United States Court of Appeals For the First Circuit

No. 21-1319

BUNTHOEUN KONG,

Plaintiff, Appellant,

v.

UNITED STATES OF AMERICA,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. M. Page Kelley, U.S. Magistrate Judge]

Before

Kayatta, Lipez, and Gelpí, Circuit Judges.

Ethan R. Horowitz, with whom Northeast Justice Center was on brief, for appellant.

Eve A. Piemonte, Assistant United States Attorney, with whom Nathaniel R. Mendell, Acting United States Attorney, was on brief, for appellee.

Adriana Lafaille and Rebecca R. Krumholz on brief for American Civil Liberties Union of Massachusetts, amicus curiae.

March 15, 2023 LIPEZ, Circuit Judge. Bunthoeun Kong claims that he was

improperly arrested and detained by federal immigration officers

for the purpose of repatriating him to Cambodia. He now seeks

damages from the United States under the Federal Tort Claims Act

("FTCA") for false arrest, false imprisonment, and violation of

the Massachusetts Civil Rights Act ("MCRA"). Concluding that

(g) deprived it of jurisdiction, the district court

dismissed Kong's complaint in its entirety. We reverse and remand.

Section 1252(g)'s bar on judicial review of claims "arising from"

the government's decision to "execute removal orders" does not

preclude jurisdiction over the challenges to the legality of the

detention at issue here.

I.

A. The Deportation Proceedings1

Kong, a native of Cambodia, emigrated to the United

States as a refugee in 1982, when he was approximately nine years

old. Kong was convicted in California state court on January 23,

1995, for the felony of aggravated assault with a weapon, and he

In 1996, Congress combined "deportation" and "exclusion" 1

proceedings into a single "removal" proceeding. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104–208, sec. 304(a), § 240, 110 Stat. 3009–546, 3009–589 to 3009–593 (codified at 8 U.S.C. § 1229a). Because Kong's initial arrest involved a deportation proceeding, we use that phrase here and when referring to his deportation order or warrant. Otherwise, we use the word removal.

- 2 - was sentenced to two years' incarceration. In the course of his

state incarceration, he was taken into custody by then-U.S.

Immigration and Naturalization Service ("INS"), now U.S.

Immigration and Customs Enforcement ("ICE"), and placed into

deportation proceedings. Kong was ordered to be deported to

Cambodia on April 12, 1996, and the government obtained a warrant

for his deportation. However, the United States had no

repatriation agreement in place with Cambodia at that time, and

the Cambodian government refused to accept him. Thus, Kong

remained detained in the United States.

In July 1999, while Kong was still in custody, the INS

informed him that his "removal from the United States [was] not

possible or practicable." The notice also advised him that he

could be released from custody if he could demonstrate that he

would not pose a flight risk or danger to the community. Kong

successfully made that showing, and he was granted supervised

release in June 2000 after completing an in-custody rehabilitation

program that focused on "addiction, discipline and therapy." Among

other conditions, Kong's order of supervision required him to

"appear in person at the time and place specified, upon each and

every request of the [INS], for identification and for deportation

or removal," and to "assist the [INS] in obtaining any necessary

travel documents." The parties agree that Kong abided by the terms

of his supervised release. In the eighteen years following his

- 3 - release in 2000, Kong avoided further criminal convictions,

married a United States citizen, raised three children, and

maintained steady employment.

B. The Government's Efforts to Repatriate Kong

The United States and Cambodia negotiated a repatriation

agreement in 2002. Pursuant to this agreement, Cambodian officials

periodically travel to the United States to conduct in-person

interviews to verify the Cambodian nationality of individuals

subject to final removal orders. Fifteen years later, in 2017,

ICE began a campaign of mass arrests of Cambodian nationals living

under orders of supervision, with the goal of compelling them to

participate in repatriation interviews.

In February 2018, Kong was contacted by ICE as part of

this enforcement effort against Cambodian nationals. He was told

to report to the agency's Burlington, Massachusetts office, where

he completed a questionnaire that the United States intended to

use to obtain a travel document from the Cambodian government for

the purpose of repatriating him. It is undisputed that Kong was

not informed of the purpose of this paperwork or that his

supervised release might be terminated because of the changed

relationship between the United States and Cambodia. In March

2018, ICE asked Cambodia for the travel document for Kong. A month

later he was arrested without notice while on his way to work.

Kong alleges that ICE gave him no explanation for his arrest until

- 4 - he had been detained for approximately a week and that he was not

told how to challenge his detention for about a month. His

interview with the Cambodian government occurred in early May 2018.

After Kong filed a petition for a writ of habeas corpus

in May 2018,2 ICE released him on an order of supervision in June

2018. That same month, the Cambodian government issued his travel

document, but Kong successfully moved to reopen his immigration

proceedings approximately one week later.3

C. Procedural History

In February 2019, Kong submitted a claim for damages to

the Department of Homeland Security ("DHS") pursuant to the FTCA,

, seeking compensation for harms caused by his

arrest and detention, including lost wages and benefits. DHS

acknowledged receipt of his claim but did not otherwise respond to

it.

Kong then brought this FTCA action alleging false

arrest, false imprisonment, and interference with a protected

right under the MCRA, Mass. Gen. Laws ch. 12, §§ 11H-I. Kong named

2The district court dismissed Kong's habeas petition on August 22, 2019. Order Dismissing Case, See Kong v. Nielsen, No. 18-cv-10901-GAO (D. Mass. Aug. 22, 2019), ECF No. 61. 3The record does not reveal the present status of these proceedings. But when an immigration judge reopens a case, the existing removal or deportation order is stayed, meaning that Kong cannot be removed while the case is undergoing review. See Nken v. Holder,

, 429 n.1 (2009).

- 5 - as perpetrators of these alleged violations "ICE employees or

agents" without specifying any individuals. He asserted that the

government lacked probable cause to arrest and detain him because

it failed to determine that his removal was significantly likely

in the reasonably foreseeable future, as required by a federal

regulation,

(i)(2), directing the government to

make such a determination when it seeks to revoke the release of

a noncitizen who has been compliant with the terms of his release.

Kong also alleged as part of his MCRA claim that the government

failed to follow its own regulation,

(i)(3),

requiring ICE to give him notice of the reasons for his detention

and to provide him an informal hearing to contest the propriety of

his detention.

D. The District Court Decision

In March 2021, the district court, confronted with the

difficult issues in this case, granted the government's motion to

dismiss for lack of subject matter jurisdiction pursuant to Federal

Rule of Civil Procedure 12(b)(1). The court held that the

government's decision to return Kong to detention is shielded from

judicial review by statute, specifically

(g),

which, inter alia, deprives federal courts of jurisdiction over

claims arising from decisions or actions to execute removal orders.

See Reno v. Am.-Arab Anti-Discrimination Comm.,

(1999).

- 6 - The court reasoned that Kong's "FTCA claims for wrongful

arrest, wrongful detention, and violation of his due process rights

under the MCRA are all directly related to, and arise from, actions

taken by ICE to execute his final deportation order" -- namely

actions beginning with ICE's determination that Kong should be

interviewed by Cambodian officials and including his arrest and

re-detainment to facilitate that interview. Kong v. United States,

No. 20-10119-MPK,

, at *5 (D. Mass. Mar. 23, 2021).

Although the court dismissed Kong's action for lack of

subject-matter jurisdiction, it also commented extensively on the

merits of his claims. The court noted that Kong's claims rest in

large part on his contention that ICE could not justify his arrest

based solely on the deportation warrant issued in 1996. ICE needed

instead, he argued, to develop probable cause to arrest him by

making a new individualized finding under

(i)(2)

that his removal was significantly likely in the reasonably

foreseeable future. Rejecting this argument, the court stated

that the initial warrant of deportation from 1996 remained valid.

at *7-*8. In so concluding, the court relied on a 1954 decision

by the Ninth Circuit observing that a deportation warrant does not

become "ineffective or void because of [a] delay in execution."

See Spector v. Landon,

(9th Cir. 1954) ("No

cases have been found . . . holding that a deportation warrant

becomes invalid or unenforceable through mere lapse of time, or

- 7 - for that matter because of dilatory conduct or laches on the part

of the immigration authorities in effecting a deportation.").

Finding no cases to the contrary, the district court held that the

1996 deportation warrant provided the probable cause necessary to

justify Kong's 2018 rearrest and renewed detention. Kong,

at *7-*8.

The court then rejected Kong's argument that his arrest

contravened § 241.13(i)(2) because, in the court's judgment, there

was "a significant likelihood that [Kong] may be removed in the

reasonably foreseeable future." Id. at *8. In making this

finding, the court did not ascertain whether ICE had made such a

determination before arresting and re-detaining Kong.

This appeal followed.

E. The Parties' Positions on Appeal

In challenging the court's jurisdictional ruling, Kong

acknowledges that the government's decision to move forward with

his removal is a discretionary judgment not subject to review

because of the jurisdictional bar of § 1252(g). He argues,

however, that the actions he challenges -- all pertaining to his

detention -- are distinct from the discretionary decision to

execute his removal and that, accordingly, his claims fall outside

the § 1252(g) jurisdictional bar. Specifically, he argues that

§ 1252(g) does not bar his challenge to the lawfulness of his

detention. Here, Kong claims that the government lacked a valid

- 8 - warrant and that the government, having previously determined that

his removal was "not possible or practicable," failed to follow

its own regulations requiring ICE to determine that, "on account

of changed circumstances, . . . there [was] a significant

likelihood that [Kong] may be removed in the reasonably foreseeable

future." See

(i)(2). He contends that, absent

such an individualized finding, ICE lacked the legal authority to

detain him and is therefore liable for false arrest and false

imprisonment. His MCRA claim arose from ICE's alleged violation

of its own regulations by failing to give him notice of the reasons

for his detention and an opportunity to be heard concerning the

propriety of detaining him.

The government, in opposition, insists that the court

lacks jurisdiction to hear the case because Kong's detention

stemmed from the decision to execute his removal order and,

accordingly, his FTCA claims challenging that detention are

foreclosed by § 1252(g). The government also argues that Kong's

claims fail on their merits because Kong was arrested pursuant to

a valid warrant of deportation.

II.

A. The Scope of § 1252(g)

The Immigration and Nationality Act ("INA") includes

various provisions restricting judicial review in immigration

cases. The provision at issue here,

(g), states:

- 9 - Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, 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.

Despite the seeming breadth of the statutory language, the Supreme

Court has cautioned against reading the provision to preclude

jurisdiction over all claims related to removal.

The Court first considered the scope of § 1252(g) in

Reno, which involved an INS practice -- known as "deferred

action" -- in which the INS would exercise its discretion to

decline to remove a noncitizen for humanitarian reasons. See

. This practice led to litigation over the refusal

to grant deferred action.

. The Court held that

§ 1252(g) barred challenges to such refusals because Congress

"directed" § 1252(g) "against a particular evil: attempts to

impose judicial constraints upon prosecutorial discretion." Id.

at 485 n.9.4 The Court stated that "[t]here was good reason for

4 The Court, however, stopped short of holding that selective prosecution claims regarding the government's refusal to grant deferred action were categorically barred by § 1252(g). See Reno,

("[W]e need not rule out the possibility of a rare case in which the alleged basis of discrimination is so outrageous that the foregoing considerations can be overcome.").

- 10 - Congress to focus special attention upon, and make special

provision for, judicial review of the Attorney General's discrete

acts of 'commenc[ing] proceedings, adjudicat[ing] cases, [and]

execut[ing] removal orders' -- which represent the initiation or

prosecution of various stages in the deportation process."

. The Court contrasted decisions falling within these three

discrete categories with the "many other decisions or actions that

may be part of the deportation process," such as "the decisions to

open an investigation, to surveil the suspected violator, to

reschedule the deportation hearing, to include various provisions

in the final order that is the product of the adjudication, and to

refuse reconsideration of that order."

.

In summarizing its narrow reading of § 1252(g), the

Court declared that "[i]t is implausible that the mention of three

discrete events along the road to deportation was a shorthand way

of referring to all claims arising from deportation proceedings."

Id. This had to be the result, "[n]ot because Congress is too

unpoetic to use synecdoche,5 but because that literary device is

incompatible with the need for precision in legislative drafting."

Id.

Synecdoche refers to a literary device in which a part of 5

something is used to represent the whole. See synecdoche, The Merriam Webster Dictionary (revised ed. 2022). For example, using the word "boot" to refer to soldiers ("we need to get boots on the ground") or "wheels" to refer to a car ("check out my new wheels").

- 11 - More recently, in Jennings v. Rodriguez,

(2018), the Court reaffirmed its narrow construction of § 1252(g),

noting that Reno "did not interpret [the phrase "arising from" in

§ 1252(g)] to sweep in any claim that can technically be said to

'arise from' the three listed actions of the Attorney General.

Instead, [Reno] read the language to refer to just those three

specific actions themselves." Id. at 841. However, the Court did

not elaborate on which claims are outside the provision's scope

even though they might "technically" arise from one of those three

discrete actions.

B. Kong's Claims

In a but-for sense, Kong's claim of improper detention

"arose from" the government's decision to execute his removal.

The government re-detained Kong as it sought to arrange an

interview with Cambodian officials with the goal of removing him

to Cambodia. However, as noted, Supreme Court caselaw establishes

that claims challenging administrative actions do not "arise from"

the government's decision to "execute removal orders" within the

meaning of § 1252(g) simply because the claims relate to that

discretionary, prosecutorial decision in the "but for" causal

sense. Our task, therefore, is to determine whether Kong's claims

implicate ICE's discretionary decision to pursue his removal in

the sense relevant to § 1252(g).

- 12 - Although we have not previously considered the meaning

of "arising from" in the specific context of § 1252(g), we are

guided by our reasoning in a previous case interpreting the same

phrase in a related subsection of the INA --

(b)(9) -- to permit judicial consideration of collateral

challenges to the legality of a petitioner's detention. See

Aguilar v. U.S. Immigr. & Customs Enf't Div. of the Dep't of

Homeland Sec.,

(1st Cir. 2007). In Aguilar, a group of

noncitizens detained by the government sought immediate release

through a petition for habeas corpus and a complaint for

declaratory and injunctive relief.

. The plaintiffs

subsequently filed an amended complaint, fashioned as a class

action, that withdrew their request for immediate release.

They alleged that ICE had violated their constitutional and

statutory rights in detaining them and that the district court had

both habeas and federal question jurisdiction over their claims.

See

.6 The district court, citing to § 1252(b)(9), held

The noncitizens "alleged that ICE's actions had violated 6

certain of the [noncitizens'] constitutional and statutory rights, including: (i) the right to be free from arbitrary, prolonged, and indefinite detention; (ii) the right to a prompt bond hearing, that is, one held in Massachusetts prior to any transfer; (iii) the right to counsel; and (iv) the right of family integrity. The amended complaint further alleged that it was 'the established policy and practice of the [government] to conduct large scale 'sweeps' or 'raids' in which large numbers of persons suspected of being unlawfully present in the United States' are held 'at facilities which are some distance from the site of arrest and under conditions where access to counsel . . . is impracticable,

- 13 - that it lacked subject-matter jurisdiction to hear the claims.

Id. at 7. Section 1252(b)(9) directs claims to which it applies

through a particular administrative process, with review vested

exclusively in the Courts of Appeals. Id. On appeal, the

noncitizens argued that their claims lay beyond the reach of

§ 1252(b)(9)'s channeling requirements and thus could be heard by

a district court even though their claims had not been exhausted

before the administrative agency. Id. at 7-9.

Section 1252(b)(9) provides, in relevant part:

Judicial review of all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States . . . shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of title 28 or any other habeas corpus provision, . . . or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.

(b)(9). Noting that the phrase "arising from" is

not "infinitely elastic," we reasoned that -- despite the

provision's expansive language -- it does not reach "claims that

are independent of, or wholly collateral to, the removal process,"

Aguilar,

, or that bear "only a remote or

attenuated connection to the removal of an alien,"

.

Among such "collateral" claims, we explained, were claims seeking

if not impossible.'" Aguilar,

.

- 14 - review of the legality of a petitioner's detention.

at 10-

11.

In so concluding, we cited the intent of Congress as set

forth in the Conference Report accompanying the passage of the

REAL ID Act of 2005, Pub. L. No. 109–13, § 106,

,

310-11, that amended the INA to include the language now found in

§ 1252(b)(9). See H.R. Rep. No. 109-72, at 175 (2005) (Conf.

Rep.). The Report specified that nothing in the amendment would

"preclude habeas review over challenges to detention that are

independent of challenges to removal orders." Id. Instead, the

Report noted, "the bill would eliminate habeas review only over

challenges to removal orders." Id. In Aguilar, we noted that

"[i]n line with [Congress's] prescription [in the Report], we have

held that district courts retain jurisdiction over challenges to

the legality of detention in the immigration context."

(citing Hernandez v. Gonzales,

(1st Cir.

2005) (holding that detention claims are independent of removal

proceedings and, thus, not barred from district court jurisdiction

by § 1252(b)(9)). Hence, relying on this legislative history, we

determined that § 1252(b)(9)'s instruction to consolidate all

legal and factual questions "arising from any action taken or

proceeding brought to remove an alien" in a petition for

- 15 - review7 "should not be read to preclude 'habeas review over

challenges to detention.'" Id. We reached this decision even

though § 1252(b)(9) explicitly applied to habeas jurisdiction.

This reading, we reasoned, "is consistent with the wise presumption

that Congress legislates with knowledge of longstanding rules of

statutory construction. That presumption traditionally requires

that there be clear and convincing evidence of legislative intent

before restricting access to judicial review entirely." Id. at 11

(citation omitted).

The constitutional concerns and legislative history

informing our interpretation of the phrase "arising from" in

§ 1252(b)(9) weigh even more heavily in the context of § 1252(g),

which does not simply channel claims within its scope but entirely

eliminates judicial review.8 Before the amendments made by the

REAL ID Act in 2005, § 1252(b)(9) and § 1252(g) did not directly

address habeas jurisdiction, and noncitizens frequently brought

7 A petition for review is the document filed by, or on behalf of, an individual seeking review of an agency decision in the Circuit Courts of Appeals. In the immigration context, a petition for review is filed to obtain review of a removal or exclusion decision issued by the Board of Immigration Appeals. See e.g., Perez-Trujillo v. Garland,

(1st Cir. 2021). 8 In Aguilar, we noted the difference between these two provisions. We described § 1252(b)(9) as a channeling provision, not a claim-barring one like § 1252(g).

. In other words, § 1252(b)(9), where applicable, only requires exhaustion of administrative procedures and the consolidation of claims for review. Id. In contrast, § 1252(g) precludes any review of the administrative decisions within its scope. Id. at 11 n.2.

- 16 - habeas corpus petitions to seek review of removal decisions. See,

e.g., INS v. St. Cyr,

(2001). The 2005

amendments added language to § 1252(g) that explicitly applied the

statute's jurisdictional limitations to habeas cases: "including

section 2241 of title 28,9 or any other habeas corpus provision."10

As we noted in Aguilar, however, the Conference Report accompanying

the 2005 amendments expressly stated that the amendments preserved

"habeas review over challenges to detention that are independent

of challenges to removal orders." H.R. Rep. No. 109-72, at 175;

see Aguilar,

. Notably, this statement appeared in

the Report immediately after an extensive examination of Supreme

Court and circuit court precedent describing the kinds of

jurisdiction-stripping provisions that would not violate the right

to habeas corpus. See H.R. Rep. No. 109-72 at 174-75. This

careful review of precedent demonstrates Congress's attentiveness

9

authorizes federal courts to grant the writ of habeas corpus. Habeas protections have been recognized by the Court as fundamental to individual liberty. See, e.g., Boumediene v. Bush,

(2008). 10Of less relevance to this case, the statute also references

and

. Section 1361 gives courts original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States to perform a duty owed to a plaintiff. Section 1651 gives courts the power to issue writs necessary or appropriate in aid of their respective jurisdictions and also allows courts to issue an alternative writ or rule nisi within their jurisdiction. By referencing these two statutes, § 1252(g) further emphasizes the scope of its jurisdictional bar.

- 17 - to the constitutional limitations on withdrawing habeas relief

from those seeking release from unlawful detention.

Hence, there is no way to read this legislative history

as evincing "a clear statement of congressional intent to repeal

habeas jurisdiction" over all detention claims. See St. Cyr,

. To the contrary, § 1252(g) was passed with the

understanding that collateral challenges to the legality of a

petitioner's detention would not constitute "cause[s] or claim[s]"

that "aris[e] from the decision or action by the Attorney General

to . . . execute removal orders."

To the extent that the language in the Conference Report

seems an insufficient basis to limit the scope of the

jurisdictional bar of § 1252(g), we find additional support for

that limitation in the judicial canon of constitutional avoidance.

"'[I]t is a cardinal principle' of statutory interpretation

. . . that when an Act of Congress raises 'a serious doubt' as to

its constitutionality, 'this Court will first ascertain whether a

construction of the statute is fairly possible by which the

question may be avoided.'" Zadvydas v. Davis,

(2001) (quoting Crowell v. Benson,

(1932)); cf.

Almendarez–Torres v. United States,

(1998)

(noting that congressional will is best reflected by construing a

statute to avoid invalidation).

- 18 - The Court has "read significant limitations into . . .

immigration statutes in order to avoid their constitutional

invalidation." Zadvydas,

; see also United States

v. Witkovich,

(1957) (holding that

government authority under a statute to require noncitizens to

answer such questions "as the Attorney General may deem fit and

proper" is limited to questions "reasonably calculated to keep the

Attorney General advised regarding the continued availability for

departure of aliens whose deportation is overdue"). For example,

in Zadvydas, the Supreme Court considered a detention-related

removal claim. There, the government claimed that an immigration

statute,

(a)(6), gave the Attorney General

exclusive and unreviewable power to determine why, when, and for

how long a noncitizen could be detained beyond the ninety-day

removal period immediately following the issuance of a removal

order.11

. The Court concluded that, even though

§ 1231(a)(6)'s plain language cohered with the government's

expansive reading, courts retained jurisdiction over some

challenges to post-removal-period detention. Id. at 688-89.

11Pursuant to statute, noncitizens must be held in custody up to ninety days after entry of a final removal order. See

(a). Detention after this ninety-day period is known as post-removal-period detention. See, e.g., Zadvydas,

.

- 19 - The Court also referred in passing to § 1252(g),

observing that neither that statute nor other jurisdiction-

limiting provisions deprived courts of jurisdiction over all such

detention-related claims. See id. The Court recognized that

noncitizens have liberty interests protected by the Constitution,

and it noted that the government may detain noncitizens only "in

certain special and narrow nonpunitive circumstances, where a

special justification . . . outweighs the individual's

constitutionally protected interest in avoiding physical

restraint." Id. at 690 (citation omitted) (internal quotation

marks omitted). In the context of post-removal-order detention,

these justifications are the twin goals of "'ensuring the

appearance of aliens at future immigration proceedings' and

'[p]reventing danger to the community'" during ICE's efforts to

procure removal. Id. Continued detention is unconstitutional

unless it serves these aims. See id. at 690-91. Ultimately, the

Court allowed jurisdiction over the challenges to detention at

issue in Zadvydas. In doing so, it made clear that jurisdiction-

limiting and discretion-protecting immigration statutes, including

§ 1252(g), have limits that derive at least in part from

constitutional principles. See id. at 690 (reasoning that the

canon of constitutional avoidance indicates that the post-removal-

period statute must not be read to permit indefinite, unreviewable

detention).

- 20 - Construing the "arising from" language of § 1252(g) to

bar all detention-related claims -- the effective result of the

government's desired interpretation -- would raise serious

constitutional concerns under the Suspension Clause. Absent the

right to judicial review through a habeas petition, the government

could detain noncitizens indefinitely without needing to provide

a justification to anyone. For instance, if Kong were still

detained and he brought a habeas challenge rather than an FTCA

challenge to his detention, construing the "arising from" language

of § 1252(g) to bar his habeas claim would leave him with no access

to the courts. Section 1252(g) can be interpreted to avoid this

constitutional concern by allowing challenges to detentions where,

as here, a noncitizen does not attack the decision to execute the

removal order. See Parra v. Perryman,

(7th Cir.

1999) (reasoning that § 1252(g) does not preclude review of all

challenges to detention because a noncitizen's claim "concern[ing]

detention . . . may be resolved without affecting pending

[removal] proceedings"); cf. Zadvydas,

;

St. Cyr,

.

Although Kong is pursuing his claims of unlawful

detention in an FTCA action rather than a habeas petition, that

fact does not broaden the scope of § 1252(g). To the contrary,

the text of § 1252(g) cannot be interpreted differently depending

on whether a detention-based challenge is brought as a habeas or

- 21 - FTCA claim. See Clark v. Martinez,

(2005)

(statutory interpretation adopted to avoid constitutional concerns

also applies in contexts not raising these concerns; a contrary

view would "render every statute a chameleon, its meaning subject

to change depending on the presence or absence of constitutional

concerns in each individual case").

Here, Kong does not challenge the decision to try to

execute his removal. Kong claims that his renewed detention in

2018 was unlawful because the government -- by relying on a

decades-old warrant and failing to adhere to regulatory

procedures -- neither offered nor proved any "special

justification" that existed at that time to outweigh his

"constitutionally protected interest in avoiding physical

restraint." Zadvydas,

(quoting Kansas v.

Hendricks,

(1997)). These assertions of illegal

detention are plainly collateral to ICE's prosecutorial decision

to execute Kong's removal -- which, as noted above, Kong does not

challenge. Our conclusion that § 1252(g) does not bar judicial

review of Kong's challenge to the lawfulness of his detention thus

aligns with the Supreme Court's observation in Reno that there are

"many other decisions or actions that may be part of the

deportation process" that do not fall in the three discrete

exercises of "prosecutorial discretion" covered by § 1252(g).

.

- 22 - Our interpretation of § 1252(g) to preserve jurisdiction

over challenges like Kong's to the legality of detention is

supported by caselaw from other circuits. Recently, the Ninth

Circuit considered whether a noncitizen's FTCA claim for false

arrest and imprisonment, based on the government's failure to

follow a court order, was barred by § 1252(g). See Arce v. United

States,

(9th Cir. 2018). There, ICE removed a

noncitizen to Mexico in violation of a court-ordered stay of

removal.

. The government claimed that the challenge

was barred by § 1252(g) because the removal, even if unlawful,

arose from the government's decision to execute removal. Id. The

court held that § 1252(g) did not bar the noncitizen's FTCA claim

because the claim did not arise from the execution of removal but

instead arose from the government's unlawful removal of the

plaintiff noncitizen in violation of a stay order. Id. at 800;

see also Madu v. Att'y Gen.,

(11th Cir. 2006)

(holding that a challenge to legality of detention is distinct

from a challenge to the government's discretionary decision to

execute a removal order and thus not barred by § 1252(g)); Garcia

v. Att'y Gen.,

(3d Cir. 2009) (holding

§ 1252(g)'s jurisdictional bar does not apply when a petitioner

"is not challenging the discretionary decision to commence

proceedings, but is challenging the very authority to commence

those proceedings"). Likewise, Kong's FTCA claim does not arise

- 23 - from the discretionary decision to execute removal but instead

arises from the government's alleged violations of law in arresting

Kong without a relevant warrant and in failing to abide by its own

regulations.

Finally, this case does not involve a challenge to the

kind of brief detentions that in certain circumstances may

implicate § 1252(g)'s jurisdictional bar. In Tazu v. Att'y Gen.,

(3d Cir. 2020), the Third Circuit held that § 1252(g)

barred judicial review of a challenge to detention where a

noncitizen was detained by ICE after his travel documents were

secured and ICE was certain it would deport him to Bangladesh.

Id. at 297-99. The court held that judicial review was barred

because the challenge was to "brief door-to-plane detention[s]"

that are "integral to the act of 'execut[ing] [a] removal

order[].'" Id. at 298-99. In contrast, Kong's detention lasted

for over fifty days and occurred before travel documents were

secured, before deportation was certain, and allegedly without a

valid warrant or any determination that his removal was likely in

the reasonably foreseeable future.

III.

Because we conclude that the district court has

jurisdiction over Kong's claims, we could simply remand the case

without further comment for the district court to consider the

merits of each claim. However, despite dismissing Kong's action

- 24 - based solely on a lack of jurisdiction, the district court -

- without reaching a holding on the merits -- offered its view on

problems with Kong's false arrest and false imprisonment claims.

It did not comment on the merits of his MCRA claim.

We do not intend to fully address the merits of Kong's

claims here on an incomplete record. However, it would be wasteful

if we did not exercise our discretion to address here two

questionable conclusions of the district court on the merits of

Kong's claims, only to address them later in the context of another

appeal if the court were to deny Kong's claims on these same

inappropriate grounds.

The district court gave two primary reasons for

concluding that the facts of this case could not support false

arrest and false imprisonment claims: (1) Kong was arrested and

detained based on a valid warrant from 1996, and (2) his removal

was reasonably foreseeable under

(i)(2). Neither

rationale is supportable on the grounds stated by the district

court.

A. The 1996 Warrant

As noted above, a deportation warrant for Kong was issued

in 1996 at the time he was ordered deported to Cambodia. His

deportation was delayed because of Cambodia's refusal to accept

him. The government then determined that his release was no longer

- 25 - significantly likely in the reasonably foreseeable future, so it

released him from detainment under supervision.

In concluding that Kong's arrest in 2018 was justified

by the initial 1996 warrant, the district court relied almost

entirely on the Ninth Circuit's 1954 decision in Spector v. Landon

to support its position. See

. That reliance is

problematic. Spector is an old, out-of-circuit precedent with

internal inconsistencies. The case involved a noncitizen,

Spector, who was subject to an order of deportation initially

issued by the government in 1930.

. By the 1950s

Spector had filed suit to stop the government from trying to deport

him under the authority of that initial deportation order.

. The Spector court begins its decision by stating that the

case is about "an outstanding warrant for the deportation of

appellant."

. Yet in that same paragraph it describes

the issue as whether a "deportation order had spent its force or

become functus officio by virtue of unexcused lapse of time." See

(emphasis added). Later in the opinion, the court

again switches back and forth between the terms "warrant" and

"order" in its reasoning. See

. The concepts of a

deportation order and a deportation warrant cannot be conflated.

The deportation order authorizes removal from the country. The

warrant authorizes an arrest to effect removal. Compare, e.g.,

with

.

- 26 - Read as a whole, the issue at the heart of Spector

appears to be whether a deportation order ever expires, not a

deportation warrant. The court asks repeatedly whether the

government loses the ability to deport Spector due to the passage

of time, not whether it loses the ability to arrest Spector in

order to deport him. See, e.g., Spector,

(noting

that in a prior case the court had held that a person need merely

be freed from further imprisonment when "the government fails to

execute the order of deportation") (quoting Caranica v. Nagle,

(9th Cir. 1928)) (emphasis added); id. at 482

(stating that the government here "appears" to have been "diligent

in its attempt to effect deportation"); id. at 482-83 (commenting

that "the delay in effecting appellant's deportation operated to

his advantage"); id. at 483 (pointing out that the Supreme Court

in an earlier iteration of Spector had reserved the question of

whether a statute must be declared unconstitutional since the

statute "affords a defendant no opportunity to have the court which

tries him pass on the validity of the order of deportation")

(quoting United States v. Spector,

(1952))

(emphasis added).

Not surprisingly, Ninth Circuit decisions citing Spector

have recognized that it is about a deportation order, and they

cite it to support the proposition that the validity of a

deportation order, not a deportation warrant, does not expire over

- 27 - time. See, e.g., Kim Ho Ma v. Ashcroft,

(9th

Cir. 2001) (describing Spector as rejecting the argument that "as

a result of the passage of time the deportation order was no longer

valid") (emphasis added); Whetstone v. INS,

(9th Cir. 1977) (citing Spector for the proposition that "[a]

deportation order does not become invalid . . . through the mere

lapse of time") (emphasis added); United States v. Dekermenjian,

(9th Cir. 1974) (citing Spector for the

proposition that a "deportation [o]rder" is not invalidated by

"delay in its execution") (emphasis added); Cao v. INS,

, 1086 n.4 (S.D. Cal. 2001) (stating that Spector

"held an alien ordered deported but released on bond for twenty-

four years was still subject to a valid order of removal")

(emphasis added).

Given all that is problematic about Spector as a

precedent, the district court should reconsider its usefulness in

assessing the validity of Kong's deportation warrant.

B. Regulatory Requirements of § 241.13(i)(2)

ICE's decision to re-detain a noncitizen like Kong who

has been granted supervised release is governed by ICE's own

regulation requiring (1) an individualized determination (2) by

ICE that, (3) based on changed circumstances, (4) removal has

become significantly likely in the reasonably foreseeable future.

- 28 - See

(i)(2).12 The district court erred by making

the foreseeability determination itself. Without assessing

whether ICE had made the required finding, the court declared that,

"[b]ased on all the facts at the time he was arrested, there was

'a significant likelihood that [Kong] may be removed in the

reasonably foreseeable future." Kong,

at *8

(citing

(i)(2)). The plain language of the

regulation, however, does not allow a court in the first instance

12 Detention and executing removal go hand-in-hand when a noncitizen is first ordered removed because governing regulations require the detention of a noncitizen for up to ninety days once a removal order becomes final so that the government may carry out the noncitizen's removal. See

(a)(1)-(2); see also Zadvydas,

(upholding this ninety-day detention period following a removal order). However, the connection between executing a removal order and detaining a noncitizen unravels if the noncitizen is not removed within that ninety-day window, especially when, as in this case, the noncitizen has been released with supervision. See

(a)(3), (6) (statutory supervised-release provisions). Indeed, when "there is no significant likelihood that [a noncitizen being detained pending removal] may be removed in the reasonably foreseeable future," arrangements for release "shall promptly" be made absent "special circumstances justifying continued detention,"

(g)(1), and once a noncitizen has been granted supervised release, that release can only be revoked upon a showing that because of changed circumstances there is now a "significant likelihood that the [noncitizen] will be removed in the reasonably foreseeable future."

(i)(2). Here, the government initially argued that Kong's detention was mandatory, and thus lawful, because

(a)(1)(A) provides mandatory detention of up to ninety days while the government attempts to effectuate a removal order. However, as the government later acknowledged in a separate filing, that provision does not apply to Kong's detention, and detaining him was thus not mandatory.

- 29 - to make the required individualized finding. To the extent ICE

claims that it made such a determination, the court should review

that claim in light of the regulations instructing ICE on how it

should make such a determination. See

(f),

(i)(2).13

IV. CONCLUSION

We hold that § 1252(g)'s jurisdictional bar for claims "arising

from" the government's decision to "execute removal orders" does not preclude

jurisdiction over Kong's challenges to the legality of his detention. Thus,

we reverse the district court's dismissal under Federal Rule of Civil

Procedure 12(b)(1) of Kong's FTCA claims for false arrest, false

imprisonment, and a violation of the MCRA, all based on ICE's alleged illegal

detention of him, and remand the case for further proceedings.

So ordered.

13 Section 241.13 governs how ICE should determine whether there is a significant likelihood of removing a noncitizen in the reasonably foreseeable future. Subsection (f) details several factors that ICE must consider in making the foreseeability inquiry. See

(f) ("[ICE's Headquarters Post- order Detention Unit] shall consider all the facts of the case including, but not limited to, the history of the alien's efforts to comply with the order of removal, the history of [ICE]'s efforts to remove aliens to the country in question or to third countries, including the ongoing nature of [ICE]'s efforts to remove this alien and the alien's assistance with those efforts, the reasonably foreseeable results of those efforts, and the views of the Department of State regarding the prospects for removal of aliens to the country or countries in question."). Subsection (i) applies that reasonable foreseeability test to determining when a noncitizen on supervised release can be re-detained. See § 241.13(i)(2).

- 30 -