Citizen’s deportation suit barred by discretionary exception

There is no jurisdiction over a suit brought by a U.S. citizen who alleges he was improperly removed to El Salvador. In deciding whom to investigate, detain and remove, homeland security officers must make the kinds of classic judgment calls the discretionary function exception was meant to exempt from tort liability.

Background

Juan Carlos Blanco Ayala was born in El Salvador in 1978 and moved to the United States as a young child. He became a lawful permanent resident in 1987, and his father was naturalized in 1995. 

In February 2004, when Blanco was returning to the United States from El Salvador, he was questioned several times by Customs and Border Protection, or CBP, who ultimately concluded that Blanco was not a U.S. citizen. At the removal hearing, Blanco allegedly conceded all charges against him, including that he was not a U.S. citizen. An immigration judge ordered him removed, after which Blanco did not seek relief from removal or appeal the decision. He was removed to El Salvador.

Shortly after his removal, Blanco returned to the United States. U.S. Immigration and Customs Enforcement, or ICE, officers took him into custody and detained him. While he was in custody, his attorney presented evidence that Blanco was a citizen to the government, and ICE released him. 

Thereafter, he sued the United States under the Federal Tort Claims Act, or FTCA. The district court dismissed the case under Rule 12(b)(1) for lack of subject matter jurisdiction, finding that the allegedly tortious conduct fell within the discretionary function exception to the FTCA’s waiver of sovereign immunity.

Analysis

Blanco argues that Department of Homeland Security, or DHS, officers do not have discretion to arrest, detain and deport U.S. citizens, and thus the discretionary function exception does not apply. The court is unpersuaded. Discretion lies at the heart of the DHS law enforcement function. In deciding whom to investigate, detain and then remove, DHS officers must make all the kinds of classic judgment calls the discretionary function exception was meant to exempt from tort liability.

Plaintiff and the government offer two different frames for analyzing the DHS officers’ decisions to investigate, arrest detain, and deport in this case. Blanco claims the court should segment this sequence. While he concedes that investigation may be a discretionary undertaking, he claims that the same cannot be said for arrest and detention. The government frames these actions as a single immigration enforcement process. 

Plaintiff’s attempt to slice up the process is unfounded. The law enforcement function is a continuum where the products of the investigation are integrally related to the decision on whether to proceed further with detention and removal. The later steps of detention and removal depend in part upon facts gathered during the investigation and the conclusions drawn from those facts. Thus, the decisions to detain and remove are discretionary because they are bound up in the decisions surrounding the investigatory step.

Moreover, decisions to detain and remove are discretionary even independently of the investigation because they depend on a further decision to prosecute and remove. Thus, this process is infused with discretion thrice-over. And none of those discretion-laden questions can be disentangled from the other two. 

Having recognized that the DHS officers’ choice to investigate Blanco and how they conducted that investigation were discretionary, plaintiff nonetheless argues that they did not have discretion to “incorrectly appl[y] the law to the facts and wrongly identif[y] Blanco as a noncitizen.” This is effectively arguing that the officers’ actions were not discretionary because they were negligent in executing their mandate. But the discretionary function exception protects government decisions “even when made negligently.”

Turning to the second prong—whether the DHS officers’ actions were “based on considerations of public policy”— it is clear for many of the reasons above discussed that plaintiff has failed to meet his burden of establishing that there are no considerations of public policy in this case. In deciding how to investigate Blanco’s claims and what to do with that information, the officers exercised discretion in allocating their time, legal resources and detention capacity. And, in making these immigration enforcement decisions, the executive must confront issues which have “the natural tendency to affect diplomacy, foreign policy, and the security of the nation.”

 Affirmed.

Blanco-Ayala v. United States, Appeal No. 19-1862, Dec. 2, 2020. 4th Cir. (Wilkinson), from EDVA at Alexandria (Ellis). Mark Alastair Stevens for Appellant. Elizabeth A. Spavins for Appellee. VLW 020-2-308. 14 pp.