United States Court of Appeals For the First Circuit No. 21-1319 BUNTHOEUN KONG, Plaintiff, Appellant, v. UNITED STATES OF AMERICA, Defendant, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. M. Page Kelley, U.S. Magistrate Judge] Before Kayatta, Lipez, and Gelpí, Circuit Judges. Ethan R. Horowitz, with whom Northeast Justice Center was on brief, for appellant. Eve A. Piemonte, Assistant United States Attorney, with whom Nathaniel R. Mendell, Acting United States Attorney, was on brief, for appellee. Adriana Lafaille and Rebecca R. Krumholz on brief for American Civil Liberties Union of Massachusetts, amicus curiae. March 15, 2023 LIPEZ, Circuit Judge. Bunthoeun Kong claims that he was improperly arrested and detained by federal immigration officers for the purpose of repatriating him to Cambodia. He now seeks damages from the United States under the Federal Tort Claims Act ("FTCA") for false arrest, false imprisonment, and violation of the Massachusetts Civil Rights Act ("MCRA"). Concluding that 8 U.S.C. § 1252(g) deprived it of jurisdiction, the district court dismissed Kong's complaint in its entirety. We reverse and remand. Section 1252(g)'s bar on judicial review of claims "arising from" the government's decision to "execute removal orders" does not preclude jurisdiction over the challenges to the legality of the detention at issue here. I. A. The Deportation Proceedings1 Kong, a native of Cambodia, emigrated to the United States as a refugee in 1982, when he was approximately nine years old. Kong was convicted in California state court on January 23, 1995, for the felony of aggravated assault with a weapon, and he In 1996, Congress combined "deportation" and "exclusion" 1 proceedings into a single "removal" proceeding. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104–208, sec. 304(a), § 240, 110 Stat. 3009–546, 3009–589 to 3009–593 (codified at 8 U.S.C. § 1229a). Because Kong's initial arrest involved a deportation proceeding, we use that phrase here and when referring to his deportation order or warrant. Otherwise, we use the word removal. - 2 - was sentenced to two years' incarceration. In the course of his state incarceration, he was taken into custody by then-U.S. Immigration and Naturalization Service ("INS"), now U.S. Immigration and Customs Enforcement ("ICE"), and placed into deportation proceedings. Kong was ordered to be deported to Cambodia on April 12, 1996, and the government obtained a warrant for his deportation. However, the United States had no repatriation agreement in place with Cambodia at that time, and the Cambodian government refused to accept him. Thus, Kong remained detained in the United States. In July 1999, while Kong was still in custody, the INS informed him that his "removal from the United States [was] not possible or practicable." The notice also advised him that he could be released from custody if he could demonstrate that he would not pose a flight risk or danger to the community. Kong successfully made that showing, and he was granted supervised release in June 2000 after completing an in-custody rehabilitation program that focused …
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