     Case: 17-60460   Document: 00514587834     Page: 1   Date Filed: 08/06/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT      United States Court of Appeals
                                                     Fifth Circuit

                                                                           FILED
                                                                       August 6, 2018
                                 No. 17-60460
                                                                        Lyle W. Cayce
                                                                             Clerk
STEFANY VEGA DURON, a Minor, and; BRITTANY ELIZABETH VEGA
DURON, a Minor, by and Through Their Father and Next Friend; MARTIN
DURON ESPARZA, and by and Through Their Next Friends; TROY
BROWN; CHRIS BROWN,

             Plaintiffs - Appellants

v.

RON JOHNSON, Individually, and in His Official Capacity as Director of the
Mississippi Field Office of the United States Immigration and Custom
Enforcement Division of the United States Department of Homeland
Security; and; DERRICK MCCLUNG, an Immigration Officer of the
Mississippi Field Office of the United States Immigration and Custom
Enforcement Division of the United States Department of Homeland
Security,

             Defendants - Appellees




                Appeal from the United States District Court
                  for the Northern District of Mississippi


Before REAVLEY, GRAVES, and COSTA, Circuit Judges.
REAVLEY, Circuit Judge:
      This case tells a story of America’s treatment of immigrants but presents
to this court only a question of jurisdiction. Children brought suit to halt the
deportation of their father—a 20-year resident of this country, married father
of five (four of whom are U.S. citizens), taxpayer with no criminal record, and
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valued member of his Mississippi community. The district court held that it
lacked subject-matter jurisdiction and dismissed the suit. We affirm.
                                       I.
      Martin Duron Esparza is a citizen of Mexico and resident of Mississippi.
In 2011, Martin filed an application for cancellation of removal under 8 U.S.C.
§ 1229(b)(1), which requires proof of: (1) continuous physical presence for 10
years immediately preceding the date of application; (2) good moral character;
(3) lack of certain criminal convictions; and (4) that removal would result in
exceptional and extremely unusual hardship to the alien’s spouse, parent, or
child, who is a citizen of the United States or an alien lawfully admitted for
permanent residence. 8 U.S.C. § 1229b(1).
      An immigration judge found Martin satisfied the latter three prongs but
not the continuous-presence prong. The immigration judge thus denied
Martin’s application for cancellation of removal and ordered him removed to
Mexico. Martin appealed to the Board of Immigration Appeals (BIA), but the
BIA dismissed the appeal in 2013.
      For several years, United States Immigration and Customs Enforcement
(ICE) permitted Martin to remain in the country under an Order of
Supervision. In 2017, Martin applied to ICE for a stay of removal. ICE denied
Martin’s request, and on May 30, 2017, Martin received a formal notice to leave
the country by June 1, 2017.
      In short order, two of Martin’s minor children, Brittany and Stefany,
filed suit against certain ICE officials in federal district court, requesting a
temporary restraining order enjoining the removal of their father. The
children, U.S. citizens, alleged two basic constitutional wrongs: (1) Martin’s
deportation was arbitrary and violates his children’s rights to familial
association under the First and Fifth Amendments and (2) selective removal of


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                                 No. 17-60460
Martin because of his Hispanic origin violates the equal-protection aspect of
the Fifth Amendment.
      Given Martin’s impending removal deadline, the district court worked
expeditiously to hold a hearing on May 31, 2017 and issue a same-day order
dismissing the lawsuit for lack of subject-matter jurisdiction. This appeal
followed.
                                       II.
      Judicial review in the removal context is heavily circumscribed by 8
U.S.C. § 1252, two provisions of which resolve this lawsuit. The first is
section 1252(b)(9):
      Judicial review of all questions of law and fact, including
      interpretation and application of constitutional and statutory
      provisions, arising from any action taken or proceeding brought to
      remove an alien from the United States under this subchapter
      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 . . . to review such an order or such questions of
      law or fact.
8 U.S.C. § 1252(b)(9). Section 1252(b)(9) operates as an “unmistakable ‘zipper’
clause,” Reno v. Am.-Arab Anti-Discrimination Comm. (AADC), 525 U.S. 471,
483 (1999), designed to “consolidate and channel review of all legal and factual
questions that arise from the removal of an alien” through the preordained
administrative process. Aguilar v. I.C.E., 510 F.3d 1, 9 (1st Cir. 2007). Section
1252(b)(9) does not, however, “sweep within its scope claims with only a remote
or attenuated connection to the removal of an alien.” Id. at 10. Nor does it
preclude review of claims that “cannot be raised efficaciously within the
administrative proceedings” already available. Id. at 10.
      The children’s familial-association claim raises a legal question squarely
within section 1252(b)(9). That is, the claim questions the validity (indeed, the
constitutionality) of Martin’s deportation: an issue that emanates directly from

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Martin’s removal order. The very relief the children seek is that the defendants
be “enjoined from removing [Martin] from the United States.” And,
importantly, the children’s claim is one that can percolate through the
administrative process just fine; courts routinely consider such constitutional
claims when they arrive from the BIA on petition for review. See, e.g., Payne-
Barahona v. Gonzáles, 474 F.3d 1, 2 (1st Cir. 2007) (holding that an alien
parent had standing to assert his child’s constitutional rights). Therefore,
because the familial-association question reached the courts outside the
prescribed administrative process, we have no jurisdiction to consider it. 8
U.S.C. § 1252(b)(9).
      The children’s selective-enforcement claim, though, could not arise in the
initial removal proceedings; it concerns instead how the Government chooses
to enforce already-issued removal orders. To “give some measure of protection
to   [these]   ‘no   deferred   action’   decisions     and     similar   discretionary
determinations,” AADC, 525 U.S. at 485, Congress enacted section 1252(g):
      Except as provided in this section and notwithstanding any other
      provision of law . . . , 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). Because selective-enforcement claims like the children’s
“aris[e] from” a decision to “execute removal orders,” section 1252(g) generally
bars judicial review of such claims—unless, as the Supreme Court explained,
the claim qualifies as the “rare case in which the alleged basis of discrimination
is so outrageous that the foregoing considerations [about prosecutorial
discretion] can be overcome.” 525 U.S. at 491.
      But the children say section 1252(g) does not apply to their
selective-enforcement claim because it is not brought “by or on behalf of any
alien” but rather by U.S. citizens. They point to a Sixth Circuit opinion that
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addressed the “by or on behalf of” language and determined that section
1252(g) does not cover “a complaint by a U.S. citizen child who asserts his or
her own distinct constitutional rights and separate injury.” Hamdi v.
Napolitano, 620 F.3d 615, 623 (6th Cir. 2010).
      Assuming here that Hamdi’s rule is correct, we nevertheless conclude
the children have not asserted their “own distinct constitutional rights” with
respect to the selective-enforcement claim. To be sure, their motion for a
temporary restraining order classifies the alleged discriminatory enforcement
as violative of “their rights” under the Fifth Amendment. But, when dealing
with jurisdictional directives, “we must look through such easy evasions as
creative labeling and consider the fundamental nature of the claims asserted.”
Aguilar, 510 F.3d at 17. Fundamentally, the children complain of
discrimination against their father based on his national origin, and as a
consequence, they rely necessarily on their father’s right to be free from such
discrimination. Thus, under Hamdi’s rubric, the children brought their
selective-enforcement claim “on behalf of” their father. 620 F.3d at 623. Were
we to conclude otherwise, removable aliens could evade section 1252(g)’s
jurisdictional bar by repackaging their own selective-enforcement claims into
the vehicle of a child-plaintiff lawsuit. That would subvert Congress’s decision
that such claims “not be made the bases for separate rounds of judicial
intervention.” AADC, 525 U.S. at 486.
      Because the children’s selective-enforcement claim is “on behalf of” an
alien, arises from the decision to “execute a removal order,” and is not
sufficiently “outrageous” to constitute AADC’s rare exception, it is subject to
section 1252(g)’s jurisdictional bar. See id. at 482, 491. The district court was
correct to dismiss the children’s suit for want of jurisdiction.
      AFFIRMED.


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