you your honor good morning please the court my name is mark stephens and i represent the plaintiff appellant juan blanco i'd like to reserve five minutes for rebuttal were asking the court to hold that the government does not have the discretionary authority to detain and deport u s citizens under civil immigration laws the district court wrongfully dismissed the complaint based on the discretionary function exception this exception involves a threshold inquiry into whether this is the type of tort for which congress has waived sovereign immunity the district court erred by focusing on the investigation which is not the conduct that were challenging the district court also erred in finding that factual determinations  discretionary reasoning that immigration officers must evaluate the factual circumstances they encounter and use their judgment judging whether a fact is true is not the type of judgment that is protected by the discretionary function exceptions it's the discretion to make policy judgments not factual determination this exception applies if two conditions are both satisfied st was the challenge to action the result of judgment or choice about the best course of action this prong is not satisfied if a federal statute regulation or policy mandates a course of action for the government to follow the nd part of the test is whether the challenge to action was based on considerations of public policy meaning economic social or political policy turn into application of the st part of the test the st part of the test is not satisfied here because the government has no authority to arrest when they quote have reason to believe someone is violating immigration law and the words reason to believe understand what the mandatory directive is that would overcome that language in the statute yes your honor i think the best mandatory directive here the clearest one is eighteen u s code four  fact that agencies don't have an apparent power to enforce law they have the powers that are given to them by statute and if you look at all the statutes that give them the power to detain people and start removal proceedings all the statutes only mentioned aliens so they don't mention u s citizens and because of these mandatory directives discretionary function exception does not apply and the analysis should end here the analysis is simple and straightforward we identify the challenge to action and then we identify whether that action is governed by mandatory laws that dictate a course of action for the government to follow counsel counsel this is judge perry started by saying that the district court erred in focusing on the investigation and so i as i understand your position you agree with the district court that how the officers conducting the investigation that itself has an element of judgment or discretion that right i do your honor and i think the thing is i'm sorry i just want to show i understand your argument so that is discretionary but then when the discretion and and that right there is where i would like you to sort of explain to me how that can be right and i feel like this is maybe a particularly hard case to make to a bunch of appellate judges since this is sort of what we do for a living is apply facts to law and it seems to me at least like that often involves some judgment so why is that a judgment free exercise yes your honor so if you so it sounds like you're referring to the citizenship can be difficult it can involve some judgment yes it can definitely be difficult and just because i'm saying that the discretionary function exception doesn't apply that doesn't necessarily mean that the government is liable if they do a reasonably good job and you know it may turn out that they're not liable in this case under the facts but the statute is not worded in discretionary terms and i have to follow up on what  harris is saying if we tried to separate investigation from arrest and detention that would be an o  the investigation and the arrest and the detention seem to me to be part of their single sequence one follows from the all the from the other you can't have an arrest without investigation first and you haven't attended detention without an investigation and i think the th circuit if we were to try to separate them we're would we be we would be creating a circuit conflict would we not i don't believe so i know because your honor because that's an believe so the investigation the detention and the removal are all linked for the purposes of determining liability at the merits phase of this trial but we're at a preliminary stage we're looking at a threshold inquiry into whether  the challenge actions are governed by any mandatory laws and so we have to identify what the challenge to action is and whether it's governed by mandatory laws so the mandatory laws that govern discretion investigations are relatively loose some of the current memos obligated them to investigate claims to u s citizenship but we're not relying on that we're saying that the challenge to action is detaining a u s citizen and that is clearly not discretionary and we're saying that they ought to go back to what george harris said this a lot of times applying facts to law and a lot of times deciding whether the investigation follows from investigation and it would be an act of judgment all of all in itself in this instance  the whole situation was confusing in the sense that we're talking here about this wasn't a cut and dried cut and dried matter there was confusion i suppose because it was a question of derivative that's still under case law negligence doesn't rank somebody outside the scope of the discretionary function exception and so you ask why that waiver of sovereign immunity still it still applies even if there is negligence conduct because the statute says it applies even if that discretion is abused and that seems to suggest well even if the discretion is abused it's still it still applies it's  law from this kind of torture and and to me that when you couple the language reason to believe with even if that discretion is abused it seems to me to present a pretty sound case for immunity so you're on of the these sorts of points that you know they were looking at a complicated question that's difficult to assess and you know mr blanco may have conceded something at some point those are all important points at the merits and or liability phase of this trial and i recognize perfectly well that under the facts that we have it may well be difficult for only an immunity from liability but it's an immunity from from going to deep into the litigated process and that's what that's those decisions are there and they talk about immunity as immunity from suit not just immunity from ultimate liability you can lose an immunity if you've gone through if you if you go through what we all know can be a laborious process attendant on litigation yes your honor the problem with trying to assess liability now is we haven't developed the factual record and i think i think the i'm sorry counsel can i go ahead and i and it basically recognizes that law enforcement officers they do have a lot of powers and they have a lot of protections that the merit says but that doesn't make the discretionary function analysis and the mechanical duties  of identifying whether someone needs to meet the criteria for entry to this country that doesn't change that into a discretionary determination counsel can i just want to ask you one last question for me at least you referred quickly to the there have been some directives since the time of the events that have been issued and i know we now have this so called morning memo that kind of walked officers to the steps they need to take when there's a question as to citizenship and requires that they consult with counsel and i think the facts of this case make clear why not is probably an excellent idea but just in reading that directive it struck me that that's sort of what's missing from this case that looks like berk like here's a particular set of steps you have to go through in making your determination and it seemed to me that that almost sort of highlighted what we don't have here and i just wanted to give you a chance to respond to that concern of mine yes your honor i think you can look at this case you know there's different parts of the facts here you know did they investigate our position has always been that they investigated just fine they got all the facts that they needed then there is the application of law to those facts and as i've tried to explain that's a mechanical function of just judging facts and then there's really the core of our complaint is that they detained a u s citizen and that is not discretionary and i think a lot of the government's defenses such as that mr blanco you know may have conceded at some point i think that goes to the merits of the claim and not this threshold question which is where we were supposed to identify the challenged action the discretionary function applies to the united states his decision to investigate mr bongos immigration status and to adjudicate his claim to derivative citizenship in two thousand and four which led to his detention removal in two thousand and four and subsequent detention detaining people born in the united states to immigrant parents who may or may not be documented and his e mails when they show up saying that look i just determine these people are not citizens because i can't confirm that their parents are documented and i think that birthright citizenship is made up and that's not what the th amendment means so he teamed them and deported is that a disc is that an exercise of discretion that would be protected under the discretionary function like no i don't think so your honor i'm not   any of the cases an hour to go is being sample specifically call out that if there's no allegation of there's no allegation of intentional misconduct and there's nothing intentional he this is the officer best understanding of the law he made a legal  previous part of the argument which is that individuals of foreign birth they carry the burden to demonstrate citizenship so in your hypothetical identity whether or not the officer here is exercising a discretionary function the officer was as you said in this regard only when you made a legal mistake you made a really obvious legal mistake which is what happened in this case i mean we know what went wrong you're right the officer just misunderstood the law and he thought because the custody was not set out in the divorce decree that meant that this person was not eligible for citizenship and that was just wrong as a matter of law so i'm just giving you barely even a hypothetical question i just made a little demonstrate there are a lot of factual questions in inherent so if it's not such an up down to determine the determination that question of actual intent testing which is distinct from an individual who was born united states with  gesture i would agree that the the inquiry that all the courts including virtually all the courts of look at is this question of who to investigate how to investigate whether to prosecute all these classic discretionary determinations as you senator of a high level what i was endeavoring to draw the line was which is what other courts have distinguished is the question of intentional misconduct versus and there are different hypotheticals of what that could be judge harrison's as one of those but that's the line i was a tempo my hypothetical is not about intentional misconduct just to be clear my hypothetical is about a good faith legal error ok so your honor i get them the the one the key fob draws is between intentional misconduct and negligen and the statute is clear the discretionary function exception is if that discretion is abused it is still in compas in this exception to the waiver of sovereign immunity which i think addresses judge richardson's question which is that how are we supposed to draw these lines will the statute draws the line that the discretion can be abused and nevertheless the conduct still falls within function exception in the same way you would with absolute prosecutorial immunity if you said well there is this immunity that is absolute but on the other there or it's not and you say well is this too is this too harsh a position and i think you get back to the old givens question which is are there alternative remedies to safeguard against the kind of very unfortunate situation that my friend and colleague judge harris posits and you hear you do have an alternative remedy if the discretion is abused the very elaborate administrative removal process that we have to guard against these kind of mistakes and you know will go before  makes a bad judgment as to whether investigation and an arrest are are justified and you can certainly and obviously one of the st thing you would say before and i some sort of harmony and what you have is you have a discretionary function exception to protect against lidgerwood lay wrongful arrest and detention and then to protect the i think the visual officer from liability but along with that protection of the individual officer from from liability which could chew up the immigration enforcement system you have this fortunately i don't think we have any intentional harm but i do think you can i worry about diluting the immunity  torch right that's right your honor and that's certainly what happened here plaintiff was counseled during the admin agree immigration proceeding and according to the documents that were in the just want to give you the chance to respond to an argument it's not really developed too much but we decided a case sort of in the midst of briefing called sanders versus united states in which  employee was charged with investigating in some respect with respect to the in c i c records for buying guns and the court there recognized i think as we have here th no you don't generally have a mandate in an investigation but sanders went on to find a mandate in the in the operating procedures they are requiring  follow up under certain circumstances and i just wanted your take own how you why you think that case doesn't apply here and i guess there are a couple different avenues that you could go but instead of positing an answer one particular mandate somewhere in the universe of the law but rather inquiries whether you look at the statutory scheme you look at their conduct as a whole to determine whether and discretionary whether involves an element of judgment or choice and the cases are numerous than of how that quintessential discretionary act to be specifically to immigration status determining a person like that's that's not fundamentally different from what they're looking into and sanders investigation and sanders is fundamentally different than the investigation here and center says even though it's discretionary as a general matter this one operating procedure requiring follow up under these circumstances was sufficient to overcome the discretionary function exception so i'm not i'm not aware of a parallel operating procedure that was  because the facts which are taken is true in the complaint which is that the plaintiffs did concede that he was going born and then proceeded to not carry his burden to demonstrate citizenship that well established area of law that i think we can easily distinguish standers because there isn't this is not a situation where the citizenship was in some sense  when you have anything further counsel to get out i'm happy to continue i just wasn't sure judge harris had another question no thank you i'm fine ok i'm sorry so quickly i just we just wanted you know that  all right thank you counsel you have some with boca thank you your honor so one quick factual point our complaint never stated that she conceded alien edge and the government hasn't provided direct evidence of what he did concede just secondhand evidence and one legal point in response to judge harris's question about intentional wrongdoing and i know that the district court decision here mentions that the exception might not apply to intentional wrongdoing by law enforcement but if that's the case then that would limit the torts to malicious prosecution and that's contrary to another subsection of the same statute which is twenty eight  eighty eight dollars it says the law enforcement and investigative officers may be liable for assault battery false imprisonment false arrest and abuse of process not just malicious prosecution so this is a point that's made in that nd circuit decision that i mentioned and so i know that these are separate subsections but you cannot view them as accomplishing completely contrary things and so if you over expand the discretionary function