Alvarez v. U.S. Immigration & Customs Enforcement

• Decision Date: 24 March 2016
• Docket Number: No. 14–14611.,14–14611.
• Citation: 818 F.3d 1194
• Parties: Santiago ALVAREZ, Plaintiff–Appellant, v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, Felicia Skinner, Field Office Director, U.S. Immigration & Customs Enforcement, Michael Gladish Office of Detention and Removal, Atlanta District, U.S. Immigration and Customs Enforcement, Juan Carlos Munoz, United States Attorney, Robert Emery, United States Attorney, Sheetul S. Wall, United States of America, Defendants–Appellees, Unidentified Officials and/or Agents of Department of Homeland Security, et al., Defendants.
• Court: U.S. Court of Appeals — Eleventh Circuit

818 F.3d 1194

Santiago ALVAREZ, Plaintiff–Appellant,

v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, Felicia Skinner, Field Office Director, U.S. Immigration & Customs Enforcement, Michael Gladish Office of Detention and Removal, Atlanta District, U.S. Immigration and Customs Enforcement, Juan Carlos Munoz, United States Attorney, Robert Emery, United States Attorney, Sheetul S. Wall, United States of America, Defendants–Appellees,Unidentified Officials and/or Agents of Department of Homeland Security, et al., Defendants.

No. 14–14611.

United States Court of Appeals, Eleventh Circuit.

March 24, 2016.

Juan Carlos Zorrilla, Fowler White Burnett, PA, Miami, FL, for Plaintiff–Appellant.

Brant S. Levine, U.S. Department of Justice, Washington, DC, Wifredo A. Ferrer, Kathleen Mary Salyer, U.S. Attorney's Office, Miami, FL, for Defendants–Appellees.

Before MARCUS, WILLIAM PRYOR, and JILL PRYOR, Circuit Judges.

MARCUS

, Circuit Judge:

Santiago Alvarez, a Cuban national and longtime United States resident, was serving the last few weeks of a federal prison sentence when United States Immigration and Customs Enforcement ("ICE") lodged a detainer against him. Alvarez was ordered removed and, although ICE does not effectuate removals to Cuba, he remained in ICE custody from November 25, 2008 until October 21, 2009—an amount of time greatly exceeding the 90–day statutory period for removal.

8 U.S.C. § 1231(a)(1)(A)

. After Alvarez was released, he filed this Bivens action, arguing that various government officials, knowing that his removal order could not be executed, made false statements in order to unconstitutionally prolong his detention.

The district court dismissed his complaint in its entirety, first finding that it did not have subject matter jurisdiction over the claim pursuant to 8 U.S.C. § 1252(g)

—which strips the federal courts of jurisdiction over claims "arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien." The court also found that, even if jurisdiction was proper, several other grounds supported its dismissal. Among other things, the district court concluded that no Bivens extension would be warranted to remedy an extensive immigration detention because an adequate, statutory remedial scheme already exists and several special factors counsel hesitation.

After thorough review, we affirm. Although we hold that § 1252(g)

does not bar us from considering the merits of Alvarez's claim, we also find that no Bivens remedy is available to him, both because the Immigration and Nationality Act sets out sufficient meaningful remedies for Alvarez and similarly situated aliens, and because numerous special factors counsel against supplementing this scheme with a new judicially created cause of action. Notwithstanding having legislated substantially and repeatedly in this area, Congress did not provide an avenue by which Alvarez can seek monetary relief. We defer to its judgement and hold that no Bivens remedy is available to a plaintiff who claims that immigration officials unconstitutionally prolonged his detention.

I.

A.

The essential facts are these. Santiago Alvarez is a Cuban national who was admitted to the United States as a lawful permanent resident in 1959. He lived primarily in Miami–Dade County, and he worked for the Central Intelligence Agency and the United States military between 1960 and 1968. Alvarez also has a criminal history that dates back to 1990, when he was convicted of aggravated assault and battery with a gun after he assaulted a repossession agent who mistakenly attempted to tow his vehicle. In November 2005, Alvarez was arrested and charged again, this time with possessing illegal weapons for the benefit of anti-Castro activists outside of the United States. He subsequently pled guilty to federal weapons charges, including conspiracy to unlawfully possess machine guns and a grenade launcher.

Throughout the course of the plea negotiations, Alvarez's attorneys voiced concerns that a guilty plea to federal weapons charges would affect his immigration status. The Department of Justice assured counsel that Cubans—particularly Cubans like Alvarez with a documented history of opposing Castro's regime—are not deported to Cuba. The government agreed as a condition of the final plea agreement "to utilize its best efforts" to communicate with ICE officials and "to reach a definitive understanding of [Alvarez's] immigration status and the effect of this case on his immigration status."

Alvarez was initially sentenced to 46 months' imprisonment, although his sentence was subsequently reduced to 30 months when he assisted the government by arranging an anonymous turnover of various weapons. During the sentencing hearing, the judge described Alvarez and his co-defendants as "by all accounts ... compassionate, benevolent, and patriotic, not only to Cuba but to the United States."

Alvarez served the first several months of his sentence in a federal prison, and he was due to be moved to a halfway house in November 2007 to serve the duration of his term. In August 2007, however, ICE lodged an immigration detainer against Alvarez with the Federal Bureau of Prisons. Alvarez filed a motion under 28 U.S.C. § 2255

in the Southern District of Florida, asking the court to lift the detainer, claiming that the government had breached the terms of his plea agreement by failing to use its best efforts to reach a timely resolution of his immigration status.

A magistrate judge conducted a hearing on the motion and questioned ICE's counsel, Assistant United States Attorney Robert Emery, about whether or not Alvarez's deportation was a realistic possibility. The magistrate judge asked: "If in fact the Defendant can not [sic] be deported back to Cuba, why is it that you would keep him in custody for several months if there is no way he's going to be able to be deported?" Emery responded that the Immigration and Nationality Act allowed the government to deport Alvarez to a third country. The magistrate judge then inquired whether any Cuban national had ever been deported to a third country, and whether it was conceivable that any other country would accept Alvarez. Emery said that he did not know but that the court ought to allow ICE to take the full statutory 90–day period to investigate whether it would be possible to remove him. The court commented, "maybe it is a collateral issue, but it does smack of unnecessarily punitive if at the end of the day you are going to cut him loose and you're going to say, ‘well, there is no place we could deport him.’ " Ultimately, however, the magistrate judge recommended that Alvarez's motion be denied because Alvarez had sworn at his plea hearing that he understood that his guilty plea could result in his deportation. Additionally, the judge pointed out that the decision to detain or release Alvarez fell within ICE's discretion. The district court adopted the magistrate judge's Report and Recommendations, and as a result, Alvarez remained in custody.

Sometime after the § 2255

hearing, Alvarez was summoned to appear before a federal grand jury in the Western District of Texas. The government sought Alvarez's testimony that he had helped an individual illegally enter the United States. Alvarez refused to testify and was charged with obstruction of justice, in violation of 18 U.S.C. §§ 1503, 6002, and 6003. He pled guilty and was sentenced to an additional ten months in prison. As a result of the new conviction and sentence, Alvarez was scheduled to be released from federal custody on November 25, 2008.

In the time leading up to Alvarez's release date, his attorneys attempted to work with Emery to enter a stipulated final order of removal. Pursuant to 8 U.S.C. § 1231(a)(1)(A)

, "when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days." An alien can be ordered removed in two ways: (1) he can be ordered removed by an immigration judge ("IJ") after a removal proceeding, see 8 U.S.C. § 1229a(a) -(c) ; or (2) ICE and the alien can stipulate that the alien is removable and the IJ can enter a stipulated order that serves as "a conclusive determination of the alien's removability," id. § 1229a(d). Here, if ICE had agreed to stipulate that Alvarez was removable, the statutory period to remove him would have begun on or around his prison release date. Although it initially appeared that the parties had reached such an agreement, Emery withdrew the offer to stipulate removability one week before Alvarez's November 25 release date, and a removal hearing was scheduled for January 22, 2009. Thus, the statutory 90–day removal period did not begin to run in this case until Alvarez had spent an additional two months in ICE custody.

After Alvarez was ordered removed at the hearing, his attorneys contacted Felicia Skinner, the Field Office Director of the Atlanta Office of Detention and Removal. They pointed out that Alvarez could not be removed to Cuba and requested that ICE expedite his review process. Skinner declined to expedite review, and on the last day of the 90–day period, April 22, 2009, she issued a First Decision to Continue Detention. Skinner said that there was "no reason to believe that [Alvarez's] removal will not take place within the reasonably foreseeable future." She also found that Alvarez should be detained until that time because he was both a danger to his community and a flight risk. Skinner notified Alvarez that if he was not removed by July 21, 2009, jurisdiction over his removal would be "transferred to the Headquarters Case Management Unit." No action was taken on Alvarez's removal in the intervening period.

On July 28, 2009, Alvarez filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia, pursuant to 28 U.S.C. § 2241

. On September 17, 2009, ICE filed a motion for an extension of...