Baldwin Neil Foster v. Karen Townsley

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.

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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.

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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

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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

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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.
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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

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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
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

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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

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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.
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(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

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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.
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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.

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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

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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) .
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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.

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