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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
__________________________
No. 11-14240
__________________________
D.C. Docket No. 6:10-cv-00280-ACC-GJK
ANESH GUPTA,
Plaintiff-Appellant,
versus
RICHARD T. MCGAHEY, Senior Special Agent,
U.S. Immigration and Customs Enforcement,
TIMOTHY WARGO, Supervisory Special Agent,
U.S. Immigration and Customs Enforcement,
JOHN KAUFMAN, Special Agent,
U.S. Immigration and Customs Enforcement,
Defendants-Appellees.
__________________________
Appeal from the United States District Court
for the Middle District of Florida
__________________________
(February 15, 2013)
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Before WILSON and COX, Circuit Judges, and VINSON, * District Judge.
PER CURIAM:
Anesh Gupta appeals the district court’s dismissal of his Bivens action for
lack of subject-matter jurisdiction. Gupta’s Complaint alleges that three U.S.
Immigration and Customs Enforcement agents violated his Fourth and Fifth
Amendment rights when they arrested and detained him in connection with the
initiation of removal proceedings against him. The district court concluded that it
lacked subject-matter jurisdiction to hear Gupta’s claims under 8 U.S.C. § 1252(g)
because all of his claims arise from the agents’ decision or action to commence
removal proceedings. We affirm.
I. FACTS AND PROCEDURAL HISTORY
Anesh Gupta, a citizen of India, entered the United States with a B-2
nonimmigrant visa on December 1, 2001. The visa authorized him to stay until
June 16, 2002. About two weeks before his visa expired, he married a woman
named Laura Schultz in Illinois. Schultz filed an I-130 form application to adjust
Gupta’s status, and Gupta obtained an Employment Authorization Document
allowing him to work in the country while the application pended. Gupta then
secured employment as an intern at the Walt Disney World resort in Orlando,
Florida, in May 2003. The resort hired him as a part-time employee in 2005.
*
Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
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Beginning in 2005, Gupta became involved in a number of legal disputes
stemming from his employment. He also filed several complaints with the U.S.
Immigration and Customs Enforcement (ICE)—and, at one point, the President of
the United States—regarding what he claims were the resort’s violations of U.S.
immigration laws.
U.S. Citizenship and Immigration Services denied Schultz’s application to
adjust Gupta’s immigration status in July 2009. Following the denial, ICE agent
Richard McGahey, who had been investigating the complaints Gupta filed against
the resort, prepared a Record of Deportable Alien and a notice to appear for
removal proceedings. McGahey also sought an administrative arrest warrant from
his supervisor, Timothy Wargo. McGahey recommended that Gupta be arrested
and detained without bond pending a removal determination because of Gupta’s
“escalating delusion” and continued focus on the Disney World management, the
resort’s importance as a “Critical Infrastructure asset,” and Gupta’s potentially
dangerous knowledge of the resort’s infrastructure. (R.1-31, Ex. 3 at 3–4.) Wargo
approved the arrest warrant on August 6, 2009. The next day, McGahey, Wargo,
and ICE agent John Kaufman went to Gupta’s apartment, delivered the notice to
appear, and executed the arrest warrant. This case arises out of Gupta’s arrest and
subsequent detention.
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We turn now to the allegations in the Complaint, which we take as true in
this appeal. See Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271,
1279 (11th Cir. 2009) (recognizing that when a defendant moves to dismiss a claim
for lack of subject-matter jurisdiction by challenging the complaint on its face, the
reviewing court must take the complaint’s factual allegations as true). Agents
McGahey, Wargo, and Kaufman placed Gupta in handcuffs, searched his
apartment and car, and seized several items of personal property, including his
employment identification, name tag, annual resort pass, apartment key, car key,
and mailbox key. Wargo and Kaufman then drove Gupta to a detention center.
Gupta was “later” taken by a Department of Homeland Security bus to a detention
center in Miami. He was then released on bond on September 11, 2009, and he
alleges that several documents were missing from his apartment when he returned
to it. He also claims that he never received his apartment, car, or mailbox keys that
the agents seized at the time of the arrest.
Gupta alleges that, in taking these actions, the agents violated his rights
under the Fourth and Fifth Amendments by wrongfully procuring a warrant for his
arrest, arresting him unlawfully, illegally searching his apartment and car, illegally
seizing his personal items, and wrongfully detaining him following the arrest until
September 11, when he was released on bond. Under Bivens v. Six Unknown
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Named Agents, 403 U.S. 388, 91 S. Ct. 1999 (1971), he seeks declaratory relief and
monetary damages in excess of $10 million.
The district court dismissed the action. The court recognized that 8 U.S.C.
§ 1252(g) precludes its subject-matter jurisdiction to hear any claim “arising from
the decision or action by the Attorney General to commence proceedings,
adjudicate cases, or execute removal orders against any alien under” the
immigration laws. Reasoning that Gupta’s claims arise from a decision or action
to commence removal proceedings, the court concluded that it had no subject-
matter jurisdiction and dismissed the case. The court also determined that to allow
a Bivens action in this context would improperly disrupt pending immigration
proceedings; the court declined to allow the action.
II. ISSUES ON APPEAL AND STANDARD OF REVIEW
On appeal, Gupta challenges the district court’s conclusion that it lacked
subject-matter jurisdiction under § 1252(g). He also argues that the district court
should have recognized his Bivens action in this context.
We review de novo a district court’s determination of whether it has subject-
matter jurisdiction. United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir.
2008). We conclude that Gupta’s claims arise from the actions taken to commence
removal proceedings against him within the meaning of § 1252(g). We therefore
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do not reach the question of whether to recognize a Bivens action under these
circumstances.
III. DISCUSSION
Federal courts lack subject-matter jurisdiction over “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).
On appeal, Gupta argues that this section does not cover his claims because
(1) McGahey’s procurement of an arrest warrant, (2) Gupta’s arrest, (3) Gupta’s
detention, (4) the agents’ search of Gupta’s apartment and car, and (5) McGahey’s
seizure of Gupta’s personal items did not “arise from” any decision or action to
commence proceedings, adjudicate cases, or execute removal orders against him.
We disagree.
Section 1252(g) is unambiguous: it bars federal courts’ subject-matter
jurisdiction over any claim for which the “decision or action” of the Attorney
General (usually acting through subordinates) to commence proceedings,
adjudicate cases, or execute removal orders is the basis of the claim. Securing an
alien while awaiting a removal determination constitutes an action taken to
commence proceedings. Each of Gupta’s claims allege, as his direct injury, an
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action taken to secure him and prevent the perceived threat he posed to Disney
World while he awaited a deportation hearing.
Gupta’s claims that McGahey illegally procured an arrest warrant, that the
agents illegally arrested him, and that the agents illegally detained him each arise
from an action taken to commence removal proceedings. In his Record of
Deportable Alien, McGahey explained the reasons why he considered Gupta a
threat to Disney World, a “Critical Infrastructure asset,” and recommended that
Gupta be arrested and detained without bond pending a removal determination.
Wargo then issued the warrant on that basis, and the agents arrested and detained
him pursuant to the warrant. These actions were taken in an effort to secure Gupta
and prevent potential danger to Disney World while he awaited a determination of
his removal. Each of these claims, then, challenges the actions the agents took to
commence removal proceedings—exactly the claims that § 1252(g) bars from the
subject-matter jurisdiction of federal courts.
Gupta’s claims that the agents illegally searched his apartment and illegally
seized certain items of his personal property also arise from actions taken to
commence proceedings. Gupta’s Complaint alleges that the agents searched his
apartment and located and seized his employment identification, name tag, annual
Disney World pass, and keys to his apartment, mailbox, and car. Each of these
items provides Gupta access to the resort. Seizing the items logically comports
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with the reason for Gupta’s arrest: to eliminate the perceived threat Gupta posed
against Disney World while Gupta waited for a deportation hearing. Gupta’s
claims that allege injuries resulting from the search of the apartment for these items
and the seizure of these items necessarily arise from actions taken to secure him
and prevent the perceived threat he posed pending a hearing.
IV. CONCLUSION
Because all of Gupta’s claims challenge actions taken to commence removal
proceedings, § 1252(g) strips the federal courts of subject-matter jurisdiction. We
therefore affirm the district court’s dismissal.
AFFIRMED.
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