Avalos-Palma v. United States - District Court for the District of New Jersey

Preserving Federal Court Review in Bivens/FTCA cases


January 21, 2014

The American Immigration Council and National Immigration Project of the National Lawyers Guild (NIPNLG) are seeking to preserve federal court review of damages actions brought by noncitizens for abuse of authority by immigration agents. In actions brought under the Federal Tort Claims Act (FTCA), the government routinely moves to dismiss these cases on a variety of jurisdictional grounds, inlcuding by arguing that INA § 242(g) bars the court’s review of damages claims in any case involving removal procedures and that one or more of the FTCA's exceptions to the waiver of sovereign immunity applies, thus precluding the court's review. In essence, the government is attempting to deprive those who have been harmed by immigration agents of any remedy in federal court.

We have filed amicus briefs which counter these arguments in various federal district and circuit courts. One such case is Avalos-Palma v. United States, No. 13-05481 (D.N.J. amicus brief filed Jan. 21, 2014). The Council, with NIPNLG, filed an amicus brief supporting the noncitizen’s right to have the court consider his claim for damages to compensate him for his unlawful removal by immigration agents. The plaintiff was removed in violation of a mandatory stay of removal and then prevented from returning for more than three years, during which time he was separated from his children and lost his job. In the brief, amici argue, first, that the INA does not bar the court from hearing this type of damages case; and second, that it is an appropriate case for damages under the FTCA because – as required by the Act – the United States, if a private person, would be liable in similar circumstances under state law. On July 15, 2014, the district court issued an order adopting our arguments and allowing the plaintiff’s claims of negligence and intentional and negligent infliction of emotional distress to go forward.

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