Franco-De Jerez v. Burgos, FRANCO-DE

• Decision Date: 06 April 1989
• Docket Number: FRANCO-DE,No. 88-1918,88-1918
• Parties: Lillian J. Del CarmenJEREZ, et al., Plaintiffs, Appellants, v. Filomeno BURGOS, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1038

876 F.2d 1038

Lillian J. Del Carmen FRANCO-DE JEREZ, et al., Plaintiffs, Appellants, v. Filomeno BURGOS, Defendant, Appellee.

No. 88-1918.

United States Court of Appeals First Circuit.

Heard April 6, 1989.

Decided June 2, 1989.

Maria H. Sandoval, Isla Verde, P.R., with whom Jose E. Fernandez-Sein and Law Firm of Nachman & Fernandez-Sein, Santurce, P.R., were on brief, for appellants.

Lydia Pelegrin, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief, for appellee.

Before CAMPBELL, Chief Judge, BREYER and SELYA, Circuit Judges.

BREYER, Circuit Judge.

Lillian Franco de Jerez, a citizen of the Dominican Republic, claims that Filomeno Burgos, an immigration inspector, deprived her of her "liberty" without "due process of law." See U.S. Const. amend. V; Bivens v. Six Unknown Federal Narcotic Agents, 403 U.S. 388, 397, 91 S.Ct. 1999, 2005, 29 L.Ed.2d 619 (1971) (plaintiff may sue federal officers for violation of constitutional rights); Davis v. Passman, 442 U.S. 228, 248-49, 99 S.Ct. 2264, 2278-79, 60 L.Ed.2d 846 (1979) (plaintiff may bring Bivens action for Fifth Amendment violation). Her complaint, read together with the record, says that:

a. She arrived at the Puerto Rico airport from the Dominican Republic on October 1, 1985.

b. Officers of the Immigration and Naturalization Service (INS) would not permit her to enter the United States.

c. She remained in the airline's custody overnight.

d. On October 2, Inspector Burgos examined her Dominican passport and visa, questioned her, and said he thought her passport had been altered. He brought her before a magistrate for an initial appearance, see 8 U.S.C. Sec. 1357(a)(4) (immigration officers may make arrests for felonies under the immigration laws, and bring the person arrested "before the nearest available officer empowered to commit persons charged with [federal] offenses"). Burgos then asked the United States Attorney to file a criminal complaint against her for altering admission documents, or using altered documents, in violation of 18 U.S.C. Sec. 1546.

e. On October 2, later in the day, U.S. Marshals took her to a Salvation Army detention facility, operated by the INS, where she was held incommunicado for nine days.

f. On October 10, Burgos testified before a federal grand jury. As a result of his testimony, Franco was indicted for violating 18 U.S.C. Sec. 1546.

g. On October 11, at a bail hearing, the United States Attorney told the magistrate that Franco "seems to be the same person" shown in her prior, expired passport. The magistrate said he would grant her bail, but she was returned to the INS facility until October 15, by which time she was to find a "surety" into whose custody she could be released.

h. On October 15, the government moved to dismiss the criminal charges against her, and the magistrate ordered her released.

i. The INS kept Franco in its detention facility from October 15 through October 30, pending a hearing on whether she should be admitted into, or excluded from, the United States.

j. On October 30, the INS permitted Franco to be "paroled" into the United States, i.e., released from the detention facility, because of her bad health, see 8 U.S.C. Sec. 1182(d)(5)(A).

k. Subsequently, Franco gave up her effort to enter the United States and returned to the Dominican Republic.

Franco claims that Burgos violated the Constitution when (1) he had her held overnight on October 1, (2) he had criminal charges brought against her, (3) he failed adequately to investigate the basis for those charges, (4) he had her held incommunicado from October 2 to October 15, and (5) he had her held after the charges against her were dropped, from October 15 to October 30.

Burgos moved for summary judgment, see Fed.R.Civ.P. 56, arguing basically that the law entitled him to take the actions described above. He said he reasonably believed Franco was using an altered passport, whether or not the passport actually belonged to her. Franco opposed the motion, asking the court at least to permit her to engage in additional discovery. See Fed.R.Civ.P. 56(f). The court granted Burgos' summary judgment motion, primarily on the ground that Burgos was entitled to "qualified immunity." See Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987).

Burgos now appeals the court's grant of summary judgment. She argues that the district court could not legally base its decision on the defense of qualified immunity, because Burgos (inexplicably) did not assert the defense before the district court. See Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982) (qualified immunity is "an affirmative defense that must be pleaded by a defendant official"); Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980) ("this Court has never indicated that qualified immunity is relevant to the existence of the plaintiff's cause of action; instead we have described it as a defense ... the burden of pleading it rests with the defendant"). After examining the record, we conclude that the district court should permit additional discovery in respect to Franco's claim of unlawful confinement between October 2 and October 15; otherwise, we conclude that the court's grant of summary judgment was legally correct, even without reliance on the defense of qualified immunity. We can best explain our reasons by dealing separately with the three time periods at issue, October 1-2, 2-15, and 15-30. Our discussion is perhaps rather lengthy, because we do not base our decision on the defense of qualified immunity.

A.

October 1-2.

On October 1, the INS refused to admit Franco to the United States, in accordance with 8 U.S.C. Sec. 1225(b), which says that any alien "who may not appear to the examining immigration officer ... to be clearly and beyond a doubt entitled to land shall be detained for further inquiry." Since Franco would not, or could not, return immediately to the Dominican Republic, the INS placed her in the airline's custody overnight. 8 C.F.R. Sec. 235.3(d) (aliens subject to detention may be placed in the custody of the airline). As we will explain in detail below, Franco was not "clearly and beyond a doubt" entitled to enter the United States, because her passport appeared to have been altered. See 8 C.F.R. Sec. 235.3(b) (the exclusion statute, 8 U.S.C. Sec. 1225(b), applies to any alien "who arrives with documentation which appears on its face to be false, altered, or to relate to another person").

Under these circumstances, Franco's initial detention was lawful. Franco points to no law that her initial detention might violate. The federal Constitution offers her no relevant protection. Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (1982) ("an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative"); Kleindienst v. Mandel, 408 U.S. 753, 769-70, 92 S.Ct. 2576, 2585-86, 33 L.Ed.2d 683 (1972) (Congress has "plenary power" over rules for exclusion of aliens); Knauff v. Shaughnessy, 338 U.S. 537, 544, 70 S.Ct. 309, 313, 94 L.Ed. 317 (1950) ("Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned"); see also Amanullah v. Nelson, 811 F.2d 1, 4-5 (1st Cir.1987) (Congress has "delegated its unusually broad dominion in the immigration field to the Attorney General," who has the authority to regulate admission of aliens).

B.

October 2-15.

1. The filing of criminal charges. Franco says that Burgos deprived her of her constitutional right to liberty, by having the United States Attorney file a criminal complaint against her. This action does not violate the Constitution, however, if Burgos had probable cause to believe that Franco had committed a crime. Carey v. City of Fall River, 870 F.2d 40 (1st Cir.1989) (per curiam) (officers can be liable under Sec. 1983 for seeking a criminal complaint only if they lacked probable cause); Losch v. Borough of Parkesburg, Pa., 736 F.2d 903, 907 (3rd Cir.1984) (filing of criminal charges without probable cause is actionable under Sec. 1983). And, the record makes clear that Burgos had such "probable cause." It is a crime to "alter" a passport, or to "use" or furnish "to another The only contrary evidence in the record consists of an affidavit from a Dominican Vice-Consul, who says that he examined the passport on October 25 and concluded that it "has not been altered." In light of the pictures, tests and INS officers' statements, however, this single conclusory remark can, at most, cast some doubt on whether the passport had in fact been altered, not whether it appeared to have been altered. It is insufficient to raise a "genuine issue for trial," see Fed.R.Civ.P. 56(e), as to the existence of probable cause, at the time Franco was arrested, to believe that it had been altered. In our view, given the record in this case, no reasonable person could find an absence of probable cause to believe that Franco had altered the passport. That being so, no jury could find that Burgos acted unconstitutionally in asking the United States Attorney to file criminal charges against Franco. See Carey, 870 F.2d at 40.

for use," an altered passport, see 18 U.S.C. Sec. 1543, or to alter any "document prescribed by statute ... for entry into ... the United States," or use such an altered document, see 18 U.S.C. Sec. 1546. The record contains pictures of the passport itself, statements by all five INS inspectors (including Burgos) who examined the passport, all of whom thought it had been altered, and statements by Burgos and another INS inspector that their laboratory tests of the passport confirmed that it had been altered. The photographs show that the paper around the metal pins ("grommets") holding the passport...