Arar v. Ashcroft

Immigra formerly Commissioner serious “particularly definition tence’s Services; 104-05, tion and Naturalization Alaka, crime,” see America, Defen felony States Of aggravated United it clarifies dants-Appellees. re- crime serious particularly be a N-A-M-, see length, of sentence gardless Docket No. 06-4216-cv. accept the BIA’s We Dec. 336. 24 I. & N. Appeals, it United States Court because permissible as

interpretation Circuit. reasonably reads the second Second naturally 1231(b)(3)(B) as a caution §of sentence Argued: Nov. 2007. inference an available drawing Decided: June prior from the sentence.

CONCLUSION Nethagani’s re- have considered

We merit- and find them

maining arguments reasons, deny we foregoing

less. For review. petition ARAR, Plaintiff-Appellant,

Maher formerly Attorney ASHCROFT,

John States; Larry

General formerly Deputy Thompson, Attor

D. Secretary Ridge,

ney General; as Tom Security; J. of Homeland State Regional Blackman, Director

Scott Immigration Regional Office Services; Paula

and Naturalization Regional of Immi

Corrigan, Director Enforcement;

gration and Customs formerly McElroy, District

Edward J. Immigration Natural

Director of Dis for New York

ization Services Enforcement;

trict, and now Customs Mueller, of the Feder Director

Robert Investigation; Doe John

al Bureau of Investigation

1-10, Bureau of Federal Immigration Naturaliza

and/or Ziglar, Agents; James W.

tion Service Bucholtz, Principal Deputy As-

Jeffrey (Peter General, Keisler, Attorney J. sistant General, Rosylnn R. Attorney Assistant Attorney, East- Mauskopf, United States York, Barbara L. Her- ern District of New Loeb, Mary Hampton Ma- wig, Robert M. Brumbelow, brief), son, on the Jeremy S. Justice, Department States DC, Capacity De- Washington, for Official fendants-Appellees and for Amicus Curiae of America. the United States Kakar, (Jeremy Maltby, Marga- Shveta V), Carter, Bagnall George ret L. James LLP, O’Melveny Myers Angeles, Los & NY, York, Defendant and New CA III. Appellee Robert S. Mueller NJ, Roth, Orange, Thomas G. West Blackman. Defendant-Appellee J. Scott (Debra L. Roth on Thomas M. Sullivan Bransford, brief), Shaw, Veilleux & DC, Roth, P.C., for Defen- Washington, McElroy. dant-Appellee Edward J. (Bassel McDaniel, Bak- A. Jr. William brief), Baltimore, hos, Maryland, for on the Ziglar. Defendant-Appellee James W. Rosdeitcher, Paul, Weiss, Rif- Sidney S. (Jonathan kind, LLP Wharton & Garrison Hafetz, for Justice Brennan Center Law, on University School of New York York, NY, brief), Amicus New for Cu- supporting Judges, Retired Federal riae Cole, for Center Constitutional David Plaintif-Appellant. (Katherine York, Galla- N.Y. Rights, New Morawetz, University New York Nancy Goodman, La- Maria Couri gher, William York, NY, Law, for Amicus of New School Lobel, Olshansky, Hood, Barbara Jules Scholars, sup- Curiae U.S. and Canadian Rights, New for Constitutional Center porting Plaintiff-Appellant. Fink, York, NY, Robert Joshua S. Sohn. Arimond, for Interna- Bridget Center Sterken, III, J. Stanley McDermott Sarah Uni- Rights, Human Northwestern tional NY, LLP, York, on DLA New Piper IL, Law, for Chicago, versity of School Maher brief), Plaintiff-Appellant for International for Amicus Curiae Center Arar. University Rights of Northwestern Human (John Cassidy, Stephen Kilberg J. Law, Plaintiff-Appel- Jamie supporting School Lamken, Allyson N. lant. Jeffrey A. Braga, L. Dourado, brief),

Ho, R. Stephanie (Akbar Huskey Siddiqui, Sa Kristina A. DC, counsel)* LLP, Washington, , Baker Botts Interna Balgamwalla, brina Clinic, American Rights Human Law Larry Thompson. tional Defendant-Appellee * students). appear eligible law Balgamwalla Siddiqui and Ms. Mr. 46(e) (appearance Rule pursuant to Local Law, College Inquiry into the Actions of

University Washington mission Ca- and Ac- Center for Justice Amicus Curiae Arar, nadian Officials in Relation to Maher countability, International Federation for Analysis 11-12 and Recommendations Advocates for Rights, Human Minnesota (2006) (“Canadian Commission, Analysis Organization Rights, Human World Recommendations”) (describing and Torture, supporting Plaintiff-Ap- Against scope inquiry). The Commission pellant. determined that Canadian officials had Condon, Azmy (Jenny-Brooke Baher “requested” that American authorities cre- Jain, Michelman, counsel), Meetali Scott wife, ate lookouts for Arar and his had Justice, for Social Seton Hall Law Center described Arar to American authorities as School, for Amicus Curiae Scholars of an “Islamic Extremist sus- individual!] Law, supporting American Constitutional pected being Qaeda A1 linked to the Plaintiff-Appellant. movement,” provided terrorist and had McLAUGHLIN, CABRANES, Before: American information authorities with de- SACK, Judges. Circuit investigations rived from their of Arar. Id. at 13. The further Commission deter- Judge part SACK concurs very likely that, mined “[i]t [wa]s part separate opinion. dissеnts making the decisions to detain and remove CABRANES, A. Judge: JOSÉ Circuit Arar, Mr. American authorities relied on September plaintiff-appel- On provided by information about Mr. Arar Arar, lant a dual Syria Maher citizen of [Royal Canadian Mounted Police].” Canada, subject of a U.S. Id. at 14. Accordingly, the Commission “lookout,” government J.A. was de- recommended that Canadian authorities tained U.S. authorities at John F. Ken- granting request consider Arar’s for com- nedy airport International in New York pensation from government. the Canadian (“JFK City Airport”) while en route from Id. at In January 369. the Canadian 7, 2002, Tunisia to Montreal. On October government entered into a settlement Blackman, J. Immigra- Scott then the U.S. Arar, agreement whereby with he received (“INS”) tion and Naturalization Service compensation of 11.5 million Canadian dol- Regional Region, Director for the Eastern determined, million, (approximately based on a review of lars classified $9.75 information, time) and unclassified that Arar was exchange in withdrawing a law- Qaeda member of A1 and therefore inad- against suit government. the Canadian missible to the United States. Pursuant to Austen, Ian Pay See Canada Will $9.75 determination, this signed Blackman Syria Million to Man Sent to and Tor- order authorizing Arar to be removed to tured, Times, 27, 2007, N.Y. Jan. at A5.1 Syria inquiry “without further before an 22, 2004, January shortly On before the immigration judge, in accordance with [8 initiation of inquiry, the Canadian Arar 1225(c)(2)(B) § U.S.C. and 8 C.F.R. Blackman, filed this civil against action 235.8(b)].” § Id. at 86. Attorney former U.S. General John Ash- In February the Canadian Govern- croft, Mueller, FBI Director Robert for- (“the ment convened an official commission Acting Attorney mer Larry General D. Commission”) to look into “the actions of Thompson, former INS Commissioner Canadian officials relation to” Arar’s James Ziglar, W. INS District Director States, detention the United his eventu- McElroy, Edward J. Secretary al Syria, removal to subsequent his by Syrian detention Security, authorities. See Com- Homeland Regional Director 1. We adopt granted do not or judicial otherwise endorse the we Arar's motion to take no- findings of the report scope Commission. Our reference to tice of the existence of the findings the existence of these judicial consistent its contents but declined to take no- 23, 2007, findings with our order of October in which tice of the set forth therein. brings ap- 2006. Arar now gust Enforcement and Customs Immigration Region, and several peal. New York for the the FBI and INS.2 employees of

unnamed questions several implicates Arar’s suit mis- these individuals alleges impression first for our Court. One in the United him while treated presented ap- on this question threshold Syria him to with then removed States and contend, whether, peal is as defendants intention that he would knowledge (“INA”), Nationality Act Immigration and and tortured there. be detained seq., deprived § 1101 et the Dis- 8 U.S.C. requests Arar’s one of Count subject jurisdiction matter trict Court of Protection under the Torture Victim relief the claims raised in Counts two and over (“TVPA”). Act, § 1850 note 28 U.S.C. adjudica- complaint. three of Arar’s request relief under two and three Counts is, question for the reasons set tion of this to the U.S. Constitu- the Fifth Amendment 169-73, below, particular- see forth infra two) (Count alleged Arar’s torture tion for ly light difficult in of the record before us. three) (Count Syria. and detention However, compelled we are to dis- because the Fifth requests relief under Count four these claims on the basis of other miss to the U.S. Constitution Amendment is, grounds, threshold —that non-merits — while Arar to have occurred events not determine the INA we need whether in the United States. With was detained fact, did, strip the District Court relief, declaratory Arar seeks respect subject jurisdiction to hear Arar’s matter conduct violated that defendants’ judgment claims. removal-related “constitutional, civil, and international compensatоry (1) as well as rights,” human wheth- must therefore determine We statutory damages for the punitive jurisdic- personal had er the district court alleged in the violations and constitutional defendants; the individual tion over complaint. Compl. allegation that U.S. offi- whether Arar’s Syrian and order dated Feb- authorities to conspired In a memorandum cials District ruary the United States a claim the U.S. torture him states of New for the Eastern District Court TVPA; whether to under the officials (David dismissed Trager, Judge) G. York damages remedy, pursu- judicial create a suit, through one three of Counts Federal ant to Bivens v. Six Unknown 12(b)(6) the Federal to Rule pursuant 388, 91 S.Ct. Agents, Narcotics Procedure, for failure to Rules of Civil (1971), for Arar’s L.Ed.2d 619 can be upon a claim which relief state (a) him removed claims that U.S. officials Ashcroft, Arar v. granted. See knowledge or intention Syria to with the (E.D.N.Y.2006). F.Supp.2d 287-88 tortured detained and that he would be four dismissed Count The District Court (b) him he was mistreated while there and Rule pursuant prejudice, without States; finally, and in the detained 12(b)(2), jurisdiction personal for lack of (4) declaratory may seek a whether Arar Upon re- the individual defendants. over actions violated that defendants’ judgment that Arar had elected not ceiving notice rights. his constitutional jurisdic- complaint his to cure the amend follow, conclude that we For the reasons Court, by the tional found District defects Supreme of the precedents that under the judgment dis- of Court entered the Clerk (1) a Arar has made and our Court: prejudice on Au- Court missing the action with Blackman, Secretary capacities complaint names the Ziglar, His Thompson, 2. Arar sues Regional Security Di- and the indi- of Homeland McElroy and the Doe defendants in their Immigration and Customs Enforce- capacities. and rector of vidual He sues Ashcroft capacities only. in their official individual and official ment Mueller in both their showing money damages sufficient to establish of action for to redress prima fade type Arar in this Thompson, over Ash- of claims asserted jurisdiction personal remains, however, early of the action. The fact croft, stage at this and Mueller (2) Instead, it has Congress one of Arar’s com- has not done so. litigation; Count process because Arar’s chosen to establish a remedial must be dismissed plaint Syria removal to does not include a cause of action for dam- regarding his allegations injuries ages against defendants officials for aris- against not state a claim do (3) TVPA; ing discretionary and from the exercise of their Counts two complaint, envisage authority which to remove inadmissible aliens. three of Arar’s to the judicial creation of a cause of action We are not free be indifferent Bivens, ignore or to Congress, to the doctrine of must determinations of pursuant (a) Supreme be dismissed because the remedial Court’s instructions to exer- also by Congress great considering established is suffi- cise caution when wheth- scheme unknown, creating to refrain from er to devise new and heretofore cient to cause us standing damages remedy for Arar’s causes of action. free (b) claims; assuming removal-related Judge part Sack concurs in and dissents argument the sake of the in part. Specifically, Judge agrees Sack existence of a remedial scheme established (1) majority that with the has made by Congress was insufficient to convince prima showing sufficient to establish fade us, “special factors” of the kind identified jurisdiction personal Thompson, over Ash- its Bivens juris- Court (2) croft, Mueller; allegations prudence against judicial counsel cre- regarding Syria his removal to do not state remedy damages ation of a for claims aris- a claim against defendants under (4) ing Syria; from Arar’s removal TVPA; adequately Arar has not Count four of Arar’s must be subject jurisdic- established federal matter allegations dismissed because Arar’s about request judgment tion over his for a de- the mistreatment he suffered while in the claring illegally by that defendants acted United States do not state a claim removing Syria Syrian him to au- so defendants under the Due Process Clause him interrogate thorities could under tor- Amendment; Fifth and Arar has ture. adequately subject established federal however, majority, Unlike the Judge jurisdiction matter over request accept judi- Sack would Arar’s invitation to judgment declaring that defendants acted new Bivens cially create a remedy illegally by him removing Syria so that permit monetary would Arar’s claims for Syrian interrogate authorities could him damages go forward based on his view under torture. the giving context rise to Counts presented, In the circumstances we need complaint two and three of Arar’s —-the by not consider the issues raised the asser- deportation detention and of a suspected tion of the privilege by state-secrets the pursuant terrorist to the discretion con- particularly, United whether the States — Attorney ferred on the General' —raises no “ pursuant exclusion of information to the ‘special counseling] against factors’ the privilege might result the of dismissal Bivens,” 212; see Dissent application of certain of Arar’s claims. rights constitutional that Arar’s do not doubt that if Congress complaint We were sufficiently invokes are broad inclined, so it state a Bivens powers could exercise its and “clear” that Arar under the Constitution to authorize a cause claim based on the conditions of his deten- considering, evaluating when Arar’s States, ity see id. the United tion within claim, fact-specific “the ‘context’ of Judge Sack Bivens by which analysis 215. The view, treatment,” is, in id. at 209. our Arar’s conclusions reaches these contradictory assertions undermined enjoyed by the writ- Such is the freedom high- We of the law. misstatements dissenting opinion. charged Those er of a examples here. prominent three light carry rendering decisions with grap- First, opinion does Judge Sack’s freedom, law have no such howev- force of legal questions complicated ple with is to deliver a reasoned er. Our task applica- the extraterritorial arising from of opinion precedents that conforms to it casts the tion of the U.S. Constitution: Court; Court and our we “as challenged perpetrated actions course, agree, here. of have done so We States,” the United entirely within agents to the Judge Sack’s view threats looks to Arar’s n. but then id. at 213-14 jettison security do not allow us to nation’s by Syrian anthmities alleged torture “simple justice and fair deal- principles Arar’s Fifth Amend- the basis for Syria as But times ing.” parlous Id. at 216. these claim, (observing that id. at 204-05 ment challenge expand national can no more undoubtedly by torture” “interrogation they judiciary than can powers “whether and that the conscience” “shocks rights of individuals. The contract Fifth Arar’s the defendants violated damage quintes- civil claims is creation of who does not turn on rights” Amendment function, sentially pro- and the legislative committed the torture claims Arar security national and the conduct tection of place). took Arar claims the torture where executive. foreign primarily affairs are Arar’s Second, recognizing that despite force of the dis- the emotive Whatever allega- Amendment claim is based Fifth we complaint, characterization of the sent’s Arar was removed tions that from judicial function to disfigure the cannot in order to be tortured States satisfy indignation. personal concludes Judge Sack nevertheless Syria, “questions no that Arar’s suit involves Background I. any action arising fact from lаw and A. Facts brought to remove an proceeding taken or unverified,3 States,” complaint, which is 8 U.S.C. alien the United factual 1252(b)(9) following relevant added) thereby sets forth (emphasis § — 26, 2002, U.S. September On allegations. of whether question the difficult avoiding Arar at JFK 1252(b)(9) detained immigration officials stripped § the District Court flights transferring while he jurisdiction Airport to hear Arar’s subject matter He to Montreal. way from Tunisia Dissent 212 n. on his claims. See removal-related days. custody twelve in U.S. Third, position remained Judge Sack takes time, held at the of this he was alleged For most assessment of Arar’s that “[t]he (“MDC”) Detention Center Metropolitan the en- must take into account that on the NY. Arar claims Brooklyn', allegations factual tire arc of “placed he was major- evening September makes,” criticizes the id. at but that, turn, the INA’s bears on whether fact that Judge "[l]he characterizes 3. Sack complaint verify deprived provisions not choose to his jurisdiction stripping Arar did — set Dissent 193 n. 3. As irrelevant.” jurisdic- [as] subject matter the District Court below, determines whether this fact forth complaint See removal-related claims. tion over Arar's sup- evidence in itself serve as 169-72. infra allegations therein —an issue port made months; subjected solitary initially “physi- confinement” in a room with no him to lights psychological including and with that were left on all cal and bed torture” — ¶ Compl. morning On the night. regular beatings 32. and threats of severe allegedly questioned harm; September through- him physical and confined agents ignored requests FBI who to underground out this time in an six cell a call. lawyer telephone a or make long, see feet high, seven feet and three feet ¶¶ alleges requests Arar that his see wide. Id. 51-58. telephone call were also

lawyer or make alleges, Arar information and “[o]n be- ignored September between and Octo- lief,” Syria pursu- that he was removed to ber government’s ant to the U.S. “extraordi- nary policy, presented knowledge On October Arar was rendition” with the stating Syrian a document that the INS had de- or intention that officials would ex- of A1 tract information from him tor- through termined that he was member ¶ Qaeda alleges, and was therefore inadmissible to ture. Id. 57. He further “[o]n States; belief,” permitted the United he was then information and that defendants telephone family, provided Syrian to make a call to his who authorities with informa- him, lawyer subjects suggested Syr- retained a on his behalf. The com- tion about about, plaint alleges interrogate further that Arar met his ian authorities to him lawyer evening on the and received “all information the MDC coerced from 5; that, meeting, during interrogations.” October after this on the [him] [these] Id. ¶¶ Sunday, evening Thompson, Acting Attorney October defendant 55-56. “as General,” McElroy a message notifying left Arar’s information and “[o]n lawyer that the INS wished to question signed belief’ have the order authoriz- ¶ further; ing Syria. Arar that INS officials then im- Arar’s removal to Id. 48. Arar, mediately proceeded question hav- history B. Procedural falsely him ing lawyer told that his had that, present; chosen not to be on the 24, 2005, January On the United States following day, falsely in- INS officials formally asserted privi- the state-secrets lawyer formed Arar had been lege over relating information to Counts transferred from the MDC to unidenti- through one complaint. three of Arar’s facility when, fied Jersey detention New Specifically, explained: the United States fact, being was still held at the Litigating [Arar’s claims] would necessi- MDC; and that on October defendant information, tate disclosure of classified Thompson signed an order authorizing (1) including: the basis for the decision Arar’s removal. to exclude [Arar] [the United finding States] based that [he] that, alleges further al- Qaeda ...; was a member of ... al though designated Arar had Canada as the rejеction the basis for the of [Arar’s] removed, country to which he wished designation country of Canada as the on October U.S. officials caused ...; which [he] wished to be removed him to be transported from the MDC to the considerations involved in Jersey, New where he was flown to Wash- Syria. decision to remove [Arar] D.C.; ington Washington and from D.C. to Amman, Jordan, 131-32, where thereafter, Jordanian authori- J.A. Shortly 135-36. Syrian ties turned him military over to all defendants moved to dismiss Arar’s Syrian officials. authorities allegedly kept They contended, claims them. custody Arar in approximately among twelve things, other one Counts capacities vidual alone to establish Arar’s should through three of —let of the because the assertion personal jurisdiction be dismissed over those defen by the United privilege state-secrets York, domiciled outside New id. dants introducing them from prevented States replead declined to Count four meaningful present to required evidence complaint. Accordingly, August Blackman, McElroy, Ziglar, defense.4 17, 2006, the entered a Clerk Court Ashcroft, further and Mueller Thompson, com judgment dismissing final alleged not suffi- that Arar had contended plaint prejudice. timely appeal This to state a claim involvement personal cient followed. capacities. them in their individual Ashcroft, and Mueller contend- Thompson, parties we directed the On October subject ed, moreover, they not were question on the to submit letter briefs jurisdiction in New York. personal extent, “whether, and to what the asser- and order filed on In a memorandum privilege by of the tion state-secrets Court, 16, 2006, February the District ability our United States could foreclose by raised reaching the issues without adjudicate arising claims from Counts one privilege by of the state-secrets assertion through complaint.” three States, Counts one the United dismissed States, brief, main- its letter complaint with through three of Arar’s tained that Court can and should “[t]his preju four without prejudice and Count judgment affirm the [District [CJourt’s one, the respect to Count dice. With reaching by raised without the [issues alle concluded that Arar’s District Court state-se- the] United States’s assertion against de did not state a claim gations 8; Letter Br. but privilege,” crets under the TVPA. See fendants that, “if to reverse the this Court were respect at 287. With F.Supp.2d 3,or the [District dismissal of claims three, two and it concluded Counts to deter- required would then be [C]ourt factors” of the kind identified “special any mine on remand whether reinstated against the Court counseled notwithstanding the proceed claim could remedy, of a Bivens extension privilege,” of the state-secrets id. assertion Amendment, inju alleged Fifth for Arar’s omitted). (internal Arar, quotation marks respect ries. Id. at 281-83. With brief, “agree[d] with the Unit- in his letter four, allegations involving Arar’s Count and should that this Court can ed States custody, mistreatment while U.S. about without consid- pending appeal resolve the that Arar District determined Court privilege,” Pi’s ering state[-]secrets Fifth had stated a claim under that, understanding if Br. on the Letter Amendment, id. at that defendants Court, the District prevailed in our qualified immunity, not entitled to were necessary “case- could conduct the Court that Arar had not id. at but [regarding the state-se- specific inquiries involvement the de personal sufficient remand,” at 5. ... on id. privilege] sue them in their indi crets fendant officials to rules,” Dynamics plaintiff may be able to obtain Corp., In Zuckerbraun v. General that, Cir.1991), (2d necessary to evidence state F.2d 544 we observed "access invoked, such prima Id. at 547. Under properly the effect of the facie claim.” "[o]nce circumstances, probably most [privi- "dismissal is privilege to exclude [state-secrets] ground appropriate on the leged] Id. at 546. under Rule 56 evidence from the case.” Thus, proof, lacks although plaintiff's complaint may plaintiff, who bears the burden of carry Id. pleading that burden.” sufficient evidence "state a claim for relief under notice id., a claim is inquiry, see Therefore, agreement of the threshold with the subject for lack of presented “properly the claims dismissed parties, we evaluate 12(b)(1) considering law before Rule applicable jurisdiction matter under of the state-secrets statutory whether the assertion the district court lacks the when requires States privilege it,” adjudicate power to or constitutional action. dismissal States, 201 F.3d Makarova v. United Cir.2000). (2d jurisdiction is When

II. Discussion the burden challenged, plaintiff “bears of the evi showing by preponderance review de novo a district We subject jurisdiction ex dence that matter pursu grant of a motion to dismiss court’s Potter, 12(b)(6) ists,” v. 343 F.3d APWU Rule for failure to state ant to Cir.2003) (internal (2d See, marks Specialists quotation In re e.g., claim. NYSE (2d 89, 95 Litigation, omitted); 503 F.3d Aurecchione v. School Securities see also Cir.2007). so, “accept[] (2d doing In we Transp. Sys., man 426 F.3d in the com alleged true the material facts Cir.2005), and the district court exam all reasonable inferences plaint draw[ ] pleadings outside of the ine evidence plaintiff[’s] Iqbal favor.” See v. [the] determination, Makarova, see make this “ (2d Cir.2007) Hasty, 490 F.3d Accordingly, ‘[j]urisdic 201 F.3d 113. (internal omitted), marks cert. quotation affirmatively, shown and that tion must be — nom., granted Iqbal, sub Ashcroft showing drawing is not made from the — -, L.Ed.2d pleadings party inferences favorable to the ” -, 3417, 2008 76 U.S.L.W. WL Potter, asserting it.’ 343 F.3d at 623 2008) (No. 07-1015). (U.S. De June Corp Fin. (quoting Shopping Servs. challenged, pursuant fendants also to Rule (2d Cir.1998)).5 Drakos, 12(b)(1), subject mat the District Court’s adjudi considering a district court’s When jurisdiction removal-relat ter over Arar’s motion, we review cation of such its and, 12(b)(2), pursuant ed to Rule claims findings legal factual for clear error and its Ashcroft, personal jurisdiction its over 623-24; conclusions de novo. See id. Thompson begin and Mueller. our We Aurecchione, 426 F.3d at 638. analysis with a consideration of these threshold issues. statutory challenge, Defendants

grounds, subject the District Court’s mat- Subject jurisdiction A. matter jurisdiction ter over Counts two and three complaint Bivens claims subject

A federal court has mat —the arising from his overseas detention and jurisdiction only ter over a cause of action they Specifically, torture.6 con- authority adjudicate when it “has Congress explicitly tend that foreclosed pressed complaint. cause” in the Sino judicial Attorney review of the General’s Malay. Shipping chem Int’l Co. v. Int’l — U.S. -, 1188, discretionary carrying decisions when out Corp., (2007). removal-related duties and created Determining 167 L.Ed.2d 15 subject jurisdiction litigate existence of matter is a alternative forum to other removal- challenge Accordingly, Judge plainly 5. 6. do the District Sack is incorrect Defendants allegations subject jurisdiction forth Court's matter over assert set grounds. III Arar's "must be treated as estab- Counts two and three on Article present purposes.” agree requirements We that the of Article III lished facts for Dissent regard met with to these counts. have been claims, thereby them excepting related jurisdiction of question the federal matter, an initial question As defendants responds Arar that his courts. the district any jurisdiction whether court has federal that alterna- avail himself of attempts to claims, noting to review these Bivens that by defendants tive forum were thwarted Attorney the INA affords the General and litigate to that if he is unable delegates to a discretion send remova- court, have in federal district he will action country alien to a other than the ble coun- press to his constitu- no forum whatsoever try designated, has 8 U.S.C. tional claims. 1231(b)(2)(C),7 § and insulates from review that pursuant actions taken to discretion- Court has observed 1252(a)(2)(B)(ii).8 See, § ary authority, id. judi “preclude a statute to construing e.g., Ashcroft Br. 23-25 8 (invoking U.S.C. important ... of ... an cial consideration 1231(b)(2)(C) 1252(a)(2)(B)(ii) § § in ... raise question of law would serious support of the proposition “insofar as Cyr, v. questions.” constitutional INS St. complains being about not sent to his 314, 2271, 289, 121 S.Ct. 150 533 U.S. preferred designations or about the deter- (2001) (offering this observa L.Ed.2d 347 membership mination as to in a terrorist petition in of a for writ of tion the context organization, Congress any has foreclosed Doe, also v. corpus);

habeas see Webster review”). judicial 2047, 592, 603, 108 S.Ct. 100 486 U.S. “ (1988) (noting that a ‘serious L.Ed.2d 632 Congress has indeed declined to ... arise if a question’ constitutional would jurisdiction with vest federal courts deny any construed to federal statute were discretionary review of the Attor decisions judicial forum for colorable constitutional ney granting General other than the or Acade (quoting Michigan claim” Bowen v. asylum. denial See 8 U.S.C. 667, my Family Physicians, 476 U.S. 1252(a)(2)(B)(ii); § Dep’t Camara v. 12, 2133, 90 L.Ed.2d 623 681 & n. (2d Sec., 121, 497 F.3d 124 Martinez, Homeland Cir. (1986))); 232 F.3d at Calcano 2007); Gonzales, Atsilov v. Accordingly, Congress “where in Cir.2006) (2d (noting 115 the INA preclude judicial review of consti tends claims[,] “negates jurisdiction our to review ‘deci do so must tutional its intent to Webster, ... Attorney sion or action of the General 108 be clear.” 486 U.S. ... authority specified for which is (noting, approval, 2047 S.Ct. Attorney be in the discretion of Gener Court’s earlier observations this effect ” 1252(a)(2)(B)(ii)) § (quoting al’ 8 U.S.C. Weinberger Salfi, (first original)). Congress alteration 45 L.Ed.2d Robison, has, however, 1252(a)(2)(D), § 8 U.S.C. Johnson (1974)). ap court of “appropriate authorized the 39 L.Ed.2d 389 states, 1252(a)(2)(B)(ii) provides, part, that 8. Section relevant 7. Section 1231 in relevant Attorney may disregard” General jurisdiction “[t]he part, that “no court shall have country designation of the to which he alien's any ... ... decision or action of the review if, things, among wishes to be removed other Attorney Secretary or the of Home- General willing government country “the of the is not authority speci- Security the for which is land accept country,” the alien into the id. Attorney of the fied ... to be in discretion 1231(b)(2)(C)(iii) Attorney § "the General or Secretary Securi- General or the of Homeland removing country decides that the alien to the granting [asylum].” ty, other than the States,” prejudicial to the United id. 1231(b)(2)(C)(iv). § judicial review scheme sec- “constitutional claims established to consider peals” 1252); INS., upon petition raised Martinez v. questions of law tion Calcano (2d Cir.2000) in accordance with (noting [the filed review F.3d provisions INA].” judicial judicial review the INA provisions review See, Dept. v. U.S. Xiao Ji Chen e.g., ju- provide appellate for “exclusive court” Cir.2006). (2d Justice, F.3d claims). risdiction over removal-related Congress that did indicates provision This urge that Arar’s Bivens Defendants our consideration of preclude not intend claims related to his detention and questions that raise claims removal-related in Syria torture from action “aris[e] [the] violations, allege so of law or constitutional taken ... from the [Arar] remove they properly are before this long as States,” 1252(b)(9), § 8 U.S.C. and Court. only by petition therefore can be reviewed appropriate appeals to the court of —not by a federal district court. matter, secondary defendants con-

As that, if Arar has raised consti- tend even courts, Federal district like other claims, were not tutional such claims courts, Article III are “courts of limited Court; properly the District and before jurisdiction only ... possess [that] therefore, properly are before us on power authorized Constitution and [the] they appeal. Specifically, assert INA statute.” Corp. Allapattah Exxon Mobil beyond removal-related claims places rvs., Se 545 U.S. question of a district court’s federal reach (internal 2611, 162 quo L.Ed.2d 502 jurisdiction by creating an аlternative— omitted). previous tation marks haveWe resolving for exclusive—mechanism ly observed that “statutes that vest those claims.9 Pursuant to 8 U.S.C. judicial review of administrative orders ex 1252(b)(9), § “all of questions law and clusively appeals pre in the courts of also fact, including interpretation applica- hearing clude district courts from claims statutory tion of provi- constitutional ‘inextricably are intertwined’ with re sions, arising any from action taken or Shuttle, view of such orders.” Merritt v. proceeding brought to remove an alien (2d Cir.2001). Inc. 245 F.3d In from the United States” are channeled so, however, doing we have noted “the judicial providing into a review scheme test for determining whether statute [a petition that “a for review filed with an vesting jurisdiction exclusive in the courts appropriate appeals court of in accordance appeals] precludes a district court from with this section shall be the sole and hearing particular claim ... whether judicial exclusive means for of an review the claim ‘could and should have been’ 1252(a)(5). removal,” § order of 8 U.S.C. presented to and decided a court of § (providing See also id. 1231 note appeals.” Id. at (quoting City Taco “involuntary claims relating to the return Tacoma, v. Taxpayers ma any person country to a in which there (1958)). L.Ed.2d 1345 are grounds believing substantial person danger would in Arar being be sub- contends that he could not have jected brought presented to torture” to under the through proee- his claims ("[Under] judi- (joining argu- See Ashcroft Br. the basic ler Br. 1 n. 1 in co-defendants’ INA[,] cial review scheme of the ... claims ments); (same); McElroy Blackman Br. 27 arising agency belong out of actions do not (same); (same). Ziglar Br. 25 Br. 21 16-17; court.”); Thompson district Br. Muel- alleged by cial of the sort alleges 1252. He misconduct forth section dure set Congress’s vitiate determination that intentionally prevented that defendants judicial a federal district court is not the appropri- the INA’s re- pursuing him from litigating arising him ate forum for claims by denying access to provisions view counsel, location from his an order of removal. concealing his him, secret, be- lawyer, removing That we are asked to decide this issue lawyer petition could file fore allegations basis set forth obliged we are not our Court. While complaint heightens unverified our hesi- allegations truth of these when assume the tation. While a verified made a claim should be dis- evaluating whether “under oath a matter about within [the subject jurisdic- matter missed for lack of plaintiffs] knowledge,” Doral Produce Makarova, tion, 201 F.3d we see Assoc., Corp. Steinberg Paul purpose do here for the sole will so (2d 36, Cir.2003), 39 evidence in constitutes if allegations, considering whether alleged of the facts in the support com- true, a compel would determination 865, plaint, Coughlin, see Colon v. 58 F.3d subject ju- the District Court had matter (2d Cir.1995), ordinary 872 or unveri- “[a]n risdiction. complaint,” by fied such as the one filed litigation, “may Arar in authority proposition There is for the not constitute evidence,” that al- 11 that official obstruction similar to James Wm. Moore et [such] (1) (3d al., § leged by plaintiffs excuse a Moore’s Federal Practice 56.14 ed.2007). see, deadline, filing Permitting plaintiff a a to circum- comply failure to Levin, Fishbein, & e.g., congressionally Oshiver v. Sedran vent mandated remedial (3d Cir.1994) Berman, by in an alleging 38 F.3d 1387 scheme unverified com- (2) tolling), plaint perhaps nothing bar a defendant more than in- (equitable — defenses, asserting government certain such as formation and belief—that of- from remedies, failure to exhaust administrative ficials blocked access to the relevant forum McGinnis, see, Abney permit widespread v. would evasion of the e.g., Cir.2004) (2d (equitable estoppel). Congress administrative mechаnisms that 667 However, challenging agency Arar has forth no authori- has established for ac- set judicial ty we are aware of none—for the tion: mechanisms that include re- —and is, It after proposition allegations past appeals. inter- view the court of all, Congress to deter- permit plaintiff prerogative ference to avoid a con- courts, jurisdiction of the district gressionally mandated remedial scheme al- mine the words, together. appears permit In other it and we are loath to those determi- easily yet court whether offi- nations to be so thwarted.10 no has considered arrest; prin- interception questioning, partial 10. The dissent concludes that and his "[b]e- putative challenging cipally by agents, about ties cause Arar is not his removal FBI his terrorists; order,” jurisdiction-stripping provisions his detention and mistreatment Queens Airport apply.” 212 n. at JFK and the MDC “do[] the INA not Dissent misleading disagree. Brooklyn; the deliberate of both We As the dissent itself acknowl- Consulate; directly lawyer edges, although his and the Canadian Arar does not chal- D.C., removal, Washington, lenge transport forced order of the circumstances his Syrian de- predicate for transfer to authorities for further of his removal serve as a factual torture”). questioning The tention and under the claims set forth in counts two and three “[jludicial clearly provides complaint. (expressing INA review Arar's Id. 204 fact, questions including all of law and inter- view that assessment of Arar’s "[t]he pretation application of constitutional complaint must take into account the entire any statutory provisions, arising ac- allegations arc of factual that Arar makes—his Harris, Younger 401 U.S. (1971), 27 L.Ed.2d 669 without S.Ct. affirm the Because we District deciding parties present whether dismissal of two and three Court’s Counts controversy, Dyson, case or see Ellis of Arar’s on the basis that a 426, [433-34], U.S. judicial damages remedy is not authorized (1975)”). L.Ed.2d 274 180-84, progeny, Bivens and its infra whether the INA we need determine Doe, In Tenet v. subject deprived the District Court of mat (2005), 161 L.Ed.2d Court jurisdiction over Arar’s removal-relat ter pursuant held that it could dismiss a suit ed Bivens claims. States, to Totten v. United U.S. has, Court on sever L.Ed. 605 (precluding arising suits occasions, recognized al that “a federal from a espionage agreement secret be- leeway among court has ‘to choose thresh States), plaintiff tween the and the United grounds denying old audience to a case without determining first whether the dis- ” on the merits.’ Sinochem Intern. Co. subject jurisdiction trict court had matter — Malaysia Intern. Shipping, Ltd. v. Tenet, over the in question. claims See -, U.S. 167 544 at 6-7 n. 4. The Court reasoned (2007) (quoting Ruhrgas L.Ed.2d 15 AG v. that the issue of whether to entertain the Co., Marathon 526 Oil U.S. was, plaintiffs’ claim like Younger absten- (1999)). S.Ct. 143 L.Ed.2d 760 As prudential standing, tion or “the sort of explained: the Court has “Jurisdiction is question ‘threshold ... [that] be re- ” only if proposes vital the court to issue a jurisdiction.’ addressing solved before judgment on the merits.” Id. at 1191-92 Id. The Court also observed that “[i]t (internal quotation marks and brackets unique would be inconsistent with the omitted). Accordingly, a federal court categorical designed nature of ... a rule “that ... grounds dismisses on non-merits merely claims, not to defeat the asserted ... finding subject-matter jurisdic- before judicial but to preclude inquiry first —to assumption makes no of ] law-declar- tion discovery allow proceedings or other in ing power separation violates jurisdictional order to ques- resolve the AG, powers Ruhrgas principles.” 526 U.S. tion.” Id. (internal at quotation S.Ct. appropriately Whether Arar’s suit was omitted); marks see also id. at before the undeniably District Court raises (noting S.Ct. 1563 that “district courts do complicated questions addition, In of law. overstep they Article III limits when that, we jurisdiction light decline have concluded of state-law claims on discretionary grounds jurisprudence, Court’s Bivens we determining without required whether fall within are pen- those claims their dismiss Counts two and jurisdiction, dent County see Moor v. three of Arar’s aas threshold Alameda, 693, [715-16], matter, considering without the merits of (1973), 36 L.Ed.2d 596 or abstain claims raised those counts. See proceeding brought tion taken easily to remove an this matter cannot be resolved as as the AG, ‍​‌‌​‌‌​​‌‌​​​​​​‌​​‌‌‌​​‌‌​​​‌‌‌‌​‌‌​‌​‌‌​‌‌​​‌​‍might alien Ruhrgas United States under this sub- dissent wish. Cf. ("For chapter only judicial shall be available pro- re- at 119 S.Ct. 1563 a court to view a upon juris- final order under this section.” 8 nounce the merits when it has no 1252(b)(9) added). § (emphasis U.S.C. In diction to do so ... is for a court to act ultra vires.”) added, light (ellipsis quotation these clear instructions from Con- internal gress, omitted). jurisdiction the District Court's to hear marks and modifications Iqbal, (quoting that act.” 490 F.3d at 177 Accordingly, we need not infra, 180-81. 302(a)(2)). Arar’s re N.Y. C.P.L.R. 'placed INA decide whether beyond the Bivens claims moval-related Ashcroft, Thompson, Defendants general Court’s the District reach feder contend that Arar has failed to Mueller Sinochem, 127 Cf. jurisdiction. question al showing of their personal make a sufficient readily (“If ... a court can involvement the tortious conduct he al- jurisdiction over it lacks determine leges. Accordingly, they urge that defendant, proper or the the cause brought against claims them be dismissed on that be to dismiss course would personal jurisdiction. for lack of jurisdiction But where ... ground.... observed, recently personal juris- As we determine, and consider [other] difficult predicated solely cannot be on a diction dismissal, weigh heavily in ations favor of title; “[rjather, supervisory defendant’s burden takes the less properly the court plaintiff per- must show that a defendant ”). course. some

sonally part giving took in the activities Iqbal, rise to the action issue.” Ashcroft, jurisdiction over B. Personal (internal quotation F.3d at 177 citation and Thompson, Mueller omitted). Iqbal, marks In we considered that federal requirement questions plain- the related of whether the jurisdiction over personal have courts pleaded personal tiff had sufficient involve- from “an indi them arises litigants before defeat a ment of the defendants liberty being interest in not sub vidual’s qualified immunity defense and estab- binding judgments of a forum ject to the personal jurisdiction lish over the defen- meaning established no with which he has question dants. Id. addressed first the We ” ‘contacts, ties, Burger or relations.’ ful plaintiff allege must to overcome what Rudzewicz, 471 U.S. King Corp. v. immu- qualified assertion of supervisor’s a 471-72, 85 L.Ed.2d 12(b)(6) dismiss, nity on a Rule motion to (1985) Washing (quoting Int’l Shoe Co. allegations suggest must holding that the ton, supervisory that the official: (1945)). “In a L.Ed. 95 order survive (1) in directly participated the violation ju personal to dismiss for lack of motion (2) rights], constitutional failed [of 12(b)(2)], a [pursuant to Rule risdiction in- being violation after remedy the showing plaintiff prima must make facie (3) by report appeal, it or formed of v. Ash jurisdiction exists.” Thomas which policy created a or custom under Cir.2006). (2d A croft, 470 F.3d occurred, grossly the violation was jurisdiction over non-resi federal court’s supervising in subordinates negligent law of governed dent defendants is violation, or who committed including in the court the state which sits— rights to the of deliberately indifferent the ex long-arm that state’s statute —to by failing to act on information others require with the comports tent this law rights being were vio- that constitutional process. ments of due See Henderson lated. (2d Cir.1998). INS, Un F.3d 152; (requir- statute, see also id. at 157-58 long-arm “a court Id. der New York’s per- who seeks to establish jurisdiction ing plaintiff over a non-domi may exercise by a defendant official through agent sonal involvement ciliary person who ‘in factual amplify claim with some [his] act the state’ “to ... commits tortious within contexts where such allegations from in those long the cause of action arises so in is needed to render the claim the factual circumstances described amplification sufficiently plaintiffs complaint were plausible”).11 to defeat the “plausible” defendants’ asser Iqbal at issue in set forth The immunity lack qualified per tion of place” the “time frame and of the acts involvement, sonal id. at 166. plaintiffs violated the con- alleged to have 166; alleged id. at rights, stitutional Turning to question the related “policies these violations arose deal- personal whether the district court had of those arrested ing with the confinement defendants, jurisdiction over the we con charges City in the New York on federal Iqbal plaintiff cluded in that if a plead has in designated high ‘of interest’ area and personal ed involvement sufficient de 9/11,” 175-76; the aftermath of id. at defense, qualified immunity feat a further that various federal offi- would also personal “suffice[ ] establish cials, Mueller, including Ashcroft and had jurisdiction.” Iqbal, 490 F.3d at 177. policies, these id. at 165. “condoned” plausibility applicable standard to a plaintiffs allegations, We noted that the 12(b)(6) is, Rule motion to dismiss entirely “although conclusory, suggest course, distinct from prima show- facie [p]laintiffs some claims are .that 12(b)(2) ing required to defeat a Rule mo- supporting based not on facts the claim tion to personal juris- dismiss for lack of but, rather, generalized allegations Metallurgie diction. See Ball v. Hoboken- supervisory involvement.” Id. at 158. At S.A., (2d Overpelt, 196-98 time, the same we found it Cir.1990). However, inquiries because our plausible to believe that senior officials into personal necessary involvement Department of Justice would be qualified immunity pierce and establish policies concerning aware of the deten- jurisdiction personal unavoidably are “in- tion of those arrested federal officers tertwin[ed],” Iqbal, 490 F.3d at we City the New York area the after- whether, fight now consider of the con- about, math of and would know 9/11 Iqbal’s siderations set forth in qualified condone, or in- personal otherwise have immunity analysis, Arar has a prima made volvement implementation showing personal jurisdiction ex- facie policies. those ists. Taking Id. at 166. into account pre

liminary stage litigation of that and the complaint As with the in Iqbal, Supreme Court’s recent clarification of the complaint Arar’s states the time frame and 12(b)(6) applicable place standard Rule mo of the alleged acts to have violated dismiss, tions Corp. rights; see Bell Atlantic v. Arar’s alleges that these violations , — -, 1955, Twombly 127 policies U.S. arose from providing for the re (2007), 167 L.Ed.2d 929 we concluded moval of “suspected non-U.S. citizens ... that, Supreme recently granted ground The Court high-level supervisors, they has as Iqbal purpose certiorari in for the of consider had constructive notice of the discrimination (1) ing appropriate pleading standard allegedly by carried out such subordinate offi plaintiff when a seeks to state an individual- Certiorari, cials.” Petition a for Writ of Ash claim, Bivens, capacity pursuant against "a (U.S. 6, Iqbal, 2008 WL 336225 Feb. croft 2008), high-ranking cabinet-level officer or other of 2931, granted, cert. 128 U.S. - S.Ct. ficial” and a "[w]hether cabinet-level offi - -, -, L.Ed.2d 76 U.S.L.W. high-ranking cer or other official be held (U.S. 16, 2008) (No. 2008 WL June 336310 personally allegedly liable for the unconstitu 07-1015). tional acts of subordinate officials on the TVPA, purposes general for the we activity” to countries where of terrorist torture, law and interrogated ly “principles agency under look to they could ¶ § 24; alleges jurisprudence further under U.S.C. 1983.” Compl. see (2d Karadzic, “directed, ordered, confirmed, Kadic v. 70 F.3d defendants Cir.1995). Syria not in Arar’s removal to As the Court has acquiesced” [or] there, ed, acting traditional definition of “[t]he the mistreatment suffered ¶ that, requires like color of law that the therefore conclude state id. 71. We § in a Iqbal, alleged Arar has defendant 1983 action have exer plaintiff by power ‘possessed the role that Ash- cised virtue of state sufficient facts about croft, played possible only in law and made because the Thompson, and Mueller wrongdoer authority is with the violating rights prima to make clothed facie ” Atkins, jurisdiction showing personal over state law.’ West v. 487 U.S. exists under New York’s 101 L.Ed.2d those defendants Classic, Accordingly, pro- (quoting we United States v. long-arm statute. arguments that defen- 85 L.Ed. 1368 ceed to consider (1941)); Hayut of their mo- see also v. State Univ. support dants have raised York, (2d Cir.2003). dismiss, failure a claim New to state tions context, Applied propo Arar’s to the granted, present which relief can be upon suggests that a defendant causes of action. sition various under color of have violated the TVPA acts Protection Act C. The Torture Victim foreign power law when he “exercise[s] ” One) (Count [foreign] virtue of law’ and ‘possessed “ wrongs possible only commits ‘made be TVPA, appended which is clothed with the wrongdoer cause the to the Alien Tort Claims statutory note ” West, authority [foreign] law.’ Act, § creates a cause of 28 U.S.C. 49, 108 S.Ct. 2250. individual damages “[a]n action for authority, who, apparent under actual holdings prior Arar contends that our law, any foreign nation or color of contemplate a different standard of liabili to torture.” Id. subjects an individual and, extension, § ty under (a)(1).12 § note The District Court asserts Specifically, he TVPA. allegations that the factual set determined (2d Driver, 411 F.2d 436 “Kletschka [v. did not state a forth Cir.1969) C.J.)] (Lumbard, that the holds claim that defendants acted “under color § if the state or its 1983 test is satisfied Br. 54. foreign law.” United States We in the played significant role officials agree. (internal result,” quota Br. 25 Plaintiffs omitted). In disagree. it marks We seeking guidance on what tion When Kletschka, that, vio [a] foreign “[w]hen law” we stated to act under “color of means States, suit”); F.2d v. United Appeals held that Koohi Courts of have 12. Several Cir.1992) (9th (noting that the Tort Claims 1332 n. the TVPA nor the Alien neither a waiver Claims does not constitute consent to Alien Tort Act establishes the United States’s Sanchez-Espinoza v. sovereign immunity); by the cause of action created be sued under (D.C.Cir.1985) 1350; Reagan, 770 F.2d § see also the TVPA. See 28 U.S.C. States, (same). (Panama) agree with sister circuits. We our v. United Goldstar S.A. Cir.1992) any (4th Accordingly, that cause of (''[A]ny party we conclude F.2d exists Arar has under the TVPA asserting jurisdiction Alien Tort action under the establish, being sued in their individual independent that the defendants Statute must statute, capacities alone. has consented that the United States ¶ joint Nowhere, product gations.” Compl. lation is of the exercise of howev- power[,] er, a and of a power State non-State does he contend that defendants pos- ... law, test under Fourteenth Amend any power Syrian sessed under § ment and 1983 is whether the state or allegedly culpable their actions resulted played ‘significant’ its officials a role in the power Syrian from the exercise of under noted, result.” 411 F.2d at 449. We also law, they or that would have been unable however, that, when the actor “non-State” culpable undertake these actions had official, a we will not find that federal they possessed power. such Because “significant a role” played state law unless prior precedents Court complained-of actions can be attributed allega- and our Court indicate that such to “the control or influence of the State necessary tions are to state a claim under explained, defendants.” Id. As we this TVPA, we affirm the District Court’s “control or influence” test reflects the “evi dismissal of Count one of Arar’s com- 1983[,] § purpose dent [which is] plaint.13

provide remedy rights a when federal have through

been violated the use or Money misuse damages D. the Fifth (Counts power derived State.” Id. Two, Three, Amendment added). Four) (emphasis 448-49 Because federal power officials cannot exercise under for Counts two and three of Arar’s com- eign subjecting law without themselves to plaint allege that defendants violated state, a foreign the control or influence of rights under the substantive due entirely our comments in are Kletschka process component of the Fifth Amend- liability consistent with the test for TVPA by ment removing Syria him to with the above, hereby we adopt which outlined knowledge or intention that he would be opinion. detained and tortured there. Count four alleges defendants re of Arar’s alleges that defendants Syria moved him to with the knowledge rights violated Arar’s to substantive and Syrian intention that authorities procedural process would due under the Fifth interrogate him under torture. He also by Amendment him mistreating while he alleges that, in Syria, while he was defen was detained in the United States. Arar provided Syrian dants authorities with in contends that both these viola- him, formation suggested subjects about pursuant tions are actionable to Bivens v. Syrian authorities to interrogate him Six Unknown Federal Agents, Narcotics about, and received “all information 29 L.Ed.2d 619 (1971). coerced during from [him] [these] interro- (2d Cir.2000)

13. The District Court also determined that (expressing F.3d 104-05 Arar, non-citizen[,] "as a is unable to provided by demon- view that the remedies the TVPA action," aliens”); Kadic, strate that he has viable cause of "extend[] 70 F.3d at F.Supp.2d. understanding (reversing judgment a district court dismissed, "only claim, U.S. citizens ... are covered for failure to state a a suit TVPA,” id. at 263. we brought by Because affirm on "Croat and Muslim citizens of ... grounds, engage other we need not Bosnia-Herzegovina” seeking in exten- relief under the do, however, analysis TVPA); Garcia, sive of this issue. We see also Arce Court, past (11th holdings Cir.2006) observe that of our (allowing 1257-58 appeals, Salvador); well as those of our sister courts of TVPAclaim citizens of El Hilao strongly suggest Marcos, 767, (9th that TVPA actions in v. Estate 771 See, brought by Cir.1996) fact be (allowing by non-U.S. citizens. TVPAclaim citizens of Co., e.g., Royal Wiwa v. Philippines). Dutch Petroleum 226 471, 484, 996, 127 L.Ed.2d 308 that, “in S.Ct. theory appropri theOn (1994) eircumstances[,] (discussing, approval, court the ob a federal ate vio damages for the by relief offered the Court may provide servations Schweiker). if there are rights of constitutional lation counseling hesitation factors special ‘no By asking us to devise a new Bivens by action Con of affirmative

the absence ” action for violations of the damages Passman, 228, 442 U.S. Davis v. gress,’ component of the process substantive due (1979) 245, 2264, 60 L.Ed.2d 99 S.Ct. Amendment, effectively Fifth invites Bivens, 396, 91 at S.Ct. (quoting 403 U.S. disregard the clear instructions of us 1999), plaintiffs to seek permitted Bivens by extending Bivens Supreme Court of the money damages for violations context, a but to a new only new then, however, Amendment. Since Fourth requiring context the courts to intrude created such reme Supreme Court has security deeply policies into the national the first only two other occasions: dies on foreign relations of the United States. in violation discrimination employment component of the equal protection of the Clause, Amendment’s Due Process Fifth (1) 2264,

Davis, 234, 99 S.Ct. U.S. consideration of Bi- In its most recent Eighth the second for violations vens, set out the fol- Supreme Court officials, prison federal Amendment analyzing lowing framework for Bivens Green, 14, 446 U.S. 100 S.Ct. v. Carlson claims: (1980). See Corr. 64 L.Ed.2d 15 Malesko, 61, 70, Corp. v. 534 U.S. Servs. assumption that a constitution [O]n (“In 515, 151 L.Ed.2d 456 122 S.Ct. ally adversely interest is af recognized have jurisprudence Bivens we years employ the actions of federal fected twice, holding only provide extended its ees, recognize whether to the decision of action nonexistent cause otherwise steps. remedy may require Bivens two alleged to have individual officers [First], question there whether is unconstitutionally, provide or to acted alternative, existing pro any process who lacked plaintiff of action for a cause to a con tecting the interest amounts harms caused any remedy for alternative Branch to vincing reason for the Judicial unconstitutional by an individual officer’s providing a new and free refrain conduct.”). [Second, remedy damages. standing Indeed, has “re Court a Bivens principle there is the that] that Bi cautiously suggestions sponded “the remedy subject judgment: into new contexts.” vens remedies be extended make the kind of federal courts must Chilicky, v. 487 U.S. Sch weiker appropri that is remedial determination 101 L.Ed.2d 370 108 S.Ct. tribunal, paying ate for a common-law — Robbins, (1988); see also Wilkie however, heed, any special particular -, U.S. before au counseling hesitation factors that, “in (observing L.Ed.2d 389 litiga kind of federal thorizing a new instances,” found a “ha[s] the Court most tion.” Malesko, remedy unjustified”); Bivens Robbins, (quoting Bush at 2598 that, (noting since 122 S.Ct. 515 Lucas, Carlson, “consistently has re the Court ” (internal (1983)) citation 76 L.Ed.2d 648 Bivens jected invitations to extend omitted). contexts); Meyer, 510 U.S. FDIC v. new

For guidance might compromises on what constitute a the inevitable required factor,” “special turn to we design” program of a welfare is the re- past Court’s considerations of Bivens. sponsibility Congress than rather prior precedents Court’s reveal a re- courts, 429, 2460; 487 U.S. at 108 S.Ct. luctance to create Bivens remedies where Congress “discharged responsibil- had a government coordinate branch of is “in a id., ity,” by creating administra- “elaborate court,” Bush, far position better than a remedies,”- 424, 2460, tive id. at 108 S.Ct. 389, 2404, at U.S. to “decide claimants; for Security dissatisfied Social remedy whether ... a provid- should be in view of the fact that these remedies did ed,” 2404; and, id. at if a S.Ct. not provision recovery include a for remedy provided, is to be to decide what Court, money damages, in keeping remedy form this should take. For exam- prior precedents, with its would not create Lucas, ple, in Bush the Court declined a remedy, Bivens id. at 91 S.Ct. 1999 to create a damages remedy alleged for (noting design “[w]hen of a Gov- employee’s violations of a federal First program ernment suggests Congress rights upon Amendment determining that provided has it what considers adequate Congress in a position better “to eval- remedial mechanisms for constitutional vi- impact” damages uate the “on suits olations that occur in the course of its efficiency of the civil service.” Id. administration, Court [the has] created Similarly, 103 S.Ct. 2404. in Chappell v. remedies”). Schweiker, additional Bivens Wallace, 76 therefore, concept establishes that “the (1983), L.Ed.2d 586 the Court declined to special counseling factors hesitation in the damages remedy create a alleged viola- absence of affirmative action Congress tions of constitutional rights by military proved has appropriate judi- include an upon noting officers that the Constitution cial deference to that congres- indications grants Congress “plenary control over sional inaction has not been inadvertent.” regulations, procedures, and remedies re- (internal 108 S.Ct. 2460 military lated to discipline,” id. at omitted). quotation marks 2362; Congress, S.Ct. in exercising this authority, system created a military jus- tice that did not damages remedy include a alleged violations of constitutional To the best of our understanding, Arar rights by military officers, id. at 103 seeks a remedy Bivens for at least two 2362; and, therefore, creation of such analytically categories distinct of claims. remedy by the federal courts “would be claims, The first set of described in Counts

plainly Congress’ inconsistent with author- two and three of complaint, Arar’s arises field,” ity in this id. allegation Arar’s that defendants re- Syria

In moved him Chilicky, Court, Schweiker v. with the knowledge re- lying reasoning on the intention that set forth in he would be Bush detained and Chappell, claims, declined to tortured there. The create non- second set of statutory damages remedy against govern- described Count four complaint, ment officials to have wrongfully arises from allegations about the plaintiffs’ terminated the Security way Social in which defendants treated him while benefits. explained, As the Court “making he was detained in the United States.14 14. It is not clear arising whether Arar's general allegations from the that de- claims, potential seeks to raise third set provided Syrian fendants authorities with in-

179 pursuant to ... Im- in turn.15 order of removal these claims each of We consider id. Act,” § migration Nationality 1231 (d). Thus, matter, Bi- a general note as (a) vens relief not be available for re- would claims removal-related moval-related claims such as the one that alleged violation of his sub from the arise Arar raises here because the INA’s “alter- being in not process due interest stantive native, existing” mechanism of review country where involuntarily removed to normally “a provide convincing would rea- subjected he would be detained son for the Judicial Branch to refrain from the Bivens inquiry Step torture. one of providing freestanding remedy a new and created alterna Congress that has reveals Robbins, damages,” S.Ct. interest. protecting for processes tive one of our Bivens step analysis. Affairs Reform and Restruc Foreign maintains, however, that because 105-277, L. codi turing Act of Pub. intentionally prevented defendants him (“FARRA”), § 1231 note fied 8 U.S.C. making judicial use of the INA’s ... States “shall states that the United provisions, allegations review of his any involuntary return of effect compel a different conclusion. country in which there are person to true, Assuming allegations that Arar’s are believing per grounds substantial subjected perverse it would be to allow defendants to danger being son would be (a); id. torture,” escape liability by pointing § to the existence pro 1231 note very procedures they allegedly that an alien to raise claims based on vides for asserting that Arar’s sole part of the review of a final obstructed this section “as foreign agents; suggested subjects and to and violations that al- him and formation about during period interrogation legedly of time pursue them to in their occurred ¶¶ custody Compl. 55-56. We need not that Arar was held in U.S. as well as him. See issue, however, foreign custody. spent in See explore this as Arar has not the time Arar Judge written and oral Dissent 203-04. Sack offers no author- raised such a claim in his See, e.g., ity justify treatment of presentations Court. Pi’s Br. his remarkable to this clear, however, complaint. It is (describing the Fifth Amendment claims Arar's contrary arising Syria approach rest- runs to the from Arar's removal to as longstanding ing allegations “defendants Court's observations about on the factual (i) geographic significance of bor- while he was in Feder- constitutional [Arar] acted Davis, and; (ii) Zadvydas U.S. custody ders. al within the United States Cf. 690, 693, L.Ed.2d 653 transported precisely to evade him abroad (2001) ("It well established that certain protections”); see also id. at 3 constitutional protections persons available to (describing the Fifth Amendment claims aris- constitutional Syria resting are unavailable to ing inside the United States from Arar's removal to borders.”); geographic allegation "trans- of our that defendants aliens outside factual Syrian Verdugo-Urquidez, 494 U.S. ported] Syria” so that authori- Arar to States 259, 269, interrogate coercively L.Ed.2d 222 could detain and ties him). (1990) (noting Supreme Court's "re- that the application of the jeсtion of extraterritorial emphatic”); [has been] Fifth Amendment legal claims as 15. Rather than address these Eisentrager, Arar, Johnson v. pleaded by Judge all Sack consolidates (1950) (noting that 94 L.Ed. 1255 general- allegations into an omnibus of Arar's protections extending be- "in constitutional any recog- grievance, unmoored from ized yond citizenry, Court has been at Judge legal Sack would take nized claim. the alien’s pains point it was out together occurring the United events within overseas; jurisdiction presence occurring allega- within its territorial States and those act”). Judiciary power gave the attributed to U.S. officials tions of misconduct Accordingly, permitted plaintiff there. we could officials remedy lay avoid the pres- procedures appeal a situation where the for set forth regard this as Con- gress by alternative remedial scheme litigating underlying of an his claims— ence convincing wrongful to a reason not “amount termination and defamation— does through Branch to refrain from in for the Judicial Bivens action federal district freestanding remedy explained: a new and court. Id. The court providing Robbins, 127 at in S.Ct. damages,” style remedy A wrongfully Bivens for allegations Bishop in Faced with similar employees only dismissed federal is (8th Cir.1980), Tice, F.2d 349 unnecessary but also would be at odds Eighth Appeals Circuit Court existing discharge appeal pro- with the officials who interfered held that federal cedures to the extent that dismissed em- plaintiffs with a access to exclusive ployees encouraged bypass would be could, pur- scheme administrative remedial procedures these in order to seek direct Bivens, be held liable for that suant judicial against relief govern- either the it interference inasmuch as violated due ment or government individual officers. not be process, but could sued for the Thus, plaintiff Bishop Id. could underlying injury that remedial maintain against a Bivens cause of action designed was to redress. In scheme Bish- interfering the officials for with his due op, plaintiff, employee, a federal al- (a process rights equivalent claim to the alia, termination, leged, wrongful inter id. claim brought by Arar in Count four of his charged at defendants with ob- complaint) employment-related but not for structing his access to the relevant admin- subject procedures claims to the relevant remedies, istrative id. at 353 n. 4. The appealing civil discharges service —in Eighth Congress Circuit observed that had essence, analogous claims of an sort to the discharge appeal pro- enacted “civil service claims that Arar brings Counts two and permit cedures” in order to wrongfully “a complaint. three of his employee dismissed reinstate- [obtain] pay.” ment and back Id. at 356. The reasoning We find this compelling noted, however, court that “[t]he existence and, Circuit, like Eighth are reluctant discharge appeal proce- civil service permit litigants congressionally to avoid dures plaintiff] little avail to [the mandated remedial schemes on the basis if, alleged, as he has defendants blocked allegations of mere of official interference. his resort to them.” at Id. 357. On this Accordingly, procedures the review set basis, the court determined that if the forth provide the INA “a convincing plaintiff prove “can defendants inter- [that] reason,” Robbins, for us fered with right procedural due pro- to resist recognizing a Bivens cause of [by cess obstructing appeal access to the action for arising Arar’s claims from his process], he is entitled to damages alleged Syria.16 detention and torture actually pursuant resulted” to Bivens. not, they however, Even if analysis did our conclude, The Eighth id., Circuit did not significant factors,” “special im however, that the interference plicated by of federal these claims would lead us to 16. We agree Judge behalf; attorney Sack that the working on his and that his circumstances attorney position of Arar's removal inquire have was in a about made it difficult for Arar himself to seek relief both Arar's whereabouts and the status of the through procedures proceedings set forth in the INA. against that the INS had initiated note, however, We that Arar did have an him. (b) Syria appropriate his removal to our Bivens step two of same result and national secu- light diplomatic of U.S. analysis. rity interests. There can be no doubt analysis our Bivens two of Step proceed, claims to he must for Arar’s whether us to determine requires workings into the inner probe deeply Supreme Court what the implicates suit security apparatus of at least the national “special factors” has described countries, as well as that of foreign three a Bivens creation of would counsel States, in order to determine counseling special factors remedy. “The alleged designation basis for his as an the remedy a new in the creation of hesitation Qaeda Syria A1 and his removal to affiliate the merits of the concern ... not d[o] re- despite request via Jordan be Rath sought. remedy that particular [i]s Indeed, the Canadian moved Canada. question of who er, to the they ] relate! provided has Arar with government, which remedy such decide whether should in for its role the events compensation ... whether [and] provided should litigation, has asserted giving rise to this allowing Congress are reasons there to maintain the the need for Canada itself made of relief that is scope the prescribe the confidentiality goes of material that Bush, 462 U.S. available.” claims. See Commission heart of Arar’s to the framework Pursuant S.Ct. Inquiry into the Actions of Canadian of Court, we are Supreme the set forth Arar, in to Maher Factu- Officials Relation to the determination compelled to defer (2006) (“Canadian 11-12 Background al availability of a dam as to the Congress Commission, (noting Background”) Factual where remedy in circumstances ages government required Canadian at issue would adjudication of the claim good to review deal “[a] the Commission implementation necessarily intrude on the ” a need to in camera out of evidence and interfere security policies of national security “national protect Canadian foreign country’s relations with our with interests”). For its international relations powers. above, States, noted part, Court has observed The in privilege invoked the state-secrets has that determinations occasions numerous allegations. response to security fall within “an relating to national record can Assuming that a sufficient in courts action which area of executive light in of the confiden- developed even be to intrude.” Lin long been hesitant have evidence and the tial nature of the relevant Vigil, 508 U.S. coln v. (1993) (internal foreign gov- least three quo involvement of at 2024, 124 L.Ed.2d Jordan, and Canada—in omitted); Syria, Department marks tation ernments — complaint, the salient events Navy Egan, that, would then be called the District Court (noting 98 L.Ed.2d 918 removal rule on whether Arar’s upon to specifically provided has Congress “unless record. In so light of the otherwise, traditionally proper been was have courts functioning of U.S. for- doing, the effective authority upon to intrude reluctant affected, if under- eign policy would be military and national se the Executive cases). For, fair extent that mined. to the citing illustrative curity affairs” and adjudication of Arar’s suit impartial core, the Execu this suit arises from At its consider and courts to requires the federal alleged determination tive Branch’s foreign implementation (a) Qaeda, and evaluate the affiliated with Al Arar was of the United security policies security, and and national to national therefore a threat (1962)). foreign powers, three 7 L.Ed.2d 663 and at least Similar- States government ly, need not ability of the federal we determine whether the to its overseas coun- motivation behind this lawsuit arises from with one voice speak diminished, geopolitical personal and the coherence considerations terparts is foreign policy recognize litigation called order to of this vitality of U.S. question. disrupt implementa- into sort threatens to country’s foreign tion of our and national the observations of the point, On this security policies. litigation of ‍​‌‌​‌‌​​‌‌​​​​​​‌​​‌‌‌​​‌‌​​​‌‌‌‌​‌‌​‌​‌‌​‌‌​​‌​‍Arar’s Appeals District of Colum- Court necessarily explo- claims would require particularly bia are relevant: Circuit ration the intelligence upon relied special foreign needs of affairs [T]he charged implementing the officials stay our hand in the creation of must foreign security policies, our and national damage military and remedies confidential communications between un- foreign policy allegedly officials for foreign powers, the United States and foreign constitutional treatment of sub- aspects classified or confidential other of jects causing injury abroad. The for- policies, including, perhaps, those whether eign implications affairs of suits such as policies or not such even exist.17 There this cannot ignored ability be —their litigation can no doubt of this sort produce Supreme what the has Court management would interfere with the of called in another context “embarrass- country’s our foreign powers relations with government ment of our abroad” government’s ability and affect our to en- through pronouncements “multifarious security. sure national by departments ques- various on one present tion.” Whether or not the liti- addition, In Supreme the Court has ob- gation by is motivated considerations of that, considering served when “the prac- harm, geopolitics personal rather than consequences making tical [a] cause [of we think that a general matter the litigants action] available to in the federal danger foreign using citizens’ the courts,” Alvarez-Machain, Sosa 542 courts in situations such as this to ob- 692, 732-33, S.Ct. foreign policy struct the govern- of our (2004), L.Ed.2d strong “there is a ar- sufficiently ment is acute that we must gument give federal courts should Congress judgment leave to the whether weight serious to the Executive Branch’s damage remedy should exist. impact foreign poli- view of the case’s Sanchez-Espinoza Reagan, cy,” Here, id. at n. S.Ct. 2739. (D.C.Cir.1985) J.) (Scalia, (quoting the United States has the asserted state- Carr, 186, 226, 217, Baker v. 369 U.S. privilege secrets over information at the adjudication 17. That Secretary Arar's claims would If the of State forwards assur- require inquiry national-security into intelli- (c)(1) paragraph ances described in gence diplomatic communications cannot Attorney this section General for light regulations pro- be doubted in of federal Attorney consideration General that, viding determining whether removal delegates paragraph, her under this particular country ato would be consistent determine, Attorney General shall FARRA, obligations imposed by with the State, Secretary consultation with the Secretary The of State forward to sufficiently whether the assurances are Attorney General assurances that reliable to allow the alien's removal to Secretary has obtained from the country consistent with Article 3 of government specific country of a Against the Convention Torture.... an alien would not be tortured there if 208.18(c). country. § the alien were rеmoved to that 8 C.F.R. and, privilege in assertion of the state-secrets being raised of the claims core both privilege, special a further litigation of that assertion this constitutes support and Secre- Attorney General Acting counseling factor us to hesitate before cre Secu- of Homeland tary Department ating recognizing a new cause of action or statements that sworn rity have submitted clearly inhospitable one in a domain so cannot be claims removal-related fact-finding and methods of procedures harming diplomat- without adjudicated adjudication employed the federal security interests of the national ic and courts.18 States. That action involves the inter this above, we For the reasons stated and national section of removal decisions juncture required, are security weighs against also creation of possible con to consider proceedings, remedy. Bivens The Court has of the state- of the assertion sequences decisions, recently noted that “[r]emoval by the United States. secrets privilege including the selection of a removed alien’s is, privilege the state-secrets assertion of destination, may implicate our relations record, however, and a remind a matter of foreign powers,” Immigra Jama v. that the claims undisputed fact er of the Enforcement, tion and Customs 543 U.S. na significant involve under consideration 335, 348, 125 160 L.Ed.2d 708 in consulta security decisions made tional omitted) (2005) (internal quotation marks ante foreign powers. tion with several Cf. Diaz, Mathews v. (quoting government’s (noting at 181 the Canadian 1883, (1976)); L.Ed.2d 478 and 96 S.Ct. 48 relevant to Ca protect efforts to evidence conduct of “[t]he it is well established security and international nadian “national foreign relations of our Government is interests”); Commis relations Canadian Ex by the Constitution to the committed Recommendations, ante, sion, Analysis and Legislative political ecutive and of the (stating governments that the at —the —De Government,” Nat. partments of the First States, Jordan, Syria all de United Cuba, Nacional de City Bank v. Banco par evidence or otherwise “give clined to 1808, 759, 766, 92 S.Ct. 32 L.Ed.2d U.S. by the ticipate” hearings in the held Com mission). Oetjen v. sense, (quoting Central government’s In that id.; dissent, partial see also El-Masri v. colleague, in his criti case. See 18. Our (4th Cir.2007) States, majority taking the state-secrets cizes the complaint basis (dismissing plaintiff’s on the in the course of its doctrine into account doctrine He of the invocation of state-secrets analysis. See Dissent 212-13. Bivens considering by without go un the United States rather this suit forward on the would law, whether, plaintiff a matter of could derstanding ''[a]ny legitimate interest as shielding Bivens or the Alien Tort nation state a claim under that the United States has in allegations his that he foreign policy from Claims Act based on security policy and al interrogated "pursuant pro by was detained federal courts would intrusion practice ... known as policy and by proper of the state- an unlawful tected invocation effect, 'extraordinary the clandestine ab privilege." put into rendition': Id. Once secrets however, outside the United duction and detention the state-secrets doctrine would persons suspected of involvement in excluding States of effect of infor have the undoubted activities, subsequent their inter relevance to the claims terrorist mation of central impermissible using rogation methods brought complaint. See ante 166-67 in this laws”). light In (describing over which the U.S. and international the information impor guidance parties' requests for the state-secrets United States has asserted presented by impression questions tant of first privilege). likely would be foreclo The result suit, we are reluctant to important see аnte 167-68 ability this sure of our to resolve colleague suggests. path our legal impression take the of first raised issues Co., delegates 246 U.S. 38 S.Ct. INA. 8 U.S.C. Leather (1918) (internal 1252(b)(9). § quota- L.Ed. omitted)).19 sense, In that marks tion (b) claims raise a diffi- Arar’s removal-related posed by plaintiffs to that culty similar vitality request The of Arar’s for Bivens Here, there, the claim Chappell. arising relief for claims four of Count questions raises en- under consideration (“domestic detention”) turns, to other branches of principally trusted not on any “special the existence of fac- government; one of these other branch- tors,” commonplace but on the more fact Congress exercised its namely, —has factual allegations es— fail to state authority provide “what it considers ad- a claim under the Due Process Clause of equate remedial mechanisms constitu- Fifth apparently Amendment. Arar Schweiker, violations,” at tional bring types seeks to two distinct of claims 2460; 108 S.Ct. the remedial based on events to have occurred question appellate review of scheme — in the United States. The first is a “due provide removal decisions—does not for process” claim based on defendants’ al- money damages. In recovery light leged obstruction of Arar’s access to coun- that absence of a these indications Con- sel and to the courts.20 The second ais damages remedy gressionally-mandated process challenge substantive due to the inadvertent,” Schweiker, “has not been 487 conditions of Arar’s U.S. detention. We U.S. we understand consider each of in turn. these judicial damages remedy creation of a inconsistent,” (i) “plainly Chappell, to be with Con- that, complaint alleges while Arar gress’s authority exercise of over removal- MDC, was incarcerated at the defendants related claims. ignored requests lawyer, his initial see sum, barring In we hold him availability further misled about the of his that — guidance lawyer from the they question Court —a Bi- so that could him remedy vens is unavailable for presence, claims outside her and misled his law- “arising any proceed- yer action taken or they about his so that whereabouts ing brought to an alien prevent remove from the could her from challenging his re- ¶¶ authority United States under” the Syria. Compl. con- moval to 46. Attorney upon true, ferred General and allegations, his These if taken as be Judge agrees adjudication Reply 19. that (asserting Sack Plaintiff’s Br. 29 that "Arar requires deeply right Arar’s to claims us intrude had a attorney to the assistance of his inadmissible, security policies foreign into the being national and before deemed be- [and] States, relations of the United see being Dissent country fore to a removed where he 212-13, but, nevertheless, tortured”); would hold that (asserting would be id. at 34 that " presents 'special Arar's suit no factors’ right petition Arar had "a to the [relevant counselling] against application of Bi- enjoin country court] his removal to a that vens,” id. at 212. him”). explore would torture We need not issue, however, because, as set forth be- low, Although Arar has not established Arar describes his second claim that defendants' arising process conduct amounted to under the substantive due interference with a con- Amendment, see, component right; e.g., of the stitutional and Fifth violation of a “constitu- Compl. tionally Reply theory recognized necessary Plaintiff’s Br. interest” is a claim, see, Robbins, liability proffers suggestive he e.g., is more of a element of a Bivens See, procedural process e.g., due claim. 127 S.Ct. at 2598. Fifth Amendment. He also contends more one or establish sufficient right to coun- possessed process a due he intentionally obstructed federal officials accorded to rights sel derived from courts. аnd to counsel Arar’s access 235.8(a)21 § and 8 him under C.F.R. however, to estab- not, sufficient They are 1225(c)(3),23 1362,22 §§ of Bivens relief. U.S.C. appropriateness lish 1225(b)(l)(B)(iv).24 conclude that cer- We avail- Bivens remedy to Rather, a upon the authorities which tain of an indi- able, Arar must establish Montilla, Waldron, and 8 namely, a possessed constitu- position in vidual relies — 1225(b)(l)(B)(iv) §§ 1362 and and the U.S.C. counsel access to right of tional —are an individual simply inapplicable actions courts, that defendants’ that, See, further conclude e.g., position. Arar’s We right. constitutional violated this enjoy alien does even if an unadmitted Robbins, (noting that at 2598 right to the assis- process due recognized derivative “constitutionally violation of a Bi- counsel U.S.C. tance necessary element interest” is 1225(c)(3) 235.8(a), § § and 8 C.F.R. claim). vens triggered nor violated right was neither allegations stated the factual Right to Counsel a. complaint. prior prece that our

Arar contends INS, applies only to “removal Montilla Section specifically, dents — judge Cir.1991) immigration an (2d proceedings before and Waldron F.2d At- Cir.1993) before (2d appeal proceedings and ... INS, 17 F.3d 511 —establish Similarly, Montilla alien, torney General.” that, an unadmitted although he was Waldron, of a due recognize the existence right to coun a constitutional possessed of the to counsel a subset process right Due Process Clause under the sel proceedings, person con- 235.8(a) such removal § reads as follows: 21. 8 C.F.R. being privilege of have the cerned shall immigration immi- officer When an (at expense represented to the Govern- no arriving alien suspects that an gration judge counsel, ment) prac- authorized security and such appears [on be inadmissible proceedings, shall immigration officer or as he choose. grounds], the tice such related the alien re- immigration judge shall order 1225(c) procedures for § sets out promptly to 23. 8 U.S.C. report the action moved and have been of aliens who deemed director who has administrative the removal the district place security where the alien related jurisdiction "on over inadmissible being 1225(c)(3) hearing provides or where grounds.” has arrived Subsection shall, pos- immigration that, if officer within held. The sible, an alien who falls in the case of question-and-an- 1225(c), a brief sworn take alien or "[t]he section the ambit of alien, the and the alien may swer statement a writ- representative submit the alien’s personal by service notified shall be for additional information and ten statement 1-147, Temporary Inadmis- Form Notice Attorney by General.” the consideration right to sibility, taken and the of the action and a written statement additional submit 1225(b)(1)(B) proce- § forth sets 24. 8 U.S.C. by Attor- for consideration the information relating asylum interviews. to Subsec- dures shall for- ney The district director General. alien 1225(b)(l)(B)(iv) provides that "[a]n tion regional for report the director ward the eligible asylum] interview [an for who is (b) paragraph provided in further action as person persons of the alien's or consult with of this section. any review choosing prior to the interview thereof, regulations prescribed according to § states that: 22. 8 U.S.C. Attorney Such consultation by General. the im- proceedings an any removal before In expense the Government proceed- shall be no any appeal migration judge and in delay process.” unreasonably the any shall Attorney General from ings before the ap- section 1362 69 L.Ed. 585 to which circumstances (1925) (noting “stopped that an alien the is, through an alien removal of plies —that boundary line” of the United States “had Waldron, 517; 17 F.3d at deportation. See country). no in the gained foothold” His Montilla, F.2d at 166. procedure entitlement to a removal of the alien, Arar as a mat As an unadmitted trigger provisions sort that would the physical presence ter of law lacked therefore limited to what section was Tod, Kaplan Congress provide.26 and the INS saw fit to See United States.25 Accordingly, subjecting Judge emphatically proclaims that it is clear that Sack JFK, case,” inspection upon immigration Dissent arrival at this is not "an see himself majority sought and contends that the is incor- admission to the United States INA; though purposes rect to ... as he were for of the because "treat[] Arar[] alien,” Specifical- immigration id. at 205. officer refused to authorize an unadmitted that, States, ly, Judge position entry Sack takes the in re- Arar’s into the United Arar was alien, garding purposes Arar as an unadmitted the ma- not "admitted” for sum, of the INA. In jority incorrectly though legal "treats Arar as there is no or factual —for basis— immigrant seeking entry colleague into the Unit- offered our criticisms 21; partial ed States.” Id. at 206 n. see also id. at dissent. (taking position that Arar cannot dissent, colleague, partial 26. Our in his also immigration pur- properly treated "for legal asserts that Arar’s status an unadmit- as poses, though he had been held or turned any analysis ted alien is irrelevant to of Arar’s back at the border” because Arar was not plainly constitutional claims. This is incor- States”) "seeking immigrate to the United recently rect. The Court—both omitted). (emphasis past legal looked to status of —has represents a This mischaracterization of the immigration aliens under law when consider- majority’s approach, as well as the relevant ing petitions challenging the confinement of intention, regulations. law and or lack these aliens under the Due Process Clause of thereof, immigrate to the United States is See, Zadvydas, e.g., the Fifth Amendment. question irrelevant to the of whether he was (identifying 533 U.S. at 121 S.Ct. 2491 an admitted or unadmitted alien. The INA the issue under consideration to be whether "[t]he defines terms ‘admission’ and ‘admit- the "indefinite of an detention alien” violates mean, alien, respect ted’ to an [to] "[t]he Fifth Amendment's Due Process entry lawful of the alien into the United States beginning analysis Clause” and inspection after and authorization an im- brought by noting claim distinction ‘‘[t]he migration officer.” U.S.C. entry between an alien who has effected an 1101(a)(13)(A); 1101(a)(4) § § see id. also into the United States one who has never (“The ‘application term admission' has for ref- law”). throughout immigration entered runs application erence admission into the Kwong Colding, In Hai Chew v. application United States and not to the (1953), 97 L.Ed. 576 for exam- immigrant the issuance of an or nonimmi- ple, petition the Court considered the of an visa.”) added). grant (emphasis At the time challenging Attorney alien General's abili- that the events described in this ty any charge to detain him "without notice of who, Arar, place, took individuals like were opportunity him and without to be eligible flights through to transfer the United opposition heard in thereto.” Id. at first, obtaining States without a visa see 8 that, S.Ct. 472. The Court "[f]or observed 1212.1(f)(1) (describing § C.F.R. the "transit purposes [ascertaining] petitioner’s] [the program) without visa” were nevertheless right process,” constitutional to due it was subject inspection process to "the full border required peti- to take into account that the U.S.,” Release, upon arrival in the see Press legal tioner’s status was that an "of alien Department Security, of Homeland Home- continuously residing physically present and Security Department land and of State Take 596., in the United States.” Id. at 73 S.Ct. Steps Immediate To Make Air Travel Even explained: theAs Court 2, 2003), (Aug. http://www. Safer available at dhs.gov/xnews/releases/press Rights authority "The Bill of ais futile for —release—0227. 11, (last 2008). seeking shtm visited June the alien admission for the first v. Shaughnessy inadequate. 678, tionally Davis, U.S. See, v. Zadvydas e.g., Cf. 206, Mezei, (2001) 345 U.S. States ex rel. United 2491, 150 L.Ed.2d 693, 121 S.Ct. (1953) (holding 97 L.Ed. the of protections full the (observing that “ of an unadmit- rights ‘per process the due only to apply Process Clause Due security States”); entry on Landon barred from ted alien the United within sons’ when he 32, 103 not violated were Plasencia, grounds 459 U.S. a without States that “an alien from the United (noting excluded L.Ed.2d 21 to estab Arar fails Accordingly, to the United hearing). initial admission seeking ato rights any re entitlement possessed constitutional that he ... no lish has States pos power the And because he hearing. application, his pre-removal garding pre falls sovereign hearing, a a aliens is no entitlement to or exclude sessed admit Shaugh by rel. scope ex of section beyond the rogative”); Knauff and — and in Montilla holdings nessy, 338 U.S. extension —our “[wjhatever Plasencia, (holding that L.Ed. 317 Waldron. Cf. is, by Congress “deportation authorized that a procedure (noting

the 103 S.Ct. 321 denied an alien as far as process proceeding it is due usual means hearing is the concerned”). entry is the already physically alien against an States, exclusion [and] [an] United statutory case, applicable the In this proceeding usual means hearing is the the At authorized specifically provisions States the United alien outside against an Arar “without to remove torney General admission,” alien that “the seeking immigra an hearing by inquiry further reside the right to who loses his General, after Attorney if the judge” tion num hearing has a deportation States in in establishing his evidence reviewing the not available rights ber of substantive hearing admissibility, determined in an admission is denied alien who interest, the public to the prejudicial be “would be Arar also falls proceeding”). exclusion 8 U.S.C. security.”27 See safety, or set right to counsel of the yond scope the 1225(c)(2)(B). not claim that § does 1225(b)(l)(B)(iv); pro in section forth properly failed Attorney General the asylum limited to applicants is vision inadmissibility. the review evidence makes, claim made, nor neither and Arar procedures the contend that Nor does he States. in the United 1225(c) asylum constitu- were forth section set scope considering when alien’s status once alien shores. But time to these rights. process country due in this that alien’s lawfully and resides enters rights guaran- invested with he becomes U.S.C. pursuant to 8 was removed people within 27. Arar all Constitution to teed security re- 1182(a)(3) (removability on rights § include those Such borders. our procedures set forth Fifth Amend- grounds) First under the protected lated 1225(c); of the process § clause subsection by the due ments 8 U.S.C. 1225(c)(2)(B)provides Amendment.” that: Fourteenth respect With 73 S.Ct. 472. Id. at 596 n. (i) is satisfied Attorney General If the status, Judge legal alien's of an the relevance information that of confidential basis violations claimed distinguishes between Sack (ii) con- ... and after is inadmissible alien con- process, where he due ''procedural” security agencies sulting appropriate relevant, and "substan- is that status cedes Government, concludes United States of the he maintains that where process, due tive” would information that disclosure Judge fact that view of In status not. interest, safety, or public prejudicial to authority supporting any Sack does not offer order Attorney General security, the our Court—nor Supreme Court or inquiry further without removed the alien disregard any decline are we aware —we immigration judge. hearing by an or of an account binding precedent that takes 1225(c)(3) 403, 414-15, Section Harbury, C.F.R. 235.8(a) 2179, (2002). § contemplate both that an unad- 153 L.Ed.2d 413 For this reason, being security- mitted alien excluded on complaint setting forth the grounds opportunity will question have to sub- claim in adequate must include an “ ‘nonfrivolous,’ mit “a written statement and description additional of a ‘arguable’ by information for cоnsideration the Attor- underlying plaintiff claim” has lost ney Assuming General.” for the sake of as a complained-of result of the official argument that an unadmitted alien who actions. Id. at 122 S.Ct. 2179. provide cannot statement written without complaint Arar’s fails in this test the assistance of may enjoy counsel a due sofar as his fails to complaint set forth process counsel, to we entitlement con- adequately underlying “the cause of ac clude that Arar alleged any has not facts tion,” id. at that defen that would trigger right. such a For ex- compromised. dants’ conduct Compare id. ample, Arar’s complaint alleges nowhere (finding S.Ct. 2179 excessively that he wished submit a written state- vague plaintiffs claim that the defen prevented ment but was doing by from so deceptive dants’ “false and information and the restrictions that allegedly defendants concealment plaintiff] foreclosed [the from imposed on his access counsel. Nor effectively adequate seeking legal re allege any does it background circum- ¶ dress”) that, with Compl. (alleging stances we which draw such an subjecting Arar to ... in “measures inference.28 terfered with lawyers his access and the sum, In Arar is unable point courts, Defendants ... violated Plaintiffs any legal authority that, suggesting as an right ... petition the courts for redress unadmitted alien who was pursu excluded grievances”). of his Although Arar now ant procedures to the set forth in 8 U.S.C. claims that compromised defendants his 1225(c), § possessed any form of enti right to seek a order “enjoin[ing] court his tlement to the assistance counsel—let removal to a country that would torture alone a entitlement, constitutional the vio him, as a violation of FARRA and [the lation of which predicate could constitute a (‘CAT’) Against ],” Convention Torture for the Bivens relief he seeks. According Reply Plaintiffs complaint Br. ly, we conclude that Arar’s allegations FARRA, makes CAT, no mention of ways about the various in which defen the possibility injunctive relief. Cf. dants obstructed his access to counsel fail Harbury, 536 U.S. at 122 S.Ct. 2179 to state a claim -under the Due Process (“Like any other element of an access Clause of the Fifth Amendment. claim, the underlying cause of action and remedy its lost must addressed alle

b. Right Access to the Courts gations in the complaint give sufficient to noted, As the Court has defendant.”). fair notice to a Indeed, purpose ultimate anof access to the courts Arar’s alleges that “[d]efendants claim is to obtain “effective vindication ... [p]laintiff violated right s to peti separate right judi- distinct to seek tion the courts for griev redress of his cial relief for wrong.” Christopher some any ances” without further elaboration 28. We allegation note that ],” that he allegation[ sion[] "was couched as [a] factual given meaningful never opportunity to con Corp. Port Dock & Stone v. Oldcastle North Qae finding” test da, belonged [the] that he to Al east, Inc., (2d Cir.2007). ¶ Compl. "legal constitutes a conclu

189 ¶ con pre-trial to conditions of challenges This concluso- Compl. 93. whatsoever. to whether approach finement. This looks pleading of the falls far short ry allegation Harbury. “pun Har conditions amount to challenged in See the forth standard set 418, constitutionally 122 2179 not U.S. ishment bury, 536 (“[T]he identify qua the un de upon [pre-trial] failed to inflicted detainees complaint 520, alleged 441 Wolfish, Bell v. cause of action tainees.” derlying (1979); fur going no L.Ed.2d 447 compromised, 60 deception had that the allegation Rutherford, also Block v. protean than the see ther and defendants’ L.Ed.2d 438 NSC Department State con Iqbal, and deceptive (applying approach); information this ‘false and (same). from effec Plaintiff foreclosed at 168-69 cealment redress.’”). legal tively seеking adequate that, in alleges while that Arar has we conclude

Accordingly, States, subjected to “coer claim based he was process United failed to state due interroga involuntary cive and custodial alleged obstruction of on defendants’ excessively long tions conducted for .... to the courts. access day of time and at odd hours periods (ii) over twelve night” and on three occasions evaluating a eondi- food on his days; deprived sleep and The framework and, thereafter, detention; challenge brought day of first tions-of-confinement confinement, chained and question solitary alien constitutes “held an unadmitted shackled, invasive subjected for our Court. impression [and] [an] of first Cf. ¶ Cannatella, allega Compl. F.2d 4. These strip-search[ ].” Lynch v. Cir.1987) (5th ‘entry tions, might perhaps describing what (noting “[t]he while of de relatively are to be harsh conditions aliens constitute fiction’ that excludable tention, gross a claim of despite at the do not amount to if detained border treated as Adras, F.2d at in the presence physical abuse. physical their Cf. right of had not suffi (finding not limit the that detainees .... does States abuse” ciently alleged “gross physical within United aliens detained excludable treatment”). alia, claimed, inter territory to humane their where States nourishment,” in “prolonged adopt position urge us to “insufficient Defendants conditions,” “de Fifth and Eleventh under harsh by Circuit carceration taken embarrassment, humil liberty, Circuit, look to whether privation both of which feelings, iation, injury to “gross disgrace amounted to challenged actions 1374; suffering”). pain 810 F.2d at mental Lynch, physical abuse.” physical that Arar has reason, F.2d conclude Thornburgh, 901 we For see also Correa Cir.1990) (2d conditions that the (noting, adequately n. 5 his Fifth violated holding Lynch); Adras his confinement passing, (11th rights process due Nelson, Cir. substantive F.2d Amendment 1990) approach abuse” approach “gross physical applying under the (adopting Circuit. Lynch). and Eleventh Fifth Circuit of the Fifth Circuit forth set turn, ap Arar, urges apply us to under the no better Arar fares traditionally taken have

proach that we theAs proposes.29 alternative standard process due evaluating substantive when Arar himself the standard that claims under Judge disagrees with our decision to Sack characterizing Supreme Court's proposes, process substantive due evaluate Arar’s 190 noted in

Supreme Wolfish, Court “the fact conclude that allegations Arar’s also fail to detention interferes with [lawful] state a claim under punishment-fo- understandable desire detainee’s to live approach as cused we have traditionally ap- comfortably possible as and with plied as little when analyzing substantive pro- due possible during restraint as challenges confinement cess to conditions pre-trial does not convert the conditions or restric- confinement. ” tions of ‘punishment.’ detention into Because it is not implicated by the facts U.S. at Only 99 S.Ct. 1861. if a case, of this we leave for another day the detention facility “expressed official has question of whether an unadmitted alien punish,” intent to at id. S.Ct. 1861 challenging his conditions of confinement or “a restriction or condition is not reason- has rights beyond right to be free of ably legitimate related to a goal” may “gross physical abuse the hands of state court “infer that purpose gov- officials,” federal Lynch, [and] 810 F.2d at ernmental action punishment is that may 1374. not constitutionally be upon inflicted de- detainees,” qua tainees id. at (iii) 1861. Arar alleges nowhere that the con- Having determined that allegations ditions of his confinement were inflicted set forth in Count four of Arar’s complaint punitive intent or were otherwise un- do not state a claim under the Due Process related legitimate to a government pur- Clause Amendment, of the Fifth we affirm pose. Rather, his repeatedly the order dismissing Count four of Arar’s emphasizes that kept defendants him in complaint. Contrary Judge sug- Sack’s custody in interrogate him, order to gestion, we do not hold that a Bivens sought to interrogate him in an effort to action is unavailable for the claims raised obtain information “about his membership in Count four complaint. of Arar’s See in or affiliation with various terrorist Rather, Dissent 201-02. we decline ¶ groups.” Compl. 31. Nor do the other question reach this in light of Arar’s fail- incidental conditions of his spe- detention — allege that, ure to facts true, if taken as cifically, the shackling, search, strip establish the any violation of “constitution- delay in providing him with adequate food ally protected Robbins, interest.” and sleeping facilities—rise to the level of S.Ct. at 2598. a constitutional Wolfish, violation. Cf. 530, 543, 558, U.S. (reject- S.Ct. 1861 (General Declaratory E. Prayer relief ing that, the claim in subjecting pre-trial Relief) detainees body to visual cavity searches and using common provide rooms to tem- prayer for relief includes a re- porary sleeping accommodations, the quest offi- this Court enter a judgment cials running a federal detention facility declaring that the actions defendants took had violated the detainees’ rights of with respect sub- to him illegal “are and violate stantive process). due reason, For this we constitutional, civil, [his] and international analysis in "unhelpful” Iqbal Hasty, (2d because v. Cir.2007), 490 F.3d 143 Wolfish pre-trial "was not a - detainee.” granted Dissent cert. Iqbal, sub nom. Ashcroft 207 n. Accordingly, 24. -, we puzzled are - L.Ed.2d -, Judge note that Sack elects to base (U.S. 2008) conclu 76 U.S.L.W. (No. June sion that a 07-1015) Bivens action should be available Magluta Samples, to Arar on appeals (11th two courts Cir.2004). 209-10, decisions See Dissent

relating rights pretrial to the detainees: 210-11. arbitrary interrogation un detention and Compl. Following rights.” human instructions, begin personal we torture.” Pi’s Br. 55. der Court’s considering reentering “whether this is a analysis by injury alleges “bar our declaratory judgment States,” for a which harms him “be action the United controversy to case or Article III periods sort of he has worked for sustained cause are limited.” Calder- which federal courts companies past, for U.S. the and Ashmus, on like the-U.S. for that would to return to (internal (1998) quo- 140 L.Ed.2d as as to and purpose, well visit relatives omitted). marks tation Br. 54. friends.” Pl.’s fre Supreme has As the Court claim, examining Arar’s we conclude In noted, component of “the quently core “traceability” fails meet the that to both he unchanging standing is an essential and the “redressability” prongs of test for and case-or-controversy require the part of standing by forth the constitutional set III,” Lujan v. ment of Article Defenders of reentry The Court. bar 555, 560, 112 S.Ct. Wildlife, 504 U.S. Arar relief as an auto- which seeks arises (1992); “the irreduci L.Ed.2d and (1) Arar finding incident of the matic standing of constitutional minimum ble to the United States for was inadmissible elements,” id.: contains three security, of national see 8 U.S.C. reasons First, the have suffered plaintiff must 1182(a)(3)(B); entry § and the of an a legally of injury fact—an invasion pursuant finding, to that order of removal (a) interest which is concrete protected 1225(c). rela- § It bears no see 8 U.S.C. [affecting particularized, plain- and tionship country with the of removal that way] and personal in a individual tiff injury Arar. Any defendants selected (b) imminent, conjectural actual not or is, re-entry bar there- associated with Second, there must be hypothetical. fore, “fairly not traceable” to conduct injury a causal connection between defen- complains—namely, which Arar of in- of—-the complained the conduct Syria of Arar “to for arbi- dants’ removal fairly ... to jury trace[able] has to be interrogation under trary detention and defendant, action of the challenged added). (emphasis Br. 55 Pi’s torture.” the indepen- not ... result th[e] [of] party action some third not be- dent redressability arises problem Third, likely, it must be fore the court. because, submissions this as to both opposed merely speculative, as unequivocally District Court Court injury by a favor- will be redressed establish, directly challenge Arar does not able decision. underly- removal order or defendants’ his (citations and 560-61, 112 Id. at classify him as inadmissible ing decision omitted, al first quotation internal marks F.Supp.2d the United States. See see Baur v. supplied); also Vene teration (discussing opposi- Arar’s brief at 259 (2d Cir.2003). man, dismiss). 631-32 motion tion to defendants’ jurisdiction invoking party “The federal “if his prevails [he] Arar contends establishing these ele bears the burden claims, the removal constitutional order Lujan, ments.” void, thereby as null and expunged be will re-entry lifting [his] the current barrier not, He Pi’s Br. 53. does Arar into the U.S.” complains The conduct of which however, detention, defendants, theory on “for articulate the which matter, or, argument for that Syria him to bases purpose removing authority in any support of his Arar satisfied Article III set forth has re- position. quirements We conclude Arar’s claimed to the claims raised in re-entry to his injury—namely, complaint. the bar Counts two and three of his However, adjudication whether, pursuant States to a removal un- the United case, order, of which stripped the lawfulness he does not der the facts of this the INA likely to challenge—is subject juris- be redressed the District matter Court redressed) (indeed, cannot be de- diction to hear Arar’s removal-related con- judgment he claratory seeks. That is so stitutional would particularly claims dif- because declaration that act- light defendants ficult the record before us. illegally by removing particu- ed Accordingly, to a exercise we our discretion to country particular lar for a purpose would dismiss two and three on Counts other change is, underlying, not the non-merits—grounds, uncontested threshold—that fact that Arar be to set cannot admitted the as forth below. if United States: Even Arar had been (4) above, For the reasons stated we to Syria, removed Canada rather than prima conclude that Arar has made a facie be

would still inadmissible to the showing personal to ju- sufficient establish by States virtue of the order of removal Ashcroft, Thompson, risdiction over and against entered him. early stage Mueller at the litigation. of Because Arar cannot meet As to the causes of action set forth in test standing by for constitutional set forth complaint, Arar’s we that: conclude Court, the Supreme subject we lack matter (5) Count of complaint one Arar’s must jurisdiction request judg over his for a be allegations dismissed because Arar’s ment declaring that defendants violated about the surrounding events his removal rights by his him removing Syria to for the Syria against to do not state claim defen- of purpose arbitrary detention and interro dants under the Torture Victim Protection gation under torture. Act; (6) Counts two three of com- Arar’s CONCLUSION plaint, envisage judicial which creation To summarize: of a pursuant cause of action to the doc- (1) Bivens, Because we conclude that reasons trine of must also be dismissed independent (a) of the privilege state-secrets because the remedial scheme estab- require dismissal of Arar’s complaint, by we lished Congress is to sufficient convince whether, do not consider if Arar able at step Bivens were us one of our analysis state claim for relief under notice refrain from creating a free standing dam- rules, pleading the assertion ages remedy of the state- for Arar’s removal-related privilege by secrets the United States claims. giving Even Arar the benefit of require would of dismissal Counts one the doubt assuming that this remedial through three complaint. (b) of his us, scheme were insufficient to convince “special factors” kind identified (2) Because we conclude that Arar’s Bivens Court in its jurispru- complaint has not upon stated a claim dence against judicial counsel creation which granted, relief can be we need not damages of a remedy for claims arising consider argument any defendants’ if Syria; from Arar’s removal cognizable Arar’s claims were defen- dants would be to qualified entitled immu- Count four Arar’s must nity respect with to those claims. allegations dismissed because Arar’s Id. at times.” in normal limits tutional while he suffered mistreatment about out, omitted). But, pointed (citation we a claim state do not States the United vary ... do rights most Process Due under defendants circumstances, such surrounding Amendment; and the Fifth Clause needlessly subjected to be right not for a petition respect With confinement, conditions harsh not ade- Arar has judgment, declaratory exces- the use of from to be free right subject matter federal established quately not to be sub- force, right sive judg- request over jurisdiction religious discrimina- to ethnic jected acted ille- that defendants declaring ment system of our strength of The tion. Syria so that removing him gally derives rights constitutional him interrogate could authorities Syrian rights those protection steadfast torture. times. unusual both normal Id.1 Court the District judgment The view, fully to fails, my majority

AFFIRMED. them It avoids principles. to these adhere immigra- an mischaracterizing this as part in concurring Judge, SACK, Circuit forbidden in fact about case, is when it tion part. in dissenting and by United employed allegedly tactics in ter- a officers law enforcement States I. OVERVIEW in I concur Although inquiry. rorism F.3d 490 Hasty, v. Iqbal in year, respectfully Last I judgment, of the parts some J.), Cir.2007) (Newman, cert. (2d I conclusion. ultimate 143 from its dissent — Iqbal, v. the district nom. of judgment sub granted vacate the would Ashcroft —2931, L.Ed.2d motion -, defendants’ the granting U.S. court (U.S. June Proce- of Civil Rule -, 76 U.S.L.W. Federal dismiss pro- further (No. 07-1015), recognize[d] 12(b)(6) for 2008) remand “[w]e and dure confronted ceedings of the situation gravity States the United of officials investigative * * * We attacks. consequence a 9/11 as Arar, a Maher plaintiff-appellant, gov The forms some reeognize[d] also Canada, dual Ottawa, and a resident in emer permitted are action ernmental alleges3 Syria,2 Canada citizen of consti- exceed would situations gency 16, 2008). questions These (U.S. June granted certiorari Supreme Court 1.The which for propositions bearing on no have requirements under address Iqbal to Iqbal. cites Fed. this dissent Agents Named Unknown v. Six Bivens Narcotics, Bureau of emigrated from teenager, Arar had stating As a (1971), for L.Ed.2d 619 par- with his he where lived Syria Canada against a "cabi "individual-capacity claim[ ]” ents, wife and children. then his high-ranking offi or other officer net-level “cabinet- cial,” a to which the extent appeal from purposes, on this present 3. For high-ranking official” or other officer level Fed.R.Civ.P. complaint under alleged dismissal liable for "personally can be held allegations are factual 12(b)(6), the facts offi of subordinate acts ly unconstitutional See, Iqbal, e.g., complaint. -, pleaded in the Iqbal, - U.S. cials.” Ashcroft that Arar did fact The at 147. -, F.3d U.S.L.W. L.Ed.2d complaint, see ante verify his 07-1015); 16, 2008) (No. choose see (U.S. June 171-72, A. 165-66, 5 Charles irrelevant. Certiorari, cert. a Writ Petition also Miller, Practice Federal R. Wright & Arthur No. 07- Iqbal, granted nom. sub Ashcroft September was, by travel Arar brought suit in the United States happenstance, transit passenger at New District Court the Eastern District of John York’s F. Kennedy International Air- New York on both statutory and constitu- (“JFK port Airport”) Queens, grounds. tional New He seeks damages from York. He had cut short a family vacation in federal officials he thinks responsible bound, Tunisia and for his was he thought, for abuse. The distriсt court dismissed business action meeting for failure Montreal. to state a hap- upon What claim pened to him which can next would relief beggar granted. the imagi- This Court now I nation Franz affirms. disagree Kafka. in significant part, and therefore respectfully dissent in sought When Arar to pass through the significant part. immigration check-point JFK Airport in order to catch his connecting flight II. THE AS FACTS ALLEGED Montreal, he agents detained IN ARAR’S COMPLAINT who had believe, been led to on the basis majority provides a strikingly spare of information provided by gov- Canadian description of allegations of fact on the officials, ernment that Arar had connec- basis of which Arar mounts appeal. Qaeda. tions with al first, FBI agents The district opinion, court’s see Arar v. then Immigration and Naturalization Ser- Ashcroft, 414 F.Supp.2d 250, 252-57 (“INS”)4 vice officers, held Arar largely (E.D.N.Y.2006), by contrast, rehearses the incommunicado at several locations in New facts considerable detail. According to City York for thirteen days, subjecting court, the district alleges the him to harsh interrogation under abusive following facts, repeated here nearly ver- conditions of detention. batim.5 They “are assumed to be true for purposes of the acquire pending ],

Unable to appeal[ from him as ... informa- required [is] tion they ... sought, [when] reviewing a agents attempted ruling to on a motion to obtain Iqbal, Arar’s dismiss.” consent to be F.3d removed to at 147. Syria. They expected Syrian officials to continue him, questioning but under condi- A. Arar’s Apprehension, Detention,

tions and of torture and abuse that they, the Forcible Transportation Syria to U.S. government agents, would not them- selves employ. When Arar declined to Arar, in his thirties, is a of Syria. native consent, the agents sent him Syria He immigrated to Canada with his family against his will for the purpose, ultimately when he was a teenager. He is a dual fulfilled, of having him held captive and citizen of Syria and Canada. He resides in questioned further under torture there. Ottawa. (3d and 2004) § Procedure ("Under ed. toms Enforcement and the Bureau of United motions, Rule pleadings, Federal and oth- States Citizenship Immigration Services, and papers er need not be verified accompa- or both Department within of Homeland Se- nied an except affidavit ‘specifically when curity. The actions at issue appeal in this provided by rule or statute' ... par- [and] [a] were taken agency when the was still known ty's verification pleading of a that need not as the INS. have been give verified does not pleading any weight added importance eyes in the 5. Citations to the opinion district court are in court.”). the district parentheses. The footnotes and subheadings

4. On March the INS was reconstitut- are mine. ed as the Bureau Immigration and Cus- Laden, and Pales- Iraq, bin Osama vacationing about 2002, while September In yelled agents alleges that Arar tine. Tunisia, he was called in family his with throughout interro- himat swore and to consult employer6 by his to work back re- repeated his They ignored gation. a purchased He client. prospective awith a and see call telephone a to make quests in stops7 with to Montreal ticket return day, Arar was p.m. 2:00 lawyer. At on Tunisia He left York. New and Zurich cell, and shack- chained to his back (Arar, taken F.Supp.2d 25, 2002. September McDonald’s a cold led, provided and 252.) at days. nearly two in first food meal—his arrived Arar September On (Id.) in New Airport JFKat Switzerland oppor- an given was evening, Arar That flight to Mont- connecting a catch York Syria, but return voluntarily tunity to his passport presenting Upon real. if being tortured refused, citing a fear as identified he was inspector, immigration he insisting there ‍​‌‌​‌‌​​‌‌​​​​​​‌​​‌‌‌​​‌‌​​​‌‌‌‌​‌‌​‌​‌‌​‌‌​​‌​‍a being returned lookout a subject of “the Switzerland. or returned to Canada organiza- sent terrorist of a known member told Arar оfficer (Decision immigration An DEx. (“Cplt.”) Complaint tion.” interest” “special Director) had States Blackman, Regional J. Scott to sign him then asked case and offi- by various interrogated He was at he was of which form, contents hours.8 eight approximately cials was evening, Arar That to read. allowed with contacts if he had Arar asked officials shackles, transferred, in chains de- categorically he which groups, terrorist (“MDC”) Center Detention Metropolitan to anoth- transported was then nied. York,9 was he where New Brooklyn, was Airport, where at JFK er site solitary con- placed strip-searched alleges He solitary confinement. placed days initial three During his and finement. in chains transported that he to meet requests MDC, continued no in a room left and was shackles calls telephone make lawyer the with throughout lights and with bed (Id.) 253.) refused. were (Arar, F.Supp.2d night. 2002,10 initiated the INS On October morning, September following The Arar, who a.m., proceedings removal 9:00 approximately 2002, starting at temporarily inad- being charged with Arar was interrogated agents two FBI in al membership his because missible questions hours, him asking five about inmate accused MathWorks, Iqbal, a Muslim mistreated. employed The Arar was 6. §§ and U.S.C. of 18 held, violations Inc., privately Massachusetts-based States the United to defraud (conspiracy for techni- of software developer supplier identification) post-9/11 held 12; ¶ About with Complaint, fraud computing. See cal MDC, “unconstitu- allegedly suffered MathWorks, http://www.mathworks.com/ with 31, 2008). in connection against him May (last tional actions visited company/aboutus/ conditions harsh under his confinement pop- prison general separation from after is, plane. changes of That 7. n. 1. Iqbal, 490 F.3d ulation.” subsequent held, Iqbal’s respect to We day, complaint, on that According to the 8. actions, was not treatment such Bivens agent for by an FBI questioned first Arar was law, doc- matter of as a protected, ¶ hours, immigration by then Cplt. five 177-78. immunity. Id. at qualified trine hours, ¶Cplt. 31. three officer the United arrival in days after Arar’s which, 10.Five less jail in federal the same This is earlier, allegedly States. was Iqbal Javaid year than a Qaeda, designated a group Secre- eventually be in a placed facility detention tary foreign organi- of State terrorist in New Jersey, and that she should call being Upon given permission zation. to back the following morning for Arar’s ex- call, make one telephone Arar called his act However, whereabouts. alleges Arar Ottawa, (Id.) mother-in-law Canada. that he never left the MDC and that the contents of both of phone these calls to his Upon learning whereabouts, of Arar’s counsel (Id. were false and misleading. his contacted family the Office for Consu- 254.) (“Canadian Consulate”)11 lar Affairs attorney, retained an Oummih, Amal That same day, 7, 2002, October the INS represent him. The Canadian Regional Consulate Director, Blackman, J. Scott de- had not been notified of Arar’s detention. termined from classified and unclassified 3, 2002, On October Arar received a visit information that Arar “clearly and un- from Maureen Girvan from the Canadian equivocally” a member of Qaeda and, al Consulate, who, presented when therefore, with the “clearly and unequivocally inad- noting document Arar’s inadmissibility to missible to the United States” under 8 States, the United assured Arar that re- 1182(a)(3)(B)(i)(V). § U.S.C. Cplt. See Ex. Syria moval to was option. not an 1, 3, On D. at 5. Based on that finding, Black- October Arar designated Canada man concluded “that there are reasonable country as the to which he wished grounds to be to believe that is a danger [Arar] (Id.) removed. to the security of the United States.” Id. (brackets at 6 in original). (Arar, 414 On October Arar only had his 254.) F.Supp.2d at meeting with counsel. The following day, he was taken chains and shаckles to a At approximately 4:00 a.m. on October room where approximately seven INS offi- that, Arar learned based on classified cials questioned him about his information, reasons for regional INS director Black- opposing removal Syria. attorney His man had ordered that Arar be sent was not provided advance notice of Syria and that his removal there was con- interrogation, and Arar further alleges sistent with Article Three of the United that U.S. officials him misled into thinking Nations Against Convention Torture and attorney had chosen not to attend. Cruel, Inhuman, Other Degrading During interrogation, Arar continued Treatment or (“CAT”). Punishment to express his fear of being tortured if pleaded for reconsideration but was told returned Syria. At the conclusion of by INS officials the agency was not the six-hour interrogation, Arar in- governed by the “Geneva Conventions” formed that the officials were discussing that and Arar was barred from reentering his case with “Washington, D.C.” Arar was country for a period years of five and asked to sign a appeared document that to would be only admissible permis- with the be a transcript. He refused to sign the sion of the Attorney (Id.) General. (Id. 253-54.) form. at Later that day, Arar was taken in chains (October

The following day 7, 2002), at- and shackles to a New Jersey airfield, torney Oummih received two telephone where he boarded a jet small plane bound calls informing her that Arar been had for Washington, there, D.C. From he was taken for processing an to INS office at Amman, flown to Jordan, arriving there on Varick in Manhattan, Street that he would October 2002. He was then handed 11. In City. New York Syrian days in his first twelve During deliv- authorities, who Jordanian to

over eigh- for interrogated detention, was Arar day. At that later Syrians to the him ered and physically was day and per teen hours not informed had time, officials beaten He was tortured. psychologically Girvan official Consulate Canadian either a back with lower hips, and palms, on his been Arar had that attorney Oummih captors His cable. electric Syr- two-inch-thick alleges that Arar Syria. to removed his him on to beat fists their directly also used Arar accept to refused officials ian his face, back of neck. stomach, and the his (Id.) the United States. from and excruciating pain to subjected He was Inadmissability Final Notice they but stop, captors his with pleaded removed Notice”) him (“Final ordered a in room placed He was not. would immigra- inquiry before further without of other screams hear the he could where According D. Ex. Cplt. See judge. tion told and that was being tortured detainees “The Commissioner Notice: the Final spine-break- ain too, placed he, would Ser- and Naturalization Immigration ain “tire” down “chair,” hung upside ing removal your that has determined vice to electric subjected and beatings, Id. [CAT].” with be consistent Syria would exposure his To lessen shocks. signed and October was dated It confessed, among oth- falsely torture, Arar Larry Attorney General by Deputy terrorists with having trained things, to er in the argument oral After Thompson. had never though he even Afghanistan, motions defendants’ on the district court never been and had Afghanistan been August dated dismiss, in a letter 255.) (Id. at activity. in terrorist involved Arar re- that clarified Arar counsel interrogation his alleges Arar hours within Notice Final ceived planned U.S. coordinated was Syria him to Jordan. taking the aircraft boarding Syrians dossier officials, sent who (Arar, F.Supp.2d Dkt. No. See As evidence questions. containing specific 254.) interrogations this, allowed was Arar nonexistent. were ties per once water in cold himself to bathe Canadian Arar’s Contact G. exercising was prohibited He week. Syria in Detained While Government Arar food. barely edible provided and was Embassy contactеd Canadian The his ten-month during forty pounds lost October Arar on about (Id.) Syrian government Syria. in of detention period the following day, Syrian whom Arar had last seen in October 2001. they confirmed were officials detain- He believes that he was removed Syria him. At ing point, Syrian officials interrogation under torture because of ceased interrogating and torturing Arar. his acquaintances casual with this individu- (Id.) al and others believed to be involved activity. terrorist

Canadian officials But Arar visited Arar at the contends “on Palestine five information during Branch times and belief’ his ten- that there has nev- been, visit, month detention. Prior to now, each er nor Arar is there any reasonable was warned not to disclose suspicion that he was that he was involved in such being complied ¶ mistreated. He but even- activity.12 Cplt. (Arar, 2. 414 F.Supp.2d tually broke down during visit, 255-56.) fifth telling the Canadian consular official that Arar alleges that he continues to suffer he being was tortured and kept grave. in a adverse effects from his ordeal Syria. (Id.) He claims that he has trouble relating to later, days Five Arar brought to a children, wife and night- suffers from Syrian branch, investigation where he was mares, is frequently terrorist, branded a sign forced to stating confession that he and is having trouble finding employment participated had in terrorist training in due to his reputation and inability to travel Afghanistan though, states, even Arar (Id. in the 256.) United States. has never been Afghanistan or partici- pated in any activity. terrorist Arar was D. Policy

then taken to an Related to Syrian Interrogation overcrowded pris- on, where Detainees Foreign he remained for six Governments weeks. (Id.) alleges on information September 28, 2003, On Arar was trans- and belief Arar was removed Syria ferred back Branch, to the Palestine where under a policy covert U.S. of “extraordi- he was held for one week. During this nary rendition,” according which indi- week, he heard other detainees screaming viduals are sent to foreign countries to in pain and begging for their torture to undergo methods of interrogation per- not (Id.) end. mitted in the United States. The “ex- On October Syria, filing without traordinary rendition” policy involves the any charges against Arar, released him removal of “non-U.S. citizens detained custody into the of Canadian Embassy offi- this country and elsewhere and suspect- cials Damascus. He was flown to Otta- reasonably or unreasonably ter- ed— —of wa the following day and reunited with his rorist countries, activity Syria, including (Id.) family. where interrogations under torture are ¶

Arar contends that he is not a routine.” member Cplt. alleges on in- any organization, terrorist including formation al and belief that the United States Qaeda, and has never knowingly sends associated individuals “to Syria countries like terrorists, himself with terrorist organiza- precisely because those countries can and tions or activity. terrorist Arar claims do use methods of interrogation to obtain the individual about whom he was information from detainees that would questioned awas acquaintance casual morally acceptable legal in the Unit- 12. Footnote opinion, in district court relating sequent Arar, inquiry, Canadian omitted. See to the so-called "LaHood Letter” about a sub- F.Supp.2d at 256 n. 1. human Syria’s on reports Department Id. The democracies.” and other States ed De See, of Bureau e.g., the defen rights practices. that alleges further complaint Labor, rights Unit human and Rights, such Human mocracy, facilitated “have dants intelli State, dossiers abuses, exchanging of Department States ed which countries in the officials gence Prac Rights Human on Country Reports Id. The removed.” are citizens non-U.S. 2005) (“2004 (Released February tices the alleges also Depart the State According to Report”). “extraordinary its Syria involves States re rights record ment, Syria’s “human counter-ter to extract program rendition” contin the Government poor, and mained (Arar, F.Supp.2d information. rorism numerous, serious abuses ued to commit 256.) at in deten torture use of includ[ing] the program “extraordinary rendition” This in death.” resulted tion, at times which or declared any official of part Syrian the constitution Although 1. at Id. nevertheless, received it has policy; public “there practices, such officially prohibits where press, in the attention extensive security forces credible evidence was foreign and certain U.S. officials unnamed Id. frequently.” to use torture continued of to the existence admitted have officials “numerous cites Report at 2. The a number Arar details policy. such using torture security forces recount- cases press in the mainstream articles refer Similar particular custody.” Id. of this prisoners the incidents ing both rendition” “extraordinary as well Report, and throughout case ences are articles These broadly. more program prior reports Department as State complaint. of his Exhibit C as attached Ex. A See, e.g., Cplt. legion. are years, 256-57.) (Id. at Rights Human (2002 Department State direct- defendants that the alleges (Arar, F.Supp.2d Arar Syria). Report on infor- providing interrogations ed 257.)13 Syrian officials about Arar mation responses. on Arar’s receiving reports Inquiry Government F. The Canadian conspired the defendants Consequently, abetted, Syrian offi- with, aided and/or a Commission September On interrogating, detaining, arbitrarily cials Offi- of Canadian Actions into Inquiry in the argues Arar. Arar torturing (“Arar Arar- to Maher in Relation cials minimum, the defen- that, at a alternative govern- by the Commission”), established have known should at least knew dants the Arar investigate of Canada ment likelihood a substantial that there report. See a three-volume affair, issued removal upon his be tortured would Relat- Events Comm’n, Report Arar 257.) (Id. at Syria. (2006).14 re- press A Arar to Maher ing summa- Record the Commission Rights issued Human lease Syria’s E. the Commissioner Maher rized: “On likelihood he faced Arar’s claim important to one comes O’Connor] [Dennis by U.S. State supported Syria is torture concerned, denied but were of its contents description the facts court’s district 13. The judicial sought may have it insofar as motion here. complaint ends alleged in the report. But in the facts asserted notice of report as (employing the cf., ante granted this Court October On involve- relating to Canadian for facts source notice of judicial take motion Arar's incident). the Arar scope ment in as its existence Report insofar T say conclusion: am able to categorically The Prime Minister also announced that that there is evidence no indicate New Canada’s Government has success- Mr. any Arar has committed fully offence or completed the process mediation that his Arar, activities constitute a threat with to the Mr. fulfilling another one of ” security of Release, Canada.’ Press Arar Commissioner O’Connor’s recommenda- Comm’n, Arar settlement, Commission tions. Its This Releases mutually agreed Findings upon on Handling all parties, the Maher ensures Mr. 18, 2006) (boldface Arar 1 (Sept. Case and his family will obtain fair com- original), pensation, in available http://www. amount of million, $10.5 plus costs, legal ararcommission.ea/eng/ReleaseFinaLSept they ordeal have (last 18.pdf May 31, 2008). visited suffered. On January 2007, the Office of the Prime Release, Press Prime Minister Releases Minister of Canada issued the following Letter Apology to Maher Arar and His announcement: Family and Completion Announces (Jan. Mediation Process 2007), Prime Stephen Minister avail Harper today able released the http://pm.gc.ca/eng/media. letter of apolоgy he has (last asp?id=1509 May 31, 2008); sent visited Maher Arar and his family for see also any Margaret L. Satterthwaite, role Canadian officials Ren have dered Meaningless: played in happened Extraordinary what Ren Arar, to Mr. dition and Law, the Rule Monia Mazigh and 75 Geo. family their Wash. in 2002 1333, 1339-10 (2007). L.Rev. and 2003. “Although the events leading up to this III. PROCEDURAL HISTORY terrible happened ordeal under pre- A. The Complaint and the District government, vious our Government will Opinion Court’s do everything power in its to ensure that the issues raised On January 22, 2004, Commissioner Arar filed a com- O’Connor addressed,” plaint are in the said the United States District Court Prime Minister. “I sincerely for the hope that Eastern District of New York. In these actions help will Mr. Arar addition to and his its factual allegations, his com- family begin a new hopeful plaint and chapter asserts as “Claims for Relief’: in their lives.” defendants, That in contravention of the Torture Canada’s Victim New Prevention Government has accepted Act (“TVPA”), all § recommendations U.S.C. made in Com- (note), missioner acted in concert O’Connor’s first Jordani- report, and Syrian has and already officials, begun acting upon them. color of Syrian law, Government has to conspire sent letters to both aid Syrian and/or abet in governments violating right formally to be (Count free from objecting to torture the treatment of Mr. Arar. Day Ministers 1). and MacKay

have also expressed 2. That Canada’s concerns defendants knowingly or reck- important lessly issue subjected to their Ameri- him to torture and can counterparts. Finally, coercive interrogation Canada has in Syria in vi- removed Mr. Arar from olation of Canadian look- his Fifth Amendment right lists, out requested (Count process 2). substantive due States amend its own records according- 3. That defendants knowingly or reck- ly- lessly subjected him to arbitrary de- in U.S. subjected was while Arar which vio- to Syria in trial without tention Bivens raise may potentially custody right Amendment Fifth of his lation replead to 3). claims, required Arar was (Count but process due substantive to claim any rendition regard to without them or intentionally defendants 4. That per- were that defendants name those and arbitrary to subjected him recklessly alleged unconstitu- in the sonally involved and involun- coercive and detention Arar, at F.Supp.2d treatment. tional the interrogation tary custodial 287-88. with States, interfered and peti- counsel ability obtain to his invita- the district court’s Arar declined redress, in viola- for courts the tion Instead, appeals replead. to tion to right Amendment his Fifth tion of court. of the judgment district the 4). (Count process due substantive 257-58. at Arar, F.Supp.2d See Opinion Majority B. The Panel’s claim Arar’s denied court The district judgment the affirms panel The relief, Counts dismissed declaratory for majority explained the as court district and dismissed prejudice, with and 3 (1) that majority concludes opinion. leave and with prejudice without Count com in Arar’s forth allegations set the The district at 287-88. Id. replead. early stage of sufficient, this at are plaint 1) standing lacks Arar that: court decided juris personal to establish litigation, the 2) relief; declaratory for bring a claim resident not defendants diction over (a) in the since action no TVPA Arar has (2) not estab Arar has York, but New private no view, Congress provided court’s jurisdiction subject-matter federal lished for non- the TVPA action under right of declaratory relief. Ante for over his claim (b) Arar, he cannot and as citizens such further It concludes 163-64, 192-93. at acting under were defendants show not state do allegations Arar’s nation,” at id. law, any foreign “color of damages for the defendants claim and Immigration 3) the though 287; even pro cannot TVPA, we and the under (“INA”) not foreclose does Nationality Act cause of created judicially Arar vide with due Arar’s over substantive jurisdiction the Fifth under damages for actiоn under action claims, cause of no process Bivens doctrine. Amendment, pursuant Agents Named Unknown v. Six Bivens Finally, 163-64, hav 192-93. at I d. Narcotics, Fed. Bureau of on complaint to dismiss ing decided (1971), can L.Ed.2d 619 S.Ct. not reach majority does grounds, these coun- factors “special light extended or the INA of whether question of affirma- in the absence seling hesitation Arar’s foreclose privilege state-secrets 396, 91 id. by Congress,” action tive 191-92. Id. at litigation. of this pursuit security the national namely conclusions majority’s stake; agree with I considerations foreign policy and request jurisdiction, personal toas that inadmissi- 4) holding prior cases his claim judgment, declaratory protec- process due little deserve aliens ble majority, Unlike TVPA. under Arar’s claim inapplicable are tion adequately Arar however, conclude I his during process due deprived he was rights his constitutional violations pleads because detention of domestic period claims proceed is entitled into entry an to effect attempting Bivens. Fi damages monetary cir- States, and therefore the United agree, the defendants nally, as Arar of confinement and conditions cumstances were the reinstated and this tempt it cast immigration mat- remanded, matter as I be, think it should ter.16 the district court could then consider view, In my the issues raised defendants’ assertion of the “state-secrets appeal, approached in light of the case privilege”15 instance, in the first and limit Arar actually assert, seeks to are relatively discovery necessary as is to meet legiti straightforward: security

mate national and related con 1. What gravamen of Arar’s cerns. complaint? 2. Does it allege deprivation of his

IV. ANALYSIS right to substantive due process un- This is immigration not an case. Con- der the Fifth Amendment to the trary to majority’s analysis, al- United States Constitution? legations do not describe an action arising so, 3. If is a Bivens action available as under or to be decided according to the vehicle which may he seek re- immigration laws the United States. dress for the violation? Arar did not attempt to enter the United And, so, 4. if are in any States but defendants enti- sense; the most trivial tled qualified to sought only immunity? to through transit JFK in Airport order travel from one foreign country to another. He initially inter- A. The Gravamen the Complaint rogated by agents, FBI officials; not INS It is in well-settled this Circuit that “we they sought learn not about the bona may not affirm the dismissal of plain [a attempt fides his to “enter” the United complaint tiffs] because proceed [he has] States, but about alleged links to al ed under wrong theory long ‘so as [he Qaeda. The INS was not engaged in or- has] facts sufficient to support a der to make a determination as to Arar’s ” legal meritorious claim.’ Hack v. Presi immigration status. The agency’s princi- dent & Fellows College, Yale 237 F.3d pal involvement came after the FBI failed 81, (2d Cir.2000) 89 (quoting Northrop v. to obtain desired him, information from Inc., Simsbury, 41, 134 F.3d Hoffman of order facilitate his transfer to Syria so (2d Cir.1997)), 46 denied, cert.

that he might be further held ques- 888, 122 (2001). S.Ct. 151 L.Ed.2d 142 tioned under torture. In considering an appeal such as this one

This lawsuit is thus about the propriety from a district grant court’s of the defen and constitutionality of the manner 12(b)(6) dants’ Rule motion dismiss, “ which United States ‘[fjactual law enforcement allegations alone are what mat ” agents sought to obtain from Arar infor- ter[ ].’ Northrop, 134 F.3d at (quoting 46 mation about terrorism or terrorists which Carovano, Albert v. 851 F.2d 571 n. 3 they thought wrongly (2d it Cir.1988) as turned (en out— banc) (citing — Newman v. possessed. that he The majority goes Silver, as- (2d 713 F.2d 15 n. 1 Cir. tray when it accepts 1983))).17 the defendants’ at- are, moreover, We required to 15. See United v. Reynolds, States 345 court, U.S. contrast, 16. The district did not 73 (1953); S.Ct. 97 L.Ed. 727 treat this immigration Arar, Zucker as an case. See F.Supp.2d Dynamics braun v. Corp., General F.2d (2d Cir.1991). 17, The Federal Rules of Civil Procedure tell

us that "[pleadings must be construed so as The Syria. his will him sent in a allegations factual read questioned he be Cantor, intended 123 defendants v. Shapiro See a whole.” “as enduring while torture Syria under Alda Cir.1997); also (2d see 717, 719 F.3d captivi- conditions N.A., inhumane Produce, brutal Fresh Monte na Del aof part all was, alleged, (11th This ty. Cir. n. 11 Inc., F.3d — of and action, conceived course denied, single curiam), 2005) cert. (per in the United defendants by the 431 executed L.Ed.2d -, “talk.” to make purpose: Corp., Its States. Ameritech (2006); Goldwasser Cir.2000). (7th 390, 401 though, opinion, in its deep until Not Arar’s com- contained allegations address, majority come does be assertions, must which include plaint by Arar’s treatment the matter: of heart present for facts as established treated in present he was while defendants 1) apprehended was Arar that: purposes, does, the finally itWhen States. United sought to as he agents by government describing by of the issue disposes opinion not he was Airport; JFKat change planes in “[WJhile facts: pleaded only some of 2) States; his the United to enter seeking “was States,” says, Arar it given information on detention, false based involuntary cus- and subjected to ‘coercive Canada, for was of government by for ex- ... conducted interrogations todial him from obtaining information of purpose at odd time and of long periods cessively links with and his terrorism about three occa- night’ day and hours 3) organizations; terrorist and terrorists of ‘deprived days; over thirteen sions top- harshly on interrogated he was of periods extended food sleep and many agents FBI mostly —for ic— solitary thereafter, in ‘held was time’; and, 4) during days; two of period a hours over shackled, [and] confinement, and chained ” incommunicado was held he period, strip-search[ ].’ invasive subjected to [an] other among by, mistreated and its con- thus limited Having at 189. Ante water and of food being deprived things, the acts of portion a only to sideration in time of portion a substantial blandly of, majority complains taken JFK 5) then he was custody; while de- allegations, “These concludes: he where Brooklyn, in Airport to MDC constitute perhaps might scribing what incommunicado held to be continued detention, do conditions relatively harsh three for another solitary confinement physical gross claim to amount MDC, agents INS 6) at while days; conclusion support to necessary abuse” to agree have him unsuccessfully to sought in- been had rights process his due they because Syria be removed Id. fringed. intended agents government other conclusion its majority reaches But the along there questioned be would that he the man- things, among other 7) eliding, torture; thir- lines, under but similar custody into Arar was taken in which ner intercepted Arar had been days after teen dis- defendants in which manner defendants airport, at the and incarcerated rules objectives of the federal important 8(e). most Wright and justice.” Fed.R.Civ.P. to do on their determined provision should ”[t]his is that lawsuits counsels treatise Miller's justice, re- according but the dictates statement simply precatory merits and is not practice philosophies not the basic whether one of the flects than terms rather Wright A. 5 Charles rules.” the federal have been pleadings paper in the averments Miller, and Pro- Practice Federal R. & Arthur Id. artfully drawn.” ed.2004). (3d “One of § 1286 cedure posed of him their when efforts obtain B. Arar’s Pleading a Substantive Due information from him here proved fruit- Process Violation was, effect, less. Arar abducted while Principles of substantive process due ap- attempting to transit JFK Airport. ply only to a narrow band of extreme And give when failed defendants the by government misbehavior agents acting they for, information looking were аnd he under color of law: per- of a mistreatment refused to “voluntarily” be sent Syria, son that is “so egregious, so outrageous, they forcibly him sent there to be detained that may it fairly be said to shock the questioned under torture. contemporary conscience.” Lombardi v. Whitman, (2d Cir.2007) It is true that after setting forth his (citations and quotation internal marks allegations of fact in detail in his com- omitted). When Arar’s complaint is read plaint, Arar structures his “claims for re- to include all of the allegedly actions taken lief’ charge knowing or subjec- reckless by the defendants him within this torture, tion to coercive interrogation, and country, including the actions taken to arbitrary (counts Syria detention two send Syria him to with the intent that he three) separately from, among other there, tortured it alleges conduct that things, arbitrary detention and coercive easily exceeds the level of outrageousness and involuntary custodial interrogation in needed to make process out a due claim. (count four). the United Arar, States See Indeed, although the “shocks the con- 414 F.Supp.2d at 257-58. The pleading’s science” test is undeniably vague, see Es- may form have contributed majori- to the tate Marasco, Smith v. 140, 430 F.3d of ty’s separation erroneous of the decision to (3d 156 Cir.2005); Goch, v. 153 Schaefer send Syria Arar to to be interrogated un- 793, (7th F.3d Cir.1998), 798 “[n]o one der torture from his physical “domestic” doubts that under prece- Court But, noted, mistreatment. “‘[flactual dent, interrogation by torture” meets that ” allegations alone are what matter[ ].’ test, Harbury Deutch, v. 596, 602 Northrop, 134 Albert, (quoting F.3d 46 (D.C.Cir.2000), rev’d on other grounds, 536 3). 851 F.2d at 571 n. The assessment of 403, U.S. 122 2179, S.Ct. 153 L.Ed.2d 413 Arar’s alleged complaint must take into (2002);18see also Rochin v. California, 342 account the entire arc of allegations factual U.S. 205, 72 S.Ct. 96 L.Ed. 183 that Arar makes—his interception and ar- (1952) (interrogation methods were “too rest; his questioning, principally by FBI close to the rack and the permit screw to agents, about putative his ties to terror- of constitutional differentiation”); Palko v. ists; his detention and mistreatment at Connecticut, 319, 302 U.S. JFK Airport in Queens and the MDC in 82 L.Ed. 288 (noting that the Brooklyn; the deliberate misleading of Due Process Clause must at least “give both lawyer and the Canadian Consu- protection against torture, physical or late; and his transport to Washington, mental”), overruled on other grounds by D.C., and forced transfer to Syrian author- Benton v. Maryland, ities for further detention and questioning (1969). 23 L.Ed.2d 707 The under torture. defendants did not themselves torture concluded, Harbury The nonetheless, court rights.. See Harbury, (re- 233 F.3d at 603-04 that because the murdered alien’s lying mistreat- on United Verdugo-Urquidez, States v. abroad, ment entirely occurred had not a suffered violation his Fifth (1990)). Amendment L.Ed.2d ait upon imposes will, Constitution But I do it.19 Arar; they “outsourced” some re to assume duty corresponding -violated defendants whether think general well- safety and for his sponsibility on turns rights Amendment Fifth Arar’s circumstances, limited these torturing: being. Under do they selected whom person officer, the incarcerated a owe state Intelligence themselves, Syrian a protect duty to in Co- an affirmative Somalia, drug cartel a warlord by third inflicted liberties Baghdad to his harms lombia, contractor military a York, New City Jersey, Matican in New family parties.” Boston, a Mafia or Cir.2008) (cita (2d 151, 155-56 F.3d Angeles. Los Crip set South aor marks, foot tions, quotation internal the state-creat held that We have solely omitted). “duty arises This County Narcotics v. Tarrant Leatherman in the United presence physical lacked Unit, 507 & Coordination Intelligence And it concludes at 186. Ante States.” 1160, L.Ed.2d 122 164, 163, S.Ct. 113 U.S. protections full “the that from this Vega- v. (1993); Velez-Diaz see also 517 to Arar apply not do clause” process due Cir.2005) (1st 71, 79 421 Irizarry, F.3d ‘persons with only to “apply they because ” offi government which in (“[I]n scenarios Zad (quoting Id. States.’ in the United actors private assist or actively direct cials 121 Davis, v. vydas the an individual harm to causing (inter (2001) L.Ed.2d actor private the and officials government omitted)). marks quotation nal tortfeasors, there essentially joint are that, in New York while the notion But re constitutional fore, incur shared present” “physically not Arar City, was (citations quota internal sponsibility.” peculiar States, fiction legal ais the United omitted)). held have also We marks tion only to It is relevant law. immigration into person takes the “when State immigration alien’s of an the determination him there custody and holds its agents to which acts as responsibility for approach market "[R]endition 19. —out- —the Id. unaccountable.” empowered are we have crimes, at the puts us which our sources at 387. us, makes expose anyone who can mercy of most world’s some of dependent on us analyzed claim can Accordingly, Arar’s 20. actors, accountabili- unsavory and abandons distinct 'separate and the "two either of crime we associate approach ty. It anis the substantive liability’ under theories Philip ‘spe- Bob- families, great Clause: nations.” not with Due Process component liability 'state-created- bitt, relationship’ The Wars and Consent: cial Terror for Whitman, 523 (2008). liability.” danger’ "[OJne Benzman Century 388 Twenty-First Cir.2008). (2d F.3d national worlds: of both get worst could related It status and matters. is indeed a without more.... [Temporary harborage, largely to the fiction that works benefit of legislative act of grace, bestows no ad- aliens, permitting them to remain here Tod, rights.”); Kaplan ditional 267 U.S. immigration while officials determine 228, 230, 45 S.Ct. 69 L.Ed. 585 they legally whether are admissible. (concluding that an unadmitted alien held If Arar had been seeking immigrate Island, on Ellis and later elsewhere within States,21 to the United had he been de- States, the United was regarded “to be as entry tained at the immigration point at stopped boundary at the line” for natural- Airport; JFK had he thereafter been held ization purposes). But purposes Brooklyn pending deporta- MDC assessing his treatment law enforce- Canada, tion to his home in presumably ment agents during his detention in- treated, would have been im- properly terrogation in places several City migration purposes, though he had York, New it cannot follow from a legal been held or back at turned the border. fiction applicable to immigration status Shaughnessy See v. United States ex rel. Arar, rather Mezei, like the fictional “little 345 U.S. (1953) (“Aliens there,”22 man L.Ed. who wasn’t was seeking entry never in this obviously can be back turned at the country.23 border sought not to enter this majority opinion While the from time to to the immigration determination an alien’s status, time though treats Arar as he was an procedural immi- process due States, grant seeking entry into which an alien is entitled virtue of that INA status, makes a clear distinction between an adjudicating alleged cases viola immigrant seeking entry seeking and an alien tions of an process substantive alien's due only through transit the United States. See, rights during e.g., detention. May Leng INA excludes from the definition of Barber, "immi- Ma v. grant” an alien "in immediate and continuous L.Ed.2d 1246 (concluding tempo through transit the United States.” 8 U.S.C. rary parole in United States while ad alien's Moreover, 1101(a)(15)(C). § at the time Arar missibility being determined did not enti Airport, flew to JFK the United States had in tle alien to benefit of giving statute Attorney place a program Transit Without Visa General authority deportation to withhold allowed required an alien who would be to any alien "within the United States” if alien obtain a visa to enter the United States to thereby would subjected physical be to perse through airport transit a U.S. without obtain- cution); 644, Esperdy, Menon v. 413 F.2d 647 ing Canada, a visa. As a citizen of a visa (2d Cir.1969) (noting that “since a parole country, waiver had no need Arar tо avail does not an constitute admission into the himself of program. But its existence United appeal States ... th[e] involve[d] an distinction, the recognized by demonstrates exclusion ... expulsion”); rather than an government, the passengers, between transit Dong Wing Shaughnessy, Ott v. 247 F.2d Arar, like immigrants seeking entry into (2d Cir.1957) curiam) (per 770 (holding that the United program States. The was sus- Attorney the "discretionary General’s power pended security for August reasons on suspend to deportation” did not apply to 2003, long attempt after Arar's to transit aliens country "within parole,” the be through Release, Airport. JFK See Press De- statute[, parole, "by cause was] not [to] be partment Security, of Homeland Homeland regarded (cita as an admission of the alien” Security Department State Take Imme- of quotation omitted)), tion and internal marks Steps diate To Make Air Travel Even Safer denied, cert. 2 2, 2003), (Aug. http://www.dhs. available (1958); L.Ed.2d 1370 Shaughnessy, v. Knauff gov/xnews/releases/pressreleases0227.shtm (2d Cir.1950) curiam) F.2d (per (last 30,May 2008). visited (alien stopped at the border and detained on Ellis Island "is not ‘in the United States’ ... Mearns, Hughes (1899). Antigonish [and therefore] is not entitled to naturaliza 23. The tion”); Court’s decisions and Gonzalez, our Martinez-Aguero see also v. own invoke the entry (5th fiction in cases Cir.) related 459 F.3d (rejecting appli or a determination awaiting removal transiting were it, after to leave country, but immigration laws. status of their For airports. its one of through briefly the relevance to understand It is difficult most rudimen- identifying the of purposes an alien rights of Constitution, to those decisions of rights under tary of Ameri through an to transit wished sense- who here is was not Arar the fiction custody for into taken airport but was can here, matter of both aas was He less. mat non-immigration interrogation as to entitled law, therefore was fact and ters instead. under the mistreatment protection Process Clause.

Due setting these cases accepting Even however, standard, I applicable forth the * * * of alleges a violation adequately think Arar that even majority acknowledges The His rights. process due his substantive the immi- alien, treated under unadmitted construed, describe properly allegations, physi- not was though he laws as gration by defen- taken made and actions decisions States, has the United within cally present States, while the United within dants majority sees rights. constitutional States, to ob- designed extending rights as those scope of him, doing if so even from tain information “gross physical “beyond” freedom tor- detention and ultimately required his I think that at 190. ante See abuse.” defendants, having ture abroad. Once me that Arar It seems unduly narrow. the information acquiring despaired protec- the bare-minimum was entitled him to here, caused physically from Arar affords. process due tion substantive someone, some- in the hands placed physical “gross applying a support In pur- anywhere anyone, —for where— Lynch standard, majority cites abuse” tortured, it seems having him pose (5th Cannatella, F.2d v. to the subjecting him they were me that Thornburgh, Cir.1987), Correa physical “gross kind appalling most (2d Cir.1990), and Adras 1166, 1171 n. 5 right thereby violated his They abuse.”24 (11th Nelson, Cir. F.2d majority artifi- even as to due process 1990). highly are doubtful cases These right. cially limits Again, purposes. authority present finally, that noting, It be worth They deal immigration are cases. they of the defendants who, one more having order for of aliens with the treatment infringement States, be liable the United sought admission challenged con- (1979) (deciding the whether Bivens claims entry to fiction cation of the may force), not "punishment that de to cert. amount involving of ditions use excessive the - 837, -, [pretrial] de- nied, upon constitutionally S.Ct. 166 127 be inflicted U.S. Wong (2006); detainees”), Rutherford, v. Unit Fun Kwai L.Ed.2d 667 Block qua tainees Cir.2004) 952, (9th States, 3227, 973 576, 584, F.3d ed 373 L.Ed.2d 82 S.Ct. 104 468 U.S. fairly ... as a ("The entry fiction is bеst seen (1984), 168-69. Iqbal, 490 F.3d at 438 the primarily determines doctrine narrow analysis such an I find at 189-90. See ante fol must the executive branch procedures that issue unhelpful. The these cases under (em away.” immigrant turning an low before as a "punished” was whether Arar here not is original)). phasis in being tried first pre-trial detainee without pre-trial detainee. a He convicted. notes, that ‍​‌‌​‌‌​​‌‌​​​​​​‌​​‌‌‌​​‌‌​​​‌‌‌‌​‌‌​‌​‌‌​‌‌​​‌​‍his majority asserts Arar 24. As the whether, person detained as a question is The as- process rights should be due substantive interrogation, he States for the United pre- for established under standards sessed in the to be tortured and sent be mistreated Wolfish, 441 U.S. in Bell v. trial detainees 1861, way was. 520, 539, L.Ed.2d 447 60 S.Ct. 99 208 process rights,

substantive due of Robbins, defen- the “Bivens model.” Wilkie v. — dant or those presum- defendants would -, 2588, 2597, U.S. 127 S.Ct. 168 ably by have to be found trier of fact (2007). Bivens, L.Ed.2d 389 Since participated have a broad enough Court has “extended” its reach only swath of Arar’s mistreatment to be held twice—to “recognize[ implied damages ] responsible for the A violation. lone INS remedy under the Due Process Clause agent questions who asked at JFK Amendment, the Fifth Passman, Davis v. Airport 26, September pilot 228, 442 2264, U.S. 99 60 S.Ct. L.Ed.2d 846 airplane in which Arar was sent to (1979), and the Cruel and Unusual Punish- D.C., Washington, en route to Jordan and ments Clause of Eighth Amendment, 8, Syria on October be unlikely would to be Green, Carlson v. 14, 446 U.S. 100 S.Ct. liable to Arar for damages for their limited (1980).” Malesko, L.Ed.2d 15 Who, roles the events. if anyone, fits 515; Wilkie, U.S. see S.Ct. also however, description, seems to me a 127 S.Ct. at 2597-98. question that cannot be addressed at this The majority is also correct in observing time, without the fruits of pre-trial discov- that when determining whether to extend ery. Bivens, i.e., whether “to devise a new Bi- action,” Wilkie, vens damages C. Availability a Bivens Action 2597, a court must first determine whether In Bivens v. Agents Six Unknown Congress provided has “any alternative, Narcotics, Federal Bureau 403 U.S. existing process for protecting the inter- 91 S.Ct. (1971), L.Ed.2d 619 est” in question, id. at 2598. If no alterna- Supreme “recognized Court for the first tive remedial exists, scheme whether an implied private time right of action for provide “a remedy Bivens is a matter of damages against federal officers “ judicial judgment.” Id. ‘[T]he federal have violated a citizen’s constitutional courts must make the kind of remedial rights.” Corp. Correctional Servs. v. Mal determination that appropriate a esko, 61, 66, tribunal, common-law paying particular (2001).25 L.Ed.2d 456 The Bivens Court heed, however, any special factors coun- permitted “a victim of a Fourth Amend seling hesitation before authorizing newa ment violation by federal officers [to] bring ” kind of federal litigation.’ Id. (quoting for money suit damages against the offi Lucas, Bush v. cers federal court.” Id. (1983)). 76 L.Ed.2d 648

I have quarrel no with much of what I take to be majority’s view of every Bivens -But not attempt to employ Bivens jurisprudence. Court has redress asserted constitutional viola- indeed been most reluctant to “extend” requires use tions separate and independent gave 25. Bivens persons thus whose constitu- L.Ed.2d 492 (concluding that what is rights tional were violated federal officers now section derived from section remedy roughly akin to that available "Ku Klux provides Act” of § 42 U.S.C. persons aggrieved 1983 to cause of action a state acting official action, acts of state officers. Unlike a Bivens under color of state law even if there is no remedy provided by section law, custom, 1983 is authority statu- under state usage tory in nature. But that statute was virtually did), for the state to do official what he or she a dead letter given until by it was life grounds an overruled on other Dep’t Monell v. interpretation York, Court some City Soc. Servs. New 436 U.S. of of of ninety years 658, it 663, after 2018, was enacted. See Monroe 98 S.Ct. 56 L.Ed.2d 611 167, Pape, 171-72, v. 473, 365 U.S. (1978). 81 S.Ct. 5

209 Passman, 228, 442 99 S.Ct. remedy Davis v. U.S. as to whether inquiry judicial (1979), 2264, 846 when case. 60 L.Ed.2d particular in that appropriate is damages “to “recognized implied an being is asked the court Court Only when action,” id. damages Due Clause remedy Bivens under the Process a new devise of ” added), added)), do we make (emphasis (emphasis at 2597 Amendment Fifth a “new Bivens 68, And (describing assessment. 122 S.Ct. 515 such with id. at sought unless being 412, is not damages action” 108 Chilicky, v. 487 U.S. Schweiker court to “extend asking the (1988), is plaintiff 2460, L.Ed.2d 370 101 S.Ct. new context or new liability a[ ] Bivens sought damages plaintiffs which the Malesko, 534 of defendants.” category of the Fifth Clause the Due Process 68, 122 515. S.Ct. at U.S. by federal for errors made Amendment handling [their] “in the[] officials in us, add Arar seeks to In the case before as describ- Security applications,” Social Males category defendants. no new Cf. the Court context to which ing a new 515, 61, 151 L.Ed.2d ko, 122 S.Ct. 534 U.S. (emphasis add- Bivens declined to extend to claims Bivens (refusing to extend 456 ed)). to be of majority seems Meyer, FDIC v. prisons); against private a new set context” means view that “new 996, 471, 127 L.Ed.2d 114 S.Ct. 510 U.S. legal context. facts, than a new rather Bivens to extend (refusing 308 a new set Indeed, presents we hear every But case agencies). against federal claims apply expected a we are incurred as of facts to which damages recovery of it was Yet, of this panel each of constitutional law. the violation established result officials, itself, such on an ad decide for agents not by federal Court does rights here, Bi basis, good which the idea for or not it is defendants hoc whether as the Malesko, remedy particular See factu- devised. on the plaintiff, vens to allow a (“The 70, 122 purpose 515 him or at S.Ct. to avail presented, 534 U.S. al circumstances federal individual remedy is to deter such of Bivens a well-established herself of vio committing constitutional from officers I therefore by Bivens.26 as afforded lations.”). “context,” employed as the word think that we are deciding whether purposes ask, then, whether seeks must We action,” damages Bivens “devisfing] a new new con- into a liability Bivens to extend 2597, under- Wilkie, is best 127 S.Ct. so, context is. and, that new if what text this case context—in legal stood to mean the fact that complicated by The task by a federal process claim due substantive as- Supreme Court that the meaning not, majority would as the detainee —and not “new context” is to the term cribes of Arar’s it, “context” fact-specific have Malesko, 534 Compare entirely clear. into custo- treatment, being taken Bi- (noting 122 S.Ct. U.S. Qaeda al member of suspected dy as a context to a new extended vens was grounds stated in Booth Indeed, on other Bi- statute legal where those contexts Churner, 121 S.Ct. well-established, 532 U.S. v. courts do conduct vens is States, (2001); Castro v. United L.Ed.2d 958 to whether Bivens assessment as a fresh Cir.1994) (Fourth (2d Amend F.3d 106 each the facts action is available based Sears, (2d ment); F.3d 182 Ramirez, Armstrong v. See, e.g., 540 U.S. Groh v. case. Branen, 17 Cir.1994) (same); v. (2004) (Bi- Anderson L.Ed.2d 1068 Cir.1994) (same); (2d violation); Hallock F.3d 552 Amendment action for Fourth vens Cir.2004) (same), (2d Bonner, Madigan, McCarthy 345, 126 (Bivens grounds, other rev'd on action 117 L.Ed.2d 291 (2006). violation), 163 L.Ed.2d superseded Eighth Amendment 210 being

his Syria sent to to be questioned ever [I]f there were a strong case for under torture. process,” “substantive due it would be a in case which a person determine, far who had been

As as I can this Circuit has arrested but not explicitly charged never decided whether a or Bi- convicted vens alleged action can lie for of was violations brutalized while in custody. If the substantive process due under the Fifth wanton or malicious infliction of severe Amendment. But our imply cases pain or suffering upon person a being remedy such a appropriate. is arrested violates the Fourth Amend-

In Iqbal, for example, we no considered a ment —as one doubts—and if the on, Bivens brought alia, action inter a wanton or malicious infliction of severe Fifth Amеndment substantive due process pain or suffering prison upon inmate theory. plaintiff physical Eighth violates the Amendment —as no humiliation, mistreatment and Muslim as a one doubts—-it would be if surprising prisoner, by prison officials, federal while wanton or infliction malicious of severe he was at detained the MDC. After con- pain or suffering upon person confined cluding, on interlocutory appeal, that the following his yet arrest but not charged defendants were not entitled to qualified or convicted were thought consistent immunity, we returned the matter to the process. with due district court for further proceedings. We (7th v. May, Wilkins 872 F.2d did not so much as hint that a either Cir.1989), denied, cert. Bivens remedy was unavailable that its (1990);28 L.Ed.2d 752 ac availability would constitute an unwarrant- Magluta cord v. Samples, ed extension of the Bivens Iq- doctrine.27 bal, (11th Cir.2004) 490 F.3d at 177-78. (reversing district court’s dismissal pretrial detainee’s ac Bivens event, any In I see no why reason Bi- alleging tion unconstitutional conditions vens should not be available to vindicate confinement at federal penitentiary Fifth Amendment vio process substantive due rights. lation of the Judge As Due Posner Process Clause of the wrote Seventh Circuit respect Amendment); Fifth to a Johnson, Bivens Cale action: (6th F.2d Cir.1988) 946-47 (concluding Shortly 27. Iqbal, we after decided the Su- Moritsugu, (2d Cuoco v. 222 F.3d 99 Cir. preme Court made clear that appealing 2000) (dismissing, qualified on immunity from the qualified district court’s denial grounds, plaintiff's process substantive due immunity, the placed defendants within our officials, Bivens claim prison federal jurisdiction recognition "the of the entire questioning without whether a cause of ac- Wilkie, cause of action." 127 S.Ct. at 2597 n. available); Canarozzi, tion was v.Li 4. The Iqbal district court in specifically had (2d 1998) F.3d Cir. (affirming judgment rejected the argument defendants' that a Bi- following jury verdict for the defendants vens action was Elmaghraby unavailable. process substantive due Bivens action based Ashcroft, No. 04 CV 2005 WL allegations prison guard abuse *14, 2005 U.S. Dist. LEXIS Metropolitan the federal Correctional Center (E.D.N.Y. Sept. 2005). *44-*45 City). New York Thus, thought had we that no Bivens action available, power we had the to resolve Although disagreement there is some Iqbal’s Wilkie, claims on that basis then. when, regarding Circuits precisely 5.Ct. at 2597 n. 4. follow- arrest, ing abuse persons See detained also is to be Ashcroft, Thomas v. 470 F.3d 491 (2d Cir.2006) analyzed under (reversing principles of substantive district due court’s dis- process, missal of we Bivens action for think plain- Wilkies’ why violation comment as to tiff’s Fifth Amendment pro- principles substantive due apply those must point at some rights cess MDC); while detained at insightful and remains valid. scheme remedial an alternative provided jurisdictional have the courts “federal that The district at 179-81. Arar. Ante for action a Bivens entertain authority to contrary that the correctly noted court vio- alleging prisoner, by a federal brought of remov- final order that his alleges “Arar pro- due substantive right to of his lations his removal moments before issued al was grounds other cess”), on abrogated may have it suggests that which Syria, 378, 387- Blatter, 175 F.3d v. Thaddeus-X to suc- impossible been unforeseeable v. United Cir.1999); also Sell (6th see Arar’s stay, preserving a cessfully seek 166, 193, 123 S.Ct. States, 539 U.S. Arar, INA.” the rights under procedural (Scalia, J., dissenting) L.Ed.2d Nonetheless, the 280. F.Supp.2d at ac- dissent, “a [Bivens] (observing, this claim of ultimately finds that majority pretrial to federal is available tion the does not exclude interference official conditions the challenging detainees remedial alternative providing INA as confinement”) Lyons v. U.S. (citing their Tice, 622 Bishop It relies scheme. Cir.1988)).29 (3d Marshals, F.2d 202 Cir.1980), which, says, it (8th F.2d 349 prison sen- serving inmate A federal that “federal proposition for the stands damages to seek Bivens employ can tence plaintiffs with a interfere[] who officials by prison offi- resulting mistreatment from scheme remеdial an exclusive access 14, 100 Green, 446 U.S. cials. Carlson Bivens, held liable be e[an], pursuant (1980). It would 64 L.Ed.2d it violat- as inasmuch for that interference charged detainee if a federal odd be sued for not be c[an] but process, ed due could not any offense or convicted the remedial injury that underlying the claim.30 analogous bring an Ante to redress.” designed was scheme 180. * * * for however, seeking not, relief is pur- for Bivens “new context” Even if was the INA injury that underlying the facts, howev- set mean new does poses rec- majority As the redress. designed to its factual despite Iqbal, if er, even challenging is not ante at ognizes, similarities, foreclose does not legal questioning is he Nor order. his removal case are of this the facts the notion lim- might it ability, however country’s this con- “new present a new to sufficiently laws, re- immigration under itself its it is majority’s conclusion the text,” I think to a coun- laws those alien under move an in error. challenging choosing. He try of its by defen- his treatment constitutionality of step first majority, applying while he officers dant law-enforcement the INA argues that inquiry, Bivens theories under raise claim facts sufficient to pre-trial detainees permitting While cases 29. process-such due than substantive other of their for violations bring Bivens actions Amendment, the self-in- the Fourth rights support under process due substantive Amendment, here, of the Fifth clause crimination action availability aof Bivens Because Eighth Amendment. not be or even process claim should due substantive on the a dismissal assessing appeal is an standard facts evaluated 12(b)(6), Arar, Rule who, complaint under pleaded were de- in the unlike persons claims of to consid- were purpose if this Court than for the I even pre-trial think rather tained theory conclude ante 24]. an alternate interrogation. supra [note er See such Cf. subject to valid, case would 29. it was 189-90 n. pro- further court to the district remand IV.A, section theory. See ceedings on that parties to asked not been We have supra. pleaded has that Arar possibility examine 212

in detention in the United by States.31 For proper ed the invocation of the state- sort, allegations of the INA this offers no secrets privilege. majority The says that mechanism for redress. As the district the “government’s assertion of the state- correctly: court noted secrets ... privilege spe constitutes a ... cial counseling factor this Court to hesitate overwhelmingly INA deals [T]he creating before a new [Bivens action].” admission, the exclusion and removal of Ante at aliens —almost all of whom 183-85. But majority to re- as the seek earli country main within this until their er acknowledges, invoked, properly “[o]nce fairly claims are resolved. That frame- the effect of the privilege [state-secrets] is work automatically does not lead to an [privileged] exclude evidence from the adequate and meaningful remedy for the case.” Ante at 167 n. 4 (citing Zucker conduct alleged here. Dynamics braun General Corp., (2d Cir.1991)). F.2d Arar, at 280.32 F.Supp.2d majority errs, think, Moreover, The also I in con- the privilege state-secrets is a cluding that “special factors” counsel narrow device that must be specifically Bivens here. the application by invoked the United States and estab- Ante majority 181-86. The dwells at by lished it on a case-by-case basis. See length on implications the of Arar’s Bivens Zuckerbraun, (“The 935 F.2d at 546 privi- claim diplomatic foreign relations and lege may be invoked only by govern- policy. See ante at 181-86. ment even asserted when the government case.”). party is not a to the

Any legitimate interest the United preferable That seems far majority’s States has in shielding security national policy and policy from blunderbuss solution —to foreign by withhold categor- intrusion courts, however, federal protect would be ically availability of a Bivens cause of 31. Arar raises an actionable claim under Bi- from the anee Court ... a Bivens vens for constitutional violations incurred at remedy is unavailable 'arising for claims from the hands of during federal officials his deten- any action taken proceeding or brought tion in the United States. The district court remove an alien United States un- jurisdiction had pursuant over Arar's claims authority upon der’ conferred the Attor- § to 28 U.S.C. appellate we have ney delegates General and by the INA.” jurisdiction § under U.S.C. 1291. See Cor- (quoting Ante at 184 1252(b)(9)). § 8 U.S.C. Malesko, Corp. rectional Servs. immigration But this is not an case it (2001); 151 L.Ed.2d 456 authority seems me that "the conferred Zenk, (2d Cir.2007). Macias v. upon Attorney General and his delegates Because order, challenging Arar is not his removal the INA” is therefore not relevant see ante jurisdiction-strip- ping provision INA, question presented. Bivens 8 U.S.C. The majority of- 1252(a)(2)(B)(ii) § (providing that "no court fers no view as to whether a substantive due jurisdiction shall have any to review ... ... process Bivens action is available to detained decision or Attorney action of the General or persons generally. tell, I ultimately cannot the Secretary Security Homeland the au- then, what the majority’s view would be as to thority specified which to be in the ability to avail himself of Bivens we if discretion Attorney of the General the Sec- case, must, to treat were as I think we retary Security, of Homeland other than the a claim that law enforcement officials abused granting [asylum]”) apply. does not authority their color of federal law majority says arising that its rather than a holding is limited case gov- under and that, to the "barring guid- conclusion further immigration erned law. our (“[Djespite 86 L.Ed.2d concomi- cases—and in all such action At importance [the recognition offi- federal gives it license additional tant in the name activities torney General’s rights with constitutional to violate cials safety of our Na to the security] national counseling than Rather impunity. virtual system of govern democratic tion its availability to Bivens, the applying against that ment, accept the notion we cannot privi- the state-secrets of defendants the unnecessary.”); completely are restraints action a Bivens permitting lege counsels Blaisdell, 290 v. Loan Ass’n Bldg. & Home proceed- that such ensuring by forward go 426, 231, 78 L.Ed. 413 398, 54 S.Ct. U.S. of inter- kinds endanger the not will ings (“[E]ven not power does the war majority. the concern properly that ests safe limitations constitutional remove liberties.”). As the Su essential guarding conclusion, its majority reaches The Carr, in Baker v. observed Court preme moreover, proposition of the the basis 691, L.Ed.2d 663 186, 7 82 S.Ct. U.S. 369 foreign relations of the conduct “[t]he that every that (1962), suppose “it is error the by committed is our Government of foreign controversy which touches or case Legisla- and the Executive Constitution judicial cognizance.” beyond lies relations Government,” the of Departments tive 691; of 211, see also Brief 82 S.Ct. Id. City Nat’l First (citing at 183-84 ante as Amici Curiae Judges Federal Retired Cuba, 406 U.S. de Nacional v. Bank Banco (“The has clear Court made 11at 1808, 466 32 L.Ed.2d 766, 92 S.Ct. na power protect the Executive’s is a But there opinion)). (plurality affairs foreign security or conduct tional of Executive judicial review history long au judiciary of its the not deprive does the related decisions Legislative abuses of as a check thority to act and national relations foreign conduct violate individual powers those Rumsfeld, See, v. Hamdi security. e.g., rights.”). 2633, 159 507, 536, 124 S.Ct. U.S. 542 (2004) (“Whatever the power 578 L.Ed.2d envisions Constitution States

United re- acts which intentional with other exchanges in its Executive inhu- the torture and eventual in Arar’s sulted enemy organizations offi- federal were taken captivity nations mane assuredly envi- conflict, were it most and Arar the officials while times cials borders, while when branches States all three United a role for sions within federal custody of those stake.”); Mitch- was in are at liberties individual presents He therefore S.Ct. officials.33 105 Forsyth, v. ell war; (d) and convicted tried prisoner of was ultimately happened Irrespective what 33. abroad, challenges sitting outside Military that he Commission by a the actions to Arar entirely with- agents States; (e) against laws of perpetrated U.S. were for offenses United deci- States; (f) case thus States. This in the United United outside the war committed Verdugo- States sively from United different imprisoned outside all times [wa]s Urquidez, U.S. right seek did not have United States” (1990), allegedly un- where L.Ed.2d courts of corpus writ of habeas conduct, illegal search constitutional alia, that, grounds inter on the States United similarly seizure, It is place in Mexico. took violat- had been rights his Fifth Amendment Eisentrager, Johnson different from Eisentrager Id. at ed. (1950), L.Ed. proposition good law for remains alien; (b) "(a) enemy ... an held which holding that authority ... for is "no there in the been or resided has never [who] States; per- rights upon all confers Amendment Fifth terri- (c) captured outside our sons, nationality, wherever their whatever military custody as a tory held and there classic, very Court with a or at the investigative least officials of the United States viable, request Bivens claim—a for dam- consequence as a attacks. We 9/11 ages incurred as a result of violations of recognize[d] also gov- that some forms his Fifth pro- Amendment substantive due ernmental permitted action are in emer- rights by they cess officials while federal gency situations that would exceed consti- detained him. tutional limits in Iqbal, normal times.” 490 F.3d at 159. But we said that Qualified D. Immunity right to substantive due process—includ- Having thus found that Arar makes out ing right “the subjected to be to need- Bivens, an actionable claim under we must lessly confinement, harsh conditions of analyze whether the defendants are enti- right to be free from the use of excessive qualified tled to immunity. Iqbal, In we force, and the right subjected not to be set forth the qualified elements of immuni- religious ethnic or “do[es] discrimination” — ty review: vary not with surrounding circumstances.” step qualified The first immunity Id. “The strength system of our of consti- inquiry is to determine whether the al- tutional rights derives from the steadfast leged facts that demonstrate a defen- protection of rights those in both normal dant right. violated constitutional If and unusual times.” Id. nothing We said allegations show that a defendant to indicate that notion this was novel at the violated a right, constitutional the next Iqbal’s time of alleged mistreatment; nei- step is to right determine whether that ther was it at the time of Arar’s some clearly was established the time of months later. the challenged is, action—that whether it would be clear to a reasonable officer question The here whether the treat that his was conduct unlawful in the ment that Arar received at the hands of situation he A confronted. defendant the defendants in order to coerce him to will be qualified entitled to immunity if “talk” would be understood a reason (1) either his actions did not violate able officer to beyond the constitutional clearly established law or it was ob- pale. We need not recite the facts as jectively for him reasonable to believe alleged yet again in order to conclude that that his actions did not violate clearly they would have been. “No one doubts established law. precedent, Court in (citations Iqbal, 490 F.3d at 152 and inter- terrogation by torture like that alleged by omitted). quotation nal marks For the plaintiff] conscience,” [the shocks the Har above, reasons set forth I have little doubt bury, 233 F.3d аt and would as to therefore step one: The facts as alleged consti- constitute a tute a plaintiffs violation violation of the Fifth constitutional rights. right Amendment pro substantive due if perpetrated cess directly by the defen

We must therefore ask whether these dants, Martinez, Chavez v. rights were clearly established at the time cf. of their violation. In Iqbal, as L.Ed.2d already above, noted reeognize[d] (plurality “[w]e opinion) (stating that gravity of the situation that confronted Due Process “provide Clause would relief they offenses,” are located and whatever their Arar asserts or that this dissent embraces or id. at proposition 936. But that applies.

is not any principle inconsistent Third, the dam- may seek to recover “police circumstances” appropriate abuse”). in a Bivens ages allegedly thus incurred or other torture action. to a less “clear be no I think it would although govern- a reasonable Finally, attempting, how- officer”

reasonable may have wondered whether ment official information to obtain unsuccessfully, ever as a means a Bivens was available action con- conditions of under abusive Arar allegedly rights to redress and then out- interrogation, finement any one of them was infringed, insofar tor- questioning under sourcing his further whole, treatment as a responsible for his end, The is “unlawful.” to the same ture reasonably not have he or she could warning that “fair here had defendants con- that his or her behavior was thought un- treatment of [Arar] their is therefore permissible and stitutionally Pelzer, 536 U.S. Hope v. constitutional.” immunity, at least qualified entitled 153 L.Ed.2d stage proceedings. at this (2002). conclude I would therefore immunity qualified entitled to they are not alleged in the actions as defendants’ proceedings. stage together, considered constitute complaint, Arar’s Fifth Amendment a violation of all the that after delib- may It seem odd process due committed right to substantive deciding expended that has been eration agents acting the United by government levels, I appellate the and this case at trial authority. color of federal States under that constitutional viola- can conclude the establish, in the can even Whether Arar availability of But is the tion is clear. it doctrine, proper- state-secrets teeth of the the focus of that has been action Bivens allegations of the truth of the ly applied, agent no federal controversy. Perhaps causation and (including his mistreatment or she would be that he could foretell discovery should be tested damages), That, though, is not the subject to one. summary-judgment the proceedings, is whether question The question. at trial. phase, perhaps and of the conduct nature unconstitutional it I think that was. clear. OBSERVATION V. CONCLUDING to doubt I have reason whatever no Summary E. terrorism challenge seriousness view, my In then: safety well-being. and See poses our First, allegations begin- Arar’s factual — Bobbitt, Philip Terror e.g., generally, detention, and interception, ning with his Twenty-First Wars Consent: The Airport, at JFK interrogation FBI (2008). time of During another Century transporta- his forced continuing through however, Justice Jack- challenge, national that he be Syria ques- in order tion to Frankfurter, dis- son, joined by Justice under torture —must considered tioned decision Court’s sented from a whole. entirety their unadmit- rights of an process due he was when not violated Second, so ted alien were egregious, is “so conduct Ellis without indefinitely on Island fairly kept be said outrageous, it v. United hearing. Shaughnessy See contemporary conscience.” shock Mezei, (citations 73 S.Ct. rel. 345 U.S. Lombardi, ex at 79 States 485 F.3d (1953). omitted). alien’s en- The 97 L.Ed. quotation marks internal Attorney by the determined try had of his been alleges right a violation therefore public prejudicial “be General to process. due substantive reasons,” wisdom,” security practical id. at with a little interest there is a danger and he had therefore been that “it will convert the constitu- Although Bill Rights pact”). from the United States. tional into a excluded suicide immigration respect case with little But with government’s Mezei was today, Mezei, bearing on the matter before us treatment of Mr. he concluded: “It then, observations at a to me Justice Jackson’s inconceivable that this measure of thought simple justice ourselves in immi dealing time when we and fair would men- danger mortal from international security country. nent and ace the of this No one see, Communism, e.g., can United States make me believe that we are that far (2d Cir.1950) (L. Dennis, gone.” Shaughnessy, 345 U.S. at Hand, J.), aff'd, (Jackson, J., dissenting). I think (1951), 95 L.Ed. 1137 repeating are worth Justice Jackson’s observations warrant now: careful present consideration at the time present and under circumstances. conspiratorial technique Communist poses problem infiltration which

sorely tempts the Government to resort in- suspects confinement of on secret secretly judged.

formation I have not

been one to discount the Communist my

evil. But apprehensions about the

security of form government our are equally

about aroused those who re- recognize dangers

fuse to of Com-

munism and those who will not see dan- ger anything else. Robert REILLY Shaughnessy, 345 U.S. at 73 S.Ct. 625 (Jackson, J., dissenting).34 it protection When came to of the Unit- CITY; CITY OF ATLANTIC Robert ed perceived States from threats then — Flipping; Joseph McCullough; B. abroad, Jackson was no absolutist. Arthur Snellbaker.

See American Communications Ass’n v. Douds, 382, 422-52, 339 U.S. 70 S.Ct. Flipping, Appellant. Robert (1950) (Jackson, J., 94 L.Ed. 925 concur- (ad- ring in part and dissenting part) Reilly Robert dressing the threat of international Com- munism); City Terminiello v. Chicago, 93 L.Ed. 1131

(1949) (Jackson, J., City dissenting) (warning City; of Atlantic Flipping; Robert that if “if the temper Joseph Court ‍​‌‌​‌‌​​‌‌​​​​​​‌​​‌‌‌​​‌‌​​​‌‌‌‌​‌‌​‌​‌‌​‌‌​​‌​‍does not McCullough; its B. Arthur logic doctrinaire speech] [as freedom of Snellbaker. very subsists, too,

34. The recently Security Court ob- fidelity to free- served: principles. dom's among first Chief these Security are depends upon sophisticated arbitrary freedom from in- and unlawful telligence apparatus ability restraint.... of our Bush, -U.S.-, Armed Forces to act and to interdict. Boumediene v. considerations, 2229, 2277,-L.Ed.2d-- There (2008). are further however. notes Arar contained Syria States Syria in the United Arar’s Detention B. specific including questions, identical deten- period his ten-month During par- relationship with about question placed he was alleges, Syria, Arar tion In for terrorism. individual ticular wanted long, measuring six feet cell “grave” in a supplied U.S. return, Syrian officials The wide. feet and three high, feet seven extracted all information with officials Palestine within located was cell cites a statement Arar; plaintiff from Intelligence Military Syrian Branch of stated publicly has who Syrian official one Branch”). damp cell was (“Palestine infor- government shared Syrian light, and little very cold, contained it ex- States the United with mation rats, enter would which infested (Janu- E Cplt. Ex. Arar. See tracted in the aperture small through a the cell Sixty transcript of CBS’s 21, 2004 ary would urinate Cats ceiling. Hell”). (Arar, In Year “His II: Minutes facili- sanitary aperture, through the 255.) F.Supp.2d

Notes

notes “[wjhere doctrine, government danger ed act of restrain affirmative State’s from the cre act that affirmative an takes official to act on his freedom individual’s ing the party third for a opportunity an ates incarceration, institu through own behalf risk of (or increases a victim harm tionalization, similar restraint other can official harm), government such Id.20 liberty.” personal Lom damages.” be liable potentially also, e.g., 80; see bardi, F.3d wrong conclu reaches majority The York, F.2d New City Dwares think, treating measure, I large sion Cir.1993) liability where (2d (finding 98-99 an he were unad- though claims as light green gave allegedly police entry into seeking alien mitted flag- group to assault skinheads “[a]s majority asserts States. grounds other burners), overruled alien, law Arar as matter unadmitted

Case Details

Case Name: Arar v. Ashcroft

Court Name: Court of Appeals for the Second Circuit

Date Published: Aug 1, 2008

Citation: 532 F.3d 157

Docket Number: Docket 06-4216-cv

Court Abbreviation: 2d Cir.