2004 removal order not executable under DAC; Federal courts had jurisdiction to hear suit.
By Bernie Pazanowski | Bloomberg Law | DEC. 7, 2022 | Photo by John Moore
Federal courts have jurisdiction to hear a suit by an immigrant with DACA status alleging that federal agents unconstitutionally arrested her under an old removal order, the Sixth Circuit said.
Under the Deferred Action for Childhood Arrivals program, young immigrants who meet specified criteria may apply for a renewable two-year deferral of removal, the US Court of Appeals for the Sixth Circuit said Monday. When immigrant Riccy Enriquez-Perdomo became a DACA recipient, she was granted affirmative relief from removal and a 2004 order was no longer executable, the court said.
The decision highlights a circuit split. The Fifth and Eighth circuits have refused to hear similar cases on jurisdictional grounds. The Ninth Circuit has said it had jurisdiction to hear a case where the plaintiff didn’t attack the removal order itself, but rather attacked the violation of a stay against removal, the Sixth Circuit said in an opinion by Judge Helene N. White.
The opinions from the Fifth and Eighth circuits were distinguishable because they didn’t rely on the definition of executable removal orders, White said.
Under the Illegal Immigration Reform and Immigrant Responsibility Act, federal courts lack jurisdiction over the US attorney general’s decision to “execute removal orders.” Citing that statute, the US District Court for the Western District of Kentucky said it didn’t have jurisdiction over Enriquez-Perdomo’s case. The Sixth Circuit said the jurisdictional bar applies only if removal orders are executable.
Enriquez-Perdomo was protected under DACA as a nine-year-old when the removal order was issued against her, the court said. The federal statute was inapplicable to her case, White said.
Enriquez-Perdomo regularly went to an Immigration and Customs Enforcement office in Kentucky to post bond for ICE detainees—the staff and agents knew her by name. According to Enriquez-Perdomo, on Aug. 17, 2017, during one of her visits, agents checked their computer system, learned about her 2004 removal order, confirmed her DACA status, and arrested her anyway. She said she was held for eight days and moved to facilities in three different states before being released.
Judge Bernice B. Donald joined the opinion. Dissenting Judge Alice M. Batchelder said that the district court didn’t have jurisdiction over Enriquez-Perdomo’s suit because it arose out of a decision to execute a removal order.
Pugh & Roach Attorneys At Law PLLC and O’Hara Taylor Sloan & Cassidy represented Enriquez-Perdomo.
The case is Enriquez-Perdomo v. Newman, 2022 BL 432883, 6th Cir., No. 20-6393, 12/5/22.
