Hamdi Ex Rel. Hamdi v. Napolitano

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0288p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

YOUSEFF HAMDI, on behalf of SAMI HAMDI, a X
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Plaintiff-Appellant, --
minor child,

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No. 09-3285

,
>
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v.

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as Secretary of Homeland Security; DISTRICT -
JANET NAPOLITANO, in her official capacity
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-
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DIRECTOR, DEPARTMENT OF HOMELAND

Defendants-Appellees. -
SECURITY,
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N
Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 09-00030—Walter H. Rice, District Judge.
Argued: January 22, 2010
Decided and Filed: September 7, 2010
Before: MERRITT, MOORE, and GIBBONS, Circuit Judges.

_________________

COUNSEL
ARGUED: George A. Katchmer, Jr., Yellow Springs, Ohio, for Appellant. Samuel P.
Go, UNITED STATES DEPARTMENT OF JUSTICE, OFFICE OF IMMIGRATION
LITIGATION, Washington, D.C., for Appellees. ON BRIEF: George A. Katchmer,
Jr., Yellow Springs, Ohio, for Appellant. Samuel P. Go, UNITED STATES
DEPARTMENT OF JUSTICE, OFFICE OF IMMIGRATION LITIGATION,
Washington, D.C., for Appellees.
MOORE, J., delivered the opinion of the court, in which MERRITT, J., joined.
GIBBONS, J. (pp. 20-21), delivered a separate concurring opinion.

1
No. 09-3285 Hamdi v. Napolitano et al. Page 2

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OPINION
_________________

KAREN NELSON MOORE, Circuit Judge. Sami Hamdi, the minor child of an
undocumented immigrant, filed a complaint under the Declaratory Judgment Act
(“DJA”), 28 U.S.C. § 2201, and the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 702, to prohibit the Department of Homeland Security (“DHS”) from removing his
mother on the ground that the mother’s removal violated his own constitutional rights
as an American citizen. Hamdi is severely disabled and is dependent on his mother’s
care. The district court dismissed the complaint for lack of jurisdiction under 8 U.S.C.
§ 1252(g), finding that Hamdi brought his complaint “on behalf of” his mother and that
no other statutory or nonstatutory laws provided jurisdiction. Hamdi appeals, arguing
first that the “on behalf of any alien” language in § 1252(g) does not bar jurisdiction over
an action brought under the DJA to protect the distinct constitutional rights of a minor
child affected by a parent’s removal proceedings, and, second, that the Constitution,
international law, and “the customs and usages of civilized nations” provide jurisdiction
under the APA for a minor child to challenge a parent’s removal proceedings. For the
reasons that follow, we conclude that Hamdi’s arguments are without merit and that the
district court was correct to dismiss Hamdi’s complaint, although we ground our
decision on the basis that Hamdi has failed to state a claim upon which relief can be
granted under Federal Rule of Civil Procedure 12(b)(6).

I. FACTUAL AND PROCEDURAL BACKGROUND

On January 26, 2009, Hamdi filed a complaint under the DJA and the APA
requesting that the district court declare that DHS’s removal proceeding involving his
mother, Fatiha Elgharib, is contrary to law under the U.S. Constitution and international
law because Hamdi is a U.S. citizen, has Down syndrome and numerous medical issues,
and is dependent on his mother for his care and well-being. Specifically, Hamdi’s
complaint alleges:
No. 09-3285 Hamdi v. Napolitano et al. Page 3

10. Plaintiffs’ [sic] father is being prevented from pursuing a remedy
available to him in law in violation of his right to due process of
law,
11. The separation of this severely handicapped child from his mother
constitutes a form of cruel and unusual punishment to this child,
12. The separation of this severely handicapped American child from
his mother and primary caretaker treats this child and his family
differently from other children in the State of Ohio since the
standard relating to children in domestic and juvenile law in the
State of Ohio is that of the best interest of the child and thus is
violative of the Equal Protection of the law,
13. The separation from his mother deprives this child of the continued
love, affection and care of his mother and primary caretaker in
violation of the Ninth Amendment to the United States
Constitution,
14. The separation of this severely handicapped child from his mother
violates the principles of international treaties and declarations of
which the United States is a signatory to wit: The Universal
Declaration of Human Rights, UNGA, Resolution 217 (III), 10
Dec. 1948, International Covenant on Economic, Social and
Cultural Rights, UNGA Res. 220A (XXI), 16 Dec. 1966 (IESCR),
Universal Declaration Art. 12 ECHR, Convention on the Rights of
the Child, 1989 UNGA Res. 44/25, 20 Dec. 1989, Arts. 9 and 16.

Dist. Ct. Doc. (“Doc.”) 2 (Compl. at ¶¶ 10–14). Hamdi claimed jurisdiction was proper
in the U.S. District Court for the Southern District of Ohio under the DJA and the APA
because

the Plaintiff’s mother, Fatiha Elgharib has been ordered removed from
the United States in violation of the Constitution of the United States
specifically the Due Process Clause of the Fifth and Fourteenth
Amendments, the Equal Protection Clause, the Eighth Amendment, the
Ninth Amendment and international treaties of which the United States
is a signatory: The Universal Declaration of Human Rights, UNGA,
Resolution 217 (III), 10 Dec. 1948, International Covenant on Economic,
Social and Cultural Rights, UNGA Res. 220A (XXI), 16 Dec. 1966
(IESCR), Universal Declaration Art. 12 ECHR, Convention on the
Rights of the Child, 1989 UNGA Res. 44/25 , 20 Dec. 1989, Arts. 9 and
16.American citizen children of illegal aliens may file declaratory
judgment action since such actions do not violate the Real ID Act, See,
No. 09-3285 Hamdi v. Napolitano et al. Page 4

Kruer v. Gonza1es (E.D. Kentucky, June 28, 2005), 2005 U.S. Dist.
LEXIS 13030.

Id. (Compl. Jurisdictional Statement) (formatting errors in original).

DHS filed a motion to dismiss for lack of subject-matter jurisdiction on February
11, 2009, in lieu of an answer to the complaint, asserting first that Hamdi did not have
standing to bring the suit without a separable injury from his mother’s removal
proceeding, and, alternatively, that 8 U.S.C. § 1252(b)(9) and (g) preclude jurisdiction
and the complaint failed to establish jurisdiction under the DJA, the APA, or other
international laws. Hamdi responded on February 20, 2009. In a March 6, 2009
decision, the district court rejected DHS’s contention that Hamdi could not satisfy
standing requirements because it found that Hamdi’s allegation that his mother’s
removal would deprive him of his primary caregiver was a sufficient injury in fact. Doc.
11 (Dist. Ct. Op. at 2–3). However, the court granted DHS’s motion to dismiss,
concluding that 8 U.S.C. § 1252(g) barred Hamdi’s complaint as one initiated “on behalf
of any alien arising from the decision or action by the Attorney General to . . . execute
removal orders against any alien.”1 8 U.S.C. § 1252(g). The district court construed “on
behalf of” as analogous to “in the interest of,” and it found that Hamdi’s complaint fell
within § 1252(g) because Hamdi’s only redress was to prevent his mother’s
removal—something that his mother had been unsuccessful in accomplishing previously
through separate litigation. Doc. 11 (Dist. Ct. Op. at 4 (citing United States v. Romero,
293 F.3d 1120, 1126 (9th Cir. 2002) (interpreting the “on behalf of” language under the
Sentencing Guidelines with reference to WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY))).

The district court also rejected Hamdi’s other asserted bases for subject-matter
jurisdiction, concluding that neither the DJA nor the APA could provide independent

1
Section 1252(g), “Exclusive jurisdiction,” states:
Except as provided in this section and notwithstanding any other provision of law
(statutory or nonstatutory), including section 2241 of Title 28, or any other habeas
corpus provision, and sections 1361 and 1651 of such title, 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.
No. 09-3285 Hamdi v. Napolitano et al. Page 5

sources of subject-matter jurisdiction, that none of the treaties Hamdi cited were binding,
and that Hamdi had failed to establish how any alleged “customs and usages of civilized
nations” could provide a basis for subject-matter jurisdiction. Id. (Dist. Ct. Op. at 5–7).
In the same order, the district court anticipatorily denied a motion to stay Hamdi’s
mother’s removal pending appeal. Id. at 7–8.

Hamdi appeals from the dismissal of his claims.2 A separate panel of this court
denied Hamdi’s motion to stay his mother’s removal pending this appeal, but, on April
2, 2009, DHS, through the U.S. Immigration and Customs Enforcement agency (“ICE”),
stayed her removal for one year.

II. ANALYSIS

We review de novo a district-court decision to dismiss a complaint for lack of
subject-matter jurisdiction, and we accept any factual findings that the district court

2
The district-court order stated in a footnote that the same reasoning that required the court to
dismiss Hamdi’s claims related to his mother’s order of removal also prevented the court from exercising
jurisdiction over the complaint allegations related to Hamdi’s father’s immigration issues. Doc. 11 (Dist.
Ct. Op. at 2 n.1). Hamdi’s brief on appeal did not raise any arguments related to his father’s immigration
status, and we do not address any potential issues related thereto.
No. 09-3285 Hamdi v. Napolitano et al. Page 6

made in its analysis unless it committed clear error.3 Davis v. United States, 499 F.3d
590, 593–94 (6th Cir. 2007).

On appeal, the parties focused their briefing on whether 8 U.S.C. § 1252(g)
barred the district court from exercising subject-matter jurisdiction over Hamdi’s
complaint and whether Hamdi was sufficiently aggrieved by agency action to state a
claim providing subject-matter jurisdiction under the APA. Neither the parties nor the
district court discussed whether Hamdi could assert subject-matter jurisdiction under
general federal-question jurisdiction pursuant to 28 U.S.C. § 1331, and whether the
district court, by grounding its decision in 8 U.S.C. § 1252(g), avoided the potential
jurisdictional impact of 8 U.S.C. § 1252(b)(9) that DHS raised below. Although neither
party specifically addressed 28 U.S.C. § 1331 on appeal, we are “‘under an independent
obligation to examine’ [our] own jurisdiction,” Baird v. Norton, 266 F.3d 408, 410 (6th
Cir. 2001) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)), and that
of the district court to determine whether Hamdi’s complaint could be adjudicated under
any grounds supported in the complaint, Estate of Mueller v. Comm’r, 153 F.3d 302, 304

3
The district court decided DHS’s motion to dismiss entirely on the grounds that the complaint
failed to establish subject-matter jurisdiction, because DHS’s arguments in its memorandum of law
accompanying its motion had focused primarily on this ground. However, DHS also stated in its motion
that Hamdi’s complaint failed to state a claim upon which relief can be granted, albeit with a citation only
to FED. R. CIV. P. 12(b)(1), and DHS’s accompanying memorandum of law included arguments related to
the merits of Hamdi’s claims. See Doc. 7 (Mot. to Dismiss). Although inartfully drafted, DHS’s
jurisdictional arguments may also be construed as arguments that Hamdi has failed to state a claim upon
which relief may be granted because he has no meritorious constitutional claim, and no federal court may
review his mother’s order of removal. Because the merits of Hamdi’s claim are relevant for our analysis
of subject-matter jurisdiction under the APA and for whether his claim is redressable, we may address both
aspects of DHS’s motion on de novo review. See Winnett v. Caterpillar, Inc., 553 F.3d 1000, 1007–08
(6th Cir. 2009) (citing Rogers v. Stratton Indus., Inc., 798 F.2d 913, 917 (6th Cir. 1986) (“reviewing an
issue raised under Rule 12(b)(1) ‘as if plaintiff had filed a Rule 12(b)(6)’”)). Here, both parties briefed
the viability of Hamdi’s constitutional claims and the impact of the jurisdictional-bar provisions of § 1252
under their argument headings related to § 1252(g) and the APA, and no additional argument from either
party would alter our ultimate decision on subject-matter jurisdiction or failure-to-state-a-claim grounds.
As this court has recognized,
“Generations of jurists have struggled with the difficulty of distinguishing
between Rules 12(b)(1) and 12(b)(6) in federal question cases . . . .” Nowak v.
Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1188 (2d Cir. 1996). In theory, the
difference is clear: “the former determines whether the plaintiff has a right to be in the
particular court and the latter is an adjudication as to whether a cognizable legal claim
has been stated.” 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 1350 (3d ed. 2004). Yet in practice, “the difference
between the two motions is often difficult to discern.” Id.
Primax Recoveries, Inc. v. Gunter, 433 F.3d 515, 517 (6th Cir. 2006) (alteration in original). Indeed, it
would have been error for the district court to rule on any merits questions after deciding that it lacked
subject-matter jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998).
No. 09-3285 Hamdi v. Napolitano et al. Page 7

(6th Cir. 1998). We may determine that the motion to dismiss for lack of subject-matter
jurisdiction should have been denied if facts pleaded in the complaint are sufficient to
infer jurisdiction. O’Bryan v. Holy See, 556 F.3d 361, 375–76 (6th Cir.), cert. denied,
130 S. Ct. 361 (2009); 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE & PROCEDURE § 1350, at 200–01 (3d ed. 2004) (“[I]f the allegation of the
district court’s jurisdiction is insufficient or entirely lacking but there are facts pleaded
in the complaint from which the court’s jurisdiction may be inferred, then the motion to
dismiss under Rule 12(b)(1) motion also must be denied.”). However, we may affirm
the district court’s dismissal for reasons other than those stated if dismissal is
appropriate. Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009); Apple
v. Glenn, 183 F.3d 477, 479–80 (6th Cir. 1999).

We will address each jurisdictional issue in turn, taking care to remember “a
familiar principle of statutory construction: the presumption favoring judicial review of
administrative action.” Kucana v. Holder, 130 S. Ct. 827, 839 (2010). Even so, we
address these issues mindful that the Supreme Court recently reasserted that “[a] statute
affecting federal jurisdiction ‘must be construed both with precision and with fidelity to
the terms by which Congress has expressed its wishes.’” Id. at 840 (quoting Cheng Fan
Kwok v. INS, 392 U.S. 206, 212 (1968)).

A. The Jurisdictional Bar of 8 U.S.C. § 1252(g) Does Not Apply to
Independent Actions Brought by a Citizen Child Raising Distinct
Constitutional Rights
The district court dismissed Hamdi’s complaint in part on the basis of the
jurisdictional bar in § 1252(g). Section 1252(g) precludes the federal courts from
exercising subject-matter jurisdiction over “any cause or claim by or on behalf of any
alien arising from the decision or action by [DHS]4 to commence proceedings,
adjudicate cases, or execute removal orders against any alien under this chapter.” 8
U.S.C. § 1252(g). DHS maintains that the district court properly interpreted Hamdi’s

4
Section 1252(g) specifically references “the Attorney General”; however, as a result of the
Homeland Security Act of 2002, all statutory references to the Attorney General in immigration statutes
are construed as referencing the appropriate DHS official. See Elgharib v. Napolitano, 600 F.3d 597,
606–07 (6th Cir. 2010).
No. 09-3285 Hamdi v. Napolitano et al. Page 8

complaint as brought “on behalf of” his mother, an alien in removal proceedings,
because his allegations and the relief requested are “in the interest of” his mother and
inextricably intertwined with his mother’s removal order. Hamdi argues that this action
is brought “on behalf of” himself to enforce his own constitutional rights violated by the
order of his mother’s removal and that his mother is only an incidental beneficiary in the
action. We agree with Hamdi, and conclude that § 1252(g) does not preclude the district
court from exercising jurisdiction over Hamdi’s complaint because the complaint
adequately raises his independent claims on his own behalf.

The proper interpretation of the “on behalf of” language in § 1252(g) is a matter
of first impression in this circuit (and apparently in all circuits). We review de novo
such questions of statutory interpretation, United States v. Parrett, 530 F.3d 422, 429
(6th Cir. 2008), employing a three-step legislative-interpretation framework established
by the Supreme Court: “‘first, a natural reading of the full text; second, the common-law
meaning of the statutory terms; and finally, consideration of the statutory and legislative
history for guidance,’” Lockhart v. Napolitano, 573 F.3d 251, 255 (6th Cir. 2009)
(quoting United States ex rel. A+ Homecare, Inc. v. Medshares Mgmt. Group, Inc., 400
F.3d 428, 442 (6th Cir. 2005) (citing United States v. Wells, 519 U.S. 482, 490–92
(1997))). The “natural reading of the full text” requires that we examine the statute for
its plain meaning, including “‘the language and design of the statute as a whole.’” Id.
(quoting Parrett, 530 F.3d at 429). “If the statutory language is not clear, we may
examine the relevant legislative history.” Parrett, 530 F.3d at 429.

We conclude that Hamdi’s claims do not fall within the meaning of § 1252(g).
Although many courts have dismissed actions brought by, or asserting the rights of, a
citizen child, few courts have addressed § 1252(g). Dictionary definitions are not
extremely helpful to our analysis. BLACK’S LAW DICTIONARY (9th ed. 2009) does not
define the phrase “on behalf of” or “behalf”5; MERRIAM-WEBSTER (11th ed. 2004)

5
BLACK’S LAW DICTIONARY does define “representation” in part as “[t]he act or an instance of
standing for or acting on behalf of another, esp. by a lawyer on behalf of a client”; the definition of
“representative” includes “[o]ne who stands for or acts on behalf of another.” BLACK’S LAW DICTIONARY
(9th ed. 2009) (representation definition 2; representative definition 1) (emphases added). GARNER’S
MODERN AMERICAN USAGE (3d ed. 2009) defines “behalf” with reference to two phrases, stating “[i]n
No. 09-3285 Hamdi v. Napolitano et al. Page 9

defines the phrase as “in the interest of; also: as a representative of,” and further defines
“behalf” as “interest, benefit; also: support, defense.” We have found only two courts
that have directly addressed the impact of § 1252(g) on a citizen child’s complaint. In
Kruer v. Gonzales, No. 05-120-DLB, 2005 WL 1529987 (E.D. Ky. June 28, 2005)
(unpublished opinion), the district court rejected the applicability of the jurisdictional
bars in § 1252(a)(5)6 and (g) because “the face of the children’s Petition does not
indicate it is being brought on their mother’s behalf, though this be the indirect result of
their filing,” and “research reveals no binding authority so interpreting the statute [as
brought on the mother’s behalf].” Id. at *2 n.3. The Kruer district court found
§ 1252(a)(5) implicitly limited its applicability to review sought by the individual subject
to the removal order. Id. at *3. With this conclusion, the Kruer district court
“accept[ed]” jurisdiction of the citizen children’s action and rejected the merits with
prejudice. Id. at *9 (summarizing holding by “accepting” that court had jurisdiction and
that plaintiffs had standing). In Coleman v. United States, 454 F. Supp. 2d 757 (N.D. Ill.
2006), the district court held that § 1252(g) did not apply to bar jurisdiction because the
citizen child’s suit presented the child’s own rights and a separate redressable injury that
would only incidentally benefit the immigrant parent. Id. at 763–66. Relying on
precedents favoring narrow construction of jurisdictional limits, the district court looked
solely to what “the plain text makes clear” and reasoned that “[s]ection 1252(g) does not
apply here because that statute does not bar claims by citizens (because such claims are
not brought ‘by . . . any alien’) alleging that removal orders violate the citizen’s distinct
personal rights (because such claims are not ‘on behalf of any alien’).” Id. at 765 (citing
Maldonado v. Fasano, 67 F. Supp. 2d 1170, 1173–74 (S.D. Cal. 1999) (citing Lindahl
v. Office of Personnel Mgmt., 470 U.S. 768, 779–80 (1985)); Webster v. Doe, 486 U.S.
592, 603 (1988)).

behalf of means ‘in the interest or for the benefit of’ . . . ; on behalf of means ‘as the agent or representative
of.’”
6
Section 1252(a)(5) defines “judicial review” for purposes of § 1252 and establishes 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 entered or issued under any provision
of this chapter.” 8 U.S.C. § 1252(a)(5).
No. 09-3285 Hamdi v. Napolitano et al. Page 10

We find the reasoning in Coleman persuasive. We recognize that the provisions
of 8 U.S.C. § 1252 are intended to narrow the availability of judicial review for removal
orders, precluding federal courts from exercising subject-matter jurisdiction over many
claims related to a final order of removal. See Kucana, 130 S. Ct. at 838 (emphasizing
that Congress’s “aggressive[]” amendments to § 1252 were intended “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, 482–86 (1999). We must be
cautious, however, not to interpret broadly jurisdiction-stripping provisions in the
absence of explicit congressional intent. AADC, 525 U.S. at 480–82; Prado v. Reno, 198
F.3d 286, 290 (1st Cir. 1999) (“In [AADC], the Supreme Court taught that interpreting
the jurisdiction limiting provisions of IIRIRA requires a close textual reading and that
restrictions on jurisdiction should conform tightly to the precise language chosen by
Congress.”).

While it is in Hamdi’s own interest to litigate his claims that his mother’s
removal order violates his distinct constitutional rights, it plainly would benefit her as
well if Hamdi were to be successful and to secure the relief he seeks—judicial review
and cancellation of his mother’s removal order. One could argue that Hamdi is asking
the federal courts to take his mother’s substantive arguments and convert them into his
own action seeking the relief that she has been denied, but the remedy Hamdi seeks does
not dictate the substance of his complaint. Mustata v. U.S. Dep’t of Justice, 179 F.3d
1017, 1021–23 (6th Cir. 1999) (distinguishing an ineffective-assistance-of-counsel claim
asking for a stay of a deportation order from a § 1252(g) challenge to the execution of
the order itself); cf. Aguilar v. U.S. Immigration & Customs Enforcement Div. of the
Dep’t of Homeland Sec., 510 F.3d 1, 16–17 (1st Cir. 2007) (holding § 1252(b)(9) barred
28 U.S.C. § 1331 jurisdiction even though available on face of undocumented aliens’
complaint because “substance trumps form” and “we must look through such easy
evasions as creative labeling and consider the fundamental nature of the claims asserted
. . . [to not] allow collective end runs around congressional directives” (citing, inter alia,
Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249, 259 (1933); Penhallow v. Doan’s
Adm’rs, 3 U.S. (3 Dall.) 53, 104 (1795))). We hold that a complaint brought by a U.S.
No. 09-3285 Hamdi v. Napolitano et al. Page 11

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).
Hamdi challenges the constitutionality of the final order of removal for his mother, but
his claim asserts his own distinct constitutional rights. Thus, the district court
improperly relied upon § 1252(g) in dismissing Hamdi’s complaint.

B. The Administrative Procedure Act Does Not Provide Subject-Matter
Jurisdiction Here
Hamdi argues in the alternative that his constitutional- and international-law-
based claims provide a basis for subject-matter jurisdiction under the APA.7 This circuit
has not yet addressed whether the APA can provide jurisdiction for citizen children to
challenge immigration proceedings, but we now conclude that Hamdi’s attempt to assert
subject-matter jurisdiction solely under the APA is unavailing. To utilize the APA,
Hamdi must have alleged sufficiently that he is “suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency action.” 5 U.S.C. § 702; Bangura
v. Hansen, 434 F.3d 487, 498–500 (6th Cir. 2006). The Supreme Court has held,
however, that “[i]mmigration proceedings . . . are not governed by the APA” because
“Congress intended the provisions of the Immigration and Nationality Act of 1952 (INA)
. . . to supplant the APA in immigration proceedings.”8 Ardestani v. INS, 502 U.S. 129,
133–34 (1991) (citing Marcello v. Bonds, 349 U.S. 302 (1955)); Robert v. Reno, 25 F.
App’x 378, 381 (6th Cir. 2002) (unpublished opinion) (“The APA simply does not
govern immigration proceedings under the INA and may not be used to challenge the
hearing provisions of the INA.”). But see Acosta v. Gaffney, 558 F.2d 1153, 1156–58
(3d Cir. 1977) (holding citizen child had standing under the APA and 8 U.S.C. § 1329

7
Hamdi actually did not contest the district court’s denial of jurisdiction under the DJA on appeal
but rather focused on § 1252(g) and the APA. Were we to address the applicability of the DJA, we would
conclude that it also does not provide subject-matter jurisdiction. See Skelly Oil Co. v. Phillips Petroleum
Co., 339 U.S. 667, 671 (1950) (holding Congress enlarged the range of available federal court remedies,
not jurisdiction, under the DJA because “[i]t is well-settled that the [DJA] cannot serve as an independent
basis for federal subject matter jurisdiction”).
8
Indeed, 8 U.S.C. § 1252(a)(1) specifically states that “[j]udicial review of a final order of
removal . . . is governed only by chapter 158 of Title 28, except as provided in subsection (b) of this
section.” 8 U.S.C. § 1252(a)(1) (emphasis added). We discuss below the impact of subsection (b) on
Hamdi’s claims.
No. 09-3285 Hamdi v. Napolitano et al. Page 12

to assert a constitutional challenge to parents’ removal but no constitutional right to
prohibit removal). As a result, the APA does not provide subject-matter jurisdiction in
the instant case to the extent that Hamdi seeks review of his mother’s order of removal.
Instead, the APA’s general waiver of sovereign immunity with respect to non-monetary
claims applies to allow Hamdi’s distinct constitutional claims to proceed under the
district court’s general federal-question subject-matter jurisdiction of 28 U.S.C. § 1331,
see United States v. City of Detroit, 329 F.3d 515, 520–21 (6th Cir. 2003) (en banc),
especially in light of “the presumption favoring judicial review of administrative action,”
Kucana, 130 S. Ct. at 839; see also Ikenokwalu-White v. Gonzales, 495 F.3d 919,
925–26 (8th Cir. 2007) (reaffirming, in the context of a citizen-child’s suit, that “the
Administrative Procedure Act, 5 U.S.C. § 701, et seq., may in some instances serve as
a waiver of the federal government’s sovereign immunity, and through the general
federal question jurisdiction of 28 U.S.C. § 1331, empower the federal district courts to
hear timely appeals from certain Board orders” (citing Sabhari v. Reno, 197 F.3d 938,
942–43 (8th Cir. 1999))); accord Ginters v. Frazier, — F.3d —, 2010 WL 3034894,
*4–5 (8th Cir. 2010) (affirming the continuing validity of Sabhari after the enactment
of § 1252(a)(2)(B) and the Supreme Court’s decision in Kucana).

C. Federal-Question Subject-Matter Jurisdiction Under 28 U.S.C.
§ 1331 Is Appropriate
1. A Citizen Child Raising Distinct Constitutional Rights May
Assert Federal-Question Subject-Matter Jurisdiction
We agree with the district court that Hamdi has asserted a sufficient injury in fact
for standing purposes, but we conclude that the district court erred in not recognizing
that the constitutional nature of Hamdi’s alleged injury, apparent on the face of the
complaint, provided subject-matter jurisdiction as a federal question within the meaning
of 28 U.S.C. § 1331. See Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 56 (1993)
(holding that a challenge to regulations used in adjustment-of-status applications was not
lacking a statutory jurisdiction source “since 28 U.S.C. § 1331, generally granting
federal question jurisdiction, ‘confer[s] jurisdiction on federal courts to review agency
action’” (quoting Califano v. Sanders, 430 U.S. 99, 105 (1977))). “A plaintiff properly
No. 09-3285 Hamdi v. Napolitano et al. Page 13

invokes § 1331 jurisdiction when she pleads a colorable claim ‘arising under’ the
Constitution or laws of the United States.” Arbaugh v. Y & H Corp., 546 U.S. 500, 513
(2006).

In addressing Hamdi’s standing to bring this claim before the district court and
in its arguments related to the APA on appeal, DHS argues that subject-matter
jurisdiction is lacking because Hamdi has failed to assert a violation of a constitutionally
protected right. However, “[j]urisdiction is not defeated by the possibility that the
averments might fail to state a cause of action on which petitioners could actually
recover.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (internal
quotation marks and alterations omitted). Even so, “[a] claim invoking federal-question
jurisdiction under 28 U.S.C. § 1331 . . . may be dismissed for want of subject-matter
jurisdiction if it is not colorable, i.e., if it is ‘immaterial and made solely for the purpose
of obtaining jurisdiction’ or is ‘wholly insubstantial and frivolous.’” Arbaugh, 546 U.S.
at 513 n.10 (quoting Bell v. Hood, 327 U.S. 678, 682–83 (1946)). We previously have
explained the propriety of dismissal on this basis:

“Dismissal for lack of subject-matter jurisdiction because of the
inadequacy of the federal claim is proper only when the claim is ‘so
insubstantial, implausible, foreclosed by prior decisions of this Court, or
otherwise completely devoid of merit as not to involve a federal
controversy.’” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89
(1998) (quoting Oneida Indian Nation of New York v. County of Oneida,
414 U.S. 661, 666 (1974)). This requirement of substantiality or
non-frivolousness of the federal question refers “to whether there is any
legal substance to the position the plaintiff is presenting.” 13B CHARLES
ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL
PRACTICE AND PROCEDURE § 3564 (2d ed.1984).

Primax Recoveries, Inc. v. Gunter, 433 F.3d 515, 519 (6th Cir. 2006); see also Aichai
Hu v. Holder, 335 F. App’x 510, 514 (6th Cir. 2009) (unpublished opinion) (“A claim
is not colorable if it is immaterial and asserted only to support jurisdiction, or if it is
utterly insubstantial and frivolous.”). Although many circuit-court precedents, including
some from this circuit, may undermine Hamdi’s constitutional claims, we cannot say that
No. 09-3285 Hamdi v. Napolitano et al. Page 14

his claims may be dismissed for lack of subject-matter jurisdiction on the grounds of
insubstantiality or frivolousness.9

2. Dismissal Was Proper Because Hamdi Fails to State a
Constitutional Claim Upon Which Relief May Be Granted
Hamdi has failed to state a claim upon which relief can be granted because
federal district courts are prohibited from reviewing and vacating a removal order, the
ultimate relief that Hamdi seeks. Hamdi’s complaint can be reduced to the claim that
because Hamdi has constitutional rights that his mother’s order of removal adversely
affects, and because DHS did not consider Hamdi’s rights in imposing his mother’s
order of removal, Hamdi is entitled to relief. His requested relief is that the federal
district court should review his mother’s order of removal and, taking proper account of
his constitutional rights, cancel that removal order. In its arguments below, DHS
asserted that § 1252(a)(5)10 and § 1252(b)(9),11 operating independently from § 1252(g),
precluded the district court from exercising subject-matter jurisdiction over Hamdi’s

9
Hamdi also relies on international treaties and “the customs and usages of civilized nations” to
assert subject-matter jurisdiction. Because we conclude that jurisdiction is available based on Hamdi’s
constitutional claims, we need not decide whether Hamdi could establish subject-matter jurisdiction on
these bases.
10
§ 1252(a)(5) Exclusive means of review
Notwithstanding any other provision of law (statutory or nonstatutory), including
section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and
1651 of such title, 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 entered or issued under any provision of this chapter, except as
provided in subsection (e) of this section. For purposes of this chapter, in every
provision that limits or eliminates judicial review or jurisdiction to review, the terms
“judicial review” and “jurisdiction to review” include habeas corpus review pursuant
to section 2241 of Title 28, or any other habeas corpus provision, sections 1361 and
1651 of such title, and review pursuant to any other provision of law (statutory or
nonstatutory).
11
§ 1252(b) Requirements for review of orders of removal
With respect to review of an order of removal under subsection (a)(1) of this section, the
following requirements apply: . . . (9) Consolidation of questions for judicial review
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 [§ 1252], no court shall
have jurisdiction, by habeas corpus under section 2241 of Title 28 or
any other habeas corpus provision, by section 1361 or 1651 of such
title, or by any other provision of law (statutory or nonstatutory), to
review such an order or such questions of law or fact.
No. 09-3285 Hamdi v. Napolitano et al. Page 15

claim. Although we acknowledge that the provisions of 8 U.S.C. § 1252, even apart
from § 1252(g) discussed above, are intended to narrow the availability of judicial
review of removal orders and for claims arising from a final order of removal, see
Kucana, 130 S. Ct. at 838–39; AADC, 525 U.S. at 482–86, we conclude that the scope
of the jurisdictional bar in § 1252(b)(9) does not preclude the district court from
exercising subject-matter jurisdiction over Hamdi’s claim. However, § 1252(b)(9) does
operate to preclude the district court from providing the particular relief that Hamdi
seeks—judicial review of his mother’s order of removal and cancellation of that order.

In Nken v. Holder, 129 S. Ct. 1749, 1755 (2009), the Supreme Court explained
the “changes in judicial review of immigration procedures brought on by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat.
3009-546, which substantially amended the Immigration and Nationality Act (INA), 8
U.S.C. § 1101 et seq.,”:

The new review system substantially limited the availability of judicial
review and streamlined all challenges to a removal order into a single
proceeding: the petition for review. See, e.g., 8 U.S.C. § 1252(a)(2)
(barring review of certain removal orders and exercises of executive
discretion); § 1252(b)(3)(C) (establishing strict filing and briefing
deadlines for review proceedings); § 1252(b)(9) (consolidating
challenges into petition for review).

Id. Although § 1252(b)(9) has been described as the “unmistakable ‘zipper’ clause,”
AADC, 525 U.S. at 483, its scope reaches only claims for judicial review “arising from
any action taken or proceeding brought to remove an alien.” § 1252(b)(9). The Supreme
Court has contrasted § 1252(b)(9) with § 1252(g), stating that § 1252(b)(9) is a broader
jurisdictional limitation for review of the legality of final orders of removal than
§ 1252(g) and demonstrates “the normal manner of imposing such a [general
jurisdictional] limitation” for “all claims arising from deportation proceedings.” AADC,
525 U.S. at 482–83; see Muka v. Baker, 559 F.3d 480, 483–85 (6th Cir. 2009)
(explaining impact of § 1252(a)(5) & (b)(9) to channel judicial review of legality of
removal orders). “By its terms, the provision aims to consolidate ‘all questions of law
No. 09-3285 Hamdi v. Napolitano et al. Page 16

and fact’ that ‘arise from’ either an ‘action’ or a ‘proceeding’ brought in connection with
the removal of an alien.” Aguilar, 510 F.3d at 9.

Indeed, § 1252(b)(9) “is a judicial channeling provision, not a claim-barring
one.” Id. at 11. We, like the First Circuit in Aguilar, cannot endorse an interpretation
of the “arising from” language in § 1252(b)(9) that “swallow[s] all claims that might
somehow touch upon, or be traced to, the government’s efforts to remove an alien.” Id.
at 10.

Furthermore, if Congress had intended to accomplish so far-reaching a
result, it could have used broader language. Cf. McNary v. Haitian
Refugee Ctr., Inc., 498 U.S. 479, 496 (1991) (suggesting that if Congress
intended a certain provision of the INA to be read more expansively, it
could have used more expansive language). For example, Congress
would have used the term “related to” instead of “arising from.” See
Humphries[ v. Various Fed. USINS Employees], 164 F.3d [936,] 943[
(5th Cir. 1999)] (suggesting that “related to” signifies a somewhat looser
nexus than “arising from”).

Id. Here, Hamdi’s claim raises his distinct constitutional rights that he alleges his
mother’s removal order adversely affects. We can decide this issue of Hamdi’s
constitutional rights separately from the merits of the order of his mother’s removal itself
because this issue of Hamdi’s rights is distinct from the question of whether his mother’s
order of removal is invalid based on DHS’s failure to consider the effects of his potential
separation from his mother. See id. at 11 (“[R]emoval proceedings are confined to
determining whether a particular alien should be deported.” (citing 8 U.S.C.
§ 1229a(c)(1)(A))). A judicial determination that Hamdi’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.”12
§ 1252(b)(9); see McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 494–96 (1991)

12
See, e.g., Payne-Barahona v. Gonzales, 474 F.3d 1, 2–3 (1st Cir. 2007) (holding petitioner
parent had standing to raise citizen children’s Fifth Amendment claim related to his removal proceedings,
but removal did not violate children’s constitutional rights to have father present in country); Newton v.
INS, 736 F.2d 336, 342 (6th Cir. 1984) (“‘[A] minor child who is fortuitously born here due to his parents’
decision to reside in this country, has not exercised a deliberate decision to make this country his home,
and Congress did not give such a child the ability to confer immigration benefits on his parents . . . .’”
(quoting Perdido v. INS, 420 F.2d 1179, 1181 (5th Cir. 1969))).
No. 09-3285 Hamdi v. Napolitano et al. Page 17

(distinguishing Heckler v. Ringer, 466 U.S. 602 (1984), on ground that granting general
federal-question jurisdiction would not have effect of deciding the merits of claims in
a proceeding separate from and prior to the prescribed judicial-review process under the
relevant statute). This approach does not disregard “Congress[’s] plain[] inten[tion] to
put an end to the scattershot and piecemeal nature of the review process that previously
had held sway in regard to removal proceedings,” Aguilar, 510 F.3d at 9, and instead is
consistent with precedents that have allowed challenges to proceed in the district court
because the petitioner did not challenge the order of removal13 or because an available
remedy would not affect the order of removal.14 See id. at 10–12 (finding support for
“a bounded reading of [§ 1252(b)(9)]” in “the fact that certain claims are excluded from
the sweep of section 1252(b)(9) by virtue of legislative intent [i.e., habeas review of
detention] and judicial precedent [i.e., legality of detention and bail availability]”).

Even though we conclude that § 1252(b)(9) does not bar Hamdi’s claim from
proceeding under general federal-question subject-matter jurisdiction, we must still
consider the district court’s ability to grant the remedy requested. A claim can be
sufficient for subject-matter jurisdiction purposes “even if it is unsuccessful and possibly
verging on the foolhardy in light of prior precedent barring the relief sought.” Primax,
433 F.3d at 519 (internal quotation marks omitted). “‘[T]he possibility that the
averments might fail to state a cause of action on which petitioners could actually

13
See Kellici v. Gonzales, 472 F.3d 416, 419–20 (6th Cir. 2006) (“Where a habeas case does not
address the final order, it is not covered by the plain language of the [REAL ID] Act.”); see also Ruiz v.
Mukasey, 552 F.3d 269, 274 n.3 (2d Cir. 2009) (holding that neither § 1252(a)(5) nor § 1252(b)(9) bars
a district court from exercising subject-matter jurisdiction to review an I-130 petition denial because
“unrelated to any removal action or proceeding”); Aguilar, 510 F.3d at 10–11 (interpreting § 1252(b)(9)
“arising under” not to “sweep within its scope claims with only a remote or attenuated connection to the
removal of an alien”).
14
See Singh, 499 F.3d at 979 (“[A] successful habeas petition in this case will lead to nothing
more than ‘a day in court’ for [the petitioner allowed by § 1252(b)(9)], which is consistent with
Congressional intent underlying the REAL ID Act. For these reasons, [the petitioner’s] second
[ineffective-assistance-of-counsel] claim cannot be construed as seeking judicial review of his final order
of removal, notwithstanding his ultimate goal or desire to overturn that final order of removal.”); id. at 978
(citing cases); cf. Catholic Soc. Servs., Inc., 509 U.S. at 53–56 (construing then-§ 1255a(f)(1) to preclude
jurisdiction only over challenges that either refer to or rely on denial of adjustment-of-status applications
because the provision relating to judicial review defined its scope to reach only denials); McNary, 498 U.S.
at 485–94 (construing 8 U.S.C. § 1160(e)’s judicial-review provisions for special agricultural worker status
application denials not to preclude general federal-question jurisdiction in the district courts for challenges
to the administration of the agricultural worker program because statutory language was not broad enough
to encompass such challenges).
No. 09-3285 Hamdi v. Napolitano et al. Page 18

recover’” does not defeat a district court’s subject-matter jurisdiction, which remains
valid so long as “‘the right of the petitioners to recover under their complaint will be
sustained if the Constitution and the laws of the United States are given one construction
and will be defeated if they are given another.’” Steel Co., 523 U.S. at 89 (quoting Bell
v. Hood, 327 U.S. 678, 682, 685 (1946)). But under the current interpretation of
§ 1252(b)(9), no federal court has the authority to review the order of removal of the
mother Elgharib to determine whether a violation of the child Hamdi’s constitutional
rights renders the imposition of the mother’s removal order invalid or whether the
Immigration Court would have decided, in its discretion, not to order Elgharib’s removal
if it had otherwise entertained the claims now presented by Hamdi.15 Were we to agree
with Hamdi and endorse a different interpretation of § 1252(b)(9) with regard to judicial
review of an actual order of removal of an alien, then he would have a claim that could
survive a Rule 12(b)(6) motion to dismiss. Because we cannot endorse such an
interpretation under current law, see Kucana, 130 S. Ct. at 838–39; AADC, 525 U.S. at

15
We note that we decide this appeal on the ground that Hamdi has failed to state a claim upon
which relief can be granted, rather than on jurisdictional grounds, because it is not the subject matter of
Hamdi’s complaint that the statute prohibits, but rather the relief that he seeks. See Primax Recoveries,
Inc., 433 F.3d at 518–19. In doing so, we are mindful of the Supreme Court’s admonishment “to use the
term ‘jurisdiction’ with more precision,” id. at 518 (citing Kontrick v. Ryan, 540 U.S. 443, 453 (2004)),
so as “to ‘facilitate’ clarity by using the term ‘jurisdictional’ only when it is apposite” as “‘prescriptions
delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction)’
implicating [the court’s adjudicatory] authority,” and not as “claim-processing rules,” Reed Elsevier, Inc.
v. Muchnick, 130 S. Ct. 1237, 1243–44 (2010) (quoting Kontrick, 540 U.S. at 455).
We recognize that Hamdi’s claim may appear to present an Article III standing problem based
on an inability of a court to grant the relief requested, a potential redressability issue. See Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (“[A] plaintiff must show
(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and
(3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision.”). As the Supreme Court has stated, “the fundamental distinction between arguing no cause of
action and arguing no Article III redressability, . . . [is] that the former argument is not squarely directed
at jurisdiction itself, but rather at the existence of a remedy for the alleged violation of federal rights, which
issue is not of the jurisdictional sort which the Court raises on its own motion.” Steel Co., 523 U.S. at 96
(internal quotation marks and alteration omitted) (emphasis added). Here, the ultimate relief requested,
securing cancellation of his mother’s order of removal after judicial review, would remedy Hamdi’s injury
in fact—satisfying Article III standing concerns for redressability—but the court cannot grant the relief
requested under current law—implicating failure-to-state-a-claim concerns. See id.; Bell v. Hood, 327 U.S.
678, 681–84 (1946). “Standing can be established by showing that ‘the practical consequence [of the
court’s order] . . . would amount to a significant increase in the likelihood that the plaintiff would obtain
relief that directly redresses the injury suffered.’” 13A CHARLES ALAN WRIGHT, ARTHUR R. MILLER &
EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3531.6, at 417 (3d ed. 2008) (quoting Utah
v. Evans, 536 U.S. 452, 463 (Breyer, J.) (2002)). Unlike the situation where the complainant has merely
failed to allege appropriate relief, Hamdi has alleged the proper redressable relief for his injury in fact, but
a federal court may not grant such relief under current law. See Holt Civic Club v. City of Tuscaloosa, 439
U.S. 60, 65–66 (1978) (“[A] federal court should not dismiss a meritorious constitutional claim because
the complaint seeks one remedy rather than another plainly appropriate one.”).
No. 09-3285 Hamdi v. Napolitano et al. Page 19

482–86; Elgharib, 600 F.3d at 600 n.2, 603–04; Muka, 559 F.3d at 483–85, we conclude
that Hamdi has failed to state a claim upon which relief could be granted.16 No other
relief was pleaded, and we can identify no other available relief that would redress
Hamdi’s injury in fact without running afoul of current precedent interpreting
§ 1252(b)(9). Therefore, we hold that Hamdi has failed to state a claim upon which
relief can be granted, and the district court did not err in dismissing Hamdi’s complaint.

III. CONCLUSION

We understand Hamdi’s plight, and we are not insensitive to the substantial
hardship that he may endure if and when his mother is finally removed from this country.
However, for the foregoing reasons, we AFFIRM the district court’s order dismissing
Hamdi’s complaint with prejudice based on our conclusion that Hamdi failed to state a
claim upon which a federal court may grant relief.

16
We express no opinion as to what types of requested relief could avoid § 1252’s jurisdictional-
bar provisions, and hold only that the relief requested here—the sole relief appropriate to redress Hamdi’s
injury in fact as presented on appeal—cannot be granted under current law. See Coleman, 454 F. Supp.
2d at 765 (“Nor does Section 1252(g) preclude the Court from rendering the removal order void because
the statute only prohibits a federal court from ‘hear[ing]’ alien claims and says nothing about the Court’s
remedial powers. As a result, [the citizen child] has a cognizable injury that the Court can redress, even
if the sought-after relief would have the incidental benefit of nullifying a removal order, and even if the
Court would not have jurisdiction to grant that relief if [the parent] had brought a claim in her own right.”
(citation omitted)); cf. Deljevic v. Baker, 463 F. Supp. 2d 699, 703 (E.D. Mich. 2006) (“The petitioner has
cited no case, statute, or regulation for the proposition that district courts have the authority to review the
validity vel non of deportation orders or make pronouncements as to their continuing validity, and this
Court has found none.”).
No. 09-3285 Hamdi v. Napolitano et al. Page 20

_____________________

CONCURRENCE
_____________________

JULIA SMITH GIBBONS, Circuit Judge, concurring. Like the majority, I would
affirm the dismissal of Hamdi’s complaint, but my reasoning differs in some respects
from that of the majority opinion. While I fully agree that the jurisdictional bar of
8 U.S.C. § 1252(g) is inapplicable to Hamdi’s claims because they are not brought “on
behalf of” his mother, I disagree with the majority opinion’s analysis with respect to
§ 1252(a)(5) and 1252(b)(9). Taken together, these sections do indeed create a
jurisdictional bar to Hamdi’s claims.

Essentially, Hamdi seeks to challenge the order removing his mother from this
country. Under § 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.
The subsections make no distinction between the individual against whom the order of
removal is explicitly directed and a third party in establishing the petition for review as
the sole vehicle for such a challenge. Thus, giving § 1252(b)(9) its channeling effect
results in the funneling of Hamdi’s challenge to the removal order into a petition for
review, even though Hamdi was not a party to the immigration proceeding and could not
have raised his claim of constitutional violations there.

This result stems from the characterization of Hamdi’s claim as a challenge to
the removal order and one involving legal issues “arising from” his mother’s
immigration proceeding. If Hamdi’s claims were instead collateral to the removal
process, then in my view they could be brought under the APA. As the majority opinion
notes, we would have jurisdiction over Hamdi’s constitutional and international-law
based claims under 28 U.S.C. § 1331. And the APA provides the necessary waiver of
sovereign immunity to permit the claims to proceed. Because the claims were indeed
collateral, they would not be immigration proceedings in which the INA supplants the
APA. Under this analytical route, we would analyze the complaint’s individual claims
to determine whether a claim on which relief could be granted had been stated. But
No. 09-3285 Hamdi v. Napolitano et al. Page 21

because I do not think that Hamdi’s claims can be categorized as collateral to the
removal process, I will not undertake this analysis.

The majority opinion’s view of the substance of Hamdi’s claim seems close to
mine, but it concludes that the problem lies in the relief sought. Proper
conceptualization of this case is not an easy task, but my own view is that, based on
§ 1252(a)(5) and 1252(b)(9), we lack jurisdiction over Hamdi’s claim.