IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 11-14240

________________________

D.C. Docket No. 6:10-cv-00280-ACC-GJK

ANESH GUPTA, 

 Plaintiff - Appellant,

versus

RICHARD T MCGAHEY, 

Senior Special Agent, U.S. Immigration 

and Customs Enforcement, 

TIMOTHY WARGO, 

Supervisory Special Agent, US Immigration 

and Customs Enforcement (ICE), 

JOHN KAUFMAN, 

Special Agent, US Immigration

and Customs Enforcement (ICE), 

 Defendants - Appellees,

U.S. IMMIGRATION AND 

CUSTOMS ENFORCEMENT, et al.,

 Defendants.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

Case: 11-14240 Date Filed: 11/07/2013 Page: 1 of 12 
2

ORDER ON REHEARING EN BANC

Before CARNES, Chief Judge, TJOFLAT, DUBINA, BARKETT, HULL, 

MARCUS, WILSON, PRYOR, MARTIN, and JORDAN, Circuit Judges.*

BY THE COURT:

A member of this Court in active service having requested a poll on whether 

this case should be reheard by the Court sitting en banc, and a majority of the 

judges in active service on this Court having voted against granting a rehearing en 

banc, IT IS ORDERED that the Suggestion of Rehearing En Banc is DENIED.

__________________________

CHIEF JUDGE

 * As an active judge of this Court at the time the en banc poll was conducted, Judge 

Barkett participated in this case. See Fed. R. App. P. 35, 11th Cir. IOP 7. Because she retired 

from service on September 30, 2013, she did not participate in the consideration of this case after 

that date. 

Case: 11-14240 Date Filed: 11/07/2013 Page: 2 of 12 
3

WILSON, Circuit Judge, concurring in the denial of rehearing en banc:

I was on the panel that heard and decided this appeal. While I do not join 

Judge Martin’s strong dissent, I agree that Bivens relief should not be categorically 

denied whenever the government can tangentially relate the alleged violation to 

removal proceedings. I also agree that if our opinion had cut off Bivens relief in 

this manner, then this appeal would present a question of “exceptional importance” 

justifying consideration by the entire court. Fed. R. App. P. 35, 11th Cir. R. 35-

3. Ultimately, I do not join the dissent because I do not believe this is what our 

panel opinion does. 

Far from announcing a categorical rule that “shield[s] from federal judicial 

oversight” a range of “law enforcement abuse” that is only tangentially related to 

removal proceedings, Dissenting Op. at 6, our panel opinion merely affirmed the 

district court’s determination that it lacked subject matter jurisdiction “to allow a 

Bivens action in this context,” Gupta v. McGahey, 709 F.3d 1062, 1064 (11th Cir. 

2013) (emphasis added).1

 This context involved arrest, detention, searches, and 

seizures directly related to removal proceedings and the offense that prompted 

officials to deem removal proceedings necessary. There was no evidence of 

pretext. There was no evidence of egregious conduct. There was no evidence that 

 1 Our panel opinion explicitly and consistently narrowed the scope of its holding to “this 

context.” On appeal, Gupta “also argues that the district court should have recognized his Bivens

action in this context.” Gupta, 709 F.3d at 1064 (emphasis added). 

Case: 11-14240 Date Filed: 11/07/2013 Page: 3 of 12 
4

the searches and seizures were unrelated to the desire to remove Gupta, though to 

be sure there was an additional purpose of promoting public safety. In this 

instance, critically, the animating goal of the officers was to remove Gupta. 

The dissent states that our decision has no limiting principles, Dissenting 

Op. at 6, but that is merely because the case did not present us with an opportunity 

to establish limiting principles. Indeed, limiting principles are mandated by one of 

the most basic tenets of our constitutional jurisprudence: “[W]here there is a legal 

right, there is also a legal remedy by suit or action at law, whenever that right is 

invaded.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (internal 

quotation marks omitted). And this court has established that even aliens subject 

to removal proceedings have rights under the Constitution. See Lapaix v. U.S. 

Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010) (per curiam) (noting that aliens 

are entitled to due process of the law in removal proceedings); Garcia v. Att’y Gen. 

of U.S., 329 F.3d 1217, 1223 (11th Cir. 2003) (per curiam) (noting that aliens 

“have the right to effective assistance of counsel at deportation proceedings”). 

If a future case arises where removal proceedings are used as pretext to 

shield law enforcement abuses from federal judicial oversight, or where the 

conduct is more egregious, or where it is less related to the commencement of 

removal proceedings, then we will have occasion to announce limiting principles 

consistent with well-established jurisprudence. Should the scenario come along 

Case: 11-14240 Date Filed: 11/07/2013 Page: 4 of 12 
5

where an alien is, for example, physically beaten during the course of what ought 

to be a peaceful arrest arising from a decision to commence removal proceedings, 

judicial review would likely be necessary because I am able to discern no 

mechanism within the INA’s administrative scheme to remedy the wrong. See, 

e.g., Turkmen v. Ashcroft, 915 F. Supp. 2d 314, 353 (E.D.N.Y. 2013) (holding that 

the INA administrative scheme provides no appropriate remedy for detainees 

whose religious rights have been “intentionally and maliciously” violated). In such 

circumstances, our panel opinion does not constitute precedent that will 

unconditionally bar aliens from seeking relief from egregious constitutional 

violations. 

Nothing in our opinion states that it should be read as broadly as Judge 

Martin suggests, and I take the words “in this context” as an express 

acknowledgment that the rule applied in our panel’s opinion should be limited by 

the facts of the case. Our opinion held that for “‘any . . . claim . . . arising from the 

decision or action by the Attorney General to commence [removal] proceedings,’” 

§ 1252(g) bars federal court jurisdiction. Gupta, 709 F.3d at 1065 (quoting 8 

U.S.C. § 1252(g)). The dissent fears that our panel’s opinion will be erroneously 

extended—perhaps based on the broad scope of the word “any” but without 

accounting for the limiting words “arising from”—beyond the factual scenario at 

issue in this case. If and when that error is made, we will have occasion to correct 

Case: 11-14240 Date Filed: 11/07/2013 Page: 5 of 12 
6

the error and set limiting principles with more precision.2 Our panel’s decision is

correct in this limited context.

 2 Without announcing any such principles—because, again, this case does not present us 

with the opportunity to do so—I note that law enforcement brutality and pretextual arrests do not 

“arise from” a decision to “commence [removal] proceedings” because such activities are 

entirely unnecessary to accomplish removal. Thus, if those activities occur, it cannot be said that 

they arose from the decision to commence removal proceedings even though they would be 

tangentially related to removal. 

Case: 11-14240 Date Filed: 11/07/2013 Page: 6 of 12 
7

MARTIN, Circuit Judge, dissenting from the denial of rehearing en banc:

I respectfully dissent from the denial of rehearing en banc. In Mr. Gupta’s 

case, the Panel concluded that 8 U.S.C. § 1252(g) bars us from considering his 

Fourth and Fifth Amendment Bivens claims. However, the panel opinion does not 

explain why this is so. Indeed, the panel opinion is so bare of analysis that its 

discussion of this point cites no cases—not even Reno v. American-Arab AntiDiscrimination Committee, which is the seminal Supreme Court case addressing 

§ 1252(g)’s scope. 525 U.S. 471, 119 S. Ct. 936 (1999) (AADC). Thus, relying 

upon little more than bald assertions and self-reinforcing statements, the panel 

opinion closes the courthouse doors to a broad swath of tort and constitutional 

claims. I believe Mr. Gupta’s case deserves more thorough consideration. Beyond 

that, this case presents such important and novel issues that en banc rehearing is 

necessary and appropriate. 

I.

First, I cannot agree with the Panel’s conclusion that 8 U.S.C. § 1252(g) 

unambiguously bars our consideration of Mr. Gupta’s claims because they arise 

from “action[s] taken to commence proceedings.” Of course it is true § 1252(g) 

provides that “no court shall have jurisdiction to hear any cause or claim . . . 

arising from the decision or action by the Attorney General to commence 

proceedings, adjudicate cases, or execute removal orders against any alien.” 

Case: 11-14240 Date Filed: 11/07/2013 Page: 7 of 12 
8

However, it is hard to understand how the decisions to arrest Mr. Gupta, to detain 

him, and to search his home and automobile were related in any way to the 

commencement of removal proceedings against him. 

In AADC, the Supreme Court warned us repeatedly that § 1252(g) is to be 

read narrowly. The Court instructed us that § 1252(g) does not apply to the 

“universe of deportation claims.” 525 U.S. at 482, 119 S. Ct. at 943. Instead, 

§ 1252(g) “applies only to three discrete actions that the Attorney General may 

take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or 

execute removal orders.’” Id. (quoting 8 U.S.C. § 1252(g)). Indeed to emphasize 

and illustrate this point, the Supreme Court listed a number of decisions and 

actions for which Article III jurisdiction would lie. Id. (noting that courts still can 

review “the decisions to open an investigation, to surveil the suspected violator, to 

reschedule the deportation hearing, to include various provisions in the final order 

that is the product of the adjudication, and to refuse reconsideration of that order”). 

This list illustrates how § 1252(g) is not a “shorthand way of referring to all claims 

arising from deportation proceedings.” Id.

Especially in light of the Supreme Court’s mandate to read § 1252(g) 

narrowly, I dispute the Panel’s finding that Mr. Gupta’s claims all arose from 

actions to commence proceedings. We know that, for example, the 

commencement of proceedings did not require the actions taken by law 

Case: 11-14240 Date Filed: 11/07/2013 Page: 8 of 12 
9

enforcement against Mr. Gupta here. See 8 U.S.C. § 1226(a) (explaining that in 

most circumstances, “an alien may be arrested and detained pending a decision on 

whether the alien is to be removed from the United States.” (emphasis added)); 8 

C.F.R. § 236.1(b)(1) (“At the time of issuance of the notice to appear . . . the 

respondent may be arrested and taken into custody . . . .” (emphasis added)). We 

also know from the Record of Deportable Alien and Notice of Appearance that Mr. 

Gupta lost his immigration status in July 2009, weeks before the claims asserted in 

his Bivens action materialized. Said another way, even if Mr. Gupta had never 

been arrested or detained, and even if his things had not been searched and seized, 

the removal proceedings against him could and would have still begun (in the 

language of the statute “commenced”). 

It is also important to keep in mind that barring Mr. Gupta’s claims here 

does nothing to further the limited purposes of the § 1252(g) jurisdictional bar. In 

AADC, the Supreme Court explained that § 1252(g) was strictly designed to shield 

prosecutorial discretion from review, as opposed to any and all executive action 

tangentially related to the commencement of proceedings. 525 U.S. at 485 n.9, 

119 S. Ct. at 944 n.9 (“It was the acts covered by § 1252(g) that had prompted 

challenges to the Attorney General’s exercise of prosecutorial discretion.”). In 

particular, § 1252(g) was “specifically directed at the deconstruction, 

fragmentation, and hence prolongation of removal proceedings.” Id. at 487, 119 S. 

Case: 11-14240 Date Filed: 11/07/2013 Page: 9 of 12 
10

Ct. at 945. Mr. Gupta’s Bivens claims, however, do not in any way challenge the 

Attorney General’s discretion to commence removal proceedings. Nor would Mr. 

Gupta’s suit prolong his removal proceedings or delay his removal, because he can 

continue to litigate his civil rights claims from abroad if he is removed before the 

litigation is over. Based on these things, I do not agree that Mr. Gupta’s claims are 

barred by § 1252(g).

II.

Setting aside for now the question of whether the Panel arrived at the proper 

result for Mr. Gupta, it is the Panel’s cursory approach in deciding his case that is 

most troubling. The panel opinion states that Mr. Gupta’s claims fall into two 

categories: (1) actions taken to secure Mr. Gupta and (2) those taken to prevent 

potential danger to Disney World, as a Critical Infrastructure asset. Then without 

explanation or analysis, the Panel simply concludes that both of these categories 

are easily classified as “actions” that “commence[d] removal proceedings.” As 

I’ve said, this portion of the opinion contains no case citations, not even to AADC, 

which is the leading case on the interpretation of § 1252(g). Because the opinion 

reflects no analysis or meaningful reasoning, the result it reaches seems obvious 

and easy.

However, the problem presented by Mr. Gupta’s case does not lend itself to 

an easy or self-evident result. In fact, courts considering this issue have broken 

Case: 11-14240 Date Filed: 11/07/2013 Page: 10 of 12 
11

both ways. Compare Khorrami v. Rolince, 493 F. Supp. 2d 1061, 1068 (N.D. Ill. 

2007) (claims for illegal arrest and detention barred by § 1252(g) because they are 

a “direct outgrowth” of the decision to commence proceedings), with Parra v. 

Perryman, 172 F.3d 954, 957 (7th Cir. 1999) (noting that § 1252(g) did not bar 

alien’s habeas claim concerning detention); Diaz-Bernal v. Myers, 758 F. Supp. 2d 

106, 125 (D. Conn. 2010) (holding that Fourth Amendment claims against raid 

officers did not involve commencement, adjudication, or execution of removal 

proceedings); El Badrawi v. Dep’t of Homeland Sec., 579 F. Supp. 2d 249, 266 (D. 

Conn. 2008) (holding that decision to detain and arrest is “discrete” from the 

decision to commence removal proceedings). Very few courts have found—like 

the panel opinion—that the questions involved here are “unambiguous” based on a 

plain reading of § 1252(g). See, e.g., Humphries v. Various Fed. USINS Emps., 

164 F.3d 936, 942–43 (5th Cir. 1999) (“In determining whether any of Humphries’ 

remaining claims . . . ‘arise from’ certain decisions or actions, we find little 

assistance in the precise language of the statute. Congress has provided no explicit 

definition of the phrase ‘arising from,’ and courts have not always agreed on its 

plain meaning.” (alterations omitted)); Khorrami, 493 F. Supp. 2d at 1068–69 (“I 

note that I am not at all certain that this is the type of claim Congress sought to bar 

when it enacted § 1252(g).”). Based on this statute’s potential for conflicting 

interpretations, an en banc rehearing would have been helpful to produce an 

Case: 11-14240 Date Filed: 11/07/2013 Page: 11 of 12 
12

opinion that more fully explains itself, thus giving meaningful guidance to courts 

and future litigants, even if it arrived at the same result.

III.

To summarize, I dissent to the denial of en banc review because I am 

concerned about the potential implications of the panel opinion. It lacks limiting 

principles to such an extent that I fear it could be read to bar federal courts from 

considering any tort or constitutional claims arising during a search or an arrest, so 

long as the government claims it is tangentially related to the decision to 

commence removal proceedings. It does not take a particularly active imagination 

to envision the types of law enforcement abuse that could be shielded from federal 

judicial oversight as a result of this decision. See Webster v. Doe, 486 U.S. 592, 

603, 108 S. Ct. 2047, 2053 (1988) (warning that serious constitutional questions 

would arise if a “federal statute were construed to deny any judicial forum for a 

colorable constitutional claim”). 

At a minimum, those who come to our federal courts to claim their rights 

under our Constitution should have a more thorough explanation about why Article 

III judges are barred from hearing even valid claims. We can and should do better.

Case: 11-14240 Date Filed: 11/07/2013 Page: 12 of 12