     Case: 17-41212      Document: 00514984485        Page: 1     Date Filed: 06/05/2019




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT

                                                                 United States Court of Appeals

                                     No. 17-41212
                                                                          Fifth Circuit

                                                                        FILED
                                                                     June 5, 2019

GERMAN HERNANDEZ NAJERA,                                           Lyle W. Cayce
                                                                        Clerk
              Plaintiff - Appellant

v.

UNITED STATES OF AMERICA,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas


Before SMITH, BARKSDALE, and HO, Circuit Judges.
JAMES C. HO, Circuit Judge:
      German Hernandez Najera, a foreign national from Honduras, claims
that he was falsely imprisoned by federal immigration authorities. The district
court entered summary judgment for the United States. We affirm.
                                            I.
      Najera first entered the United States in 1998. He received Temporary
Protected Status (TPS) in 2000. 1


      1  TPS allows eligible persons from certain countries designated by the Secretary of
Homeland Security to live and work temporarily in the United States, due to certain
conditions in their home country such as ongoing armed conflict and environmental disaster.
8 U.S.C. § 1254a. See also 6 U.S.C. § 557 (transferring authority to designate TPS from the
Attorney General to the Secretary). The Secretary first granted TPS to Honduras in 1999
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      In 2012, Najera left the United States, without permission from federal
immigration authorities, to visit his parents in Honduras. He returned to the
United States about seven months later, at a place other than one designated
by the Secretary of Homeland Security. At that time, Border Patrol agents
arrested him and sent him to the McAllen Border Station for further
processing. There, Customs and Border Protection (CBP) issued a warrant of
arrest and notice to appear and served Najera with these documents while he
was in custody. See 8 C.F.R. § 287.5(e)(2) (listing the immigration officers,
including certain CBP officers, authorized to issue arrest warrants). CBP
charged Najera with being illegally present in the United States, subject to
removal, under § 212(a)(6)(A)(i) of the Immigration and Nationality Act.
      CBP held Najera from the time of his initial arrest until his transfer to
the custody of Immigration and Customs Enforcement (ICE) on June 17, 2013.
ICE held Najera in custody for twenty-three days, while awaiting confirmation
that Najera’s criminal history was clear and that his TPS was still current. On
July 10, 2013, ICE released Najera with instructions to report to the ICE office
in Fairfax, Virginia, on July 31, 2013. ICE filed the notice to appear with the
Arlington Immigration Court in Arlington, Virginia, on July 12, 2013—two
days after his release.
      Najera filed this suit in the Eastern District of Virginia under the
Federal Tort Claims Act (FTCA), claiming, inter alia, false imprisonment. The
court transferred the claims arising out of the events that took place in Texas
to the Southern District of Texas, where the district court granted summary
judgment to the United States on all claims.



after the devastation wrought by Hurricane Mitch. See Designation of Honduras Under
Temporary Protected Status, 64 Fed. Reg. 524-02 (Jan. 5, 1999). TPS for Honduras has been
extended continually through January 2020. See Termination of the Designation of
Honduras for Temporary Protected Status, 83 Fed. Reg. 26074-01 (June 5, 2018).
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      Najera appeals only his false imprisonment claim.        On appeal, the
United States argues that the district court lacked jurisdiction to review
Najera’s false imprisonment claim under both 8 U.S.C. §§ 1252(g) and 1226(e).
Alternatively, the United States urges that we affirm on the merits of Najera’s
claim. For the reasons detailed below, we disagree with the government’s
jurisdictional arguments, but we agree that Najera’s claim lacks merit.
                                      II.
      The government first argues that § 1252(g) precludes jurisdiction in this
case. We disagree. This section states 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 under this chapter.” 8 U.S.C.
§ 1252(g). As Najera notes, this court has held that “removal proceedings
commence when [ICE] files the appropriate charging document with the
immigration court.” DeLeon-Holguin v. Ashcroft, 253 F.3d 811, 815 (5th Cir.
2001). Here, ICE filed the charging document—the notice to appear—with the
Arlington Immigration Court on July 12, 2013—two days after Najera’s release
from his allegedly false imprisonment. The government does not offer a theory
for distinguishing DeLeon-Holguin, and we are aware of none. Accordingly, we
conclude that § 1252(g) did not strip the district court of subject matter
jurisdiction.
      The government next argues that the district court lacked jurisdiction
under § 1226(e) to hear this case.     Again, we disagree.     Section 1226(e)
generally bars jurisdiction in cases challenging the Attorney General’s
discretionary judgment to detain aliens pending removal proceedings:
      The Attorney General’s discretionary judgment regarding the
      application of this section shall not be subject to review. No court
      may set aside any action or decision by the Attorney General under

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      this section regarding the detention or release of any alien or the
      grant, revocation, or denial of bond or parole.
8 U.S.C. § 1226(e). The Supreme Court has construed § 1226(e), however, to
permit constitutional challenges to statutes authorizing the detention of
aliens. See Demore v. Kim, 538 U.S. 510, 517 (2003) (“Section 1226(e) contains
no explicit provision barring habeas review, and we think that its clear text
does not bar respondent’s constitutional challenge to the legislation
authorizing his detention without bail.”).         And in a plurality opinion, the
Supreme Court has construed § 1226(e) to permit statutory challenges as well.
See Jennings v. Rodriguez, 138 S. Ct. 830, 841 (2018) (Alito, J., joined by
Roberts, C.J., and Kennedy, J.) (“First and foremost, they are challenging the
extent of the Government’s detention authority under the ‘statutory
framework’ as a whole. If that challenge fails, they are then contesting the
constitutionality of the entire statutory scheme under the Fifth Amendment.
Because the extent of the Government’s detention authority is not a matter of
‘discretionary judgment,’ ‘action,’ or ‘decision,’ respondents’ challenge to ‘the
statutory framework that permits [their] detention without bail,’ falls outside
of the scope of § 1226(e).”) (citation omitted) (quoting Kim, 538 U.S. at 517). 2
      This court has likewise held that § 1226(e) “does not deprive us of all
authority to review statutory and constitutional challenges.”                Oyelude v.
Chertoff, 125 F. App’x 543, 546 (5th Cir. 2005). Here, Najera contends that his
detention violates the federal TPS statute—which provides that federal
immigration authorities “shall not remove the alien from the United States
during the period in which such status is in effect.” 8 U.S.C. § 1254a(a). Once
again, the government does not offer a theory for distinguishing Oyelude, and


      2  In Jennings, Justice Breyer, joined by Justices Ginsburg and Sotomayor, dissented
on the ground that, unlike the plurality, they would have granted the relief sought by
plaintiffs—suggesting that they agreed with the plurality that the district court properly
exercised jurisdiction to decide the case. 138 S. Ct. at 859 (Breyer, J., dissenting).
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we are aware of none. Accordingly, we conclude that § 1226(e) did not strip the
district court of jurisdiction.
                                       III.
      We turn next to the merits of Najera’s false imprisonment claim. We
review a grant of summary judgment de novo. Pierce v. Dep’t of the Air Force,
512 F.3d 184, 186 (5th Cir. 2007). When a plaintiff files an FTCA claim, the
federal government waives sovereignty for suit “if a private person, would be
liable to the claimant in accordance with the law of the place where the act or
omission occurred.” 28 U.S.C. § 1346(b)(1). We have interpreted “[t]he law of
the place” to mean the law of the state where the tort took place. Johnson v.
Sawyer, 47 F.3d 716, 727 (5th Cir. 1995) (“[T]he liability of the United States
under the [FTCA] arises only when the law of the state would impose it.”)
(quoting Brown v. United States, 653 F.2d 196, 201 (5th Cir. Unit A Aug.
1981)). In this case, we apply Texas law.
      In order to establish a valid false imprisonment claim under Texas law,
Najera must show: “(1) willful detention, (2) without consent, and (3) without
authority of law.” Davila v. United States, 713 F.3d 248, 262 (5th Cir. 2013)
(quoting Martinez v. English, 267 S.W.3d 521, 629 (Tex. App.—Austin 2008,
pet. denied)).
      “The plaintiff must prove the absence of authority in order to establish
the third element of a false imprisonment cause of action.” Sears, Roebuck &
Co. v. Castillo, 693 S.W.2d 374, 376 (Tex. 1985). “It is a complete defense to
an action for false imprisonment that the arrest or detention was by virtue of
process, legally sufficient in form, and duly issued by a court or official having
jurisdiction to issue it.” Tandy Corp. v. McGregor, 527 S.W.2d 246, 248 (Tex.
Civ. App.—Texarkana 1975, writ ref’d n.r.e.). A facially valid warrant is a
defense to a claim of false imprisonment even if the events that led to its
issuance were “irregular, or void, or that the court did not have jurisdiction of
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                                No. 17-41212
the person of the defendant.” Pate v. Stevens, 257 S.W.2d 763, 767 (Tex. Civ.
App.—Texarkana 1953, writ dism’d) (citation omitted).
      The district court correctly determined that the Border Patrol and ICE
agents acted with authority of law. Najera illegally entered the United States,
and Border Patrol agents lawfully apprehended him at that time. Najera’s
signature appears on both the arrest warrant and notice to appear issued by
CBP prior to his detention. In light of these undisputed facts, Najera did not
meet his burden to show that the Border Patrol and ICE agents lacked
authority of law to arrest and detain him.
                                      ***
      For these reasons, we affirm.




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