Cesar v. Achim

• Citation: 542 F.Supp.2d 897
• Decision Date: 27 March 2008
• Docket Number: No. 07C128.,07C128.
• Parties: Dulce CESAR, Plaintiff, v. Deborah ACHIM and Gary Preston, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

542 F.Supp.2d 897

Dulce CESAR, Plaintiff, v. Deborah ACHIM and Gary Preston, Defendants.

No. 07C128.

United States District Court, E.D. Wisconsin.

March 27, 2008.

COPYRIGHT MATERIAL OMITTED

Christopher G. Meadows, David R. Cross, Quarles & Brady LLP, Milwaukee, WI, Geoffrey J. Heeren, Legal Assistance Foundation of Metropolitan Chicago, Jennifer R. Jaffe, Michael J. Faris, Margrethe K. Kearney, Latham & Watkins LLP, Chicago, IL, for Plaintiff.

Lisa T. Warwick, United States Department of Justice, Office of the U.S. Attorney, Marianne E. Morris, Amy J. Doyle, Raymond J. Pollen, Crivello Carlson SC, Milwaukee, WI, for Defendants.

DECISION AND ORDER

LYNN ADELMAN, District Judge.

On November 16, 2006, an Immigration Judge ("IJ") ordered Plaintiff Dulce Cesar removed to Haiti. At the same time, the IJ granted plaintiff withholding of removal to Haiti on the ground that his "life or freedom would be threatened in that country." See 8 U.S.C. § 1231(b)(3)(A). Defendants Deborah Achim, a federal immigration official at the Chicago Office of Immigration and Customs Enforcement ("ICE"), and Gary Preston, the Detentions Division Commander at the Kenosha County Sheriffs Department, did not release plaintiff from custody until four months later, on March 16, 2007. In the present action, plaintiff claims that defendants violated his due process rights by detaining him following the grant of withholding of removal and by failing to provide him with adequate medical care.¹ Plaintiff also alleges that Achim violated his due process rights by unconstitutionally conditioning his right to appeal the removal order on a surrender of his liberty. Plaintiff seeks damages against Achim pursuant to 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 Preston pursuant to Bivens or 42 U.S.C. § 1983. Plaintiff also seeks declaratory relief. Before me now is Achim's motion to dismiss the claims against her.²

To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6),³ the complaint must "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir.2007) (citing Bell Atl. Corp. v. Twombly, ___ U.S. ___, ___, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007)). The allegations must "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level." Id. In addressing a Rule 12(b)(6) motion, I assume that plaintiffs allegations are true and draw all reasonable inferences flowing from them in the light most favorable to plaintiff. Bethlehem Steel Corp. v. Bush, 918 F.2d 1323, 1326 (7th Cir.1990).

I. CLAIMS RELATED TO DETENTION

The statutory provisions governing post-order detention are found in 8 U.S.C. § 1231. Specifically, § 1231(a)(2) provides that during the 90-day period following a final removal order (the "removal period"), the Attorney General⁴ shall detain the individual subject to the final removal order. The provision further specifies that "[u]nder no circumstance during the removal period shall the Attorney General release an alien who has been found ... deportable under section 1227(a)(2) ... of this title." Further, under § 1231(a)(6), the Attorney General, in his discretion, may continue to detain an alien found deportable under § 1227(a)(2) after the removal period expires. These provisions all are applicable in this case, as plaintiff was ordered removed upon a finding of deportability under § 1227(a)(2)(A)(iii) based on an aggravated felony conviction.

Thus, § 1231(a)(2) requires the Attorney General to detain an individual who, like plaintiff, was found deportable under § 1227(a)(2) for at least ninety days following the final removal order. Additionally, § 1231(a)(6) allows discretionary detention of such an individual beyond the removal period. While the statute itself does not limit the duration of such discretionary detention, the Supreme Court in Zadvydas v. Davis noted that it would violate due process to detain an alien ordered removed where removal was not reasonably foreseeable. 533 U.S. 678, 700-01, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). The Court therefore construed the provision to save it from constitutional infirmity and to eliminate the specter of indefinite detention, placing limitations, discussed below, on the length of time an alien could be detained in post-order custody pursuant to § 1231(a)(6). Id.

Defendant Achim first argues that no Bivens remedy is available for the claims relating to plaintiffs custody because the Immigration and Nationality Act ("INA") is a comprehensive statutory scheme, the existence of which is a "special factor[] counseling hesitation" in inferring a Bivens remedy. See Schweiker v. Chilicky, 487 U.S. 412, 423, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988) (refusing to infer a Bivens remedy in an action involving a denial of disability benefits, where the Social Security Act was a comprehensive statutory scheme that included adequate remedial provisions). To support this argument, defendant cites to provisions of the INA, such as those codified at 8 U.S.C. §§ 1226 & 1231, and suggests that "this intricate and carefully crafted remedial scheme" signifies that Congress has provided adequate means of addressing constitutional violations, thereby precluding a Bivens action for damages.

This argument is unpersuasive. The provisions defendant cites contain nothing of a remedial nature, much less an "intricate and carefully crafted" remedial scheme. They are merely regulatory, defining the Attorney General's powers and duties regarding the detention and removal of aliens, and do not mention or provide any means of redress for constitutional violations. See, e.g., Khorrami v. Rolince, 493 F.Supp.2d 1061, 1073-74 (N.D.Ill. 2007). Given that the Supreme Court has already recognized that a Bivens action is an appropriate means of redressing violations of the Due Process Clause of the Fifth Amendment, I see no reason why it would be inappropriate here. See Davis v Passman, 442 U.S. 228, 245, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) ("`Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty.'") (quoting Bivens, 403 U.S. at 395, 91 S.Ct. 1999).

Defendant Achim also argues, in the alternative, that even if I find a Bivens remedy to be appropriate in this action, the claims against her should be dismissed based on qualified immunity.⁵ Qualified immunity shields defendants "from liability for civil damages if their actions did not violate `clearly established statutory or constitutional rights of which a reasonable person would have known.'" Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The qualified immunity issue should be resolved at the earliest possible stage of litigation, and the analysis can be conducted solely on the facts alleged in the complaint. See Delgado v. Jones, 282 F.3d 511, 515 & 516 n. 1 (7th Cir.2002); see also Landstrom v. Ill. Dep't of Children and Family Servs., 892 F.2d 670, 674 (7th Cir.1990) (upholding district court's dismissal of claims on a Rule 12(b)(6) motion based on qualified immunity, where the presence or absence of facts in the complaint had no effect on the immunity decision, which was solely a matter of law). The threshold inquiry a court must undertake in a qualified immunity analysis is whether the plaintiff's allegations, if true, establish a constitutional violation. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

With respect to the claim that plaintiff's detention unconstitutionally burdened his right to appeal the removal order, the claim fails to state a constitutional violation. The "unconstitutional conditions" doctrine prohibits the government from unreasonably conditioning the receipt of a benefit on the required sacrifice of a constitutional right. Dolan v. City of Tigard, 512 U.S. 374, 385, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). However, conditions can be lawfully imposed on the receipt of a benefit, provided the conditions are reasonable. Burgess v. Lowery, 201 F.3d 942, 947 (7th Cir.2000). In determining whether a condition is reasonable, the government interest and the justification for the imposed condition must be taken into account, as well as the nature of the required sacrifice. Snepp v. United States, 444 U.S. 507, 510 n. 3, 100 S.Ct. 763, 62 L.Ed.2d 704 (1980).

Plaintiff suggests that the detention scheme is unconstitutional because, if he appealed the removal order, he would be detained for the duration of the appeals process and for a minimum of ninety days after, since the removal period would not be triggered until the appeals process concluded and he would not be considered for release until the end of the removal period. If he waived his appeal rights, on the other hand, the removal period would be immediately triggered and he would be considered for release in only ninety days. He argues that the scheme is an unconstitutional burden on his right to appeal because he has to subject himself to prolonged detention to exercise his appeals rights. However, the Supreme Court has already held, after balancing the competing interests at stake, that detention during removal proceedings, including during the appeal of a removal order, is reasonable and does not violate a detainee's Fifth Amendment rights. See Demore v. Kim, 538 U.S. 510, 529, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). And detention during the ninety-day removal period is also constitutionally permissible, following the reasoning and approval implicit in Demore and Zadvydas. See Khotesouvan v. Morones, 386 F.3d 1298 (9th Cir.2004). As such, because detention during removal proceedings and the removal period is constitutionally permissible, it is not...