Foster v. Townsley

• Decision Date: 08 March 2001
• Docket Number: No. 00-30467,00-30467
• Citation: 243 F.3d 210
• Parties: (5th Cir. 2001) BALDWIN NEIL FOSTER Plaintiff-Appellant, v. KAREN TOWNSLEY; HENRY, Officer, Officer at Avoyelles Parish Jail; JOHN DOES, 5 Unknown Immigration and Naturalization Officers at Oakdale Immigration and Naturalization Office; DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION SERVICE, 28th District of Louisiana; LYNNE M. UNDERDOWN; EDDIE BASHAM; HENRY LAVALAIS; NANCY HOOKS; BASH, Deportation Officer, Defendants-Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

Page 210

243 F.3d 210 (5th Cir. 2001) BALDWIN NEIL FOSTER Plaintiff-Appellant,
v.
KAREN TOWNSLEY; HENRY, Officer, Officer at Avoyelles Parish Jail; JOHN DOES, 5 Unknown Immigration and Naturalization Officers at Oakdale Immigration and Naturalization Office; DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION SERVICE, 28th District of Louisiana; LYNNE M. UNDERDOWN; EDDIE BASHAM; HENRY LAVALAIS; NANCY HOOKS; BASH, Deportation Officer, Defendants-Appellees. No. 00-30467 UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT March 8, 2001

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Appeal from the United States District Court for the Western District of Louisiana.

Before REYNALDO G. GARZA, DAVIS and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Baldwin Foster ("Foster"), a Jamaican native who sued Immigration and Naturalization Service ("INS") officials for wrongfully removing him from the country, appeals the district court's dismissal for lack of jurisdiction pursuant to 8 U.S.C. 1252(g). Finding that 8 U.S.C. 1252(g) precludes judicial review of Foster's claims, we affirm.

BACKGROUND

This case arises out of the INS's deportation of Foster while his case was pending in the Board of Immigration Appeals (BIA). In November 1996, Foster was issued an order to show cause why he should not be deported after his conviction for an aggravated felony. Foster posted bond and was released from custody in March of 1997. The next month, his attorney, appearing telephonically for a scheduled hearing before the Immigration Judge, requested a continuance for the purpose of filing a motion to change venue. Although the Immigration Judge granted the motion and continued the proceedings, no motion for a change of venue was filed. In June of 1997, neither Foster nor his attorney appeared in New York for a scheduled hearing. Consequently, after determining that proper notice was provided and that deportability had been established, the Immigration Judge ordered that Foster, in absentia, be deported. In September 1997, through new counsel, Foster filed a motion to reopen the proceedings. The Immigration Judge denied his motion in November 1997. Foster appealed this decision to the BIA in December of 1997. In July of 1998, Foster submitted a motion to remand for the consideration of new evidence.

That November, Foster filed a petition for a writ of mandamus in federal court to compel the BIA to rule on his appeal. The magistrate judge, in December of 1998, recommended that the petition be denied.

Foster was deported to Jamaica in December of 1998, while his appeal with the BIA was still pending. In February 1999, the BIA sustained Foster's appeal and ordered that proceedings be reopened and the record remanded to the Immigration Judge. BIA found that the Immigration Judge had erred in denying Foster's motion to reopen the in absentia deportation order because there was a lack of evidence that written notice was sent to Foster's attorney via certified mail, as required by statute. The next month, Foster sought to re-enter the United States pending a decision on his appeal to the BIA. He was returned to the United States in May 1999.

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Upon his return, Foster filed a complaint seeking monetary damages in the amount of five million dollars and declaratory relief for alleged constitutional deprivations pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). At that time, he was confined in the Avoyelles Parish Jail as a detainee of the INS. The named defendants were Karen Townsley, Deportation Officer; Officer Henry Lavalais, prison officer at the jail; Lynne Underdown, district director of the INS; Nancy Hooks, immigration officer; Eddie Basham, immigration officer; and five unknown officers. In his original and amended complaints, Foster alleged that he was improperly removed from the country, that Townsley was in charge of Foster's case, and that she, along with the district director, ordered that Foster be removed to Jamaica even though his motion to reopen was pending before the BIA and there was a stay of deportation order in effect. Foster also alleged that Basham and Hooks conspired with Townsley and others to remove Foster from the country without due process and in contravention of the stay of removal order in effect at the time; that his removal was in retaliation for his filing of a mandamus action against the BIA; that five immigration officers used excessive force when removing him and refused to allow him to talk to an attorney; and that Lavalais, while Foster was being removed and fingerprinted, held Foster's neck and pinned his head to the floor while other officers put their knees in Foster's stomach.

Townsley filed a motion to dismiss, arguing inter alia that the district court lacked jurisdiction under 8 U.S.C. 1252(g) to review any claims challenging the INS officers' decision to order Foster removed. Basham filed a similar motion to dismiss.

After painstaking efforts by both the magistrate judge and district court, the district court adopted the magistrate judge's recommendation to dismiss Hooks and Lavalais,¹ and as to Townsley, Underdown and Basham, concluded that it lacked jurisdiction under 1252(g) and this court's decision in Humphries v. Various Federal USINS Employees, 164 F.3d 936, 942 (5th Cir. 1999). The court reasoned that although Foster had not asserted a direct or habeas challenge to his removal, his challenge had to be authorized by 8 U.S.C. 1252(a)-(f). The court stated that nothing in those sections contemplated an alien's challenging his removal via civil rights actions against INS officials. In addition, the court held that because Foster's claims against Townsley, Underdown and Basham "arise under" the INS's decision to execute a removal order deporting Foster to Jamaica, 1252(g) applies to those claims and precludes judicial review. Therefore, the district court dismissed the claims against Townsley, Underdown and Basham without prejudice for lack of jurisdiction.

Foster...