from the United States District Court for the Southern
District of Texas
SMITH, BARKSDALE, and HO, Circuit Judges.
C. HO, Circuit Judge.
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.
first entered the United States in 1998. He received
Temporary Protected Status (TPS) in 2000.
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
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.
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.
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.
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.
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 ...