dissenting:
With undisputed knowledge of the United States citizenship of baby girl R.M.G., Border Patrol agents in Lubbock, Texas, took R.M.G. into custody with her undocumented father, Omar Gallardo, when he was detained for removal. Monica Castro, R. M.G.’s United States citizen mother, pleaded with the Border Patrol to turn over her daughter and allow her to remain in the United States. Castro also frantically sought to secure a temporary custody order in a matter of hours. But on the very same day that R.M.G. and Gallardo were detained, and although Gallardo did not have a custody order in his favor, the Border Patrol deported R.M.G. and Gallardo to Mexico. Castro could not locate her daughter for the next three years.
The majority acknowledges the novel facts of this case, but minimizes their importance to the legal inquiry. The majority further erroneously applies the principles of Rule 12(b) according to Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and disregards the Supreme Court’s instruction to “narrowly construe[ ] exceptions to waivers of sovereign immunity ... in the context of the sweeping language of the [FTCA].” Dolan v. U.S. Postal Serv., 546 U.S. 481, 492, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006) (internal citations and quotation marks omitted). I therefore respectfully dissent.
*271I.
On behalf of herself and R.M.G., Castro brought state law claims of negligence, intentional infliction of emotional distress, and false imprisonment against the United States under the Federal Tort Claims Act (“FTCA”). Castro plausibly alleged that the Border Patrol exceeded the scope of its authority under the Immigration and Nationality Act of 1953 (“INA”), 8 U.S.C. § 1101 et seq., and the Fourth and Fifth Amendments. The discretionary function exception to the FTCA does not shelter against liability for unauthorized actions by government agents, yet the majority nonetheless applies the discretionary function exception without any inquiry into whether the Border Patrol agents acted in excess of their authority. In my view, the order granting the Government’s Rule 12(b)(1) motion to dismiss based on the discretionary function exception should be vacated and the case remanded for an evaluation of whether the Border Patrol acted outside of its authority.
II.
The FTCA provides consent for suit against the United States “for injury ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). One exception to the FTCA’s eonsent-to-be-sued is the discretionary function exception, 28 U.S.C. § 2680(a), the purpose of which is “to prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and public policy .... ” United States v. Gaubert, 499 U.S. 315, 323, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). The discretionary function exception applies when: (1) the challenged government action involves “an element of judgment or choice” by a government agent and (2) the complained-of choice is “the kind that the discretionary function exception was designed to shield.” Id. at 322-23, 111 S.Ct. 1267 (citing Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)).
The discretionary function exception does not protect the unauthorized acts of government agents. See Berkovitz, 486 U.S. at 539, 108 S.Ct. 1954 (“The discretionary function exception applies only to conduct that involves the permissible exercise of policy judgment.”) (emphasis added); Truman v. United States, 26 F.3d 592, 594 (5th Cir.1994) (“Through the enactment of the FTCA, the government has generally waived its sovereign immunity from tort liability for the negligent or wrongful acts or omissions of its agents who act within the scope of their employment.”). “[Cjourts have read the Supreme Court’s discretionary function cases as denying protection to actions that are unauthorized because they are unconstitutional, proscribed by statute, or exceed the scope of an official’s authority.” Thames Shipyard & Repair Co. v. United States, 350 F.3d 247, 254 (1st Cir.2003) (internal citations omitted). This safeguard inherent in the discretionary function exception has been recognized by seven other circuits,1 *272in addition to this circuit. See Sutton v. United States, 819 F.2d 1289, 1293 (5th Cir.1987) (concluding that action by a government agent “does not fall within the discretionary function exception of § 2680(a) when governmental agents exceed the scope of their authority as designated by statute or the Constitution.”). Despite the overwhelming weight of authority and our own precedent, the majority entirely ignores the principle that the discretionary function exception does not encompass unauthorized actions.
If the Border Patrol agents acted outside their scope of authority by violating R.M.G.’s constitutional rights, then those constitutional transgressions foreclose the protection of the discretionary function exception. A Border Patrol agent’s authority is also limited by statutory mandates, therefore any actions of the Border Patrol agents in contravention of specific provisions of the INA or other statutes preclude the application of the discretionary function exception. See Gaubert, 499 U.S. at 324, 111 S.Ct. 1267 (“If the employee violates the mandatory regulation, there will be no shelter from liability because there is no room for choice and the action will be contrary to policy.”). The majority errs by concluding that the discretionary- function exception deprived the district court of jurisdiction and dismissing Castro’s claims without an evaluation of whether the actions of the Border Patrol agents exceeded the scope of their authority.
III.
A.
“Whether the district court lacked jurisdiction to consider the government’s conduct in this case is a question of law, subject to de novo review by this Court.” Buchanan v. United States, 915 F.2d 969, 970 (5th Cir.1990) (internal citations omitted); see also Limone, 579 F.3d at 101 (“We afford de novo review to a district court’s determination that the discretionary function exception does or does not apply.”). To survive a motion to dismiss, a complaint need only contain sufficient factual matter to “state a claim for relief that is plausible on its face.” Cornerstone Christian Schs. v. Univ. Interscholastic League, 563 F.3d 127, 133 (5th Cir.2009) (citing Twombly, 550 U.S. at 544, 127 S.Ct. 1955); see also Iqbal, 129 S.Ct. at 1950 (reiterating the Twombly holding that “a complaint that states a plausible claim for relief survives a motion to dismiss.”). All factual allegations contained in the complaint must be accepted as true. Iqbal, 129 S.Ct. at 1949.
B.
The majority acknowledges that we have before us a Rule 12(b)(1) dismissal, but it *273erroneously concludes that Castro has not met her burden under Twombly and Iqbal. To the contrary, based on the allegations contained in Castro’s complaint, the Border Patrol agents’ actions in detaining and deporting R.M.G. implicate both statutory and constitutional concerns. The facts included in the complaint — -in particular the undisputed fact that the Border Patrol agents knew R.M.G’s citizenship status and did not doubt that she was a United States citizen — support a plausible claim that the Border Patrol agents exceeded the scope of their statutory and constitutional authority and their actions were therefore non-discretionary.
Castro’s complaint alleged a plausible violation of specific constitutional mandates: the Fourth Amendment right to be free from unreasonable seizure and the Fifth Amendment right to due process. See United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (explaining that the Fourth Amendment “forbids stopping or detaining persons for questioning about their citizenship on less than a reasonable suspicion that they may be aliens”); Hernandez v. Cremer, 913 F.2d 230, 237 (5th Cir.1990) (observing that “the right of a United States citizen to enter the country is a right which the fundamental law has conferred upon him” and “is a part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment.”) (internal citations and quotation marks omitted). In her complaint, Castro alleged the following:
Defendant United States’ detention of Plaintiff R.M.G. without due process violated her Fourth Amendment constitutional interest in remaining free from bodily seizure .... Detention of Plaintiff R.M.G. was not due to an act of wrongdoing that warranted detention nor was detention based on an emergency. The United States did not and cannot show that seizure of the minor child was necessary to protect Plaintiff R.M.G.’s health, safety and welfare; indeed, Defendant United States placed R.M.G. in imminent danger by deporting her with a man it knew was wanted in connection with a homicide.
... Plaintiff Castro made a claim of citizenship to Defendant United States on behalf of her minor child, Plaintiff R.M.G. Despite that claim, and despite Defendant’s recognition of Plaintiff R.M.G.’s status as a U.S. citizen, Defendant United States intentionally, maliciously, and recklessly violated Plaintiffs’ right to procedural due process guaranteed by the Fifth Amendment.
... Defendant United States willfully detained R.M.G. without her consent or the consent of her U.S. citizen parent, and the detention was without legal authority or justification .... From the moment Defendant United States knew or should have known that R.M.G. was a U.S. citizen and that a U.S. citizen parent was present to take possession of her and did not release her, Defendant United States had no legal authority or justification to continue its detention of the child.
Castro’s complaint additionally alleged that the Border Patrol agents acted outside of their statutory grant of authority under the INA, averring that “[n]o section of [the INA] provides authority for the United States to detain or remove a U.S. citizen.” The Border Patrol is an agency of the Department of Homeland Security, and subject to the INA. See 8 C.F.R. § 1.1. The INA’s scope is limited to regulating the entry of aliens, as well as their detention, removal, and naturalization. See, e.g., 8 U.S.C. §§ 1101(a)(23), 1103(a)(1), 1231(a). Within this statutory grant of authority, Border Patrol agents *274have discretion in making determinations in matters such as the detention or removal of aliens illegally present in the United States. See, e.g., 8 U.S.C. § 1226; 8 C.F.R. §§ 236.1-236.7; INS v. Yueh-Shaio Yang, 519 U.S. 26, 30, 117 S.Ct. 350, 136 L.Ed.2d 288 (1996) (explaining the broad INS discretion “in determining who, among a class of eligible aliens, may be granted relief’ from removal). No statute grants Border Patrol agents the power to deport United States citizens, however, and the power of Border Patrol agents to detain United States citizens is quite limited. See 8 U.S.C. § 1357(a)(5). Nor do Border Patrol agents have statutory authority to make child custody decisions. Johns v. Dep’t of Justice, 653 F.2d 884, 894 n. 26 (5th Cir.1981) (“Federal immigration authorities lack authority to determine custody of a child or to enforce the custodial rights of others.”).
Despite the Border Patrol agents’ conceded knowledge of R.M.G.’s citizenship and Castro’s plausible allegations of constitutional and statutory violations, the district court opinion — relied upon by the majority — failed to address whether the Border Patrol agents exceeded their scope of authority. This crucial omission in the district court’s Rule 12(b)(1) analysis allows any actions taken by the Border Patrol agents in excess of their authority to nonetheless benefit from the protection of the discretionary function exception. The majority opinion therefore effectively bestows immunity from FTCA liability upon even the most egregious constitutional and statutory violations by government agents, which may reach far beyond their actual authority. This outcome contravenes the fundamental purpose of the FTCA; such an “unduly generous interpretation!] of the exception!] run[s] the risk of defeating the central purpose of the statute, which waives the Government’s immunity from suit in sweeping language.” Dolan, 546 U.S. at 492, 126 S.Ct. 1252 (internal citations and quotation marks omitted).
IV.
The majority opinion weakens a critical, inherent safeguard of the discretionary function exception and neglects Castro’s patently plausible allegations of unauthorized actions by the Border Patrol agents in addressing the 12(b)(1) dismissal. I therefore respectfully dissent from the holding of the court. I would vacate the order of the district court and remand for a ruling on whether the Border Patrol agents acted within the scope of their authority.
. See Limone v. United States, 579 F.3d 79, 101 (1st Cir.2009) ("It is elementary that the discretionary function exception does not immunize the government from liability for actions proscribed by federal statute or regulation. Nor does it shield conduct that transgresses the Constitution.”) (internal citations omitted); Raz v. United States, 343 F.3d 945, 948 (8th Cir.2003) ("We must also conclude that the FBI’s alleged surveillance activities fall outside the FTCA's discretionaiy-function exception because [plaintiff] al*272leged they were conducted in violation of his First and Fourth Amendment rights.”); Medina v. United States, 259 F.3d 220, 225 (4th Cir.2001) (noting that the starting point of the discretionary function exception analysis is that "federal officials do not possess discretion to violate constitutional rights or federal statutes”) (quoting U.S. Fid. & Guar. Co. v. United States, 837 F.2d 116, 120 (3d Cir.1988)); Nurse v. United States, 226 F.3d 996, 1002 (9th Cir.2000) ("governmental conduct cannot be discretionary if it violates a legal mandate”); Prisco v. Talty, 993 F.2d 21, 26 n. 14 (3d Cir.1993) (concluding that the discretionary function exception was inapplicable to an FTCA claim based on conduct 'that violated plaintiff’s constitutional rights); Red Lake Band of Chippewa Indians v. United States, 800 F.2d 1187, 1196 (D.C.Cir.1986) ("An employee of the government acting beyond his authority is not exercising the sort of discretion the discretionary function exception was enacted to protect.”); Birnbaum v. United States, 588 F.2d 319, 329 (2d Cir.1978) ("An act that is clearly outside the authority delegated cannot be considered as an abuse of discretion.”) (internal quotation marks and citations omitted).