RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 22a0259p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ┐ RICCY MABEL ENRIQUEZ-PERDOMO, │ Plaintiff-Appellant, │ > No. 20-6393 │ v. │ │ RICARDO A. NEWMAN, et al., │ Defendants-Appellees. │ ┘ Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 3:18-cv-00549—Charles R. Simpson, III, District Judge. Argued: July 22, 2021 Decided and Filed: December 5, 2022 Before: BATCHELDER, WHITE, and DONALD, Circuit Judges. _________________ COUNSEL ARGUED: Benjamin T. D. Pugh, PUGH & ROACH ATTORNEYS AT LAW, PLLC, Covington, Kentucky, for Appellant. Timothy D. Thompson, UNITED STATES ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellees. ON BRIEF: Benjamin T. D. Pugh, Christopher D. Roach, PUGH & ROACH ATTORNEYS AT LAW, PLLC, Covington, Kentucky, Michael J. O’Hara, O’HARA, TAYLOR, SLOAN & CASSIDY, Crestview Hills, Kentucky, for Appellant. Timothy D. Thompson, UNITED STATES ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellees. WHITE, J., delivered the opinion of the court in which DONALD, J., joined. BATCHELDER, J. (pp. 19–21), delivered a separate dissenting opinion. No. 20-6393 Enriquez-Perdomo v. Newman, et al. Page 2 _________________ OPINION _________________ HELENE N. WHITE, Circuit Judge. Plaintiff-Appellant Riccy Enriquez-Perdomo appeals the district court’s dismissal of her claims against Defendants-Appellees United States Immigration and Customs Enforcement (ICE) officers Ricardo Newman, Joseph Phelps, John Korkin, and Shawn Byers (collectively, “Defendants”), brought under the First, Fourth, and Fifth Amendments to the United States Constitution. The district court dismissed Enriquez-Perdomo’s complaint for lack of subject-matter jurisdiction under 8 U.S.C. § 1252(g). We AFFIRM the dismissal of Enriquez-Perdomo’s First Amendment retaliation claim, VACATE the judgment with respect to her other claims, and REMAND for further proceedings consistent with this opinion. I. A. Factual Background Enriquez-Perdomo is a Honduran national and resident of Florence, Kentucky. In August 2004, when Enriquez-Perdomo was nine years old, an immigration judge in Harlingen, Texas, ordered that she be removed to Honduras after she failed to appear at her removal hearing. The next month, on September 16, 2004, an Immigration and Naturalization Service (INS) official signed a warrant of removal/deportation. The INS directed Enriquez-Perdomo to report to Harlingen in October 2004, but never removed her. In 2012, the Department of Homeland Security (DHS) instituted an immigration-relief program called Deferred Action for Childhood Arrivals (DACA). Under DACA, certain young immigrants may apply for a renewable two-year deferral of removal. DACA applies only to persons who immigrated to the United States when they were under the age of sixteen; were under the age of thirty-one in 2012; have continuously resided in the United States since 2007; are currently in school, have completed high school, have obtained a general-education- development certificate, or are honorably discharged veterans; have not been convicted of a felony, a significant misdemeanor, or multiple misdemeanors; and pose no threat to national No. 20-6393 Enriquez-Perdomo v. Newman, et al. Page 3 security or public safety. DHS “exercis[es] its prosecutorial discretion” to defer removal under DACA “on an individual basis.” R. 29-1, PID 152–53. The …
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