Santiago ALVAREZ, Plaintiff-Appellant, v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, Felicia Skinner, Field Office Director, U.S. Immigration & Customs Enforcement, Michael Gladish Office of Detention and Removal, Atlanta District, U.S. Immigration and Customs Enforcement, Juan Carlos Munoz, United States Attorney, Robert Emery, United States Attorney, Sheetul S. Wall, United States of America, Defendants-Appellees, Unidentified Officials and/or Agents of Department of Homeland Security, et al., Defendants.
No. 14-14611
United States Court of Appeals, Eleventh Circuit
March 24, 2016
818 F.3d 1194
Respectfully, I DISSENT.
Juan Carlos Zorrilla, Fowler White Burnett, PA, Miami, FL, for Plaintiff-Appellant.
Brant S. Levine, U.S. Department of Justice, Washington, DC, Wifredo A. Ferrer, Kathleen Mary Salyer, U.S. Attorney‘s Office, Miami, FL, for Defendants-Appellees.
MARCUS, Circuit Judge:
Santiago Alvarez, a Cuban national and longtime United States resident, was serving the last few weeks of a federal prison sentence when United States Immigration and Customs Enforcement (“ICE“) lodged a detainer against him. Alvarez was ordered removed and, although ICE does not effectuate removals to Cuba, he remained in ICE custody from November 25, 2008 until October 21, 2009—an amount of time greatly exceeding the 90-day statutory period for removal.
The district court dismissed his complaint in its entirety, first finding that it did not have subject matter jurisdiction over the claim pursuant to
After thorough review, we affirm. Although we hold that
I.
A.
The essential facts are these. Santiago Alvarez is a Cuban national who was admitted to the United States as a lawful permanent resident in 1959. He lived primarily in Miami-Dade County, and he worked for the Central Intelligence Agency and the United States military between 1960 and 1968. Alvarez also has a criminal history that dates back to 1990, when he was convicted of aggravated assault and battery with a gun after he assaulted a repossession agent who mistakenly attempted to tow his vehicle. In November 2005, Alvarez was arrested and charged again, this time with possessing illegal weapons for the benefit of anti-Castro activists outside of the United States. He subsequently pled guilty to federal weapons charges, including conspiracy to unlawfully possess machine guns and a grenade launcher.
Throughout the course of the plea negotiations, Alvarez‘s attorneys voiced concerns that a guilty plea to federal weapons charges would affect his immigration status. The Department of Justice assured counsel that Cubans—particularly Cubans like Alvarez with a documented history of opposing Castro‘s regime—are not deported to Cuba. The government agreed as a condition of the final plea agreement “to utilize its best efforts” to communicate with ICE officials and “to reach a definitive understanding of [Alvarez‘s] immigration status and the effect of this case on his immigration status.”
Alvarez was initially sentenced to 46 months’ imprisonment, although his sentence was subsequently reduced to 30 months when he assisted the government by arranging an anonymous turnover of various weapons. During the sentencing hearing, the judge described Alvarez and his co-defendants as “by all accounts...
Alvarez served the first several months of his sentence in a federal prison, and he was due to be moved to a halfway house in November 2007 to serve the duration of his term. In August 2007, however, ICE lodged an immigration detainer against Alvarez with the Federal Bureau of Prisons. Alvarez filed a motion under
A magistrate judge conducted a hearing on the motion and questioned ICE‘s counsel, Assistant United States Attorney Robert Emery, about whether or not Alvarez‘s deportation was a realistic possibility. The magistrate judge asked: “If in fact the Defendant can not [sic] be deported back to Cuba, why is it that you would keep him in custody for several months if there is no way he‘s going to be able to be deported?” Emery responded that the Immigration and Nationality Act allowed the government to deport Alvarez to a third country. The magistrate judge then inquired whether any Cuban national had ever been deported to a third country, and whether it was conceivable that any other country would accept Alvarez. Emery said that he did not know but that the court ought to allow ICE to take the full statutory 90-day period to investigate whether it would be possible to remove him. The court commented, “maybe it is a collateral issue, but it does smack of unnecessarily punitive if at the end of the day you are going to cut him loose and you‘re going to say, ‘well, there is no place we could deport him.‘” Ultimately, however, the magistrate judge recommended that Alvarez‘s motion be denied because Alvarez had sworn at his plea hearing that he understood that his guilty plea could result in his deportation. Additionally, the judge pointed out that the decision to detain or release Alvarez fell within ICE‘s discretion. The district court adopted the magistrate judge‘s Report and Recommendations, and as a result, Alvarez remained in custody.
Sometime after the
In the time leading up to Alvarez‘s release date, his attorneys attempted to work with Emery to enter a stipulated final order of removal. Pursuant to
After Alvarez was ordered removed at the hearing, his attorneys contacted Felicia Skinner, the Field Office Director of the Atlanta Office of Detention and Removal. They pointed out that Alvarez could not be removed to Cuba and requested that ICE expedite his review process. Skinner declined to expedite review, and on the last day of the 90-day period, April 22, 2009, she issued a First Decision to Continue Detention. Skinner said that there was “no reason to believe that [Alvarez‘s] removal will not take place within the reasonably foreseeable future.” She also found that Alvarez should be detained until that time because he was both a danger to his community and a flight risk. Skinner notified Alvarez that if he was not removed by July 21, 2009, jurisdiction over his removal would be “transferred to the Headquarters Case Management Unit.” No action was taken on Alvarez‘s removal in the intervening period.
On July 28, 2009, Alvarez filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia, pursuant to
Alvarez moved for reconsideration of the district court‘s order, arguing, among other things, that he was clearly ineligible for Spanish citizenship. In a sworn affidavit, Alvarez stated that ICE officials had given him two pages of a nine-page application for Spanish citizenship and asked him to fill them out. The missing application pages made clear that the citizenship opportunity extended only to individuals whose ancestors had fled the Spanish Civil War, which took place between 1936 and 1939. Alvarez claimed that, when he learned this, he knew he was ineligible for citizenship because his grandfather had emigrated from Spain around 1875. He immediately informed a deportation officer—who is not named as a defendant—on September 14.
As a result of Alvarez‘s motion, the district court rescinded the order and set the matter down for a hearing on October 26, 2009. After the hearing was set, Acting Headquarters Case Management Unit Chief Juan Munoz issued a Second Decision to Continue Detention on October 14, 2009. In it, Munoz acknowledged that although Alvarez‘s removal to Cuba was not “presently possible,” ICE was working to secure his removal to Spain. Munoz explained that there was no reason to believe that Alvarez‘s removal would not occur in the reasonably foreseeable future. But on October 21, 2009—approximately 11 months after Alvarez was first transferred to ICE custody—ICE officials notified him that he was being released. The govern-
There is no dispute in the record that at all times all parties hereto knew that Petitioner Alvarez was not removable to Cuba, that there was no repatriation agreement between Cuba and the United States, and that Petitioner‘s removal to Cuba would not be in the reasonably foreseeable future. Nonetheless, repeated requests that Petitioner Alvarez be released after January 22, 2009, were denied.
The court also found that by releasing Alvarez, “ICE had tacitly admitted... that its [earlier] determination that Petitioner Alvarez was a threat to the community and a flight risk was no longer a valid determination“—and therefore that those grounds were “obviously no basis for illegal indefinite detention.” For these reasons, the district court retroactively granted Alvarez‘s petition, effective October 21, 2009. The court also struck several conditions of Alvarez‘s release as unconstitutional—although this Court reversed that determination in Alvarez v. Holder, 454 Fed.Appx. 769 (11th Cir.2011) (per curiam).1 On appeal, the panel found that the district court had properly exercised jurisdiction over the petition because Alvarez was still technically in custody, facing a variety of release conditions, but it reinstated all of the conditions that the lower court had invalidated. Id.
B.
Alvarez subsequently commenced this lawsuit against various federal officials involved in continuing his detention in the United States District Court for the Southern District of Florida. He amended his complaint several months later, ultimately asserting Bivens claims against five defendants: (1) Robert Emery, the Assistant U.S. Attorney who declined to lift Alvarez‘s detainer or agree to a stipulated order of removal; (2) Felicia Skinner, the Field Office Director of the Atlanta Office of Detention and Removal who issued the First Decision to Continue Detention; (3) Sheetul Wall, the Assistant U.S. Attorney who filed the motion for an extension of time to respond to Alvarez‘s habeas petition; (4) Michael Gladish, the ICE Supervisory Detention and Deportation officer whose declaration regarding Alvarez‘s eligibility for Spanish citizenship was attached to Wall‘s motion; and (5) Juan Munoz, the Acting Headquarters Case Management Unit Chief who issued the Second Decision to Continue Detention days before Alvarez was released. Alvarez brought claims for (1) “Conspiracy to prolong [his] release and to violate his fundamental right to freedom and liberty,” (Count I); (2) “Violation of [his] Fourth Amendment right against unreasonable seizure,” (Count II); and (3) “Violation of [his] Fifth Amendment right to due process and liberty,” (Count III).2
The individual defendants moved to dismiss the case for failure to state a claim, and the district court granted the motion, articulating various grounds for its decision. As we have noted, the court first found that it did not have subject matter jurisdiction over Alvarez‘s claim as a result of the jurisdiction stripping provision contained in the Immigration and Nationality Act,
This timely appeal followed.
II.
We review the dismissal of a plaintiff‘s Bivens claim under Federal Rule of Civil Procedure 12(b)(6) and for lack of subject matter jurisdiction de novo. Lee v. Hughes, 145 F.3d 1272, 1274 (11th Cir.1998). We must accept the factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff. Hardison v. Cohen, 375 F.3d 1262, 1263 (11th Cir.2004). We are free to affirm the district court‘s dismissal on “any ground that is supported by the record.” United States v. Elmes, 532 F.3d 1138, 1142 (11th Cir.2008); see also Lee, 145 F.3d at 1277 n. 6 (“[T]he district court was incorrect to conclude that it lacked subject matter jurisdiction, but was correct to dismiss for failure to state a claim. We therefore affirm the district court‘s judgment.” (citation omitted)).
III.
This Court is obliged to address first whether we have jurisdiction to consider the merits of Alvarez‘s claims. We have long recognized that “in the federal tandem, jurisdiction takes precedence over the merits. Unless and until jurisdiction is found, both appellate and trial courts should eschew substantive adjudication.” Belleri v. United States, 712 F.3d 543, 547 (11th Cir.2013) (alterations adopted) (quoting Opelika Nursing Home, Inc. v. Richardson, 448 F.2d 658, 667 (5th Cir.1971)); see also Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir.1999) (“A necessary corollary to the concept that a federal court is powerless to act without jurisdiction is the equally unremarkable principle that a court should inquire into whether it has subject matter jurisdiction at the earliest possible stage in the proceedings.“). “The jurisdiction of a court over the subject matter of a claim involves the court‘s competency to consider a given type of case,” and to allow parties to obtain adjudications on the merits where subject matter jurisdiction does not exist would ““work a wrongful extension of federal jurisdiction and give [federal] courts power the Congress denied them.” Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992, 1000 (11th Cir.1982), (quoting Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 18, 71 S.Ct. 534, 95 L.Ed. 702 (1950)). In short, if Congress has stripped us of jurisdiction over Alvarez‘s claims, then our inquiry is at an end.
The district court concluded that it lacked jurisdiction over Alvarez‘s Bivens claims pursuant to
Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
Id. (emphasis added). The difficulty in interpreting this provision is that “Congress has provided no explicit definition of the phrase ‘arising from,’ and courts have not always agreed on its plain meaning.” Humphries v. Various Fed. USINS Emps., 164 F.3d 936, 943 (5th Cir.1999). Congress also has not defined “commence proceedings,” “adjudicate cases,” or “execute removal orders.” We begin with first principles: for ICE “to prevail [on jurisdictional grounds] it must overcome the strong presumption in favor of judicial review of administrative action.” INS v. St. Cyr, 533 U.S. 289, 298, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Indeed, the Su-
Moreover, the Supreme Court‘s decision in Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999), further counsels in favor of reading
Although the parties assumed that
The Court also emphasized, however, that “[t]here was good reason for Congress to focus special attention upon, and make special provision for, judicial review of the Attorney General‘s discrete acts of commencing proceedings, adjudicating cases, and executing removal orders.” Id. at 483 (alterations adopted) (internal quotation marks and citation omitted). These three actions “represent the initiation or prosecution of various stages in the deportation process,” and “[a]t each stage the Executive has discretion to abandon the endeavor” for any number of reasons. Id. The Court noted that the agency‘s discretionary termination of the removal process for certain aliens had inadvertently “opened the door to litigation in instances where the INS chose not to exercise it.” Id. at 484. Thus,
Although American-Arab Anti-Discrimination Committee does not answer the question of whether we have jurisdiction over Alvarez‘s claim, it does guide our inquiry. Notably, it instructs us to narrowly interpret
The district court concluded that Alvarez‘s complaint contained two kinds of allegations—those that arose from the decision to initiate his removal proceedings, and others that arose from the execution of his removal order. First, it found that any challenge to ICE‘s decision to require Alvarez to attend removal proceedings—rather than agreeing to a stipulated order—fell squarely within the scope of
Next, the district court addressed Alvarez‘s challenges to ICE‘s decision to take him into custody and to detain him during his removal proceedings—concluding that they also were closely connected to the decision to commence proceedings, and thus were immune from our review. Again, the district court was correct. Looking to the specific factual allegations in the complaint, Alvarez alleges, among other claims, that (1) ICE failed to honor the “best efforts” commitment in his plea bargain and reach a timely determination of his immigration status;3 and (2) during the hearing in federal court on Alvarez‘s
As a panel of this Court explained in Gupta v. McGahey, 709 F.3d 1062, 1065 (11th Cir.), suggestion for reh‘g en banc denied, 737 F.3d 694 (2013), cert. denied, U.S., 134 S.Ct. 2840, 189 L.Ed.2d 806 (2014), “securing an alien while awaiting [his removal hearing] constitutes an action taken to commence proceedings.” In Gupta, a removable alien argued that federal agents “illegally procured an arrest warrant, that the agents
Finally, the district court concluded that all of ICE‘s actions taken after Alvarez was ordered removed on January 22, 2009, also fell within the scope of
We part ways with the district court here. Alvarez claims that the defendants took various steps in order to prolong his detention after the statutory 90-day period that ICE was afforded to execute his removal, which began on January 22, 2009. First, on April 22, 2009, Defendant Skinner issued the “First Decision to Continue Detention” which allegedly falsely stated that Alvarez‘s removal would take place in the “reasonably foreseeable future” and that he would not be released in the meantime on the grounds that he was a flight risk and posed a danger to the community. Second, on October 14, 2009, Defendant Munoz issued the “Second Decision to Continue Detention” which made the same alleged misstatements and added that Alvarez was eligible for Spanish citizenship. Moreover, Defendant Wall filed a motion in support of a continuance in Alvarez‘s habeas proceedings, despite allegedly knowing that Alvarez was not in fact eligible for Spanish citizenship. Finally, Defendant Gladish submitted an affidavit, which was attached to Wall‘s motion, stating that Alvarez would be removed to Spain in the reasonably foreseeable future because he was eligible for Spanish citizenship, despite allegedly knowing that this was untrue. These habeas actions also occurred months after the statutory removal period had lapsed—indeed, the 90-day removal period ended on April 22, 2009 and Alvarez did not file his petition for a writ of habeas corpus until July 28, 2009.
As we see it, no matter how broadly we define the term “execute a removal order,” we would still be compelled to find that these actions, if accurately portrayed in the complaint, do not “arise from” such a decision. Indeed, Alvarez alleged that no decision to execute his removal orders was ever reached. He repeatedly alleged that the named officials knew that he could not be removed to Cuba, Spain, or any other country and never intended to remove him.
Alvarez‘s complaint alleges, then, that each action taken by the defendants after the statutory 90-day period was motivated by the singular intent to prolong his detention, not to execute his removal. If, as Alvarez claims, the defendants knew that it would be impossible to execute his removal order at 90-days, at six months, or afterward—when they issued the two Decisions to Continue Detention and opposed
Our interpretation is consonant with the Supreme Court‘s instructions to read
Alvarez‘s case presents neither situation. Alvarez does not allege that ICE should have exercised its discretion and released him. Rather, he claims that after the initial 90-day removal period, the agency had no statutory grounds on which to detain him because his removal was not reasonably foreseeable. See Zadvydas v. Davis, 533 U.S. 678, 699-700, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (“[I]f ‘removal is not reasonably foreseeable, the court should hold continued detention unreasonable and no longer authorized by statute.“). Moreover, there is no danger that our exercise of jurisdiction will lead to the “deconstruction” or “fragmentation” of removal proceedings—Alvarez‘s removal has already been fully adjudicated, and ICE has already released him from custody. Thus, we hold that
IV.
We come then to the central merits question—whether we should expand the judicially crafted Bivens cause of action to cover these claims against Defendants Emery, Skinner, Munoz, Wall, and Gladish. We agree with the district court and hold that no Bivens remedy is available. We affirm on this basis, and thus do not decide whether any of its other rationales would be sufficient to support the dismissal.
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court for the first time recognized an implied private action for damages against federal officers alleged to have violated a citizen‘s Fourth Amendment rights while acting in their official capacities. The Supreme Court subsequently held that its decision in Bivens also allows plaintiffs to bring claims for damages when federal officials engage in certain conduct that violates the Fifth and Eighth Amendments, finding that in these contexts a complete absence of alternative remedies required the recognition of an implied cause of action. Walden v. Centers for Disease Control & Prevention, 669 F.3d 1277, 1284 n. 3 (11th Cir.2012) (citing Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980); Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979)). Notably, however, the Court has not extended Bivens into a new context since 1980. Id.; Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (“In 30 years of Bivens jurisprudence we have extended its holding only twice, to provide an otherwise nonexistent cause of action against individual officers alleged to have acted unconstitutionally, or to provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused by an individual officer‘s unconstitutional conduct.” (emphases omitted)); De La Paz v. Coy, 786 F.3d 367, 372 (5th Cir.2015) (“The Court has not created a new Bivens remedy in the last thirty-five years, although it has reversed more than a dozen appellate decisions that had created new actions for damages.” (quoting Vance v. Rumsfeld, 701 F.3d 193, 198 (7th Cir.2012) (en banc))).
In analyzing whether to recognize a Bivens remedy in a new context, we engage in a two-step inquiry. “In the first place,” we ask “whether any alternative, existing process for protecting the constitutionally recognized interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Minneci v. Pollard, 565 U.S. 118, 122-23, 132 S.Ct. 617, 621, 181 L.Ed.2d 606 (2012) (alterations adopted) (quoting Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007)). If we find that existing process is sufficiently protective, we do not recognize a Bivens remedy. The alternatives need not “provide complete relief for the plaintiff,” Schweiker v. Chilicky, 487 U.S. 412, 423, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988) (quoting Bush v. Lucas, 462 U.S. 367, 388, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983)), and as long as Congress has established an “elaborate, comprehensive scheme” governing a particular type of claim, this Court will not allow a Bivens remedy to supplement that system, id. at 436. As the Supreme Court has put it, “The question is not what remedy the court should provide for a wrong that would otherwise go unredressed. It is whether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional violation at issue.” Id. at 388.
But even in the absence of an adequate alternative, “a Bivens remedy is a subject of judgment,” Minneci, 132 S.Ct. at 621 (internal quotation marks and citations omitted), and we “must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counseling hesitation before authorizing a new kind of federal litigation,” Bush, 462 U.S. at 378. The Supreme Court has “repeatedly said that a decision to create a private right of action is one better left to legislative judgment in the great majority of cases.” Sosa v. Alvarez-Machain, 542 U.S. 692, 727, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). Accordingly, the federal courts have resisted extending the availability of Bivens remedies in new contexts on the basis of numerous special factors, including “military concerns, separation of powers, the comprehensiveness of available statutory schemes, national security concerns, and foreign policy considerations.” Arar v. Ashcroft, 585 F.3d 559, 573 (2d Cir.2009) (en banc) (citations omitted).
Although we have never explicitly considered whether to imply a Bivens remedy in the immigration context, two of our sister circuits have counseled against it, concluding both that the Immigration and
The Ninth Circuit held that it would be inappropriate to imply a Bivens remedy in this context. Looking first to the availability of alternative remedies, it noted that “Congress has established a substantial, comprehensive, and intricate remedial scheme in the context of immigration,” and
that the availability of a writ of habeas corpus provides additional protection. Id. at 982 (quoting Arar, 585 F.3d at 572). The court next decided, in the alternative, that at least two special factors weighed against recognizing a Bivens remedy. First, “[t]he complexity and comprehensiveness of the existing remedial system,” suggested that no judicial intervention was warranted. Id. Second, “immigration issues ‘have the natural tendency to affect diplomacy, foreign policy, and the security of the nation,‘” which counseled hesitation. Id. (quoting Arar, 585 F.3d at 574).
The Fifth Circuit recently reached the same conclusion in De La Paz v. Coy, 786 F.3d 367 (5th Cir.2015), and held that Bivens does not extend to “claims arising from civil immigration apprehensions and detentions, other than those alleging unconstitutionally excessive force.”5 Id. at 375. In De La Paz, the court undertook the same two-step inquiry, first determining that judicial recognition of a new remedy was unnecessary because the existing “federal governance of immigration and alien status is extensive and complex.” Id. (alteration adopted) (quoting Arizona v. United States, 567 U.S. 387, 132 S.Ct. 2492, 2499, 183 L.Ed.2d 351 (2012)). The court then found that, even if the INA did
We too hold that a plaintiff cannot recover damages under Bivens for constitutional violations that caused him to endure a prolonged immigration detention.6 The Immigration and Nationality Act is “an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations.” Bush, 462 U.S. at 388. Indeed, Congress has provided for a host of review procedures tailored to the differently situated groups of aliens that may be present in the United States. The Act sets out numerous avenues for aliens to obtain review of ICE decisions by an immigration judge or federal court, as well as opportunities for aliens to seek discretionary relief. See
gible);
Additionally, the Supreme Court has made it abundantly clear that a detained alien can seek a petition for a writ of habeas corpus to challenge his detention in the event that the statute‘s review procedures are insufficiently protective. See Zadvydas, 533 U.S. at 688 (“We conclude that
Analysis of the statutory scheme also confirms the conclusion that the congressional decision not to provide a private action for damages was deliberate. See De La Paz, 786 F.3d at 377-78; Mirmehdi, 689 F.3d at 982. Indeed, Congress has amended the Immigration and Nationality Act on no less than seven occasions. See, e.g.,
Thus, the complexity of the Immigration and Nationality Act, and Congress‘s frequent amendments to it, suggest that no Bivens remedy is warranted. We also note that Alvarez has not “alleged that he was actively prevented from seeking any meaningful review and relief through the INA processes.” See Arar, 585 F.3d at 573 (emphasis added). In fact, Alvarez availed himself of the Act‘s review mechanisms many different times during his detention. He first sought relief under
Moreover, even if we were to conclude that no sufficient alternative remedy exists, we would still find that numerous special factors counsel hesitation in this context. For starters, the breadth and detail of the Immigration and Nationality Act itself counsels in favor of hesitation. Mirmehdi, 689 F.3d at 982. As the Supreme Court has explicitly cautioned, “[w]hen the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration,” this constitutes a “special factor[] counseling hesitation.” Schweiker, 487 U.S. at 423. Another special factor is the importance of demonstrating due respect for the Constitution‘s separation of powers. As the Fifth Circuit explained, “[t]he Constitution gives Congress the power to ‘establish a uniform Rule of Naturalization,‘” De La Paz, 786 F.3d at 379 (quoting
Finally, Alvarez‘s allegations implicate one additional special factor counseling hesitation—namely the claim he asks us to recognize would be doctrinally novel and difficult to administer. See Hernandez v. United States, 757 F.3d 249, 275 (5th Cir.2014), reh‘g en banc granted, 771 F.3d 818 (2014), adhered to in part on reh‘g en banc, 785 F.3d 117 (2015) (“Another species of special factor is the workability of the cause of action.“). Alvarez‘s claims do not involve “questions of precisely Bivens-like domestic law enforcement and nothing more.” Id. at 276. Rather, Alvarez asks us to examine ICE‘s motivations for continuing not only his own detention, but that of every other alien who may be detained
Moreover, it is difficult to conceive that any alien would forgo making such an argument in our Court if we were to recognize the availability of a Bivens remedy for this type of conduct. The lack of a clearly defined standard by which to judge such claims, and the nature of the claim as based primarily on the credibility of each party, would likely lead to widespread litigation. And we cannot ignore that this volume of litigation could chill ICE officials from engaging in robust enforcement of this country‘s immigration laws. As the Fifth Circuit explained, “Faced with a threat to his checkbook from suits based on evolving and uncertain law, the officer may too readily shirk his duty.” De La Paz, 786 F.3d at 379; see also AADC, 525 U.S. at 490 (“Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor‘s motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government‘s enforcement policy.” (quoting Wayte, 470 U.S. at 607)). While we acknowledge that ICE officials may act wrongly in detaining certain aliens—and may even in some instances violate the Constitution—we cannot agree with Alvarez that recognizing a Bivens remedy would be a prudent way to address this possibility. See Wilkie, 551 U.S. at 561 (“The point here is not to deny that Government employees sometimes overreach, for of course they do, and they may have done so here if all the allegations are true. The point is the reasonable fear that a general Bivens cure would be worse than the disease.“).
Alvarez argues nevertheless that the Immigration and Nationality Act does not serve as an adequate existing remedy because it does not provide him with an avenue to seek damages. However, the Supreme Court has made it clear that Congress‘s failure to provide monetary relief is not dispositive. See Malesko, 534 U.S. at 69 (“So long as the plaintiff had an avenue for some redress, bedrock principles of separation of powers foreclose[] judicial imposition of a new substantive liability.“); Schweiker, 487 U.S. at 421-22 (“The absence of statutory relief for a constitutional violation, for example, does not by any means necessarily imply that courts should award money damages against the officers responsible for the violation.“); cf. Minneci, 132 S.Ct. at 625 (“[S]tate tort law may sometimes prove less generous than would a Bivens action.... But we cannot find in this fact sufficient basis to determine state law inadequate.“).
This Court, and our sister circuits, have also repeatedly said that we will defer to Congress‘s decision not to award damages for a particular violation, particularly in the face of a carefully crafted remedial scheme. See Lee, 145 F.3d at 1276-77
Alvarez also suggests that our decision in Abella v. Rubino, 63 F.3d 1063 (11th Cir.1995) (per curiam), counsels in favor of recognizing a Bivens remedy in this context. We disagree. In Abella, the plaintiff, a federal prisoner, filed a Bivens action against “two federal district judges, an assistant U.S. Attorney, U.S. Customs and DEA officials, U.S. Marshals, three federal court reporters, a judicial law clerk, a secretary, and several of [his] co-defendants and their respective attorneys,” alleging that these defendants “knowingly and willfully conspired to convict him falsely by fabricating testimony and other evidence against him.” Id. at 1064. The district court dismissed the claims, finding that they were barred by the Supreme Court‘s decision in Heck v. Humphrey. Id. at 1065.7 We affirmed the district court‘s dismissal on this ground and noted, in passing, that the plaintiff was entitled to “bring his Bivens damages claims in the future should he meet the requirements of Heck.” Id. With this language, we did not opine on whether we would find a Bivens remedy to be available if Abella ever became eligible to challenge his conviction with a civil suit, let alone suggest that Bivens should be applied in the immigration context. We merely reiterated that our affirmance of the district court‘s decision was based only on the plaintiff‘s failure to satisfy Heck‘s requirements. Abella in no way suggests that we should recognize an expanded Bivens remedy in this context.
V.
Thus, we hold that the district court erroneously concluded that it had no jurisdiction to entertain the merits of Alvarez‘s claim under
JILL PRYOR, Circuit Judge,
concurring in part and dissenting in part:
I join fully in the majority‘s thorough analysis in Part III addressing subject-matter jurisdiction. But I dissent from Part IV of the majority opinion holding that plaintiff Santiago Alvarez has no remedy under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). More specifically, I dissent from the majority‘s opinion affirming the district court‘s dismissal of Alvarez‘s claim against defendant Juan Munoz, although I concur with the majority‘s decision to affirm the dismissal of Alvarez‘s claims against defendants Robert Emery, Michael Gladish, Felicia Skinner, and Sheetul Wall.
In this case, Supreme Court precedent, a federal statute, and its accompanying regulations required U.S. Immigration and Customs Enforcement (“ICE“) to release Alvarez approximately 180 days after his removal order was final if there was no significant likelihood that he would be removed in the reasonably foreseeable future. The majority acknowledges Alvarez‘s allegation that Munoz, the ICE official who reviewed Alvarez‘s detention at the 180-day mark, “knew that [Alvarez] could not be removed—to Cuba, Spain, or any other country and never intended to remove him.” Maj. Op. at 1204. As the majority recognizes, Alvarez alleged that Munoz improperly continued Alvarez‘s detention knowing there were “no statutory grounds on which to detain him.” Id. at 1205. Nonetheless, the majority concludes that Alvarez has no Bivens remedy because he failed to “allege[] that he was actively prevented from seeking any meaningful review and relief” and thus was “in no position to argue that the elaborate scheme that Congress designed afforded him no opportunity for a meaningful remedy.” Id. at 1210 (internal quotation marks omitted). I am unable to reconcile the majority‘s conclusion that Alvarez was afforded meaningful review with his plausibly alleged claim that Munoz performed a sham review and continued to detain him, knowing that the law required his release. Accordingly, I disagree with the majority that Alvarez can have no Bivens remedy for his due process claim against Munoz.1
The district court dismissed Alvarez‘s claims on the alternative grounds that (1) the claims were barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); (2) the defendants were entitled to qualified immunity; and (3) the claims were barred by the statute
of limitations. Because I believe that the district court erred in each of these determinations, I would vacate the district court‘s order and remand so that Alvarez‘s due process claim against Munoz could proceed.2
I. Legal Background
As a starting point, it is important to understand the limits the law imposes on the Attorney General‘s authority to continue to detain aliens after their removal orders are final. Although the Attorney General may detain certain aliens for a reasonable time after a final order of removal, the Executive Branch must periodically review its decision to continue an alien‘s detention.
A. Statutory Authority
“[W]hen an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days.”
In Zadvydas, two aliens, who were detained for years after their final orders of removal because the Attorney General could find no country that would accept them, petitioned for habeas corpus relief. Id. at 684-86, 121 S.Ct. 2491. The government argued that
The Supreme Court then provided practical guidance about the length of time the Attorney General could detain an alien after his removal order becomes final. Because the Executive Branch has primary responsibility for and expertise in foreign policy matters, the Supreme Court recognized that it must give “expert agencies decisionmaking leeway” and thus must “recognize some presumptively reasonable period of detention.” Id. at 700-01, 121 S.Ct. 2491. The Court therefore held that an alien‘s detention for six months (approximately 180 days) after a final order of removal is “presumptively reasonable” under
B. Regulatory Authority
Consistent with Zadvydas, regulations now require ICE officials periodically to review the decision to continue to detain an alien subject to a final order of removal.6 As I explain below, ICE officials must review the decision to detain an alien 90 days and again approximately 180 days after the alien‘s removal order is final, as well as at least yearly thereafter. Importantly, ICE must release an alien after the 180-day review if there is no significant likelihood that she will be removed in the reasonably foreseeable future. But an alien no right to appeal a decision, upon review, to continue her detention.
1. 90-Day Review
When ICE is unable to remove an alien within 90 days of the removal order becoming final, it must review the alien‘s detention before the end of that 90-day period (the “90-day review“).
- Travel documents for the alien are not available or, in the opinion of the Service, immediate removal, while proper, is otherwise not practicable or not in the public interest;
- The detainee is presently a non-violent person;
- The detainee is likely to remain non-violent if released;
- The detainee is not likely to pose a threat to the community following release;
- The detainee is not likely to violate the conditions of release; and
- The detainee does not pose a significant flight risk if released.
An alien must receive written notice before the 90-day review occurs.
2. 180-Day Review
If ICE continues to detain an alien after the 90-day review, ICE‘s Headquarters Post-Order Detention Unit (the “HQPDU“) must review the alien‘s detention approximately 180 days after the removal order becomes final (the “180-day review“).8
all the facts of the case including ... the history of the alien‘s efforts to comply with the order of removal, the history of the Service‘s efforts to remove aliens to the country in question or to third countries ..., the reasonably foreseeable results of those efforts, and the views of the Department of State regarding the prospects for removal of aliens to the country or countries in question.
Additionally, at the 180-day review, the HQPDU has discretion (but is not required) to release an alien if the “release will not pose a danger to the community or to the safety of other persons or to property or a significant risk of flight.”
The regulations guarantee an alien certain procedural protections in connection with the 180-day review. The HQPDU must notify the alien before performing the 180-day review.
II. Analysis
A. Bivens Remedy
I now turn to the central issue before us: whether Alvarez has a Bivens remedy for his claim that Munoz violated his Fifth Amendment right to due process11 by deciding at the 180-day review to continue Alvarez‘s detention despite knowing there
In Bivens, the Supreme Court recognized that an individual had an implied private action for damages against federal officers who allegedly performed an illegal search of his home and arrested him without probable cause in violation of his Fourth Amendment rights. Bivens, 403 U.S. at 389-90, 91 S.Ct. 1999. It cannot be denied that the Supreme Court has declined to recognize a Bivens remedy in a “new context” in more than thirty-five years.13 Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 67-68, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001). Nonetheless, “the Court has so far adhered to Bivens’ core holding: Absent congressional command or special factors counseling hesitation, ‘victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.‘” Wilkie v. Robbins, 551 U.S. 537, 576, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007) (quoting Carlson v. Green, 446 U.S. 14, 18, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980)). As the majority recognizes, the Supreme Court continues to decide on a case-by-case basis whether a Bivens remedy is available in a new context by considering whether (1) there is an “alternative, existing process for protecting the [constitutionally recognized] interest” that “amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy,” and (2) “special factors counsel[] hesitation before authorizing a new kind of federal litigation.” Minneci v. Pollard, 565 U.S. 118, 121, 132 S.Ct. 617, 181 L.Ed.2d 606 (2012) (first alteration in original and internal quotation marks omitted).
Carefully applying this case-by-case approach, our Court has both explicitly and implicitly recognized Bivens remedies in new contexts. See, e.g., Muhammad v. Williams-Hubble, 380 Fed.Appx. 925, 926-27 (11th Cir.2010) (recognizing that Bivens remedy was available for inmate‘s claim alleging that because he was Muslim, prison officials refused to accept his high school diploma, which would have entitled him to a higher pay grade for work performed while in custody); Magluta v. Samples, 375 F.3d 1269, 1284 (11th Cir.2004) (reversing dismissal of pretrial detainee‘s Bivens claim alleging that Bureau of Prison officials violated his procedural due process rights under the Fifth Amendment when they placed him in administrative detention yet denied him review guaranteed by regulations); Uboh v. Reno, 141 F.3d 1000, 1002-03 (11th Cir.1998) (recognizing that a Fourth Amendment claim for malicious prosecution “constitute[s] a cognizable Bivens claim” (internal quotation marks omitted)).
1. Alternative Existing Processes
We begin by considering whether there were alternative existing processes to review Alvarez‘s detention such that the courts should refrain from extending a damages remedy. See Minneci, 132 S.Ct. at 621. This inquiry requires us to consider whether Congress has explicitly or implicitly indicated “that the Court‘s power” to recognize a money damages remedy for constitutional violations “should not be exercised.” Bush v. Lucas, 462 U.S. 367, 378, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). When an “administrative system created by Congress ‘provides meaningful remedies,‘” no Bivens remedy is available, even if the alternatives fail to “‘provide complete relief for the plaintiff.‘” Schweiker v. Chilicky, 487 U.S. 412, 423, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988) (quoting Bush, 462 U.S. at 386, 388, 103 S.Ct. 2404).
Although the majority and I agree that in deciding whether to extend a Bivens remedy we must consider whether the “existing process is sufficiently protective,” Maj. Op. at 1206, we disagree about whether that factor is met here.
The majority concludes that Alvarez “is in no position to argue that the elaborate scheme that Congress designed afforded him no opportunity for a meaningful remedy” because (1) ICE performed two custody determinations and “in each instance the agency found sufficient grounds to continue detaining him” and (2) Alvarez was able to petition for a writ of habeas corpus to challenge his detention.14 Id. at 1209-10. But in light of Alvarez‘s plausible claim that the 180-day review Munoz performed was a sham,15 it cannot be that ICE‘s periodic review was sufficiently protective. Because a habeas proceeding was the only
As I explained above, ICE was required to release Alvarez if, at the 180-day review, there was “no significant likelihood” that he would “be removed in the reasonably foreseeable future.”
There is no dispute that Alvarez could be removed to Spain only if he were eligible for Spanish citizenship. The application for Spanish citizenship made clear that to be eligible Alvarez had to have an ancestor who fled Spain during the Spanish Civil War from 1936 to 1939. But Alvarez‘s Spanish ancestor, his grandfather, left Spain more than 60 years before the Spanish Civil War, making Alvarez ineligible for Spanish citizenship.
Alvarez has alleged sufficient facts to state a facially plausible claim17 that Munoz knew Alvarez was ineligible for Spanish citizenship and thus could not be removed to Spain—at the time when Munoz
Crediting Alvarez‘s allegation that he was intentionally denied meaningful review by Munoz, I fail to see how Congress has indicated (either implicitly or explicitly) that courts should refrain from recognizing a Bivens remedy under these circumstances. The majority asserts that because Congress has amended the Immigration and Naturalization Act and never added a private right of action, we should conclude that Congress intended to make damages unavailable. Maj. Op. at 1209-10. Even assuming Congress implicitly indicated (through its silence) that aliens who received meaningful review of their detention at the 90-day and 180-day reviews should have no damages remedy against the federal officials who continued their detention, I see no suggestion by Congress, even by its silence, indicating that Alvarez should have no damages remedy when he alleged that he was affirmatively denied the review the law required.20 See Arar v. Ashcroft, 585 F.3d 559, 573 (2d Cir. 2009)
The majority implicitly takes the position that Alvarez received meaningful review, but it cites no case to support this conclusion. Although the majority relies on the Ninth Circuit‘s decision in Mirmehdi v. United States, 689 F.3d 975 (9th Cir.2011), to suggest that other circuits have refused to recognize a Bivens remedy in the immigration context, nothing in Mirmehdi addressed whether a Bivens remedy is available when an alien is denied meaningful review through the very administrative procedures that the government asserts make a Bivens remedy unnecessary. In Mirmehdi, aliens with pending applications for asylum were arrested for immigration violations and then released on bond. Id. 979. Their bond was revoked after FBI and ICE agents testified to evidence showing the aliens supported a terrorist group. Id. The aliens claimed the agents knowingly misrepresented evidence as showing that they belonged to the terrorist group so that the immigration judge would revoke their bond. Id. The aliens later sued the agents seeking a Bivens remedy for their wrongful detention claim.21
The Ninth Circuit held that no Bivens remedy was available because the aliens were able to “challenge their detention through not one but two different remedial systems.” Id. at 982. As the Ninth Circuit pointed out, the aliens’ claim that the agents fabricated evidence was reviewed multiple times: (1) on direct appeal of their detention, (2) during administrative proceedings related to their asylum applications, and (3) in a federal habeas corpus petition. Id. at 979, 982. Importantly, though, in Mirmehdi the aliens raised no claim that this administrative and judicial review was a sham. Accordingly, Mirmehdi never considered or addressed the question before the Court in this case: whether an alien could have received meaningful administrative review when he alleged that the only review of his claim (in a non-appealable decision, no less) was a sham.22
It is true that Alvarez could—and did—challenge his continued detention by peti-
Accepting Alvarez‘s allegations, I cannot say that the sole alternative process available to review his unlawful continued detention—that is, petitioning for habeas relief—provides a compelling reason for the Court to refrain from recognizing a damages remedy. Instead, the existence of habeas review alone is an insufficient basis for concluding that Congress intended to prohibit a damages remedy for Alvarez.
2. Special Factors Counseling Hesitation
The majority alternatively holds that no Bivens remedy is available because “nu-
a. Separation of Powers
The majority contends that the need to demonstrate due respect for the separation of powers counsels hesitation here. Of course I agree that the Constitution gives “Congress the power to establish a uniform Rule of Naturalization” and that the Executive Branch has inherent authority to conduct relations with foreign nations. Id. at 1210 (internal quotation marks omitted). But given Alvarez‘s plausible claim that Munoz knew Alvarez could not be removed, I fail to see how such separation of powers concerns are implicated here. The majority offers no compelling reason why concerns about separation of powers are implicated when an ICE official intentionally deprives a detainee of his due process rights under governing law.
In fact, the government raised, and the Supreme Court rejected, a similar separation of powers argument in Zadvydas. The government argued that courts could not review a habeas petition challenging the Attorney General‘s authority to detain indefinitely aliens who could not be removed because “the Judicial Branch must defer to Executive and Legislative Branch decisionmaking” with respect to immigration law. Zadvydas, 533 U.S. at 695, 121 S.Ct. 2491. The Court rejected this argument, explaining that the Executive and Legislative Branches’ “power is subject to important constitutional limitations.” Id. When removal is impossible, judicial review of an alien‘s detention in no way “den[ies] the right of Congress to remove aliens.” Id. The Court also rejected the government‘s assertion that judicial review would impinge the authority of Congress and the Executive Branch to control entry into the United States. Id. at 695-96, 121 S.Ct. 2491. For an alien detained after a final removal order is entered, “[t]he sole foreign policy consideration” is that review by the courts might “interfere with ‘sensitive’ repatriation negotiations.” Id. at 696, 121 S.Ct. 2491. The government failed to “explain how a ... court‘s efforts to determine the likelihood of repatriation, if handled with appropriate sensitivity, could make a significant difference in this respect.”26 Id. For the same reasons, I am unpersuaded that judicial review of ICE‘s decision to continue detention in a Bivens action would upset the separation of powers when there is a plausible claim that the ICE official performing the review knew
I am troubled by the majority‘s separation of powers analysis because, taken to its logical end, it would seem to foreclose a Bivens remedy in any case arising in the immigration context. After all, if this case—in which Alvarez alleges that Munoz knew that the government had no country that would accept him—implicates the Executive‘s power to control and conduct foreign relations, then special factors would counsel hesitation in virtually all immigration cases.
b. Workability of Cause of Action
The majority also concludes that special factors counsel hesitation because Alvarez‘s claim is doctrinally novel and would be difficult to administer. Although the workability of a cause of action may indeed be a special factor counseling hesitation, see Wilkie, 551 U.S. at 555-56, 127 S.Ct. 2588, I fail to see how Alvarez‘s claim, alleging that he was deprived due process when Munoz purposefully denied him meaningful review as required by the regulations, would be unworkable. In fact, his particular claim is neither doctrinally novel nor difficult to administer. First, I disagree that Alvarez‘s allegation that he was denied meaningful review of his ongoing detention raises a novel claim. His resembles a classic procedural due process claim, alleging that a government official failed to provide meaningful review as required under a law or policy. See, e.g., Williams v. Hobbs, 662 F.3d 994, 1008-09 (8th Cir.2011) (explaining that inmate failed to receive due process, even though process set forth in policy was adequate, when the review actually provided by prison officials was not meaningful); Ryan v. Ill. Dep‘t of Children & Family Servs., 185 F.3d 751, 761-62 (7th Cir.1999) (reversing grant of summary judgment on procedural due process claim based on plaintiffs’ evidence showing that hearing was a “sham” because decisionmakers had already made up their minds); see also Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (“The Due Process clause also encompasses ... a guarantee of fair procedure.“); Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 164, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring) (explaining that due process requires that procedures provided must “not [be] a sham or a pretense” (internal quotation marks omitted)).
The majority suggests that Alvarez‘s claim is different from other procedural due process claims because a court would have to examine ICE‘s motivation for continuing his detention. Even though a factfinder ultimately would have to determine whether Munoz knew that Alvarez could not be removed to Spain, I fail to see why this inquiry makes Alvarez‘s cause of action any different from any other claim based on an intentional deprivation of due process—much less unworkable. The majority offers no compelling explanation.
The majority further asserts that Alvarez‘s claim would require us to examine ICE‘s motivation for continuing the detention of “every other alien who may be detained past the statutory 90-day period.” Maj. Op. at 1210-11. Again, I disagree. Alvarez makes no claim that ICE or Munoz had a policy or practice of performing sham 180-day reviews to continue to detain aliens; why then would a court need to consider the reasons why ICE continued to detain other aliens beyond the 180-day review?
Second, I cannot agree with the majority‘s assertion that Alvarez‘s claim would be difficult to administer. The majority suggests that because ICE has discretion to abandon removal proceedings at any time, it would be particularly difficult to understand ICE‘s motivations for continu-
The majority worries that recognizing a Bivens remedy “would likely lead to widespread litigation” from aliens challenging their continued detention, Maj. Op. at 1211, but I believe their concerns are overstated. Recognizing a Bivens remedy in this case would open the courthouse doors only to claims from aliens who: (1) were subject to a final order of removal, (2) were still detained at the end of the 90-day removal period, (3) had their detention continued at the 90-day review, (4) had their detention continued at the 180-day review, and (5) can state a plausible claim that the ICE official performing the 180-day review knew that the alien could not be removed in the reasonably foreseeable future. It is hard to believe this group of aliens is so large that they would flood the courts with litigation.27 In any event, even assuming the majority is correct that a large group of aliens can plausibly allege that they received sham 180-day reviews, the concern that federal courts may have to address these plausible claims of serious constitutional violations hardly provides a compelling reason to refrain from hearing such claims.
I also remain unpersuaded by the majority‘s contention that recognizing a Bivens remedy here would “chill ICE officials from engaging in robust enforcement of this country‘s immigration laws.” Id. 1211. Because the Bivens remedy I would recognize here would apply only to claims against those ICE officials who intentionally deny an alien a meaningful 180-day review, I fail to see how the prospect of the narrow judicial review I am proposing would chill ICE officials from performing their legitimate duties.
In sum, I cannot agree with the majority‘s special factors analysis. Because I would hold that the alternative, existing processes were inadequate, and special factors do not counsel hesitation, I would extend Alvarez a Bivens remedy.
B. Heck v. Humphrey
The district court dismissed Alvarez‘s claims against all defendants, including Munoz, on the alternative ground that “the ‘favorable termination rule’ imposed by Heck barred his claims. Order at 16 (Doc. 58). In Heck, the Supreme Court recognized:
[T]o recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court‘s issuance of a writ of habeas corpus.
Although Alvarez seeks damages arising from his unconstitutional continued detention, he cannot demonstrate that his detention has been declared invalid because the habeas court never issued a writ that called into question his detention. Nonetheless, I would hold that the favorable-termination requirement is inapplicable because under the facts of this case federal habeas review was unavailable to Alvarez. Alvarez diligently petitioned for a writ of habeas corpus; indeed, the district court scheduled a hearing on his petition. But the government‘s decision to release him just two business days before the hearing (quite possibly in an attempt to avoid judicial review of the unconstitutional detention) mooted his habeas petition challenging his detention30 and made it impossible for him to obtain habeas relief that called into question his ongoing detention. Given this unique (and frankly troubling) procedural history, it would be illogical and unjust to hold that Alvarez‘s claim against Munoz is barred because he failed to obtain habeas relief. Accordingly, I would hold that the district court erred in dismissing Alvarez‘s claim against Munoz as barred under Heck.
C. Qualified Immunity
The district court held in the alternative that Alvarez‘s claims were properly dismissed because all the defendants, including Munoz, were entitled to qualified im-
A government official asserting a qualified immunity defense bears the initial burden of showing “he was acting within his discretionary authority.”31 Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir.2007). After the official makes this showing, the burden shifts to the plaintiff to show that “(1) the defendant violated a constitutional right, and (2) this right was clearly established at the time of the alleged violation.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir.2004). Binding decisions of the Supreme Court may clearly establish a right. See McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir.2007). The clearly-established requirement “ensures that officers will not be liable for damages unless they had ‘fair warning’ that their conduct violated the law.” Id. (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)).
Alvarez has stated a claim that Munoz violated his Fifth Amendment right to procedural due process by intentionally depriving Alvarez of meaningful review.32 A procedural due process claim has three elements “(1) a deprivation of a constitutionally-protected liberty or property interest; (2) [government] action; and (3) constitutionally-inadequate process.” Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir.2003). The only element at issue here is whether Alvarez received constitutionally inadequate process. As discussed in part in Section II-A above, Alvarez has pled sufficient facts to allege that he received constitutionally inadequate process when Munoz performed a sham review.
Further, Alvarez‘s constitutional right was clearly established at the time that Munoz performed the sham 180-day review. Although due process may be “a flexible concept that varies with the particular circumstances of each case,” we have recognized that it is “clear that the government must provide” review “in a meaningful manner.” Id. at 1232-33 (internal quotation marks omitted); see Zinermon, 494 U.S. at 125, 110 S.Ct. 975 (due process requires “a guarantee of fair procedure“); McKinney v. Pate, 20 F.3d 1550, 1561 (11th Cir.1994) (en banc) (“It is axiomatic that, in general, the Constitution requires that the state provide fair procedures and an impartial decisionmaker before infringing on a person‘s interest in life, liberty, or property.“). Given this precedent, it can hardly be argued that Munoz lacked fair warning that performing a sham 180-day review would violate Alvarez‘s due process rights.
D. Statute of Limitations
The district court also dismissed Alvarez‘s claims on the alternative ground that they were barred by the statute of limitations. Alvarez‘s cause of action against
“A
The statute of limitations for Alvarez‘s Bivens action is “the state limitation period applicable to personal injury actions” in the state where the suit was filed. Kelly v. Serna, 87 F.3d 1235, 1238 (11th Cir.1996). Alvarez filed suit in Florida, so Florida law determines the limitation period. Florida courts generally apply a four-year statute of limitations to personal injury actions.
Under Florida law, a cause of action arises in the state with the most significant relationship to the action. Id. at 144. Florida courts “presume[] that the law of the place of the injury will apply“; if, however, “another state has a more ‘significant relationship’ to the particular issue, that state‘s law should be applied.” McNeil v. CSX Transp., Inc., 832 So.2d 227, 229 (Fla.Dist.Ct.App.2002). To decide which state has the most significant relationship, Florida courts consider the following criteria:
- the place where the injury occurred,
- the place where the conduct causing injury occurred,
- the domicil[e], residence, nationality, place of incorporation and place of business of the parties, and
- the place where the relationship, if any, between the parties is centered.
Celotex, 523 So.2d at 144. (quoting Restatement (Second) of Conflict of Laws § 145(2) (1971)).
Alvarez‘s complaint shows that both Florida and Georgia had a relationship to Alvarez‘s cause of action. Alvarez has alleged that his injury occurred in Georgia where he was detained and that Florida was his state of residence for over 50 years. But the complaint is silent about other contacts relevant to the significant-relationship analysis, including where Munoz resided; where Munoz‘s conduct causing Alvarez‘s injury occurred, for example, where Munoz made the decision to continue Alvarez‘s detention; and the place where the parties’ relationship was centered. Because I cannot conclude from the face of the complaint that Alvarez‘s claim necessarily is time-barred, dismissal on statute of limitations grounds was error at this stage of the proceeding.
III. Conclusion
The allegations in this case are disturbing. They suggest that an ICE official ignored the law, intentionally deprived Alvarez of meaningful review, and knowingly made false statements to keep him in custody when the law required him to be released. The majority‘s analysis in this case is also troubling. To deny a Bivens remedy, the majority seems to cast aside the motion to dismiss standard by ignoring Alvarez‘s well-pled allegation that Munoz purposefully denied him meaningful review under the existing regulations and procedures. After properly applying the motion to dismiss standard and crediting Alvarez‘s plausible allegations, I would recognize that Alvarez has a Bivens remedy for his due process claim against Munoz. I would also hold that the district court erred in its alternative conclusions that Heck v. Humphrey, qualified immunity, and the statute of limitations barred Alvarez‘s claim. I dissent because I would allow Alvarez‘s claim against Munoz to proceed.
UNITED STATES of America, Plaintiff-Appellee,
v.
Eric THOMAS, Defendant-Appellant.
No. 14-14680.
United States Court of Appeals, Eleventh Circuit.
April 1, 2016.