                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            DEC 1 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
JOSE ARTEAGA-RUIZ,                               No. 16-35299

              Plaintiff-Appellant,               D.C. No. 4:14-cv-00061-BLW

 and
                                                 MEMORANDUM*
LILIA RUIZ-ARTEAGA; JOSE
ARTEAGA-ARTEAGA,

              Plaintiffs,

 v.

UNITED STATES OF AMERICA,

              Defendant-Appellee.


                    Appeal from the United States District Court
                              for the District of Idaho
                     B. Lynn Winmill, Chief Judge, Presiding

                      Argued and Submitted November 6, 2017
                                 Portland, Oregon




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: FERNANDEZ and W. FLETCHER, Circuit Judges, and TIGAR,** District
Judge.

      Plaintiff-Appellant Jose Arteaga-Ruiz appeals the district court’s dismissal

of his claims for lack of subject matter jurisdiction under the Federal Tort Claims

Act (“FTCA”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      The FTCA waives the United States’ sovereign immunity for certain

damages actions based on “the negligent or wrongful act[s] or omission[s]” of

federal employees. 28 U.S.C. § 1346(b)(1). However, the FTCA’s waiver is

limited by several exceptions, including the “discretionary function exception.” 28

U.S.C. § 2680(a). Under this exception, the United States retains its sovereign

immunity for acts that were (1) discretionary and (2) based on considerations of

public policy. Berkovitz v. United States, 486 U.S. 531, 536–37 (1988).

      Arteaga-Ruiz’s claims turn on whether federal immigration agents

negligently or wrongfully failed to discover that Arteaga-Ruiz was a U.S. citizen

before he was removed in 2007. His claims are barred by the discretionary

function exception because the manner in which the agents investigated Arteaga-

Ruiz’s eligibility for removal meets both prongs of the Berkovitz test. First, the

agents “retained an element of judgment or choice” in conducting their


      **
            The Honorable Jon S. Tigar, United States District Judge for the
Northern District of California, sitting by designation.
                                          2
investigation, see Green v. United States, 630 F.3d 1245, 1249 (9th Cir. 2011),

especially in light of Arteaga-Ruiz’s admission of non-citizenship. Second, the

agents’ method of investigation was “susceptible to a policy analysis,” Nurse v.

United States, 226 F.3d 996, 1001 (9th Cir. 2000), as a federal investigation

“clearly require[s] investigative officers to consider relevant political and social

circumstances in making decisions about the [investigation’s] nature and scope,”

Sabow v. United States, 93 F.3d 1445, 1453 (9th Cir. 1996).

      Arteaga-Ruiz argues that even if decisions about the manner of investigating

his eligibility for removal satisfy the Berkovitz test, the decision to conduct no

investigation at all does not. But accepting as true Arteaga-Ruiz’s factual

allegations, the agents collected and recorded information relevant to Arteaga-

Ruiz’s immigration status. Arteaga-Ruiz also stipulated to being removable as a

non-citizen. Arteaga-Ruiz points to no specific additional steps or “course of

action” that the agents were bound to take. See Green, 630 F.3d at 1250–51.

      Arteaga-Ruiz also argues that regardless of the investigation, the agents

could not have been acting with discretion because they lacked the authority to

arrest, detain, and deport a U.S. citizen. We are troubled by the facts of this case,

especially given how much of the information needed to establish that Arteaga-

Ruiz was a citizen was in the possession of the agents. But our task is to evaluate


                                           3
the “nature of the challenged conduct” to determine if it was “of the kind that the

discretionary function exception was designed to shield,” regardless of whether

“the discretion involved be abused.” Berkovitz, 486 U.S. at 536; 28 U.S.C. §

2680(a). In this case, the arrest, detention, and deportation of Arteaga-Ruiz cannot

be separated from the agents’ investigation and their reliance on his admission of

non-citizenship.

      The parties have not addressed on appeal the effect, if any, of the FTCA’s

“law enforcement proviso.” 28 U.S.C. § 2860(h). As this question is not properly

before us, we decline to address it.

      AFFIRMED.




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