De La Paz v. Coy

• Decision Date: 14 May 2015
• Docket Number: 14–10018.,Nos. 13–50768,s. 13–50768
• Citation: 786 F.3d 367
• Parties: Alejandro Garcia DE LA PAZ, Plaintiff–Appellee v. Jason COY, United States Customs and Border Protection Officer; Mario Vega, United States Customs and Border Protection Officer, Defendants–Appellants. Daniel Frias, Plaintiff–Appellee v. Arturo Torrez, United States Customs and Border Protection Officer, formerly known as John Doe, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

786 F.3d 367

Alejandro Garcia DE LA PAZ, Plaintiff–Appellee

v.Jason COY, United States Customs and Border Protection Officer;

Mario Vega, United States Customs and Border Protection Officer, Defendants–Appellants.

Daniel Frias, Plaintiff–Appellee

v.Arturo Torrez, United States Customs and Border Protection Officer, formerly known as John Doe, Defendant–Appellant.

Nos. 13–50768

14–10018.

United States Court of Appeals, Fifth Circuit.

May 14, 2015.

David Anton Armendariz, Esq. (argued), De Mott McChesney Curtright & Armendariz, L.L.P., San Antonio, TX, for Plaintiff–Appellee.

Edward Himmelfarb (argued), U.S. Department of Justice, Washington, DC, Joseph Cuauhtemoc Rodriguez, U.S. Attorney's Office, San Antonio, TX, for Defendants–Appellants.

Mary A. Kenney, American Immigration Council, Washington, DC, Trina Ann Realmuto, National Immigration Project of the National Lawyers Guild, Boston, MA, for Amici Curiae.

Appeal from the United States District Court for the Western District of Texas.

Before JOLLY and JONES, Circuit Judges, and GODBEY, District Judge.^*

Opinion

EDITH H. JONES, Circuit Judge:

Customs and Border Patrol (“CBP”) agents apprehended Daniel Frias and Alejandro Garcia de la Paz, both illegal aliens, in separate incidents miles from the U.S.-Mexico border, in the heart of Texas. Both allege that the agents stopped them only because they are Hispanic. Represented by the same attorney, both filed Bivens suits against the arresting agents, alleging Fourth Amendment violations. On appeal, both cases present the same fundamental question: can illegal aliens pursue Bivens claims against CBP agents for illegally stopping and arresting them? This question has not been squarely faced in our circuit, although two other circuits have held in the negative. Mirmehdi v. United States, 689 F.3d 975 (9th Cir.2011) (no Bivens claim for constitutionally invalid immigration detention); Arar v. Ashcroft, 585 F.3d 559 (2d Cir.2009) (en banc) (no Bivens claim regarding extraordinary rendition of alien). Like those courts, we conclude that Bivens actions are not available for claims that can be addressed in civil immigration removal proceedings. Accordingly, we REVERSE and REMAND with instructions to dismiss both actions against the individual officers.

BACKGROUND

Frias's Stop and Arrest. On April 28, 2010 Frias and a colleague were travelling on I–20 about twenty miles east of Abilene, heading west toward Baird, Texas. The two men were in a four-door Dodge pickup truck modified to carry heavy loads. At the same time, CBP agent Arturo Torrez was driving eastbound on I–20 toward Dallas. As Frias's truck passed, Torrez noticed what looked like bodies lying in the backseat. Torrez also observed that the truck had a large shielded rear bed. Torrez immediately turned his vehicle around to follow the truck. After Torrez caught up, he radioed for a “1028” to determine the vehicle's origin. He then maneuvered his vehicle alongside Frias's to look inside. There, Torrez again saw what looked like bodies lying in the backseat. When the “1028” revealed that the truck was not from the area, Torrez knew enough. He maneuvered his vehicle behind the truck and turned on his emergency lights. At the time of the stop, the men were about 250 miles from the U.S.-Mexico border. After a brief interrogation, Frias admitted he was an illegal alien and was taken into custody. Although the reason does not appear in the record, Frias's immigration proceedings have been terminated.

As a result of his stop and arrest, Frias brought five claims against the U.S. Government and Torrez. His first two claims sought declaratory relief under the Declaratory Judgment Act, 28 U.S.C. § 2201, and the Administrative Procedures Act, 5 U.S.C. §§ 500 –596. Third, he brought a Bivens claim against Torrez individually, alleging that Torrez violated the Fourth Amendment because he lacked reasonable suspicion for the stop and probable cause for Frias's arrest. The fourth and fifth claims were brought under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 –2680, against the government for false imprisonment and assault.

Both the government and Torrez moved to dismiss the complaint. Torrez argued that the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq., makes a Bivens claim unavailable and asserted qualified immunity. The district court disagreed, holding that the INA does not preclude a Bivens claim. It postponed ruling on qualified immunity until the summary judgment phase. In response to Torrez's summary judgment motion, the court held definitively that Torrez does not have qualified immunity. He timely appealed.

Garcia's Stop and Arrest.¹ On October 11, 2010, Garcia and three others left their worksite near Vanderpool, Texas in a red Ford F–150 extended-cab pickup truck, travelling north on Ranch Road 187. The men were heading for San Antonio, from which their travel originated. As the four men travelled north, they passed CBP Agents Coy and Vega who were travelling south on Ranch Road 187 in separate vehicles. When the truck then turned east onto Ranch Road 337, Coy and Vega decided to follow it. Sometime thereafter, and about 100 miles from the U.S.-Mexico border, the agents decided to stop the truck. During the ensuing stop, agent Vega asked Garcia if he was a U.S. citizen. Garcia “answered his question”² and was apprehended.

During oral argument in this court, we were informed that Garcia's immigration proceedings were administratively closed.

Subsequently, Garcia sued Coy, Vega, and the U.S. Government. Like Frias, Garcia asserted claims under the Declaratory Judgment Act and the Administrative Procedures Act; claims against the government under the Federal Tort Claims Act for false imprisonment and assault; and Bivens claims against the agents individually for unlawfully stopping and arresting him. Coy and Vega moved to dismiss the Bivens claims, arguing, like Torrez, that the INA precludes Garcia's Bivens claims and that they have qualified immunity. The district court refused to dismiss, holding that the INA does not preclude Garcia's Bivens claims and that the agents do not have qualified immunity. They timely appealed.

JURISDICTION AND STANDARD OF REVIEW

This court reviews de novo denials of qualified immunity. Brown v. Miller, 519 F.3d 231, 236 (5th Cir.2008) ; Hampton v. Oktibbeha Cnty. Sheriff Dep't, 480 F.3d 358, 364 (5th Cir.2007). Our jurisdiction over qualified immunity appeals extends to “elements of the asserted cause of action” that are “directly implicated by the defense of qualified immunity [,]” including whether to recognize new Bivens claims. Wilkie v. Robbins, 551 U.S. 537, 549 n. 4, 127 S.Ct. 2588, 2597, 168 L.Ed.2d 389 (2007) (quoting Hartman v. Moore, 547 U.S. 250, 257 n. 5, 126 S.Ct. 1695, 1702, 164 L.Ed.2d 441 (2006) ). On appeal from a motion to dismiss, this court accepts all well-pleaded facts as true and views them in the light most favorable to the plaintiff. Brown, 519 F.3d at 236. When this court reviews a denial of qualified immunity at the summary judgment stage, it does not assess the district court's factual findings, but decides whether those facts are material and whether, based on the undisputed material facts, the agents have qualified immunity. Hampton, 480 F.3d at 364.

DISCUSSION

On appeal, the agents present two issues. First, they argue that the INA and special factors bar Bivens claims in the immigration context. Alternatively, the agents assert qualified immunity, not for the traffic stops (at this stage), but only for the aliens' arrests and detentions. Because we hold that aliens involved in civil immigration enforcement actions cannot sue the arresting agents for simply stopping and detaining them, we need not decide whether the agents have qualified immunity.³

In 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), the Supreme Court created a damage remedy against individual federal law enforcement officers who allegedly conducted a warrantless search of a suspect's home and arrested him without probable cause. The cause of action, the Court said, flowed from the necessity to enforce the Fourth Amendment in circumstances where the victim had no effective alternative remedy. Bivens established that, in certain circumstances, “the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18, 100 S.Ct. 1468, 1471, 64 L.Ed.2d 15 (1980).

Garcia and Frias predicate their claim on an analogy between the Fourth Amendment violations they allegedly endured and the facts in Bivens. They thus equate civil immigration enforcement actions with federal criminal law enforcement. These propositions fail to account for subsequent holdings of the Supreme Court, which have narrowed and reframed Bivens in the course of rejecting nearly all other claims for an implied damage remedy against federal officers or agents. In particular, the Court has rejected treating Bivens on an amendment-by-amendment basis. Compare Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (allowing a Bivens remedy for a congressional employee's Fifth Amendment claim) with Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988) (rejecting a Bivens remedy for Social Security recipient's Fifth Amendment claim). Instead of an amendment-by-amendment ratification of Bivens actions, courts must examine each new context—that is, each new “potentially recurring scenario that has similar legal and factual components.” Arar, 585 F.3d at 572.

The Supreme Court's later cases have disavowed that a Bivens suit is “an automatic entitlement;” in fact, it is disfavored. Wilkie, 551 U.S. at 550, 127 S.Ct. at 2597 ; see also Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 75, 122 S.Ct. 515, 524, 151 L.Ed.2d 456 (2001) ...