Noncitizens’ Access to Federal District Courts: the Narrowing of § 1252(b)(9) Post-Jennings

When can a noncitizen bring her claims directly before a federal district court? The answer is complicated, due in large part to a provision of the Immigration and Nationality Act, codified at 8 U.S.C. § 1252(b)(9). That provision states that if a noncitizen’s claims “arise from” her removal proceedings, they cannot be heard by a federal district court. Instead, those claims would be subject to more limited judicial review in a federal court of appeals only after the noncitizen’s immigration removal proceedings have concluded. If, however, a noncitizen’s claims do not “arise from” removal proceedings, § 1252(b)(9) poses no obstacle to district court jurisdiction. In these instances, noncitizens may have a more immediate opportunity to obtain judicial review and hold the government accountable for its potentially unlawful action. This Comment argues that § 1252(b)(9) should be read narrowly in light of the Supreme Court’s decision in Jennings v. Rodriguez. To effectuate that interpretation, this Comment offers and evaluates several factors and frameworks that district courts can employ when confronted with claims that may implicate § 1252(b)(9).

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