Sissoko v. Rocha
Decision Date | 15 November 2007 |
Docket Number | No. 02-56751.,No. 03-55667.,02-56751.,03-55667. |
Citation | 509 F.3d 947 |
Parties | Oumar SISSOKO; Julie Sissoko, Plaintiffs-Appellees, v. Loyda R. ROCHA; United States of America, Defendants-Appellants. Oumar Sissoko, an individual; Julie Sissoko, an individual, Plaintiffs-Appellees, v. Michael B. Mukasey, Attorney General of the United States; U.S. Immigration & Naturalization Service; Doris Meissner, formerly Commissioner, United States INS; Richard Rogers, District Director, United States INS; Four Unknown Named Officers, of the United States Immigration and Naturalization Service; United States; U.S. Public Health Services; Joseph Chen, MD; Unknown Named Employees of the United States Public Health Services, Defendants, and Loyda R. Rocha, Immigration Inspector, United States INS, Defendant-Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
Robert M. Loeb, Richard A. Olderman and Anne Murphy, Civil Division, Appellate Staff, U.S. Department of Justice, Washington, DC, for the defendants-appellants.
Martin Simone, Leonard M. Roos and Helen Wong, Frank, Greenberg, Simone & Stefanski, Los Angeles, CA, for the plaintiffs-appellees.
Appeal from the United States District Court for the Central District of California; Audrey B. Collins, District Judge, Presiding. D.C. No. CV-98-07010-ABC.
Before: OTTO R. SKOPIL, JR., JOHN T. NOONAN, and MARSHA S. BERZON, Circuit Judges.
Opinion by Judge BERZON; Partial Concurrence and Partial Dissent by Judge SKOPIL.
The opinion filed on March 16, 2006 is hereby withdrawn and replaced by this concurrently filed opinion. The petition for rehearing en banc is denied as moot.
The factual and procedural background of these appeals is set out in our now-withdrawn opinion. See Sissoko v. Rocha, 440 F.3d 1145, 1149-53 (9th Cir. 2006). We adopt the "scope of review" section of our prior opinion, id. at 1153-54, and affirm the district court's denial of Rocha's motion under Fed.R.Civ.P. 59(e) with respect to her newly raised legal issue concerning 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).
Rocha contends that the district court lacked subject-matter jurisdiction over the Sissokos' Fourth Amendment-based damages claim for false arrest. See 8 U.S.C. § 1252(g) () . Appended to Rocha's second petition for rehearing is a Form I-860 "Notice and Order of Expedited Removal." Rocha filled out the top half of the Form I-860, "Determination of Inadmissibility," but not the bottom half, "Order of Removal under Section 235(b)(1) of the Act." Why this happened is now evident: Sissoko indicated at his August 1997 inspection that he had a fear of persecution if returned to Senegal. Accordingly, Rocha was required to refer him for an interview by an asylum officer. See 8 C.F.R. § 235.3(b)(4) (). At this juncture, the mandatory detention provision contained in 8 U.S.C. § 1225(b)(1)(B)(iii)(IV) applied: "Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed."1 Ultimately, Sissoko never had a credible fear interview because he was issued a Notice to Appear and placed in regular removal proceedings.
Considering these circumstances, particularly the existence in the record of a half-completed Form I-860, we conclude that Sissoko's detention arose from Rocha's decision to commence expedited removal proceedings. As a result, 8 U.S.C. § 1252(g) applies to the Sissokos' claim. Compare Wong v. U.S. INS, 373 F.3d 952, 964 (9th Cir.2004) (). Moreover, we are not persuaded by the Sissokos' contention that 8 U.S.C. § 1252(g) must nevertheless be read to allow them a Bivens damages remedy for false arrest.
The Supreme Court has emphasized that "any freestanding damages remedy for a claimed constitutional violation has to represent a judgment about the best way to implement a constitutional guarantee; it is not an automatic entitlement no matter what other means there may be to vindicate a protected interest, and in most instances we have found a Bivens remedy unjustified." Wilkie v. Robbins, ___ U.S. ___, 127 S.Ct. 2588, 2597, 168 L.Ed.2d 389 (2007); see also AFGE Local 1 v. Stone, 502 F.3d 1027, 1036 (9th Cir.2007) ( ). Wilkie instructs us to examine "whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages." 127 S.Ct. at 2598.
In this case, because Sissoko was never issued an expedited removal order, a habeas petition under 8 U.S.C. § 1252(e)(2) could have been successful in remedying his allegedly false arrest.2 In 1997, as now, that provision limited the remedies available to an alien in Sissoko's expedited removal situation to a habeas petition challenging:
(A) whether the petitioner is an alien,
(B) whether the petitioner was ordered removed under [the expedited removal] section, and
(C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, has been admitted as a refugee . . . , or has been granted asylum. . . .
8 U.S.C. § 1252(e)(2) (emphasis added); see also id. § 1252(e)(5) ().3 If the district court had determined in such a habeas action that Sissoko was not "ordered removed" under the expedited removal section—as he was not, despite his being detained under those provisions—the statutory remedy would have been for the district court "to require that the petitioner be provided a [regular removal] hearing." Id. § 1252(e)(4).4 Such a hearing, as Sissoko's experience bears out, is the first step of full administrative and judicial review of an alien's inadmissibility determination, which was the underlying cause of Sissoko's being placed in expedited removal proceedings and detained. See id. (). Compare id. § 1252(e)(5) ( ).
In this limited context, we hold that 8 U.S.C. § 1252(g)'s jurisdiction-stripping language covers the Sissokos' false arrest claim. The claim directly challenges Rocha's decision to commence expedited removal proceedings, and an alternative habeas remedy directly addressing the claimed injury was available through 8 U.S.C. § 1252(e)(2). The only other circuit to have addressed the interaction of § 1252(g) and Bivens similarly stressed the importance of alternative remedies in precluding a damages action. See Humphries v. Various Federal USINS Employees, 164 F.3d 936, 945 (5th Cir.1999) (); see also Khorrami v. Rolince, 493 F.Supp.2d 1061, 1068-69 (N.D.Ill.2007) ( ).5 But see Medina v. United States, 92 F.Supp.2d 545, 554 (E.D.Va.2000) (Humphries' reasoning) .
Our reading of 8 U.S.C. § 1252(g) is also consistent with Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) ("AADC"). The plaintiffs in that case filed an action alleging constitutional violations based on the government's targeted deportations of members of the Popular Front for the Liberation of Palestine. A damages remedy was not sought. Id. at 474 n. 3, 119 S.Ct. 936. After concluding that the claims fell within the ambit of § 1252(g), the Court did not end its inquiry, but proceeded to address whether the particular constitutional harms alleged justified reading the statute to allow the lawsuit. In holding that the AADC plaintiffs had not established that such a reading was required by the Constitution, the Court emphasized that "[w]hen an alien's continuing presence in this country is in violation of the immigration laws, the Government does not offend the Constitution by deporting him for the additional reason that it believes him to be a member...
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