In Castañon-Nava v. U.S. Dep’t of Homeland Security, No. 25-3050 (7th Cir. May 5, 2026), a divided panel (with a concurrence in the judgment and a dissent) holds that 8 U.S.C. § 1252(f)(1) of the Immigration and Naturalization Act, which governs judicial review of orders of removal, is a limitation on relief rather than on federal judicial power. Thus, the panel majority holds that federal agencies waived the protection of that section by entering into a Consent Decree.
Section 1252(f)(1) precludes a federal court (other than Supreme Court) from entering classwide injunctive relief limiting DHS’s powers to arrest, detain, or remove aliens:
“Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.”
Plaintiffs filed this suit against the DHS and the U.S. Immigration and Customs Enforcement (ICE), alleging that they systematically violated 8 U.S.C. § 1357(a)(2) by arresting noncitizens without reason to believe that they were likely to escape before warrants could be obtained. Four years into the litigation (2022), the parties reached a consent decree providing, among other things, that the agencies would comply with § 1357(a)(2) when making warrantless arrests.
In relevant part, the agencies appealed to the Seventh Circuit an order “extend[ing] the Consent Decree by 118 days due to Defendants’ substantial noncompliance with its terms.” Among the arguments the agencies made on appeal is that the consent decree extension contravenes Section 1252(f)(1).
In a 91-page opinion, the panel splits three ways on the merits; the majority affirms the extension (and a related order to release roughly 200 class members). Before reaching the merits, though, the panel majority considers whether the federal government waived the merits of its argument by not timely objecting in the district court.
The majority opinion (joined by the concurring judge) finds waiver. The panel majority notes that the government was certainly aware of the argument. “[T]hey made this exact argument before the district court on at least two separate occasions before agreeing to the Consent Decree . . . . Then, to obtain the benefits of settlement, Defendants abandoned the argument, thereby waiving it.”
“In response, Defendants argue that a § 1252(f)(1) objection is unwaivable because it is jurisdictional.” So the panel must grapple with whether this subsection of the law limits federal judicial power, thus unwaivable, or is simply a limitation on remedies.
The panel majority concludes that “there is ample reason to believe that [the subsection] is [waivable], given that objections to similar rules limiting the reach of a federal court’s power are waivable,” such as venue, personal jurisdiction, and state sovereign immunity.
“Consider the rules governing equitable jurisdiction, perhaps the closest analogy, which limit a federal court’s power to grant equitable relief.” This doctrine considers “whether consistently with the principles governing equitable relief [a federal] court may exercise its remedial powers.” All parties agreed that such equitable jurisdiction can be waived.
“In much the same way, § 1252(f)(1) limits a court’s power to grant equitable relief (here, in the form of a classwide injunction) under certain conditions. Accordingly, as in the case of equitable jurisdiction, we conclude that any objection based on § 1252(f)(1) is waivable, and Defendants did so here.” (Judge Pryor, concurring in part and in the judgment, agrees that the agencies “waived reliance on 8 U.S.C. § 1252(f)(1)’s bar on classwide injunctive relief when they entered the Consent Decree.”)
In dissent, Judge Kirsch does not address the question of whether Section 1252(f)(1) is jurisdictional, concluding instead that the government did not waive the protection of this section by entering into the Consent Decree in the first place.
“When the litigation began, the government raised § 1252(f)(1) as a bar to the consent decree itself and then dropped that objection when it entered the agreement. But that means the government waived argument that the decree itself violated § 1252(f)(1)—it didn’t forever bar the government from raising § 1252(f)(1) against any order implicating the injunction bar in a new way in this litigation. Similarly, the consent decree says the district court may provide equitable remedies to manage the decree, but that doesn’t mean the government agreed that the district court could issue equitable remedies prohibited by the INA’s injunction bar. The government squarely raised § 1252(f)(1) in opposition to the November order, and the district court ran afoul of that statute.”
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