                        Revised March 21, 2001

                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT


                             No. 00-30467


                         BALDWIN NEIL FOSTER

                                                 Plaintiff-Appellant,

                                  v.

KAREN TOWNSLEY; HENRY, Officer, Officer at Avoyelles Parish Jail;
  JOHN DOES, 5 Unknown Immigration and Naturalization Officers at
 Oakdale Immigration and Naturalization Office; DISTRICT DIRECTOR
     OF IMMIGRATION AND NATURALIZATION SERVICE, 28th District of
    Louisiana; LYNNE M. UNDERDOWN; EDDIE BASHAM; HENRY LAVALAIS;
               NANCY HOOKS; BASH, Deportation Officer

                                                 Defendants-Appellees.


      Appeal from the United States District Court for the
                  Western District of Louisiana


                            March 8, 2001

Before REYNALDO G. GARZA, DAVIS and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

          Baldwin Foster (“Foster”), a Jamaican native who sued

Immigration   and   Naturalization   Service   (“INS”)   officials   for

wrongfully removing him from the country, appeals the district

court’s dismissal for lack of jurisdiction pursuant to 8 U.S.C. §

1252(g). Finding that 8 U.S.C. § 1252(g) precludes judicial review

of Foster’s claims, we affirm.
                                       BACKGROUND

              This case arises out of the INS’s deportation of Foster

while his case was pending in the Board of Immigration Appeals

(BIA).      In November 1996, Foster was issued an order to show cause

why   he    should    not       be   deported     after     his    conviction     for   an

aggravated felony.              Foster posted bond and was released from

custody in March of 1997.             The next month, his attorney, appearing

telephonically for a scheduled hearing before the Immigration

Judge, requested a continuance for the purpose of filing a motion

to change venue. Although the Immigration Judge granted the motion

and continued the proceedings, no motion for a change of venue was

filed.      In June of 1997, neither Foster nor his attorney appeared

in    New   York     for    a    scheduled       hearing.         Consequently,    after

determining that proper notice was provided and that deportability

had been established, the Immigration Judge ordered that Foster, in

absentia, be deported.               In September 1997, through new counsel,

Foster filed a motion to reopen the proceedings.                       The Immigration

Judge denied his motion in November 1997.                         Foster appealed this

decision to the BIA in December of 1997.                    In July of 1998, Foster

submitted a motion to remand for the consideration of new evidence.

              That November, Foster filed a petition for a writ of

mandamus in federal court to compel the BIA to rule on his appeal.




                                             2
The magistrate judge, in December of 1998, recommended that the

petition be denied.

           Foster was deported to Jamaica in December of 1998, while

his appeal with the BIA was still pending.              In February 1999, the

BIA sustained Foster’s appeal and ordered that proceedings be

reopened and the record remanded to the Immigration Judge.                  BIA

found that the Immigration Judge had erred in denying Foster’s

motion to reopen the in absentia deportation order because there

was a lack of evidence that written notice was sent to Foster’s

attorney via certified mail, as required by statute. The next

month, Foster sought to re-enter the United States pending a

decision on his appeal to the BIA.           He was returned to the United

States in May 1999.

           Upon   his     return,   Foster      filed   a   complaint   seeking

monetary   damages   in    the   amount    of    five   million   dollars   and

declaratory relief for alleged constitutional deprivations pursuant

to Bivens v. Six Unknown Named Agents of the Federal Bureau of

Narcotics, 403 U.S. 388 (1971).           At that time, he was confined in

the Avoyelles Parish Jail as a detainee of the INS.                 The named

defendants were Karen Townsley, Deportation Officer; Officer Henry

Lavalais, prison officer at the jail; Lynne Underdown, district

director of the INS; Nancy Hooks, immigration officer; Eddie

Basham, immigration officer; and five unknown officers.                 In his



                                      3
original   and   amended   complaints,        Foster    alleged   that    he     was

improperly removed from the country, that Townsley was in charge of

Foster’s case, and that she, along with the district director,

ordered that Foster be removed to Jamaica even though his motion to

reopen   was   pending   before   the       BIA   and   there   was   a   stay    of

deportation order in effect.       Foster also alleged that Basham and

Hooks conspired with Townsley and others to remove Foster from the

country without due process and in contravention of the stay of

removal order in effect at the time; that his removal was in

retaliation for his filing of a mandamus action against the BIA;

that five immigration officers used excessive force when removing

him and refused to allow him to talk to an attorney; and that

Lavalais, while Foster was being removed and fingerprinted, held

Foster’s neck and pinned his head to the floor while other officers

put their knees in Foster’s stomach.

           Townsley filed a motion to dismiss, arguing inter alia

that the district court lacked jurisdiction under 8 U.S.C. §

1252(g) to review any claims challenging the INS officers’ decision

to order Foster removed. Basham filed a similar motion to dismiss.

           After painstaking efforts by both the magistrate judge

and district court, the district court adopted the magistrate




                                        4
judge’s recommendation to dismiss Hooks and Lavalais,1 and as to

Townsley,     Underdown     and    Basham,       concluded        that   it   lacked

jurisdiction under § 1252(g) and this court’s decision in Humphries

v. Various Federal USINS Employees, 164 F.3d 936, 942 (5th Cir.

1999).   The court reasoned that although Foster had not asserted a

direct or habeas challenge to his removal, his challenge had to be

authorized by 8 U.S.C. § 1252(a)-(f).                  The court stated that

nothing in those sections contemplated an alien’s challenging his

removal via     civil    rights    actions      against     INS    officials.      In

addition, the court held that because Foster’s claims against

Townsley, Underdown and Basham “arise under” the INS’s decision to

execute a removal order deporting Foster to Jamaica, § 1252(g)

applies to those claims and precludes judicial review.                    Therefore,

the district court dismissed the claims against Townsley, Underdown

and Basham without prejudice for lack of jurisdiction.

            Foster has appealed and been granted IFP status.

                                   DISCUSSION

            On appeal, Foster argues that the district court has

jurisdiction to review his claims.                 The violation of a non-

discretionary     stay    order,    he       argues,   is    distinct      from   the

discretionary decision to execute a removal order.                       His alleged



      1
            The district court found that Hooks was not involved in Foster’s case
and that Lavalais did not use excessive force. Foster, having failed to brief
his disagreement with these decisions on appeal, waived it.

                                         5
liberty interest in not being removed for five months in violation

of a stay order, therefore, is not specifically precluded by the

statute.     The defendants respond that, under Humphries and §

1252(g), this court lacks jurisdiction to review issues surrounding

Foster’s removal.2

            Thus, the issue that we must resolve is whether 8 U.S.C.

§ 1252(g) precludes judicial review only of discretionary actions

taken by the Attorney General, or whether it also covers decisions

that may be non-discretionary.            This court reviews the district

court’s legal conclusions on jurisdiction de novo.                   Requena-

Rodriguez v. Pasquarell, 190 F.3d 299, 302 (5th Cir. 1999).

            In   the   Illegal     Immigration     Reform    and    Immigrant

Responsibility Act (“IIRIRA”), Congress instituted a new and more

restrictive judicial review scheme over immigration decisions.               8

U.S.C. § 1252.     After the enactment of IIRIRA, two sets of rules,

transitional and permanent, govern immigration proceedings.                The

transitional rules apply to removal proceedings that commence

before April 1, 1997, and conclude more than thirty days after


      2
            We note that Humphries does not control the outcome of this case
because its interpretation of the IIRIRA preceded the Supreme Court’s narrow
construction of the statute in Reno v. American-Arba Anti-Discrimination
Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.E.2d 940 (1999) (“AADC”). In
Humphries, this court reviewed the jurisdictional question under all of the
provisions of 8 U.S.C. § 1252, permanent and transitional, rather than just §
1252(g) although it appears that the IIRIRA would not apply to his case at all
because the entry of Humphries’ final order of exclusion occurred before
September 30, 1996. Humphries, 164 F.3d at 940. However, as discussed below,
AADC does not change this court’s interpretation in Humphries of “arising from”
in § 1252(g).

                                      6
September 30, 1996.           Santos v. Reno,          228 F.3d 591, 595 (5th Cir.

2000).    Because Foster’s proceedings began in 1996 with the order

to show cause and concluded more than thirty days after September

30, 1996, the transitional rules govern. Wallace v. Reno, 194 F.3d

279, 287 (1st Cir. 1999)(“[W]e, think that when an order to show

cause    is    served    on     the   alien,     the     deportation      process    has

effectively begun and expectations properly form, even if there is

no actual reliance.”).

              The Supreme Court discussed the scope of the transitional

rules in Reno v. American-Arab Anti-Discrimination Committee, 525

U.S. 471, 119 S.Ct. 936 (1999)(“AADC”).                        The Court held that

judicial review         of    transitional       cases    is   governed    only     by §

1252(g).      This provision states:

     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).            The Court stated that this clause does not

preclude      judicial       review   in   all   transitional      cases    involving

deportation.      Rather, it held that the “provision applies only to

three discrete actions that the Attorney General may take: her

‘decision or action’ to ‘commence proceedings, adjudicate cases, or

execute removal orders.’” AADC, 525 U.S. at 482, 119 S.Ct. at 943



                                            7
(emphasis    added).      This    provision       stands     in   contrast    to   §

1252(b)(9), the provision governing permanent cases, which acts as

a “zipper clause” by channeling judicial review of all decisions

and actions.       The Court stated that § 1252(g) “performs the

function of categorically excluding from non-final-order judicial

review . . . certain specific decisions and actions of the INS.”

Id. at 483, 119 S.Ct. at 943, and it applied a “narrow reading” of

the provision.

            Foster’s challenge concerns the INS officer’s decision to

execute   his   deportation      despite      non-discretionary      regulations

requiring that his deportation be stayed.             8 C.F.R. § 3.6 provides

that, while an appeal is pending before the BIA, in cases where the

deportation     order   was    entered       in   absentia    pursuant   to    the

provisions of 8 C.F.R. § 3.23(b)(4)(iii), an automatic stay of the

deportation applies.       8 C.F.R. §§ 3.6(b).3

            Foster asserts that AADC’s interpretation of the statute

requires that judicial review be precluded only when the Attorney

General makes discretionary decisions.             We disagree.     Although the


      3
             8 C.F.R. § 3.23(b)(4)(iii) applies to orders entered in absentia in
deportation or exclusion proceedings. The regulation states that “orders entered
in absentia may be rescinded only upon a motion to reopen filed” either when the
alien demonstrates that the failure to appear was because of exceptional
circumstances beyond his control or in situations where the alien demonstrates
that he did not receive notice or that he was in federal or state custody and the
failure to appear was not his own. § 3.23(b)(4)(iii)(A)(1),(2). The filing of
such a motion “shall stay the deportation of the alien pending decision on the
motion and the adjudication of any properly filed administrative appeal.” §
3.23(b)(4)(iii)(C). The regulation makes this a mandatory, non-discretionary
stay of deportation.

                                         8
Court     emphasized   the   importance      of     preserving   the    Attorney

General’s     discretionary      functions        in   the   three     enumerated

categories, it did not explicitly state that the provision applies

only to review of discretionary decisions by the Attorney General

in these areas and not to review of non-discretionary decisions.

The Court further stated that “[i]t is entirely understandable . .

. why Congress would want only the discretion-protecting provision

of § 1252(g) applied even to pending cases: because that provision

is specifically directed at the deconstruction, fragmentation, and

hence prolongation of removal proceedings.”              Id. at 486, 119 S.Ct.

at 945.     The Court contrasted the three actions where Congress

precluded review in transitional cases to those which Congress

chose to also limit in permanent cases.                  The Court does not,

however, state that the provision exclusively governs review of

discretionary actions.4       Indeed, there is no discussion of review

over non-discretionary actions.            The provision itself does not

distinguish between discretionary and non-discretionary decisions.



      4
            We note that cases following AADC focus on the Attorney General’s
discretionary decisions. See e.g. Zadvydas v. Underdown, 185 F.3d 279, 285 (5th
Cir. 1999)(“In [AADC], the Court held that the enactment was not a general bar,
but rather limited judicial review of a narrow class of discretionary executive
actions.”); Alvidres-Reyes v. Reno, 180 F.3d 199, 205 (5th Cir. 1999)(“[J]udicial
intervention in cases in which the Attorney General has exercised her discretion
not to commence proceedings or adjudicate cases would interfere with her
discretionary determinations and lead to the deconstruction, fragmentation, and
hence prolongation of removal proceedings at which the Supreme Court concluded
that § 1252(g) directed.”). However, this court has not previously had occasion
to review whether the provision applies to non-discretionary decisions.


                                       9
Rather, the statute refers to “any cause or claim” that “aris[es]

from the decision or action by the Attorney General” in the three

areas.    8 U.S.C. § 1252(g).          Therefore, while it may be true that

the    officials       executed   the     order      despite    the   regulation’s

requirement       of   an    automatic    stay       of   his   deportation,     this

distinction is not critical because a plain reading of the statute

demonstrates      that      Congress    did    not    exclude    non-discretionary

decisions from this provision limiting judicial review.

            The final question is whether Foster’s claims “arise

from” the actions which § 1252(g) precludes from judicial review.

“[C]laims that clearly are included within the definition of

‘arising from’ . . . [are] those claims connected directly and

immediately with a ‘decision or action by the Attorney General to

commence proceedings, adjudicate cases, or execute removal orders.”

Humphries, 164 F.3d at 943.              In Humphries, for example, we held

that the court had no jurisdiction under § 1252(g) to review the

plaintiff’s claim that INS agents conspired to exclude him in

retaliation for the exercise of his First Amendment rights.                       The

particular acts that form the basis of Foster’s lawsuit arise from

the officials’ decision to execute his removal order.                     His claims

of    excessive    force,     denial     of    due   process,    denial    of   equal

protection and retaliation are all directly connected to the

execution of the deportation order.                  Therefore, their acts fall



                                          10
within the ambit of section 1252(g) and are precluded from judicial

review.    The district court correctly concluded that it lacked

jurisdiction to review Foster’s claims.5

                                 CONCLUSION

      For the foregoing reasons, the district court’s judgment

dismissing the claims against Townsley, Basham, and Underwood for

lack of jurisdiction is AFFIRMED.




      5
            Foster also seeks permission from this court to proceed against the
five immigration officers. He sought to have the officers served after the
district court dismissed the claims against the other parties, indicating that
he recently learned the names of the officers through discovery responses from
Townsley. We lack jurisdiction to review this claim because Foster did not file
a notice of appeal regarding this issue. See Barber v. Security Benefit Life
Ins. Co., 936 F.2d 210, 211 (5th Cir. 1991); Fed. R. App. P. 4(a) .

                                      11
