Bernardo MENDIA, Plaintiff-Appellant, v. John M. GARCIA; U.S. Department of Homeland Security; Ching Chang, Defendants-Appellees.
No. 12-16220.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 8, 2014. Filed Sept. 29, 2014.
768 F.3d 1009
Because the BIA did not act in an arbitrary or irrational fashion, rule contrary to law, or neglect to give a reаsoned explanation for its decision, the denial of the motion to reopen did not constitute an abuse of discretion. See Movsisian, 395 F.3d at 1098. I would deny the petition for review.
Purvi G. Patel (argued), Benjamin J. Fox, and Michael T. Baldock, Morrison & Foerster LLP, Los Angeles, CA, for Plaintiff-Appellant.
Lana L. Vahab (argued), Trial Attorney; Stuart F. Delery, Acting Assistant Attorney General; and Colin A. Kisor, Deputy Director, United States Department of Justicе, Civil Division, Washington, D.C., for Defendants-Appellees.
Before: JOHN T. NOONAN, JACQUELINE H. NGUYEN, and PAUL J. WATFORD, Circuit Judges.
OPINION
WATFORD, Circuit Judge:
Bernardo Mendia sued two agents of the United States Immigration and Customs Enforcement (ICE), seeking damages for the time he spent in pre-trial detention on state criminal charges allegedly as a result of the agents’ wrongful acts. The district court granted the government‘s mоtion to dismiss Mendia‘s lawsuit on the ground that he lacks Article III standing to pursue his claims. We conclude that Mendia‘s standing allegations are adequate to survive a motion to dismiss.
The ICE agents lodged an immigration detainer against Mendia that same day. The purpose of such detainers is to notify other law enforcement agencies that the Department of Homeland Security “seeks custody of an alien ... for the purpose of arresting and removing the alien.”
Acсording to Mendia‘s complaint, the immigration detainer precluded him from securing pre-trial release. When Mendia contacted various bail bondsmen for assistance in posting bail, all of them “refused to even consider posting a bail for the Plaintiff because of the immigration detainer.” The bail bondsmen told Mendia that “no bail bond would be afforded to the Plaintiff on account of the fact that there was an immigration detainer placed on the Plaintiff.” Mendia alleges that, but for the immigration detainer, he would have posted bail with the assistance of a bail bondsman, as he had been able to do following prior arrests.
Approximately six months after lоdging the detainer against Mendia, the ICE agents cancelled it, although Mendia alleges he didn‘t learn of that fact until much later. In the interim, on an unspecified date, the state court removed the bail condition and granted Mendia release on his own recognizance. Mendia alleges that, because he believed the immigration detainer was still in place, he refused to accept release, even though he no longer needed the assistance of a bail bondsman to get out. Mendia‘s explanation is that he feared ICE agents would re-arrest and deport him, thereby jeopardizing his defense of the pending state criminal charges. (He dоesn‘t explain why he apparently lacked that fear when attempting to engage the services of a bail bondsman earlier.) Mendia alleges that he accepted release on his own recognizance in July 2009, after finally learning that the detainer had been cancelled.
Mendia sued the ICE agents under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the Federal Tort Claims Act,
Of thе three elements required to establish Article III standing—injury, causation, and redressability—injury and redressability are easily met here. If we take Mendia‘s well-pleaded allegations as true, as we must on this facial attack, see Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir.2014), he spent two years in pre-trial detention that he should not have endured. He thus claims as his injury loss of liberty, which satisfiеs Article III because it‘s “an injury that affects him in a ‘personal and individual way.‘” Hollingsworth v. Perry, — U.S. —, 133 S.Ct. 2652, 2662, 186 L.Ed.2d 768 (2013) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n. 1, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). In fact, it‘s difficult to imagine an injury that could affect one more personally and individually than a deprivation of one‘s liberty. That‘s presumably why no one questions the existence of Article III injury when a civil rights plaintiff sues on the theory that the actions of the defendants (say, the police) resulted in wrongful confinement on criminal charges, whether before or after trial. See, e.g., Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007); Tatum v. Moody, 768 F.3d 806 (9th Cir. 2014). And it‘s clear that the relief Mendia seeks—an award of monetary damages—would redress the injury he has alleged.
The ICE agents argued, and the district court concluded, that Mendia could not have suffered Article III injury because ICE never took him into custody. Whether ICE had custody has some bearing on the element of causation, to which we will turn in a moment, but it has no bearing on the element of injury. Remaining confined in jail when one should otherwise be free is an Article III injury, plain and simple; who or what caused that injury is of course a separate question. Thе case on which the district court relied, Garcia v. Taylor, 40 F.3d 299 (9th Cir.1994), doesn‘t apply here. We held there that a prisoner already serving a sentence on federal criminal charges could not use the habeas corpus statute to challenge an immigration detainer lodged against him. Id. at 303. The detainer did not place the prisoner in “custody” for purposes of habeas jurisdiction, we concluded, because a detainer standing alone does not restrain liberty. Id. Even if Garcia applies outside the habeas context, it‘s not on point because Mendia does not allege injury on the theory that the detainer independently restrained him.
The question that remains is whether Mendia has adequately alleged causation, which for Article III purposes requires a showing that his injury is “fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).
It‘s true, as just noted, that ICE never had custody of Mendia, and he therefore cannot allege that the ICE detainer directly caused his confinement. But the fact that “the harm to [the plaintiff] may have resulted indirectly does not in itself preclude standing.” Warth v. Seldin, 422 U.S. 490, 504, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Causation may be found even if there are multiple links in the chain connecting the defendant‘s unlawful conduct to the plaintiff‘s injury, and there‘s no requirement that the defеndant‘s conduct comprise the last link in the chain. Bennett, 520 U.S. at 168-69, 117 S.Ct. 1154. As we‘ve said before, “what matters is not the ‘length of the chain of
Mendia relies on a causal chain with multiple links—the state court‘s decision to impose bail, his inability to post bail without the assistance of a bаil bondsman, the ICE agents’ imposition of the immigration detainer, and finally the bail bondsmen‘s refusal to do business with him. The last link in the chain is the critical one for our purposes. Mendia alleges that the bail bondsmen‘s refusal to do business with him is attributable to the immigration detainer lodged against him. Mendia‘s causation theory is that the government‘s unlawful conduсt, while not directly causing his injury, nonetheless led third parties to act in a way that injured him.
That is a perfectly viable theory. See Lujan, 504 U.S. at 562, 112 S.Ct. 2130. But when a plaintiff alleges that government action caused injury by influencing the conduct of third parties, we‘ve held that “more particular facts are needed to show standing.” Nat‘l Audubon Soc‘y, 307 F.3d at 849. That‘s so because the third parties may well have engaged in their injury-inflicting actions even in the absence of the government‘s challenged conduct. Americans for Safe Access v. DEA, 706 F.3d 438, 448 (D.C.Cir.2013). To plausibly allege that the injury was “not the result of the independent action of some third party,” Bennett, 520 U.S. at 167, 117 S.Ct. 1154 (emphasis added), the plaintiff must offer facts showing that the government‘s unlawful conduct “is at least a substantial factor motivating the third parties’ actions.” Tozzi v. U.S. Dep‘t of Health & Human Servs., 271 F.3d 301, 308 (D.C.Cir.2001) (internal quotation marks omitted); accord San Luis & Delta-Mendota Water Auth. v. Salazar, 638 F.3d 1163, 1171 (9th Cir.2011). So long as the plaintiff can make that showing without relying on “speculation” or “guesswork” about the third parties’ motivations, Clapper v. Amnesty Int‘l USA, — U.S. —, 133 S.Ct. 1138, 1150, 185 L.Ed.2d 264 (2013), she has adequately alleged Article III causation.
When we apply these principles here, we have little difficulty concluding that Mendia‘s allegations are adequate. None of the links in Mendia‘s causal chain relies on speculation or guesswork. For example, we aren‘t left to speculate whether the bail bondsmen‘s refusal to do business with Mendia left him unable to post bail. He specifically alleges that he needed the assistance of a bail bondsman to post the required bail and that he unsuccessfully tried to secure such assistance. Those allegations are plausiblе in light of the fact that, according to Mendia‘s complaint, he never did post bail. Instead, he spent two years in pre-trial detention, obtaining release only after the state court eliminated the bail condition. Mendia has adequately alleged that his inability to utilize the services of a bail bondsman caused him to remain in prе-trial detention unnecessarily, at least during the period in which the bail condition remained in effect.1
Contrary to the ICE agents’ argument, Mendia‘s causation theory—that the detainer led the bail bondsmen to refuse to do business with him—isn‘t facially implausible. When ICE announces that it “seeks custоdy of an alien ... for the purpose of arresting and removing the alien,”
Mendia‘s causation allegations dо not rely on speculation or guesswork any more than those we upheld as sufficient in Barnum Timber Co. v. EPA, 633 F.3d 894 (9th Cir.2011). There, the Environmental Protection Agency designated a stream running through the plaintiff‘s timber lands as an “impaired” water body under the Clean Water Act. Id. at 895-96. The plaintiff‘s injury consisted of the decrease in the value of its property, which it alleged was caused by the EPA‘s impairment listing. Id. at 896. The plaintiff supported its causation allegation with an affidavit from a licensed professional forester, who explained that “[w]hen a listing occurs, the public perceives—whether accurately or not—that the subject property will be subject to additional and onerous regulation.” Id. at 899. The fоrester opined that “the market reaction is such as to deem Barnum‘s property to be devalued because of the § 303(d) listing.” Id. We held that “Barnum has alleged specific facts plausibly explaining causality,” rejecting the government‘s factual attack on the complaint‘s allegations. Id. If anything, Mendia‘s causation allegations are even less speculative than those in Barnum Timber, because rather than relying on an expert‘s opinion about “the market reaction” to the government‘s challenged conduct, Mendia included allegations straight from the relevant third parties’ mouths stating that they declined to do business with Mendia “because of” the immigration dеtainer.
We must reject the ICE agents’ remaining arguments. They assert that the immigration detainer can‘t support causation because ICE didn‘t “control” the actions of the bail bondsmen. That‘s not the relevant test. While such “control” would certainly suffice to establish causation, see Bennett, 520 U.S. at 169, 117 S.Ct. 1154, it‘s not a requirement. What Mendia needed to allege is that the immigration detainer was at least a substantial factor mоtivating the bail bondsmen‘s refusal to do business with him, see Tozzi, 271 F.3d at 308, and he‘s done that. The ICE agents also assert that Mendia‘s indigency—not the imposition of the detainer—was the real reason he couldn‘t utilize the services of a bail bondsman. That, too, is a factual dispute that can‘t be resolved in the context of a facial attack on the sufficiency of the complaint‘s allegations. Its resolution, if necessary, must be left for later stages of the litigation.
We reverse the district court‘s dismissal of Mendia‘s complaint and remand for further proceedings. The parties’ requests for judicial notice are GRANTED. Defendants’ motion to supplement the record is DENIED.
REVERSED AND REMANDED.