Section 1252(g) of the Immigration and Nationality Act provides 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.” The Eighth and Ninth Circuits disagree about whether this provision precludes judicial review over claims brought by noncitizens who are wrongfully removed from the United States. This Comment advances four arguments for why § 1252(g) should be interpreted narrowly to allow federal jurisdiction over such claims by looking to Supreme Court precedent, legislative history, and public policy: First, Supreme Court precedent suggests that § 1252(g) may apply to only the Attorney General’s discretionary decisions, and wrongful removal is never in the Attorney General’s discretion. Second, precedent and legislative history support a narrow interpretation of the phrase “arising from” in § 1252(g). Third, the plain language of the statute indicates that § 1252(g) may not be implicated when the Attorney General wrongfully removes someone from the United States. Finally, interpreting the statute narrowly is the best normative outcome because it restrains improper executive action and prevents harm to noncitizens.
"Whether 8 USC § 1252(g) Precludes the Exercise of Federal Jurisdiction over Claims Brought by Wrongfully Removed Noncitizens,"
University of Chicago Law Review: Vol. 86
, Article 2.
Available at: https://chicagounbound.uchicago.edu/uclrev/vol86/iss6/2