker 01:
Right.

[00:30:30] Speaker 01:
The I.J.'

[00:30:30] Speaker 01:
's decision said he was removable.

[00:30:32] Speaker 01:
Right.

[00:30:33] Speaker 01:
So at any point he could raise a fear claim about Mexico.

[00:30:35] Speaker 01:
I think plaintiff says that in his documentation he had talked about some fears about Mexico, so clearly it was on his mind as well.

[00:30:42] Speaker 03:
But the I.J.'

[00:30:43] Speaker 03:
's order doesn't say Mexico, and he's appealing the I.J.'

[00:30:46] Speaker 01:
's order.

[00:30:47] Speaker 01:
Yes, it says that he was removable, just not to Cuba, and Mexico would have been a particularly obvious country here because of his visa.

[00:30:54] Speaker 03:
So you're saying he could have appealed the IJ's order and the appeal would have included something that was not in the IJ's order?

[00:31:01] Speaker 03:
I'm skeptical of that, obviously.

[00:31:03] Speaker 01:
Well, look, what I'm saying is at any point he can raise a fear claim, is what I'm saying, and he could, you know, but, like, aside from all of that, the point here is that Congress has made the decision that it does not want these kinds of claims in a district court.

[00:31:20] Speaker 03:
What I'm trying to figure out is when or where can he raise it in the administrative process?

[00:31:24] Speaker 03:
And I'm deeply skeptical that he can raise it on appeal to the BIA when it's not part of the IJ's order.

[00:31:30] Speaker 01:
Let me put it this way, right?

[00:31:31] Speaker 01:
So, what is that issue in the removal proceeding?

[00:31:35] Speaker 01:
The person receives a 1229 notice to appear saying, you are removable, right?

[00:31:41] Speaker 01:
At that, like, generally, you can be removed from the United States.

[00:31:44] Speaker 01:
And what the statute says is here's a list of countries to which you can be removed.

[00:31:48] Speaker 01:
I think at that point, the person can raise anything, right?

[00:31:52] Speaker 01:
I shouldn't be removed to Cuba.

[00:31:53] Speaker 01:
I shouldn't be removed to Mexico.

[00:31:54] Speaker 01:
When, for example, plaintiff was told he was going to be sent to Mexico, he said, well, I'd rather be sent to Canada or to Spain.

[00:32:02] Speaker 01:
Like, he knew that there could be—he could be removed or, like, if he didn't know, it should be clear.

[00:32:08] Speaker 03:
But none of that was raised in front of the IJ.

[00:32:11] Speaker 03:
That all comes after the IJ's orders entered.

[00:32:13] Speaker 03:
Well, he could raise an affirmative.

[00:32:15] Speaker 01:
fear claim is what I'm saying.

[00:32:16] Speaker 02:
At any point.

[00:32:17] Speaker 02:
It seems like the better course would have been to move to reopen.

[00:32:21] Speaker 02:
And I mean, when I brought up he could have appealed to the BIA, I was wondering whether the government would have then indicated Mexico.

[00:32:29] Speaker 02:
I mean, I think Judge Fletcher has a good point that I'm not sure that the BIA could have dealt with the removal to Mexico, but he at least then could have moved to reopen saying, hey, now that I know Mexico,

[00:32:41] Speaker 02:
But we're dealing in hypotheticals.

[00:32:44] Speaker 01:
Right.

[00:32:44] Speaker 01:
We're here on a motion to dismiss, so we don't know exactly what it was he said.

[00:32:47] Speaker 01:
Yes.

[00:32:48] Speaker 02:
Okay.

[00:32:48] Speaker 01:
Thank you very much.

[00:32:49] Speaker 02:
We'll give you time for rebuttal.

[00:32:53] Speaker 00:
Thank you.

[00:32:54] Speaker 00:
What could he have appealed to the BIA?

[00:32:55] Speaker 00:
There were no findings before that.

[00:32:57] Speaker 02:
Well, he was removable.

[00:32:59] Speaker 00:
He was removable, but he had the assurance of 8 U.S.C.

[00:33:03] Speaker 00:
1231, which says he cannot be removed from any other country subject to 1231B3.

[00:33:09] Speaker 00:
B1 says that, B2 says that, and B3 affords the person opportunity.

[00:33:15] Speaker 02:
Counsel, I don't think you want to take the position that you would not appeal and you wouldn't have a right to appeal an order that says you're removable.

[00:33:24] Speaker 00:
If the government's position is that people should raise fair claims on appeal to the BIA to any... No, I'm just saying, if you have an order of removal...

[00:33:34] Speaker 02:
The best course of action is to appeal it and not say— He was removable.

[00:33:39] Speaker 00:
He had protection, though, and that order couldn't be issued to the only country that the immigration judge designated.

[00:33:45] Speaker 00:
It couldn't be executed.

[00:33:47] Speaker 00:
Second, the government stood up an open court on March 28th in the DVED case, which we submitted by 28-J, and said it has no policy or obligation to provide people with notice

[00:33:57] Speaker 00:
before they're deported to third countries.

[00:34:00] Speaker 00:
That is exactly what happened here.

[00:34:02] Speaker 00:
Mr. Bar-Perez found out that he was being deported and was deported within a matter of hours.

[00:34:08] Speaker 00:
The government says we haven't cited any source of authority for which a person cannot be removed to a third country.

[00:34:16] Speaker 00:
The statute provides that.

[00:34:17] Speaker 00:
The regulations provide that.

[00:34:19] Speaker 00:
The CAT regulations that implement the Convention Against Torture provide that.

[00:34:24] Speaker 00:
All of them provide that a person can't be deported to a country where they have a fear.

[00:34:30] Speaker 00:
And a person can't exercise their rights if they are not put on notice that they are going to be deported to that third country.

[00:34:38] Speaker 00:
And with respect to Rauda, this court's decision in Rauda, first of all, that case involved a person who is trying to stave off deportation to the designated country.

[00:34:51] Speaker 00:
It involved a person who is asking the court to delay based on some discretionary action that had not yet been taken place.

[00:35:00] Speaker 00:
The petitioner in that case had the opportunity to have his claim heard and adjudicated.

[00:35:05] Speaker 00:
And the fact that mandatory protections were violated was not before the court in Rauda.

[00:35:11] Speaker 00:
So it's absolutely in apposite to our case here.

[00:35:15] Speaker 00:
And finally, this is a case under the Federal Tort Claims Act seeking damages for an unlawful deportation.

[00:35:23] Speaker 00:
Federal Tort Claims Act claims simply cannot be raised on a petition for review.

[00:35:27] Speaker 00:
And any suggestion otherwise is going to flood the BIA if what this court rules is that you have to file a motion to reopen based on any of the 197 countries the State Department recognizes because you might have a fear there, that's going to create an

[00:35:46] Speaker 00:
absolute chaos before immigration judges and the board.

[00:35:50] Speaker 00:
And our point about saying that he indicated he had a fear of being deported to Mexico

[00:35:57] Speaker 00:
in immigration proceedings was to show that ICE knew that he had a fear of being deported.

[00:36:03] Speaker 00:
So he had a heightened duty to provide a screening before they deported him there.

[00:36:09] Speaker 00:
They knew he was afraid.

[00:36:10] Speaker 02:
Okay.

[00:36:11] Speaker 02:
Counsel, we've given you extra time there, and I think we have your argument.

[00:36:15] Speaker 02:
Thank you.

[00:36:16] Speaker 02:
Thank you to both counsel for your arguments in this case.

[00:36:18] Speaker 02:
The case is now submitted.