from the United States District Court for the Western
District of Texas
WIENER, ELROD, and SOUTHWICK, Circuit Judges.
H. SOUTHWICK, Circuit Judge:
Chaidez Campos sued the Government for false arrest and false
imprisonment under the Federal Tort Claims Act. The district
court dismissed her claims for lack of subject matter
jurisdiction. We AFFIRM the district court's dismissal
but VACATE and REMAND so that the court may revise its final
judgment to dismiss Campos's claims without prejudice.
AND PROCEDURAL BACKGROUND
December 2012, Campos entered the United States without legal
authority. United States Customs and Border Protection
("CBP") officers issued her a Notice and Order of
Expedited Removal. Prior to Campos's removal, though, she
pled guilty to one count of attempted illegal reentry, in
violation of 8 U.S.C. § 1326. Campos was sentenced to 11
months of imprisonment and three years of supervised release.
While she was incarcerated, Campos applied for and was
granted U nonimmigrant status. We will discuss the purpose
and effect of that status later.
set out the factual events of the dispute by quoting from the
first amended complaint. We start here because of the
district court's statement that it "has not
considered the substance or value of any of the
Government's exhibits" offered in its motion to
On or about November 14, 2013, Ms. Chaidez Campos reported to
the federal probation office for the Western District of
Texas, El Paso Division, in El Paso, Texas with her
one-year-old child, Emmanuel Ochoa, and Emmanuel's
father, Jesus M. Ochoa Perez.
At that time, Ms. Chaidez Campos was in the United States in
lawful immigration status because the Secretary of Homeland
Security, through the U.S. Citizenship and Immigration
Services (USCIS), granted her U nonimmigrant status as a
victim of a crime.
When Ms. Chaidez Campos arrived for her appointment with her
federal probation officer, she was made to wait and then was
met by a Customs and Border Protection (CBP) officer.
The CBP officer separated Ms. Chaidez Campos from her child.
Ms. Chaidez Campos pleaded with the CBP officer, telling the
officer that Ms. Chaidez Campos was not deportable because
she had been granted U nonimmigrant status.
Ms. Chaidez Campos then presented the CBP officer with proof
of Ms. Chaidez Campos' lawful temporary resident status
in the form of her Employment Authorization Document (EAD).
On its face, Ms. Chaidez Campos' EAD contained the
correct spelling of her name, correct alien number (A#),
correct birth date, country of origin, and nonimmigrant
The CBP officer continued to detain Ms. Chaidez Campos after
she presented the officer the EAD showing that Ms. Chaidez
Campos was in the United States with lawful temporary
The CBP took Ms. Chaidez Campos into custody and transferred
her to the Paso del Norte (PDN) Port-of-Entry in El Paso
At the PDN Port-of-Entry, CBP searched Ms. Chaidez Campos,
held her in a cold room, and eventually removed her to Mexico
that same day, November 14, 2013.
Ms. Chaidez Campos attempted at least two times to return to
the United States but was denied admission. She remained
outside the United States until January 17, 2014.
these allegations do not address is what the CBP officers did
to investigate Campos's immigration status, what they
found, and why they decided to remove her. Though the
district court in its order dismissing the complaint stated
that it did not consider the "substance or value"
of the exhibits the Government attached to it motion to
dismiss, the court did indicate that it considered "for
context" that she pled guilty to attempted illegal
re-entry after being previously removed, was sentenced by
this same district judge, and served 11 months in prison.
filed suit in the United States District Court for the
Western District of Texas against the United States, alleging
violations of her civil rights and requesting relief under
the Federal Tort Claims Act ("FTCA"). Campos
claimed that she was falsely arrested and imprisoned by the
CBP officers because the officers detained her after she
presented them with an EAD, which in her view conclusively
showed entitlement to remain in the United States.
Government filed a motion to dismiss, contending that the
district court lacked subject matter jurisdiction over
Campos's FTCA claims because the CBP officers'
actions fell within the "discretionary function
exception" to the FTCA's waiver of sovereign
immunity. The district court agreed and dismissed. Campos
reviewing a district court's dismissal of a suit due to
the absence of subject matter jurisdiction. See Fed
R. Civ. P. 12(b)(1). Our review of such a dismissal is de
novo, applying the same standard as the district court.
Ramming v. United States, 281 F.3d 158, 161 (5th
Cir. 2001). The party asserting jurisdiction bears the burden
of proof. Id. In resolving a motion under Rule
12(b)(1), the district court
has the power to dismiss for lack of subject matter
jurisdiction on any one of three separate bases: (1) the
complaint alone; (2) the complaint supplemented by undisputed
facts evidenced in the record; or (3) the complaint
supplemented by undisputed facts plus the court's
resolution of disputed facts.
St. Tammany Par., ex rel. Davis v. Fed. Emergency Mgmt.
Agency, 556 F.3d 307, 315 (5th Cir. 2009) (quoting
Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.
district court did not resolve any disputed facts. As to
undisputed facts, the Government attached to its motion to
dismiss affidavits of two CBP officers involved with the
investigation on the day of Campos's removal and three
documents related to Campos's 2013 conviction that sent
her to prison for 11 months and also led to an order for her
removal that would be enforced at the end of her
incarceration. Some and perhaps most of the information in
those exhibits would have been undisputed. As mentioned
earlier, though, the court declared that it had not
considered the "substance" of the exhibits.
Instead, it considered for contextual reasons only the
evidence of Campos's prior conviction, about which the
complaint was completely silent.
conclude that the district court, by its reference to using
the conviction information for context, necessarily meant
that it considered the undisputed record of Campos's
conviction and its effects. This included the order for
removal that gave the CBP officers a basis for a reasonable
belief that she was impermissibly in the country and was
subject to being removed. We reach that conclusion due to the
district court's explaining in its order dismissing the
case that a CBP officer has statutory authority to arrest
without a warrant when "the agent has 'reason to
believe' that the person is in the United States in
violation of any immigration laws or regulations and is
'likely to escape before a warrant can be obtained for
[her] arrest.'" See 8 U.S.C. §
1357(a)(2). When the court then held that these CBP officers
had used this authority, there must have been information
that provided a reason to believe, even if incorrectly, that
Campos was present improperly. CBP officers do not have
discretion to conduct an investigation, find nothing, and
district court does not detail the factual determinations it
made to support its ruling, "an appellate court may
determine for itself, on the basis of the record and any
statements made by the district court . . . what, if any,
implicit factual findings it made." Williamson,
645 F.2d at 414. As will become clear, the only implied
factual findings in the district court's order deal with
Campos's prior conviction that led to an order that she
be removed at the end of her ...