CA1 on Jurisdiction, FTCA: Kong v. USA

Kong v. USA

"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 8 U.S.C. § 1252(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. ... 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."

[Hats way off to Ethan R. Horowitz, with whom Northeast Justice Center was on brief, for appellant, and Adriana Lafaille and Rebecca R. Krumholz on brief for American Civil Liberties Union of Massachusetts, amicus curiae!]