373 F.3d 952 (9th Cir. 2004), 02-35727, Kwai Fun Wong v. United States

Docket Nº:02-35727.
Citation:373 F.3d 952
Party Name:KWAI FUN WONG; Wu-Wei Tien Tao Association, Plaintiffs-Appellees, v. UNITED STATES of America, Immigration and Naturalization Service, being sued as David V. Beebe, Jerry F. Garcia, Jack O'Brien, Douglas Glover and John Doe INS Officials; United States of America, Defendants-Appellants.
Case Date:June 25, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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373 F.3d 952 (9th Cir. 2004)

KWAI FUN WONG; Wu-Wei Tien Tao Association, Plaintiffs-Appellees,


UNITED STATES of America, Immigration and Naturalization Service, being sued as David V. Beebe, Jerry F. Garcia, Jack O'Brien, Douglas Glover and John Doe INS Officials; United States of America, Defendants-Appellants.

No. 02-35727.

United States Court of Appeals, Ninth Circuit

June 25, 2004

Argued and Submitted July 10, 2003.

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Anne Murphy, Assistant United States Attorney, Civil Division, Office of the Attorney General, Washington, DC, for the defendants-appellants.

Zan Tewksbury, Steenson, Schumann, Tewksbury & Rose, P.C., Portland, OR, for the plaintiffs-appellees.

Steven A. Hirsch, Keker & Van Nest, LLP, San Francisco, CA, for the amicus curiae in support of plaintiffs-appellees.

Appeal from the United States District Court for the District of Oregon; Robert E. Jones, District Judge, Presiding. D.C. No. CV-01-00718-REJ(JMS).

Before: GOODWIN, HUG, and BERZON, Circuit Judges.

BERZON, Circuit Judge:

This appeal presents a set of thorny procedural and substantive questions implicating several areas of constitutional and immigration law. These questions include: the scope of some of the jurisdiction-stripping provisions of the Immigration and Nationality Act (INA), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)1; the boundaries of the constitutional protections afforded certain aliens returning from abroad; and the availability of a qualified immunity defense to federal officials facing Religious Freedom Restoration Act (RFRA)2 claims. Yet, as this is an appeal from a denial of a motion to dismiss on grounds largely of qualified immunity, we are asked to decide these weighty questions aided only by the skeletal--at best--factual picture sketched out in the complaint.

The confluence of two well-intentioned doctrines, notice pleading and qualified immunity, give rise to this exercise in legal decisionmaking based on facts both hypothetical and vague. On one hand, the federal courts may not dismiss a complaint unless "it is clear that no relief could be granted under any set of facts that could

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be proved consistent with the allegations." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (citation and internal quotation marks omitted). All that is required is a "short and plain statement" of the plaintiff's claims. Fed.R.Civ.P. 8(a)(2); see also Swierkiewicz, 534 U.S. at 512, 122 S.Ct. 992 (citing Fed.R.Civ.P. 8(a)(2)). On the other hand, government officials are entitled to raise the qualified immunity defense immediately, on a motion to dismiss the complaint, to protect against the burdens of discovery and other pre-trial procedures. Behrens v. Pelletier, 516 U.S. 299, 308, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). The qualified immunity issue, in turn, cannot be resolved without first deciding the scope of the constitutional rights at stake. Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The unintended consequence of this confluence of procedural doctrines is that the courts may be called upon to decide far-reaching constitutional questions on a nonexistent factual record, even where, as the government defendants contend and as may be the case here, discovery would readily reveal the plaintiff's claims to be factually baseless.

We are therefore moved at the outset to suggest that while government officials have the right, for well-developed policy reasons, see Mitchell v. Forsyth, 472 U.S. 511, 525-27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), to raise and immediately appeal the qualified immunity defense on a motion to dismiss, the exercise of that authority is not a wise choice in every case. The ill-considered filing of a qualified immunity appeal on the pleadings alone can lead not only to a waste of scarce public and judicial resources, but to the development of legal doctrine that has lost its moorings in the empirical world, and that might never need to be determined were the case permitted to proceed, at least to the summary judgment stage. Cf. Rescue Army v. Mun. Court of Los Angeles, 331 U.S. 549, 575, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947) (discussing the difficulties in deciding constitutional questions presented in "highly abstract form").

The government officials in this case having appealed despite these considerations, we now turn to the questions they raise, after first recounting the rather sketchy facts we must presume true in this litigation.


A. Factual Background

According to the operative complaint:3

Kwai Fun Wong, a citizen of Hong Kong, first lawfully entered the United States in 1985 as a Tao minister. She later became the head of the Wu-Wei Tien Tao Association (hereinafter "Tien Tao") and, according to the belief of her religion, the "heavenly mandated" Matriarch of the Tao Heritage. Tien Tao is a religious organization dedicated to spreading the truth of Tao throughout the world. Followers of Tao believe that "Tao means the Truth, the Path, or the Way and that Tien

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Tao is the way to return [to] heaven by restoring the original nature."

In 1992, Wong's predecessor as leader of Tien Tao, Qian Ren, instructed Wong to apply for permanent residence in the United States so she would be able to pursue Tien Tao's religious mission. Wong filed two petitions with the Immigration and Naturalization Service (INS)4 for permanent residence, in 1992 and 1994, and resided in the United States while the petitions were pending.5

When Qian Ren passed away on March 16, 1999, Wong became the head of Tien Tao. To fulfill her religious duties, including arranging the funerary services and meeting with Tao ministers in Hong Kong to plan Tien Tao's future, Wong had to accompany Qian Ren's body back to Hong Kong for burial.

Under 8 C.F.R. § 245.2(a)(4)(ii), an alien with a pending application for adjustment of status is considered to have abandoned her application if she leaves the country without first obtaining permission ("advance parole") from the INS.6 Prior to her departure for Hong Kong, Wong's immigration attorney attempted unsuccessfully to make arrangements with the INS to permit Wong to leave without advance parole.7 Eleven days after Qian Ren's death, Wong left for Hong Kong without having obtained advance parole or any special dispensation waiving the advance parole requirement.

Wong returned to the United States via San Francisco eighteen days later. Upon her arrival, INS officers paroled her into the country pending a deferred inspection in Portland on April 28.8

Soon thereafter, Wong and Tien Tao filed another adjustment of status application under INA § 245(i) on Wong's behalf. Wong's attorney notified the Portland INS office of Wong's application and asked Defendant-Appellant Jack O'Brien, port director of that office, to contact him if he wished to meet with Wong in person. Wong did not appear for her deferred inspection on April 28, for reasons not explained in the complaint.

The next day, April 29, Defendant-Appellant David V. Beebe, district director of the Portland INS office, revoked Wong's parole. Shortly afterward, O'Brien and

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Defendant-Appellant Douglas Glover, a supervisory inspections officer with the Portland office, issued a "Notice and Order of Expedited Removal" and a determination of inadmissibility. Wong did not receive this Notice until June 22, 1999, the day she was removed from the country.

In early June, Wong received a letter from Beebe requesting that Wong appear at the Portland INS office on June 17 to receive her employment authorization card. When Wong presented herself, she was seized by INS officers and handed a letter denying her application for adjustment of status, signed by Defendant-Appellant Jerry F. Garcia on behalf of Beebe. After questioning, Wong was placed in detention, where she remained for five days.

At the Multnomah County Detention Center, Wong was subjected to two strip searches, including an orifice search. Wong's requests for vegetarian meals were denied, "interfering with the practice of her faith." During detention Wong was not permitted access to a translator, information about her rights, information about how to contact her attorney, or access to her followers. Despite repeated requests by her attorney, Wong was not accorded a hearing regarding her exclusion from the United States.

Wong was removed from the United States on June 22, 1999, and remains outside the country.

B. Claims and Procedural History

Wong and Tien Tao brought this damages action against the INS officials9 for constitutional violations under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and against the INS officials and the United States for violations of RFRA.10 Wong and Tien Tao claim that: (1) the INS officials violated their rights under the First and Fifth Amendments to practice their religion and associate with others in the practice of their religion; and (2) the INS officials and the United States substantially burdened their exercise of religion in violation of RFRA. Wong also challenges her treatment while in INS detention, contending that the INS officials violated her right under the Fourth and Fifth Amendments to be free of unreasonable searches and seizures and her rights to liberty, due process, and equal protection of the laws under the Fifth Amendment.

Although the factual predicate for some of these claims is unclear, the first amended complaint, construed broadly, challenges on constitutional and RFRA grounds the following alleged actions of the INS officers: refusing to grant Wong permission to depart the United States...

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