Thursday, November 3, 2011

Ninth Circuit: No Bivens Claim for Immigrants' Unlawful Detention

A three-judge panel of the Ninth Circuit ruled today in Mirmehdi v. U.S. that immigrants have no Bivens claim against FBI special agents for providing false and concocted evidence that resulted in the immigrants' unlawful detention pending their asylum hearings.

The case arose out of the detention of four Iranians living in the U.S. who applied for political asylum in 1998.  They were subsequently detained as suspected terrorists on evidence compiled by two FBI agents, but the Iranians claimed that the evidence was bogus. 

The Iranians raised these claims on direct appeal of their detention, during the merits proceedings on their asylum claim, and by way of federal habeas corpus.  Each time they were rejected.  But they ultimately succeeded in gaining "withholding of removal because they had demonstrated a likelihood of mistreatment if removed to Iran, and because the government failed to establish that they were engaged in terrorist activity as defined by statute."  Op. at 19882.  After they were released, they sued the agents for unlawful detention and conspiracy to violate their civil rights.

The Ninth Circuit rejected the Bivens claims under the two-step clarified in Wilkie v. Robbins.  The court wrote that the plaintiffs had alternative remedies--appeal of their detention, their asylum case, and habeas, all of which they pursued--even if none of these offered monetary damages.  And the court said that special factors counseled against a Bivens remedy, in particular:

immigration issues "have the natural tendency to affect diplomacy, foreign policy, and the security of the nation," which further "counsels hesitation" in extending Bivens.  [Arar v. Ashcroft, 585 F.3d 559, 574 (2d Cir. 2009).]  As the Supreme Court has noted, concerns that always mitigate against "subjecting the prosecutor's motives and decisionmaking to outside inquiry" have particular force in the immigration context.  Rather than mere "disclosure of normal domestic law-enforcement priorities and techniques" such cases often involve "the disclosure of foreign-policy objectives and (as in this case) foreign-intelligence products."

Op. at 19887-888 (citations, except Arar, omitted).


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