Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction

Case 3:07-cv-01436-RNC Document 51-2 Filed 02/01/2008 Page 14 of 32judge (or the BIA for that matter) could terminate removal proceedings against these aliens. Thistype of relief creates a sufficient incentive for immigration officials to comply with theConstitution. Simply characterizing their allegations as Bivens or FTCA claims does not takethem outside the scope of § 1252(b)(9) because all of their claims raise questions of law or fact13arising from ICE’s actions take to remove them from the United States. Moreover, anyassertion by Plaintiffs that their claims here do not arise from actions taken to remove themwould be disingenuous considering they have raised the identical claims in this lawsuit that arepending before the Immigration Court and which can be raised on appeal to the BIA andultimately the Court of Appeals. In the event an Immigration Judge (or the BIA for that matter)determines that Plaintiffs’ constitutional rights have been violated, although money damages areunavailable, suppression and termination of proceedings would adequately protect any violationof their constitutional rights. Additionally, such claims are subject to judicial review within theCourt of Appeals. As such, Plaintiffs have meaningful administrative and judicial review of theclaims they raise in this lawsuit within the statutory scheme delineated by Congress in the INA.The bases for Plaintiffs’ arrests and detention, of course, are the same bases on which thegovernment is seeking removal. Plaintiffs’ claims here and in removal proceedings all arise fromtheir arrests, detention and treatment while detained. As outlined above, Plaintiffs have ampleadministrative review protections in place under the INA to redress violations, constitutional orotherwise, alleged to have been committed by immigration officers as part of the removal13Although Plaintiffs’ conditions of confinement claims alleging harsh treatment arguably falloutside of the purview of § 1252(b)(9), they still must be exhausted before the immigration court.Regardless, concerning the conditions of confinement claims at the state facilities, there are nospecific allegations directed at the individual federal defendants named in this lawsuit and thusany Bivens claim based on that conduct should be dismissed.14