Selena Cooper Butt v. William P. Barr

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0102p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

SELENA JEAN COOPER BUTT, ex rel Q.T.R., ┐
Plaintiff-Appellant, │
│
> No. 19-3716
v. │
│
│
WILLIAM P. BARR, Attorney General; CHAD F. WOLF, │
Acting Secretary, Department of Homeland Security, │
Defendants-Appellees. │
┘

Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:18-cv-00383—Sarah Daggett Morrison, District Judge.

Decided and Filed: March 31, 2020

Before: BOGGS, CLAY, and GIBBONS, Circuit Judges.

_________________

COUNSEL

ON BRIEF: George A. Katchmer, Bloomingburg, Ohio, for Appellant. Kevin Koller, UNITED
STATES ATTORNEY’S OFFICE, Cincinnati, Ohio, for Appellee.
_________________

OPINION
_________________

CLAY, Circuit Judge. Plaintiff, a United States citizen child, appeals the district court’s
order dismissing his Declaratory Judgment Act claims brought pursuant to 28 U.S.C. § 2201 for
lack of subject matter jurisdiction and for failure to state a claim upon which relief can be
granted. For the reasons that follow, we affirm the district court’s order.
 No. 19-3716 Cooper Butt v. Barr, et al. Page 2

BACKGROUND

Plaintiff brings this action for declaratory relief through his mother. Plaintiff is a United
States citizen child residing in Columbus, Ohio. Plaintiff’s father is a Pakistani citizen and
previously a legal permanent resident of the United States. Plaintiff’s father was removed from
the United States pursuant to a removal order issued in Cleveland, Ohio.

Plaintiff’s filings do not indicate when his father’s removal proceeding took place and
Plaintiff does not indicate the case name or number for his father’s removal proceedings.
Plaintiff’s filings also do not provide any information about why his father was removed—for
example, which provision of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et
seq., made him deportable. Accordingly, we do not know whether Plaintiff’s father at any time
applied for cancellation of removal or whether he petitioned this Court to review the final order
of removal entered against him. See id. § 1252 (setting forth requirements for judicial review of
removal orders); cf. Holder v. Martinez Gutierrez, 566 U.S. 583, 594 (2012) (explaining that
§ 1229b(a) renders noncitizens convicted of certain aggravated felonies ineligible for
cancellation of removal).

In any event, Plaintiff sought two declarations from the district court concerning his
father’s removal. First, Plaintiff requested a declaration that his father’s removal was
unconstitutional as applied to Plaintiff. Specifically, Plaintiff alleges that his father’s removal
violates Plaintiff’s rights under the Due Process Clause, Equal Protection Clause, the Eighth
Amendment, Ninth Amendment, Tenth Amendment, and various international treaties. Second,
Plaintiff sought a declaration that the interview of Plaintiff and his mother during his father’s
removal proceeding was unconstitutional because, during the interview, U.S. Immigration and
Customs Enforcement (“ICE”) agents made racially discriminatory comments to Plaintiff and his
mother, who are African American.1

1
Specifically, Plaintiff alleges that ICE agents told Plaintiff’s mother “that Black women always marry
Muslim foreigners for money and that they were going to stop Blacks from doing this.” (R. 3, Compl., Pg. ID 10.)
He alleges that ICE agents insisted that Plaintiff’s mother’s marriage to his father was “fake” and threatened his
mother with imprisonment. (Id. at Pg. ID 11.)
 No. 19-3716 Cooper Butt v. Barr, et al. Page 3

Defendants moved to dismiss for lack of subject matter jurisdiction and for failure to state
a claim upon which relief can be granted. Plaintiff did not oppose Defendants’ motion.
Approximately eight months later, the district court granted Defendants’ motion and dismissed
Plaintiff’s complaint in its entirety. The court found that it did not have jurisdiction over
Plaintiff’s claims brought pursuant to the international treaties because those treaties are not self-
executing. The court next found that it had subject matter jurisdiction over Plaintiff’s
constitutional claims, but it dismissed those claims pursuant to Federal Rule of Civil Procedure
12(b)(6) because “the law is well-settled that lawfully removing a parent from the United States
does not deprive a United States citizen child of a constitutional right.” (R. 27, Op. & Order, Pg.
ID 82.)

Plaintiff appeals the district court’s order granting Defendants’ motion to dismiss.

DISCUSSION

A. Standard of Review

This Court reviews de novo a district court’s grant of a motion to dismiss pursuant to
Rule 12(b)(6). Majestic Bldg. Maint., Inc. v. Huntington Bancshares, Inc., 864 F.3d 455, 458
(6th Cir. 2017). A motion to dismiss is properly granted if the plaintiff has “fail[ed] to state a
claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to
dismiss, the plaintiff must allege facts that, if accepted as true, are sufficient to state a claim to
relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–57 (2007); see
also Fed. R. Civ. P. 8(a)(2).

This Court also has an independent duty to assess subject matter jurisdiction. E.g.,
Wachovia Bank v. Schmidt, 546 U.S. 303, 316 (2006). “We review a district court’s findings as
to whether it had subject matter jurisdiction de novo.” Mehanna v. USCIS, 677 F.3d 312, 314
(6th Cir. 2012) (quoting Carson v. U.S. Office of Special Counsel, 633 F.3d 487, 491 (6th Cir.
2011)).
 No. 19-3716 Cooper Butt v. Barr, et al. Page 4

B. Forfeiture

At the outset, Defendants argue that Plaintiff has forfeited all of his arguments on appeal
by not opposing Defendants’ motion to dismiss in the district court. However, the district court
ruled on the merits of Defendants’ motion based on Plaintiff’s allegations in his complaint, and
Plaintiff’s complaint was sufficient to provide Defendants with the requisite notice of all of the
claims that he now presents on appeal. Therefore, we do not enforce our forfeiture rule in the
present case. See, e.g., Harris v. Klare, 902 F.3d 630, 636 (6th Cir. 2018) (explaining that the
forfeiture rule “is born of the need ‘to ease appellate review by ensuring that district courts
consider issues first, and to prevent surprise to litigants’” (quoting Great Am. Ins. Co. v. E.L.
Bailey & Co., 841 F.3d 439, 443 (6th Cir. 2016))).

C. Plaintiff’s Treaty-Based Claims

Plaintiff’s complaint alleges that his separation from his father pursuant to the removal
order violates the principles of international treaties, including The Universal Declaration of
Human Rights (the “Declaration”); the International Covenant on Economic, Social, and Cultural
Rights (the “ICESCR”); and the United Nations Convention on the Rights of the Child (the
“CRC”). The district court correctly found that it did not have subject matter jurisdiction over
Plaintiff’s treaty-based claims because none of these treaties create a judicially-enforceable cause
of action. See, e.g., Roper v. Simmons, 543 U.S. 551, 576 (2005) (stating that the United States
has not ratified the CRC); Sosa v. Alvarez-Machain, 542 U.S. 692, 734 (2004) (“[T]he
Declaration does not of its own force impose obligations as a matter of international law.”); Rose
v. Borsos, No. 2:17-CV-204, 2018 WL 3967673, at *10 (E.D. Tenn. Aug. 17, 2018) (holding that
the ICESCR is not self-executing (collecting cases)).

On appeal, Plaintiff concedes that these treaties are not self-executing but argues that the
district court should have taken them into account in order to “consider fully the context in which
its decisions are made on issues as sensitive as family unity and the rights of children.”
(Appellant’s Reply Br. at 2.) However, Plaintiff has not alleged in what way any of these
treaties’ principles were supposedly abridged by his father’s valid removal, and it is not clear to
us that they were. Cf. Bamaca-Perez v. Lynch, 670 F. App’x 892, 893 (6th Cir. 2016) (per
 No. 19-3716 Cooper Butt v. Barr, et al. Page 5

curiam) (rejecting a parent’s treaty-based challenge to the standard governing hardship
determinations in a cancellation-of-removal case because the immigration courts’ “entire inquiry
focuses on the qualifying children, making their interests a ‘primary consideration’ in the
cancellation-of-removal analysis” (quoting Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1012
(9th Cir. 2005))). Therefore, the district court properly dismissed Plaintiff’s treaty-based claims.

D. Plaintiff’s Constitutional Claims

Plaintiff next contends that his father’s removal violates Plaintiff’s rights to due process
and equal protection under the Fifth Amendment, as well as his rights under the Eighth
Amendment and the Ninth Amendment. The district court found that it had subject matter
jurisdiction over these claims but dismissed them pursuant to Rule 12(b)(6). For the reasons that
follow, we hold that each of Plaintiff’s constitutional claims is squarely foreclosed by our
precedent and we therefore affirm the district court’s dismissal.

Section 242 of the INA, codified at 8 U.S.C. § 1252, provides that “a petition for review
filed with an appropriate court of appeals in accordance with this section shall be the sole and
exclusive means for judicial review of an order of removal.” Id. § 1252(a)(5). That section
further consolidates “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” and provides that such review
“shall be available only in judicial review of a final order [of removal].” Id. § 1252(b)(9). The
Supreme Court has explained that this system “substantially limit[s] the availability of judicial
review and streamline[s] all challenges to a removal order into a single proceeding: the petition
for review.” Nken v. Holder, 556 U.S. 418, 424 (2009) (citing § 1252(a)(2), (b)(3)(C), and
(b)(9)); see also, e.g., Kucana v. Holder, 558 U.S. 233, 249 (2010) (explaining that Congress
“aggressively” amended the INA in 1996 in order “to expedite removal of aliens lacking a legal
basis to remain in the United States”); Reno v. Am.-Arab Anti-Discrimination Comm. (“AADC”),
525 U.S. 471, 483 (1999) (describing § 1252(b)(9) as the “unmistakable ‘zipper’ clause” of the
INA). In addition, § 1252(g) strips courts of 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
 No. 19-3716 Cooper Butt v. Barr, et al. Page 6

proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.” 8
U.S.C. § 1252(g).

In Hamdi ex rel. Hamdi v. Napolitano, 620 F.3d 615 (6th Cir. 2010), this Court
interpreted § 1252 in the context of a citizen child’s lawsuit asserting that the removal of his
noncitizen mother violated the same constitutional rights as Plaintiff asserts here. We found that
we had subject matter jurisdiction over the child’s constitutional claims pursuant to 28 U.S.C.
§ 1331 for two reasons. First, we held that the jurisdiction-stripping provision of § 1252(g) does
not apply to an independent action brought by a citizen child when that child raises his or her
distinct constitutional rights. Id. at 620–23. In other words, we have jurisdiction over a citizen
child’s constitutional claims so long as those claims are not brought “on behalf of” his or her
noncitizen parent. Id. at 623 (quoting § 1252(g)).

We then held that § 1252(a)(5) and (b)(9) does not strip federal courts of subject matter
jurisdiction to hear a citizen child’s constitutional claims because those provisions apply “only
[to] claims for judicial review ‘arising from any action taken or proceeding brought to remove an
alien.’” Id. at 626 (quoting 8 U.S.C. § 1252(b)(9)). We found that a “judicial determination that
[the plaintiff’s] constitutional rights are violated by separation from his mother is distinct from
judicial determination of questions ‘arising from any action taken or proceeding brought to
remove an alien.’” Id. at 627 (quoting 8 U.S.C. § 1252(b)(9)). Still, we held that § 1252(b)(9)
“does operate to preclude the district court from providing the particular relief that [the plaintiff]
seeks—judicial review of his mother’s order of removal and cancellation of that order.” Id. at
626. We stated that “under the current interpretation of § 1252(b)(9), no federal court has the
authority to review the order of removal of the [parent] to determine whether a violation of the
[child’s] constitutional rights renders the imposition of the [parent’s] removal order invalid.” Id.
at 628. Therefore, pursuant to Rule 12(b)(6), we held that the plaintiff child had failed to state a
claim upon which relief could be granted because no court could redress his alleged
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constitutional injury. Id. at 628–29; see also id. at 628 n.15 (explaining this Court’s decision to
resolve the appeal on the basis of Rule 12(b)(6) rather than on the basis of Article III standing).2

Hamdi’s holding that § 1252(b)(9) precludes a federal court from reviewing and
ultimately cancelling the removal of a parent based on the alleged violations of a citizen child’s
constitutional rights outside of the petition for review applies with full force to the present case.
Therefore, the district court did not err by dismissing Plaintiff’s constitutional claims under Rule
12(b)(6) because “under the current interpretation of § 1252(b)(9), no federal court has the
authority to review” Plaintiff’s father’s order of removal to determine if Plaintiff’s constitutional
rights might render the order of removal invalid. Hamdi, 620 F.3d at 628. To the extent that
Plaintiff attempts to navigate around Congress’s intent to channel judicial review of orders of
removal into the petition for review, see, e.g., § 1252(a)(5), (b)(9), (g), and around this Court’s
holding in Hamdi by seeking a declaration that his father’s removal is unconstitutional rather
than seeking to enjoin the removal itself, we decline the invitation to elevate form over substance
in such a manner. See, e.g., Aguilar v. U.S. Immigration & Customs Enf’t Div. of Dep’t of
Homeland Sec., 510 F.3d 1, 17 (1st Cir. 2007) (stating that a court “must look through such easy
evasions as creative labeling and consider the fundamental nature of the claims asserted” in order
to determine if § 1252(b)(9) bars judicial review). Because under the current interpretation of §
1252(b)(9) no court would be able to grant the relief that Plaintiff seeks (i.e., review of his
father’s order of removal), Plaintiff has failed to state a claim upon which relief can be granted.
See Hamdi, 620 F.3d at 628–29.

Moreover, we are not convinced that the removal of Plaintiff’s father does, in fact,
implicate any of Plaintiff’s constitutional rights. The district court found that “the law is well-

2
In a separate concurring opinion, Judge Gibbons explained that she would find that § 1252(a)(5) and
(b)(9) “create a jurisdictional bar to [the child’s] claims.” Hamdi, 620 F.3d at 629 (Gibbons, J., concurring). Judge
Gibbons stated that, at bottom, the plaintiff child sought to challenge the order removing his mother from the United
States, and “[u]nder § 1252(a)(5) and 1252(b)(9), judicial review of such an order can occur only in the context of a
petition for review filed with the appropriate court of appeals.” Id.; see also Duron v. Johnson, 898 F.3d 644, 647
(5th Cir. 2018) (holding that the court did not have jurisdiction to review the constitutional claim of citizen children
that the removal of their parent violated their due process right to family unity because that claim “raises a legal
question squarely within section 1252(b)(9)”). In any event, this Court is bound by our holding in Hamdi that
§ 1252(b)(9) does not preclude jurisdiction to review a citizen child’s distinct constitutional claims “unless it is
overruled by either our court sitting en banc or the Supreme Court.” Little v. BP Expl. & Oil Co., 265 F.3d 357, 362
(6th Cir. 2001).
 No. 19-3716 Cooper Butt v. Barr, et al. Page 8

settled that lawfully removing a parent from the United States does not deprive a United States
citizen child of a constitutional right” (R. 27, Op. & Order, Pg. ID 82), and we agree. With
regard to due process, this Court has held that a child’s due process rights are not implicated by
the otherwise valid deportation of a noncitizen parent. See, e.g., Newton v. I.N.S., 736 F.2d 336,
342–43 (6th Cir. 1984) (rejecting a claim that deportation of a noncitizen parent constitutes an
unconstitutional de facto deportation of the citizen child); Ayala-Flores v. I.N.S., 662 F.2d 444,
445–46 (6th Cir. 1981) (per curiam) (same); see also Martial-Emanuel v. Holder, 523 F. App’x
345, 349–50 (6th Cir. 2013) (rejecting a claim that deportation of a noncitizen parent violates a
citizen child’s substantive due process right to family unity). Likewise, we have rejected claims
that the valid removal of a noncitizen parent deprives a citizen child of equal protection of the
laws. See Hernandez-Lara v. Holder, 563 F. App’x 401, 403 (6th Cir. 2014); see also Martial-
Emanuel, 523 F. App’x at 350 (noting that “[i]n the immigration context, our review of equal
protection challenges is narrow and highly deferential to the government”). We have found that
to hold otherwise “would create a substantial loophole in the immigration laws, allowing all
deportable aliens to remain in this country if they bear children here.” Hernandez-Lara, 563 F.
App’x at 403 (quoting Newton, 736 F.2d at 343). All of the other circuit courts to consider these
issues have agreed. See, e.g., Marin-Garcia v. Holder, 647 F.3d 666, 673 (7th Cir. 2011)
(holding that “[t]he practice of removing aliens with citizen-children is constitutionally sound”);
Payne-Barahona v. Gonzales, 474 F.3d 1, 2 (1st Cir. 2007) (“The circuits that have addressed the
constitutional issue (under varying incarnations of the immigration laws and in varying
procedural postures) have uniformly held that a parent’s otherwise valid deportation does not
violate a child’s constitutional right.” (collecting cases)).

The same is true for Plaintiff’s claims under the Eighth and Ninth Amendments. To start,
“the Eighth Amendment is inapplicable to deportation proceedings because, as the Supreme
Court has held, deportation does not constitute [criminal] punishment.” Elia v. Gonzales, 431
F.3d 268, 276 (6th Cir. 2005) (citing INS v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984)). And
Plaintiff’s father’s removal does not violate Plaintiff’s rights under the Ninth Amendment
because the Ninth Amendment does not confer substantive rights. E.g., Gibson v. Matthews, 926
F.2d 532, 537 (6th Cir. 1991).
 No. 19-3716 Cooper Butt v. Barr, et al. Page 9

We are sympathetic to Plaintiff’s plight as a result of his father’s removal from this
country. See Hamdi, 620 F.3d at 629; Newton, 736 F.2d at 343 n.8. However, given the
Constitution’s grant of plenary power to Congress in immigration matters and the statutory
scheme that Congress has established through the INA, in addition to our own Court’s precedent,
we are bound to affirm the district court’s dismissal of Plaintiff’s constitutional claims.

E. Plaintiff’s Selective Enforcement Claim

Lastly, we must consider Plaintiff’s selective enforcement claim, which implicates
concerns different from those discussed above. It appears that the district court dismissed this
claim pursuant to Rule 12(b)(6), holding that Plaintiff’s complaint failed to state a claim upon
which relief could be granted. However, the claim should have been dismissed under Rule
12(b)(1) because 8 U.S.C. § 1252(g) precludes courts from exercising jurisdiction over this
claim. See, e.g., Wachovia Bank, 546 U.S. at 316 (recognizing that federal courts have an
independent duty to assess subject matter jurisdiction); see also La. Sch. Emps.’ Ret. Sys. v. Ernst
& Young, LLP, 622 F.3d 471, 477 (6th Cir. 2010) (stating that this Court may affirm the district
court’s decision on any ground supported by the record).

Plaintiff alleges that he and his mother “were subjected to racially derogatory statements
and treated in a racially discriminatory manner by ICE agents, who were white, when
interviewed concerning” Plaintiff’s father’s removal. (R. 3, Compl., Pg. ID 10.) Construing
Plaintiff’s complaint in his favor as is proper at the motion to dismiss stage, e.g., Engler v.
Arnold, 862 F.3d 571, 574–75 (6th Cir. 2017), Plaintiff seeks to assert a selective enforcement
claim on behalf of his father. Under this approach, Plaintiff contends that the differential
treatment to which he and his mother were subjected during his father’s removal proceeding
shows that his father was removed “based upon ethnic, religious and racial bias” in violation of
the Equal Protection Clause of the Fifth Amendment. (R. 3, Compl., Pg. ID 13.) Accepting
Plaintiff’s allegations as true for purposes of ruling on Defendants’ motion to dismiss, the
statements allegedly made by the ICE officers are distressing to say the least. However, we do
not have jurisdiction to review a selective enforcement claim brought by Plaintiff on behalf of
his father under 8 U.S.C. § 1252(g).
 No. 19-3716 Cooper Butt v. Barr, et al. Page 10

As discussed above, § 1252(g) strips federal courts of 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). In Hamdi, we held that § 1252(g) does not preclude a court from
hearing an independent action brought by a citizen child when that child raises her own
constitutional rights that are distinct from her parent’s rights. 620 F.3d at 620–23. We stated
that “a complaint brought by a U.S. citizen child who asserts his or her own distinct
constitutional rights and separate injury does not fall fairly within the ‘on behalf of any alien’
jurisdictional bar in § 1252(g).” Id. at 623. Thus, we held that we had subject matter jurisdiction
to hear the plaintiff’s claims that removal of his mother violated his distinct constitutional rights,
although we held that those claims failed under Rule 12(b)(6). See id. at 628–29. However,
unlike the claims at issue in Hamdi and Plaintiff’s other constitutional claims discussed above,
Plaintiff’s selective enforcement claim is brought “on behalf of” his father, which implicates the
jurisdictional bar of § 1252(g). This is because Plaintiff does not have an independent
constitutional right to prevent the removal of his father based on otherwise protected
characteristics.

The Fifth Circuit recently addressed this issue, and we find its reasoning persuasive. In
Duron v. Johnson, 898 F.3d 644, 646 (5th Cir. 2018), the Fifth Circuit considered a claim
brought by United States citizen children asserting that their parent was selectively targeted for
removal based on his Hispanic origin, in violation of the Equal Protection Clause. The court
recognized that § 1252(g) generally bars judicial review of selective enforcement claims because
they “aris[e] from” the Attorney General’s decision “to commence proceedings, adjudicate
cases, or execute removal orders.” Duron, 898 F.3d at 647 (quoting § 1252(g)). It held that the
plaintiffs’ claim was barred by § 1252(g) because it was brought “on behalf of” their noncitizen
parent. Duron, 898 F.3d at 648 (quoting § 1252(g)).

The plaintiffs in that case, relying on this Court’s decision in Hamdi, argued that their
claim was not brought “‘on behalf of any alien’ but rather by U.S. citizens.” Id. at 647 (quoting
§ 1252(g)). In rejecting that argument, the Fifth Circuit assumed that Hamdi’s rule was correct
but nevertheless concluded that even “under Hamdi’s rubric, the children brought their selective
 No. 19-3716 Cooper Butt v. Barr, et al. Page 11

enforcement claim ‘on behalf of’ their father.” Id. at 648 (quoting Hamdi, 620 F.3d at 623).
This was because “[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.” Duron, 898 F.3d at 648. Unlike the claims at issue in Hamdi,
the children in Duron had not asserted their “own distinct constitutional rights” with respect to
their father’s selective enforcement claim. Id. at 647 (quoting Hamdi, 620 F.3d at 623).
Therefore, the jurisdictional bar of § 1252(g) applied. Id. at 648.

We find Duron’s reasoning instructive in the present case and its interpretation of our
decision in Hamdi to be correct. Hamdi held that § 1252(g) does not foreclose judicial review of
“a complaint brought by a U.S. citizen child who asserts his or her own distinct constitutional
rights and separate injury.” Hamdi, 620 F.3d at 623. However, with regard to selective
enforcement, a United States citizen child does not have a “distinct constitutional right” to
prevent the allegedly discriminatory removal of her parent. See Duron, 898 F.3d at 647–48.
Instead, any constitutional right to be free from selective enforcement belongs to the person
being removed. See id. at 648. In this case, that person is Plaintiff’s father. Therefore,
Plaintiff’s selective enforcement claim is brought “on behalf of” his father and implicates the
jurisdictional bar of § 1252(g).

Plaintiff’s complaint states that he and his mother were subjected to differential treatment
during the interviews concerning Plaintiff’s father’s removal. Ultimately, the complaint seeks a
declaration that the removal of his father was “based upon ethnic, religious and racial bias” and
therefore unconstitutional. (R. 3, Compl., Pg. ID 13.) The Supreme Court has held that “[a]s a
general matter . . . an alien unlawfully in this country has no constitutional right to assert
selective enforcement as a defense against his deportation.” AADC, 525 U.S. at 488 (footnote
omitted); see also Elgharib v. Napolitano, 600 F.3d 597, 602 (6th Cir. 2010) (holding that AADC
remains governing law for determining if § 1252(g) strips us of subject matter jurisdiction to
review a noncitizen’s selective enforcement claim, even after Congress added new introductory
language to the statute through the REAL ID Act of 2005, Pub. L. No. 109–13, § 106, 119 Stat.
231, 310–11). In AADC, the Supreme Court set a high bar for selective enforcement claims,
stating that “in all cases, deportation is necessary in order to bring to an end an ongoing violation
 No. 19-3716 Cooper Butt v. Barr, et al. Page 12

of United States law. The contention that a violation must be allowed to continue because it has
been improperly selected is not powerfully appealing.” AADC, 525 U.S. at 491. In dictum, the
Supreme Court held open the possibility that there may be “a rare case in which the alleged basis
of discrimination is so outrageous” that a court should allow a noncitizen’s selective enforcement
claim to proceed, but said that the “general rule” is that “[w]hen an alien’s continuing presence
in this country is in violation of the immigration laws, the Government does not offend the
Constitution by deporting him” for an otherwise impermissible reason. Id. at 491–92. In the
present case, Plaintiff’s allegations do not demonstrate that this is one such “rare case.” Id. at
491. Instead, because Plaintiff brings this claim “on behalf of” his father and his father does not
have a “constitutional right to assert selective enforcement as a defense against his deportation,”
id. at 488, the jurisdictional bar of § 1252(g) strips us of jurisdiction to review the claim.
See Duron, 898 F.3d at 648.

CONCLUSION

For the reasons set forth above, we AFFIRM the district court’s order dismissing
Plaintiff’s complaint.