899 F.3d 1019 (9th Cir. 2018), 15-35408, Lanuza v. Love

Docket Nº:15-35408
Citation:899 F.3d 1019
Opinion Judge:WARDLAW, Circuit Judge
Party Name:Ignacio LANUZA, Plaintiff-Appellant, v. Jonathan M. LOVE, Assistant Chief Counsel, Immigration and Customs Enforcement, Defendant-Appellee.
Attorney:Matt Adams (argued) and Glenda M. Aldana Madrid, Northwest Immigrant Rights Project, Seattle, Washington; Christopher Schenck and Stephanie M. Martinez, Kilpatrick Townsend & Stockton LLP, Seattle, Washington; for Plaintiff-Appellant. Amanda E. Lee (argued), Law Office of Amanda Lee PLLC, Seattle...
Judge Panel:Before: Kermit Victor Lipez, Kim McLane Wardlaw, and John B. Owens, Circuit Judges.
Case Date:August 14, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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899 F.3d 1019 (9th Cir. 2018)

Ignacio LANUZA, Plaintiff-Appellant,

v.

Jonathan M. LOVE, Assistant Chief Counsel, Immigration and Customs Enforcement, Defendant-Appellee.

No. 15-35408

United States Court of Appeals, Ninth Circuit

August 14, 2018

Argued and Submitted October 3, 2017, Seattle, Washington

Page 1020

Matt Adams (argued) and Glenda M. Aldana Madrid, Northwest Immigrant Rights Project, Seattle, Washington; Christopher Schenck and Stephanie M. Martinez, Kilpatrick Townsend & Stockton LLP, Seattle, Washington; for Plaintiff-Appellant.

Amanda E. Lee (argued), Law Office of Amanda Lee PLLC, Seattle, Washington, for Defendant-Appellee.

H. Thomas Byron III (argued) and Barbara L. Herwig, Appellate Staff; Joseph H. Harrington, Acting United States Attorney; Chad A. Readler, Acting Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Amicus Curiae United States.

Mary Kenney, American Immigration Council, Washington, D.C.; Trina Realmuto, National Immigration Project of the National Lawyers Guild, Boston, Massachusetts; for Amici Curiae American Immigration Council and National Immigration Project of the National Lawyers Guild.

Appeal from the United States District Court for the Western District of Washington, Marsha J. Pechman, Senior District Judge, Presiding, D.C. No. 2:14-cv-01641-MJP

Before: Kermit Victor Lipez,[*] Kim McLane Wardlaw, and John B. Owens, Circuit Judges.

SUMMARY[**]

Bivens

The panel reversed the district court's order declining to extend a Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), remedy to an immigrant pursuing lawful permanent resident status where a government immigration attorney intentionally submitted a forged document in an immigration proceeding to completely bar that immigrant from pursuing relief to which he was entitled.

The panel concluded that while the Supreme Court "has made clear that expanding the Bivens remedy is now a 'disfavored' judicial activity," Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)), a Bivens remedy was available in this narrow circumstance because none of the special factors outlined in Abbasi and other Supreme Court precedent applied.

The panel affirmed the district court's order denying qualified immunity to ICE Assistant Chief Counsel Jonathan Love because qualified immunity was not meant to protect those who are "plainly incompetent or those who knowingly violate the law." Taylor v. Barkes, 135 S.Ct. 2042, 2044 (2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)). The panel concluded that qualified immunity could not shield an officer from suit when he intentionally submitted a forged document in an immigration proceeding in clear violation of 8 U.S.C. § 1357(b).

OPINION

WARDLAW, Circuit Judge

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We are tasked with answering in part a question asked by many legal commentators in the wake of the Supreme Court’s decision in Ziglar v. Abbasi, __ U.S. __, 137 S.Ct. 1843, 198 L.Ed.2d 290 (2017): where does Bivens stand? Bivens is the first Supreme Court decision to recognize an implied right of action for damages against federal officers alleged to have violated a plaintiff’s constitutional rights. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 392-98, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Here, a U.S. Immigration and Customs Enforcement (ICE) Assistant Chief Counsel representing the government intentionally forged and submitted an ostensible government document in an immigration proceeding, which had the effect of barring Ignacio Lanuza (Lanuza) from obtaining lawful permanent resident status, a form of relief to which he was otherwise lawfully entitled. We recognize that the Supreme Court "has made clear that expanding the Bivens remedy is now a ‘disfavored’ judicial activity," Abbasi, 137 S.Ct. at 1857 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ), but, if the principles animating Bivens stand at all, they must provide a remedy on these narrow and egregious facts. We therefore reverse the district court’s holding that Lanuza was not entitled to a Bivens remedy.

I.

Lanuza is a 38-year-old lawful permanent resident married to a U.S. citizen with two U.S. citizen children. He was born in Mexico and first came to the United States without inspection when he was seventeen years old. He lives and works in Seattle, Washington. In July 2008, the Department of Homeland Security (DHS) commenced removal proceedings against him before the Tacoma immigration court, which were ultimately transferred to the Seattle immigration court.

On May 6, 2009, Lanuza appeared before an immigration judge for a master calendar hearing. During that hearing, Lanuza notified the court of his intention to apply for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents (cancellation of removal or cancellation) under 8 U.S.C. § 1229b(b)(1). At the time, he was prima facie eligible to apply for cancellation of removal, which is a type of immigration relief that enables nonpermanent residents to adjust their status to that of permanent residents. To qualify for cancellation, a person must demonstrate (1) continuous physical presence in the United States for ten years immediately prior to being served with the Notice to Appear; (2) good moral character; (3) that he is not subject to any other bar to eligibility on account of having certain criminal convictions; and (4) the existence of a U.S. citizen or lawful

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permanent resident spouse, parent, or child who would suffer exceptional and extremely unusual hardship if the person were removed. See 8 U.S.C. § 1229b(b)(1). As later events would confirm, Lanuza satisfied all these requirements: (1) he had been residing continuously in the United States since 1996 and thus had more than ten years of continuous residence; (2) he possessed good moral character; (3) he was not subject to any other bar to eligibility; and (4) his U.S. citizen wife and children would suffer exceptional and extremely unusual hardship without him.

During the master calendar hearing, ICE Assistant Chief Counsel Jonathan Love ("Love") stated that Lanuza’s immigration file contained an I-826 form, signed by Lanuza, accepting voluntary departure to Mexico in 2000. The I-826 form was critical in determining whether Lanuza would be able to remain in the United States with his family, because a signed I-826 form would render him ineligible for cancellation of removal. By signing an I-826 form, a person accepts an administrative voluntary departure instead of exercising his right to appear before an immigration judge in removal proceedings and thereby breaks whatever continuous physical presence he may have accrued. See

Ibarra-Flores v. Gonzales, 439 F.3d 614, 618-20 (9th Cir. 2006); see also Landin-Zavala v. Gonzales, 488 F.3d 1150, 1152-53 (9th Cir. 2007) ("When [an individual] leaves pursuant to an administrative voluntary departure[ ]‘[he] leaves with the knowledge that he does so in lieu of being placed in proceedings. ...’ " (quoting Tapia v. Gonzales, 430 F.3d 997, 1002 (9th Cir. 2005) ) ). As a result, even though Lanuza met all the other elements of § 1229b(b)(1), if Lanuza had signed an I-826 form in 2000, he would have accrued continuous residence in the United States for only seven years, rather than the requisite ten years. See 8 U.S.C. § 1229b(b)(1).

On May 11, 2009 at Lanuza’s actual immigration hearing, Love submitted an I-826 form agreeing to voluntary departure, purportedly signed by Lanuza on January 13, 2000, making Lanuza ineligible for cancellation of removal. See id . Based solely on that I-826 form, the immigration judge issued an order of removal on January 5, 2010; the Board of Immigration Appeals ("BIA") affirmed on November 15, 2011.

On December 9, 2011, Lanuza hired new counsel, Hilary Han ("Han"), who discovered, for the first time, evidence that the I-826 form Love submitted was forged. Han sent the I-826 form to a forensic examiner, who, on February 1, 2012, confirmed that the form was forged. While several aspects of the form demonstrated it was forged, most glaringly, it referred to the "U.S. Department of Homeland Security" at the top of the page, an agency that did not exist at the time Lanuza purportedly signed the form on January 13, 2000. Congress created DHS in response to the September 11, 2001 terrorist attacks, and the agency did not begin formal operations until 2003. Therefore, it would have been impossible for Lanuza to sign the DHS I-826 form in January 2000, because that form did not then exist.

Based on the forensic report, the BIA reopened and remanded the...

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