Golding v. DHS/ICE

Background

Karim Golding, proceeding without a lawyer, brought a damages claim under Bivens v. Six Unknown Named Agents against Max Gorelik, an Immigration and Customs Enforcement deportation officer. Gorelik was the only defendant remaining in this action. Golding alleged that Gorelik maliciously prosecuted him by identifying him as an “arriving alien” on a Notice to Appear, the document that began immigration removal proceedings. Golding alleged that the classification was wrong and caused him to be subject to mandatory detention.

Golding’s claim had originally been part of a larger lawsuit concerning detention conditions. The claim against Gorelik was separated from that lawsuit and transferred through several federal courts before reaching the Southern District of New York. Gorelik moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal for failure to state a legally sufficient claim.

Subject-Matter Jurisdiction

The court focused first on subject-matter jurisdiction, meaning the court’s legal authority to hear the case. The court held that Golding’s claim required review of legal and factual questions arising from actions taken to remove him from the United States. Specifically, Golding sought to hold Gorelik responsible for the contents of the Notice to Appear that initiated his removal proceedings.

The court applied jurisdictional provisions of the Immigration and Nationality Act, including 8 U.S.C. §§ 1252(b)(9) and 1252(g). Section 1252(b)(9) generally channels review of questions arising from removal actions into judicial review of a final removal order, unless another provision provides jurisdiction. Section 1252(g) further limits courts’ authority over claims arising from the government’s decisions or actions to commence removal proceedings, adjudicate cases, or execute removal orders.

The court concluded that Golding’s Bivens claim was not being presented as part of judicial review of a final removal order and that no other provision of Section 1252 supplied jurisdiction. It therefore held that the court lacked subject-matter jurisdiction over the action.

Bivens Discussion

The court stated that it could not decide whether the claim should be dismissed for failure to state a claim because jurisdiction was absent. Nevertheless, it discussed deficiencies it observed in the Bivens theory. The court explained that the Supreme Court has recognized only limited circumstances allowing damages claims directly under the Constitution and has treated expansion of that remedy as disfavored.

The court concluded that Golding’s alleged malicious-prosecution claim arose in a new Bivens context because the Supreme Court’s prior Bivens cases did not authorize malicious-prosecution claims or similar procedural challenges to government proceedings. The court also found that Gorelik, who was sued for handling and serving the Notice to Appear, represented a new category of defendant compared with defendants in the Supreme Court’s prior Bivens cases. The court further noted that the Immigration and Nationality Act showed congressional intent to restrict judicial review of challenges arising from removal proceedings, which provided an additional reason for hesitation about creating a Bivens remedy.

Disposition

The court dismissed the action for lack of subject-matter jurisdiction. It directed the clerk to terminate the action and mail Golding a copy of the opinion and order. The opinion does not state that the dismissal was with or without prejudice. Judge Vernon S. Broderick’s jurisdictional ruling, rather than a ruling on whether Golding adequately pleaded a Bivens claim, was the basis for the disposition.