               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


CLAUDIO ANAYA ARCE,                       No. 16-56706
              Plaintiff-Appellant,
                                            D.C. No.
                v.                       2:16-cv-02419-
                                           PSG-MRW
UNITED STATES OF AMERICA,
              Defendant-Appellee.           OPINION



     Appeal from the United States District Court
         for the Central District of California
     Philip S. Gutierrez, District Judge, Presiding

         Argued and Submitted May 15, 2018
                Pasadena, California

                 Filed August 9, 2018

Before: Kim McLane Wardlaw, Jacqueline H. Nguyen,
         and John B. Owens, Circuit Judges.

                 Per Curiam Opinion
2               ANAYA ARCE V. UNITED STATES

                          SUMMARY *


                           Immigration

    The panel reversed the district court’s dismissal for lack
of jurisdiction of Claudio Anaya Arce’s complaint under the
Federal Tort Claims Act for damages suffered as a result of
his removal from the United States in violation of this court’s
temporary stay of removal, holding that the district court
erred in concluding that 8 U.S.C. § 1252(g) deprived it of
jurisdiction, and remanded.

    After an immigration judge determined that Anaya had
not established a reasonable fear of persecution or torture, he
filed an emergency petition for review and motion for a stay
of removal with this court. Upon filing, the order of removal
was temporarily stayed until further order of this court.
Despite the issuance of automatic electronic notice of the
stay, a faxed copy of the stay from Anaya’s attorney, and
calls by his attorney to the deportation officer assigned to the
case, the Department of Homeland Security removed him to
Mexico where he remained until DHS returned him to the
United States pursuant to this court’s order.

    Anaya sued the United States under the FTCA in district
court, raising claims of false arrest and imprisonment,
intentional infliction of emotional distress, and negligence.
The district court dismissed Anaya’s case on the ground that
8 U.S.C. § 1252(g) deprived it of jurisdiction.



    * This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
              ANAYA ARCE V. UNITED STATES                    3

   Section 1252(g) provides, in part, that “no court shall
have jurisdiction to hear any cause or claim by or on behalf
of an alien arising from the decision or action by the
[Secretary of the Department of Homeland Security] to
commence proceedings, adjudicate cases, or execute
removal orders.”

    The panel held that a decision or action to violate a court
order staying removal falls outside of the jurisdiction-
stripping reach of § 1252(g), explaining that Anaya’s claims
arise not from the execution of the removal order, but from
the violation of the court’s order staying removal. The panel
noted that its interpretation is supported by the express
instructions of the Supreme Court, this court’s precedent,
and common sense, all of which require the court to read the
statute narrowly.

    The panel also noted that, even if it agreed that Anaya’s
claims tangentially arise from the execution of the removal
order, the court would retain jurisdiction because the agency
lacked the authority, and therefore the discretion, to remove
Anaya. In this regard, the panel noted that this court has
limited § 1252(g)’s jurisdiction-stripping power to actions
challenging discretionary decisions to initiate proceedings,
adjudicate cases, and execute orders.

    The panel also acknowledged that the Eighth Circuit, in
Silva v. United States, 866 F.3d 938 (8th Cir. 2017), reached
a contrary result, holding that it lacked jurisdiction over the
FTCA claims of a noncitizen who was wrongfully removed
in violation of stay issued by the BIA.

   Finally, the panel rejected the government’s alternative
argument that Anaya’s claims were barred by the FTCA’s
4            ANAYA ARCE V. UNITED STATES

foreign country exception, concluding that Anaya’s injury
clearly occurred in the United States.


                       COUNSEL

Stacy Tolchin (argued) and Megan Brewer, Law Offices of
Stacy Tolchin, Los Angeles, California, for Plaintiff-
Appellant

Joseph A. Darrow (argued), Trial Attorney; Stacey I. Young,
Senior Litigation Counsel; William C. Peachey, Director;
Chad A. Readler, Principal Deputy Assistant Attorney
General; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Defendant-Appellee.


                        OPINION

PER CURIAM:

    On February 6, 2015, agents of the Department of
Homeland Security wrongfully removed Claudio Anaya
Arce (Anaya) to Mexico, in direct violation of a temporary
stay of removal. Two weeks later, pursuant to a court order,
he was returned to the United States. Anaya sued the United
States under the Federal Tort Claims Act (FTCA) for
damages suffered as a result of the wrongful removal. The
district court dismissed the complaint on the ground that
8 U.S.C. § 1252(g) deprived it of jurisdiction. We reverse.
                ANAYA ARCE V. UNITED STATES                            5

                                   I.

    We have jurisdiction over the final order of the district
court under 28 U.S.C. § 1291. See also Chavez v. JPMorgan
Chase & Co., 888 F.3d 413, 415 (9th Cir. 2018) (“[W]e
always ‘have jurisdiction to determine our own
jurisdiction.’” (quoting Diaz-Covarrubias v. Mukasey,
551 F.3d 1114, 1117 (9th Cir. 2009))).

                                  II.

    On April 12, 2014, Anaya, a citizen of Mexico, was
apprehended by U.S. Customs and Border Patrol officers and
detained in Adelanto, California. 1 Anaya expressed a fear
of harm if removed to Mexico, but an asylum officer
determined that he had not established a reasonable fear of
persecution or torture. 2     On February 4, 2015, an
immigration judge (IJ) affirmed this negative reasonable fear
finding, and the case was returned to the Department of
Homeland Security (DHS) to effectuate Anaya’s removal.
See 8 U.S.C. § 1231(a)(5); 8 C.F.R. §§ 1208.31(f)–(g).

   On February 6, 2015, Anaya, through counsel, filed an
emergency petition for review and motion for a stay of

    1
      In reviewing a motion to dismiss, we presume the complaint’s
factual allegations are true. See Young v. United States, 769 F.3d 1047,
1052 (9th Cir. 2014).
    2
       Because Anaya had previously been removed from the United
States, the government was permitted to reinstate his “prior order of
removal . . . from its original date.” 8 U.S.C. § 1231(a)(5). After
expressing a fear of returning to Mexico, however, Anaya was entitled
to “immediate[] referr[al] to an asylum officer for an interview to
determine” whether he “ha[d] a reasonable fear of persecution or torture”
that would allow him to seek withholding of removal and relief under
the Convention Against Torture. 8 C.F.R. § 1241.8(e).
6               ANAYA ARCE V. UNITED STATES

removal with our court. We had jurisdiction over the
petition under Ortiz-Alfaro v. Holder, 694 F.3d 955, 959 (9th
Cir. 2012). Upon filing, “the order of removal . . . [was]
temporarily stayed until further order of the Court.” Ninth
Circuit General Order 6.4(c). The stay issued at 11:25 AM.

    Despite the issuance of automatic electronic notice of the
stay, a faxed copy of the stay from Anaya’s attorney, and
calls by his attorney to the deportation officer assigned to the
case, DHS removed Anaya from the Adelanto facility at
2:15 PM and deported him to Mexico. He remained in
Mexico until February 20, 2015, when DHS returned him to
the United States pursuant to our court’s order to bring him
back.

    As required by the FTCA, Anaya filed an administrative
claim, which DHS denied. See 28 U.S.C. § 2675(a). He then
sued the United States under the FTCA in federal district
court, raising claims of false arrest and imprisonment,
intentional infliction of emotional distress, and negligence.
The district court dismissed Anaya’s case on the ground that
8 U.S.C. § 1252(g) deprived it of jurisdiction. This appeal
followed.

                                 III.

                                  A.

    We must decide whether 8 U.S.C. § 1252(g) deprives us
of jurisdiction to hear the FTCA claims of a noncitizen 3 who
was wrongfully removed in violation of a court order.


    3
       Following the lead of the United States Supreme Court, we “use[]
the term ‘noncitizen’ throughout this opinion to refer to any person who
                ANAYA ARCE V. UNITED STATES                            7

    Section 1252(g) states, in part:

         Except as provided in this section and
         notwithstanding any other provision of law
         (statutory or nonstatutory), . . . 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 4
         to commence proceedings, adjudicate cases,
         or execute removal orders against any alien
         under this chapter.

The government argues that Anaya’s claims fall squarely
within the scope of § 1252(g) because they “aris[e] from”
the Attorney General’s decision or action to execute the
removal order. In the government’s view, its violation of the
court’s stay of removal order is irrelevant because the
jurisdiction-stripping language of § 1252(g) extends to any
action taken in connection with a removal order.

    We do not believe that the statute sweeps as broadly as
the government contends. Anaya is not attacking the
removal itself, as he does not challenge the validity of his
removal order, or claim that the Attorney General should
have exercised discretion to delay his removal. Instead, he
points out—correctly—that the Attorney General lacked the
authority to execute the removal order because of the stay of

is not a citizen or national of the United States.” Pereira v. Sessions,
138 S. Ct. 2105, 2110 n.1 (2018) (citing 8 U.S.C. § 1101(a)(3)).

    4
      While the statute refers to the Attorney General, in 2002, Congress
transferred the Attorney General’s immigration enforcement
responsibilities to the Secretary of DHS. 6 U.S.C. § 202(3); see Clark v.
Martinez, 543 U.S. 371, 374 n.1 (2005). Thus, references to the Attorney
General in this opinion refer to the Secretary.
8              ANAYA ARCE V. UNITED STATES

removal issued by our court. Thus, his claims arise not from
the execution of the removal order, but from the violation of
our court’s order. Indeed, the stay of removal “temporarily
suspend[ed] the source” of the Attorney General’s “authority
to act,” resulting in a “setting aside of . . . [the] authority to
remove” Anaya. Nken v. Holder, 556 U.S. 418, 428–29
(2009). Put differently, but for the violation of the stay of
removal, Anaya would not have an FTCA claim at all.

    Our interpretation is supported by the express
instructions of the Supreme Court, our precedent, and
common sense, all of which require us to read the statute
narrowly. The Supreme Court has not “interpret[ed] [the
statute’s] language to sweep in any claim that can technically
be said to ‘arise from’ the three listed actions of the Attorney
General.” Jennings v. Rodriguez, 138 S. Ct. 830, 841
(2018). Thus, § 1252(g) does not strip the federal courts of
jurisdiction over claims challenging the multitude of “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 . . . ,
and to refuse reconsideration of that order.” Reno v. Am.-
Arab Anti-Discrimination Comm. (“AADC”), 525 U.S. 471,
482 (1999). A decision or action to violate a court order
staying removal similarly falls outside of the statute’s
jurisdiction-stripping reach.

    Moreover, even if we agreed with the government that
Anaya’s claims tangentially “arise from” the execution of his
removal order, we would still retain jurisdiction because the
Attorney General entirely lacked the authority, and therefore
the discretion, to remove him. “Follow[ing] the [Supreme]
Court’s instruction to interpret § 1252(g) narrowly,” United
States v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004) (en
              ANAYA ARCE V. UNITED STATES                      9

banc), we have limited the statute’s jurisdiction-stripping
power to actions challenging the Attorney General’s
discretionary decisions to initiate proceedings, adjudicate
cases, and execute removal orders. In Barahona-Gomez v.
Reno, we rejected, for the second time, the government’s
argument that § 1252(g) deprived our court of jurisdiction
over a challenge to a directive from the Board of
Immigration Appeals (BIA) and the Chief Immigration
Judge “ordering a halt to the issuance of decisions granting
suspension of deportation . . . until further notice.” 236 F.3d
1115, 1117 (9th Cir. 2001). Though such an order could be
interpreted to arise from the “decision or action” to
“adjudicate cases,” we declined to adopt such a broad
reading, instead finding that the statute “does not remove
from judicial review actions in violation of mandatory duties
of IJs and the BIA conducted pursuant to the usual rules of
administrative procedure.” Id. at 1120–21. See also
Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139, 1150 (9th
Cir. 2000) (en banc) (reading AADC to limit § 1252(g)’s
scope to “the three specific discretionary actions mentioned
in its text, not to all claims relating in any way to deportation
proceedings” (emphasis added)); accord AADC, 525 U.S. at
483–84 & n.9 (noting that § 1252(g) was enacted to target “a
particular evil: attempts to impose judicial constraints upon
prosecutorial discretion”). Where the Attorney General
totally lacks the discretion to effectuate a removal order,
§ 1252(g) is simply not implicated.

    Finally, taken to its logical conclusion, the government’s
reading would significantly circumscribe our authority to
enforce our orders. As government counsel conceded at
argument, in its view, the district court would lack
jurisdiction even to sanction DHS for intentionally deporting
a subpoenaed witness while under a court order not to do so.
There is no support for the government’s claim that
10            ANAYA ARCE V. UNITED STATES

Congress intended to prohibit federal courts from enforcing
any court order so long as it is related to or in connection
with an immigration proceeding.

                              B.

    We acknowledge that the Eighth Circuit, in a split
decision, reached a contrary result, holding that it lacked
jurisdiction over the FTCA claims of a noncitizen who was
wrongfully removed in violation of stay issued by the BIA.
Silva v. United States, 866 F.3d 938, 939 (8th Cir. 2017).
The Silva majority held that § 1252(g) eliminated
jurisdiction because the removal order “still existed” in spite
of the stay, thereby “connect[ing]” the FTCA claim “directly
and immediately” to the decision to execute the order. Id. at
940 (quoting Humphries v. Various Fed. USINS Emps.,
164 F.3d 936, 943 (5th Cir. 1999)).

    Respectfully, we find the analysis in Judge Kelly’s
dissent much more persuasive. As Judge Kelly explained,
the claims at issue “cannot be fairly characterized as ‘arising
from’ the government’s decision or action to execute a
removal order . . . because there was no enforceable removal
order for the government to execute.” Id. at 942 (Kelly, J.,
dissenting). See also Avalos-Palma v. United States, No. 13-
5481 FLW, 2014 WL 3524758, at *7–8 (D.N.J. July 16,
2014) (finding the plaintiffs’ FTCA claims to stem “from
ICE’s failure to abide by the stay, not from the execution of
his removal order”); Turnbull v. United States, No. 1:06-cv-
858, 2007 WL 2153279, at *5 (N.D. Ohio July 23, 2007)
(same).

    The Silva majority also rejected the argument that
§ 1252(g) is limited to discretionary decisions. 866 F.3d at
940–41 (noting statutory silence on the issue). In our circuit,
however, we are bound by our own precedent that limits
                 ANAYA ARCE V. UNITED STATES                             11

§ 1252(g)’s scope to discretionary decisions that the
Attorney General actually has the power to make, as
compared to the violation of his mandatory duties. See
Barahona-Gomez, 236 F.3d at 1120–21. And even if we
were not so bound, “we are guided here, as elsewhere, by the
general rule to resolve any ambiguities in a jurisdiction-
stripping statute in favor of the narrower interpretation,”
ANA Int’l, Inc. v. Way, 393 F.3d 886, 894 (9th Cir. 2004),
and by the “strong presumption in favor of judicial review,”
INS v. St. Cyr, 533 U.S. 289, 298 (2001). Anaya’s FTCA
claims may proceed. 5

    REVERSED AND REMANDED.




    5
       We reject the government’s brief alternative argument that
Anaya’s claims are barred by the FTCA’s foreign country exception. A
claim arises where “the last act necessary to establish liability occurred,”
and “[a]n injury ‘occurs’ where it is first suffered, even if a negligent act
results in further or more serious harm.” S.H. by Holt v. United States,
853 F.3d 1056, 1061-62 (9th Cir. 2017) (citation omitted). Anaya’s
injury clearly occurred in the United States when the government
removed him from Adelanto and deported him to Mexico.
