Duron v. Johnson: 5th Cir. Finds No Jurisdiction Over Selective-Enforcement Claim Brought by U.S. Citizen Children of Alien


Introduction: Duron v. Johnson, —- F.3d —— (5th Cir. 2018)

On August 6, 2018, the United States Court of Appeals for the Fifth Circuit issued a published decision in Duron v. Johnson, —- F.3d —— (5th Cir. 2018) [PDF version].

Two children of a citizen and national of Mexico brought suit to prevent his deportation, arguing that his removal was unconstitutional under the First and Fifth Amendments. In an opinion authored by Senior Judge Thomas Morrow Reavley, the three-judge panel held that it lacked jurisdiction to hear either claim, and accordingly dismissed the suit. Notably, the Court held that the children's Fifth Amendment selective-enforcement claim was barred by section 242(g) of the INA, notwithstanding the fact that the children alleged that it was their own constitutional rights and not the rights of the parent that were being violated.

In this article, we will examine the factual and procedural history of the case, the content of the children's constitutional claims, and why the Fifth Circuit concluded that it had no jurisdiction to consider the claims.

Factual and Procedural History

The plaintiffs in the case were Brittany and Stefany Vega Duron, the minor children of Martin Duron Esparza.

Duron Esparza was a citizen of Mexico and a resident if Mississippi. Although he lacked lawful status, he had resided in the United States for 20 years. He was a married father of five children, four of which (including the two plaintiffs) were U.S. citizens. He paid taxes and lacked a criminal record.

Duron Esparza was in the midst of removal proceedings in 2011 when he applied for cancellation of removal under section 240A(b)(1) of the Immigration and Nationality Act (INA). The Immigration Judge concluded that he was an alien of good moral character, did not have a disqualifying criminal conviction, and that his removal would result in exceptional and extremely unusual hardship to his U.S. citizen or lawful permanent resident spouse, parent, or child, thus satisfying three of the four eligibility requirements for non-permanent resident cancellation of removal. However, the Immigration Judge concluded that Duron Esparza had not been continuously physically present in the United States for the 10 years immediately preceding the date of his application for cancellation of removal, thus rendering him ineligible. The Immigration Judge denied Duron Esparza's application for cancellation of removal and ordered him removed to Mexico. Duron Esparza appealed from the decision to the Board of Immigration Appeals (BIA), but the Board dismissed the appeal in 2013.

Notwithstanding his final order of removal, the U.S. Immigration and Customs Enforcement (ICE) did not move to immediately remove Duron Esparza. Instead, ICE allowed him to remain in the country under an order of supervision for about four years. In 2017, Duron Esparza sought a stay of removal from ICE. However, ICE denied the request, and then on May 30, 2017, issued him a notice to leave the country by June 1, 2017.

Claims Brought by Plaintiffs

Almost immediately after ICE issued the notice to leave, the plaintiffs, Duron Esparza's children, brought suit in federal district court requesting a temporary restraining order against certain ICE officials enjoining the removal of their father. The plaintiffs made two constitutional claims (paraphrased from description in the decision):

1. Duron Esparza's removal was arbitrary and it violated his children's rights to familial association under the First and Fifth Amendments; and
2. The selective removal of Duron Esparza because of his Hispanic origin violated the equal-protection aspect of the Fifth Amendment.

The district court held a hearing on an expedited basis on May 31, 2017. On the same day, the district court dismissed the lawsuit for lack of subject-matter jurisdiction [PDF version]. The plaintiffs appealed to the Fifth Circuit.

Analysis and Conclusions

The court began by noting that the INA “heavily circumscribe[s]” judicial review. First, it quoted the pertinent part of section 242(b)(9) of the INA, which is one of the major jurisdiction-stripping provisions:

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.

Judge Reavley quoted from the Supreme Court of the United States decision in Reno v. Am.-Arab Anti-Discrimination Comm. (AADC), 525 U.S. 471, 483 (1999) [PDF version], wherein the Court wrote that section 242(b)(9) operates as an “unmistakable zipper clause.” In Aguilar v. I.C.E., 510 F.3d 1, 9 (1st Cir. 2009) [PDF version], the United States Court of Appeals for the First Circuit held that the provision is designed to “consolidate and channel review of all legal and factual questions that arise from the removal of an alien…” The First Circuit added, however, that the provision precludes judicial review of “claims with only a remote or attenuated connection to the removal of an alien” or claims that “cannot be raised efficaciously within the administrative proceedings…”

The Fifth Circuit concluded that the plaintiffs' familial-association claim under the First and Fifth Amendments “raises a legal question squarely within section [242](b)(9), ” because the claim “emanates directly from [the] removal order.” The Court added that the plaintiffs specifically sought the relief in the form of enjoining their father's removal from the United States. Finally, the Fifth Circuit stated that their claim was “one that can percolate through the administrative process just fine,” noting that the Circuit courts often consider constitutional claims when reviewing petitions for review of BIA decisions. In a specific example, the Fifth Circuit cited to the First Circuit decision in Payne-Barahona v. Gonzales, 474 F.3d 1, 2 (1st Cir. 2007) [PDF version], wherein the First Circuit held that an alien parent had standing to assert the constitutional rights of his child.

However, the Court noted that the plaintiffs' second claim, that their father was the victim of selective enforcement based on his Hispanic origin, could not have arisen in initial removal proceedings. Thus, it was not barred by section 242(b)(9). The claim dealt instead with the Government's enforcement of already-issued removal orders. However, a separate jurisdiction provision, section 242(g), potentially applied. The Court quoted section 242(g) in the pertinent part:

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.

The Supreme Court described section 242(g) in AADC, 525 U.S. at 485 as “giv[ing] some measure of protection to [these] 'no deferred action' decisions and similar discretionary determinations.” The Fifth Circuit explained that selective-enforcement claims such as the one at issue in the instant case “aris[e] from” a decision to “execute removal orders.” The Fifth Circuit noted that section 242(g) “generally bars judicial review of such claims…” However, in AADC, 525 U.S. at 491, the Supreme Court provided for an exception from the section 242(g) bar in the “rare case in which the alleged basis of discrimination is so outrageous that the foregoing considerations [about prosecutorial discretion] can be overcome.”

The plaintiffs in the instant case argued that their selective enforcement claim was not affected by section 242(g) because it was brought by U.S. citizens rather than “by or on behalf of any alien.” To support their position, they cited to the decision of the United States Court of Appeals for the Sixth Circuit in Hamdi v. Napolitano, 620 F.3d 615, 623 (6th Cir. 2010) [PDF version], wherein the Sixth Circuit held that the provision does not cover “a complaint by a U.S. citizen child who asserts his or her own distinct constitutional rights and separate injury.”

The Fifth Circuit, which has jurisdiction over appeals from Louisiana, Mississippi, and Texas [see section], is not bound by decisions of the Sixth Circuit [see section]. However, the Court noted that, even if it assumed that Hamdi was correct, the children did not assert their “own distinct constitutional rights” in the selective-enforcement claim. The Court noted that their motion for a temporary restraining order took the position that the alleged discriminatory enforcement against their father violated “their” Fifth Amendment rights. However, the Fifth Circuit looked beyond their framing of the claim to assess its actual content. It concluded that “[f]undamentally, 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.” Under this reading, even if the Fifth Circuit followed the rule in Hamdi, it would still not resolve the issue favorably for the petitioners. It stated that “[w]ere we to conclude otherwise, removable aliens could evade section [242](g)'s jurisdictional bar by repackaging their own selective-enforcement claims into the vehicle of a child-plaintiff lawsuit.”

Having concluded that section 242(g) did apply, the question for the Fifth Circuit was whether the claim in the instance case presented an alleged basis of discrimination that was so outrageous that it could overcome the plain language of the section 242(g) jurisdictional bar under the exception in AADC. The Court concluded that because the selective-enforcement claim arose from the decision to “execute a removal order,” it was “not sufficiently 'outrageous' to constitute AADC's rare exception…”

Because the Fifth Circuit found that the first claim of the plaintiffs was barred by section 242(b)(9) and the second claim of the plaintiffs was barred by section 242(g), the Court dismissed the lawsuit for lack of jurisdiction.


The Fifth Circuit's disposition of the instant case highlights the significant jurisdictional hurdles that hinder many judicial appeals of adverse decisions in administrative immigration decisions. The most noteworthy aspect of the case dealt with the selective-enforcement claim and the applicability of section 242(g). It is unclear how the Fifth Circuit would have resolved the issue if it had concluded that the claims of the children in fact asserted their own constitutional rights and separate injury, which would have fallen under the Sixth Circuit's section 242(g) exception from Hamdi. Since the Fifth Circuit found that the instant claim would have failed even if it followed Hamdi, it did not address the issue directly.

An individual is always well advised to consult with an experienced immigration attorney throughout the entire removal process. An experienced attorney will be able to provide case-specific guidance both in removal proceedings and, if necessary, on appeal.

The Supreme Court recently addressed both section 242(b)(9) and section 242(g) in the context of judicial review in certain mandatory detention cases. To learn more, please see our full article on the subject [see article].