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Najera v. United States

United States Court of Appeals, Fifth Circuit

June 5, 2019

GERMAN HERNANDEZ NAJERA, Plaintiff - Appellant

          Appeal from the United States District Court for the Southern District of Texas

          Before SMITH, BARKSDALE, and HO, Circuit Judges.

          JAMES C. HO, Circuit Judge.

         German Hernandez Najera, a foreign national from Honduras, claims that he was falsely imprisoned by federal immigration authorities. The district court entered summary judgment for the United States. We affirm.


         Najera first entered the United States in 1998. He received Temporary Protected Status (TPS) in 2000.[1]

         In 2012, Najera left the United States, without permission from federal immigration authorities, to visit his parents in Honduras. He returned to the United States about seven months later, at a place other than one designated by the Secretary of Homeland Security. At that time, Border Patrol agents arrested him and sent him to the McAllen Border Station for further processing. There, Customs and Border Protection (CBP) issued a warrant of arrest and notice to appear and served Najera with these documents while he was in custody. See 8 C.F.R. § 287.5(e)(2) (listing the immigration officers, including certain CBP officers, authorized to issue arrest warrants). CBP charged Najera with being illegally present in the United States, subject to removal, under § 212(a)(6)(A)(i) of the Immigration and Nationality Act.

         CBP held Najera from the time of his initial arrest until his transfer to the custody of Immigration and Customs Enforcement (ICE) on June 17, 2013. ICE held Najera in custody for twenty-three days, while awaiting confirmation that Najera's criminal history was clear and that his TPS was still current. On July 10, 2013, ICE released Najera with instructions to report to the ICE office in Fairfax, Virginia, on July 31, 2013. ICE filed the notice to appear with the Arlington Immigration Court in Arlington, Virginia, on July 12, 2013-two days after his release.

         Najera filed this suit in the Eastern District of Virginia under the Federal Tort Claims Act (FTCA), claiming, inter alia, false imprisonment. The court transferred the claims arising out of the events that took place in Texas to the Southern District of Texas, where the district court granted summary judgment to the United States on all claims.

         Najera appeals only his false imprisonment claim. On appeal, the United States argues that the district court lacked jurisdiction to review Najera's false imprisonment claim under both 8 U.S.C. §§ 1252(g) and 1226(e). Alternatively, the United States urges that we affirm on the merits of Najera's claim. For the reasons detailed below, we disagree with the government's jurisdictional arguments, but we agree that Najera's claim lacks merit.


         The government first argues that § 1252(g) precludes jurisdiction in this case. We disagree. This section states that "no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter." 8 U.S.C. § 1252(g). As Najera notes, this court has held that "removal proceedings commence when [ICE] files the appropriate charging document with the immigration court." DeLeon-Holguin v. Ashcroft, 253 F.3d 811, 815 (5th Cir. 2001). Here, ICE filed the charging document-the notice to appear-with the Arlington Immigration Court on July 12, 2013-two days after Najera's release from his allegedly false imprisonment. The government does not offer a theory for distinguishing DeLeon-Holguin, and we are aware of none. Accordingly, we conclude that § 1252(g) did not strip the district court of subject matter jurisdiction.

         The government next argues that the district court lacked jurisdiction under § 1226(e) to hear this case. Again, we disagree. Section 1226(e) generally bars jurisdiction in cases challenging the Attorney General's discretionary judgment to detain aliens pending removal proceedings:

The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any ...

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