Without a Voice, Without a Forum: Finding IIRIRA Section 1252(g) Unconstitutional

Authors

Amanda Simms

Abstract

The Federal Tort Claims Act (FTCA) abrogates sovereign immunity in certain circumstances to allow private individuals, regardless of citizenship, to sue the United States for specific torts committed by government officials. Yet when two lawful permanent residents—located in different parts of the country—separately tried to sue the government for wrongful removal, one court dismissed the suit for lack of subject matter jurisdiction while the other court did not. These decisions, though reaching opposite conclusions, both relied on federal immigration statute 8 U.S.C. § 1252(g) in order to determine whether judicial review of immigrants’ removal orders is precluded. This note argues that the current circuit split exists because of a misapplication of Supreme Court precedent and demonstrates that both principles of federalism and due process concerns strain the validity of section 1252(g). In doing so, this note provides historical context of the statute’s enactment as well as its initial interpretation by the Supreme Court, and this note then turns to the circuit split itself. Further, this note ultimately focuses on why section 1252(g) in its current state must fail constitutional challenges based on due process and separation of powers concerns and describes the best methods for current plaintiffs seeking to recover damages from the United States after having been unlawfully uprooted and deported from the country.

Recommended Citation

Amanda Simms, Without a Voice, Without a Forum: Finding IIRIRA Section 1252(g) Unconstitutional, 86 Brook. L. Rev. 1135 (2021).
Available at: https://brooklynworks.brooklaw.edu/blr/vol86/iss3/10