Turkmen, et al. v. Ashcroft, et al., No. 06-3745 (2d Cir. 2009)

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06-3745-cv(L) Turkmen, et al. v. Ashcroft, et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2007 (Argued: February 14, 2008 Decided: December 18, 2009) Docket Nos. 06-3745-cv(L); 06-3785-cv(Con); 06-3789-cv(Con); 06-3800-cv(Con); 06-4187-cv(XAP) - - - - - - - - - - - - - - - - - - - -x IBRAHIM TURKMEN, ASIF-UR-REHMAN SAFFI, SYED AMJAD ALI JAFFRI, AKIL SACHDEVA, SHAKIR BALOCH, HANY IBRAHIM, YASSER EBRAHIM, ASHRAF IBRAHIM, Plaintiffs-Appellees-CrossAppellants, - v.JOHN ASHCROFT, Former United States Attorney General, DENNIS HASTY, Former Warden of MDC, JAMES W. ZIGLAR, Commissioner, Immigration and Naturalization Service, JAMES SHERMAN, ROBERT MUELLER, Defendants-AppellantsCross-Appellees, JOHN DOES 1-20, MDC Corrections Officers, MICHAEL ZENK, Warden of MDC, CHRISTOPHER WITSCHEL, CLEMETT SHACKS, BRIAN RODRIGUEZ, JON OSTEEN, RAYMOND COTTON, WILLIAM BECK, SALVATORE LOPRESTI, STEVEN BARRERE, LINDSEY BLEDSOE, JOSEPH CUCITI, HOWARD GUSSAK, MARCIAL MUNDO, DANIEL ORTIZ, STUART PRAY, ELIZABETH TORRES, PHILLIP BARNES, SYDNEY CHASE, MICHAEL 1 2 3 4 5 6 7 8 9 10 11 12 13 DEFRANCISCO, RICHARD DIAZ, KEVIN LOPEZ, MARIO MACHADO, MICHAEL MCCABE, RAYMOND MICKENS, SCOTT ROSEBERY, UNITED STATES, Defendants. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, and RAGGI, Circuit Judge.* Cross appeals from an order entered in the United 14 States District Court for the Eastern District of New York 15 (Gleeson, J.) granting in part and denying in part motions 16 to dismiss made by certain defendants. 17 host of claims alleging abuse, mistreatment, and detention 18 of Arab and Muslim aliens who were held on immigration 19 violations in the wake of the terrorist attacks of September 20 11, 2001. 21 district court order insofar as it dismissed certain claims, 22 and we vacate that order insofar as it denied the 23 defendants motions to dismiss certain remaining claims. Plaintiffs plead a For the reasons that follow, we affirm the 24 * The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August 8, 2009. The two remaining members of the panel, who are in agreement, have determined the matter. See 28 U.S.C. § 46(d); Local Rule 0.14(2); United States v. Desimone, 140 F.3d 457 (2d Cir. 1998). 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 MICHAEL WINGER, (C. William Phillips, Kate Greenwood, Amanda J. Gourdine, Kimberly Zelnick, Douglas Bloom, and Joanne SumPing, on the brief), Covington & Burling LLP, New York, NY; RACHEL MEEROPOL (Matthew Strugar, William Goodman, Shayana Kadidal, and William Quiqley, on the brief) Center for Constitutional Rights, New York, NY; DAVID COLE, Georgetown University Law Center, Washington, D.C.; and CLAUDIA SLOVINSKY, Law Offices of Claudia Slovinsky, New York, NY, for Plaintiffs-Appellees-CrossAppellants. ROBERT M. LOEB, (Peter D. Keisler, Assistant Attorney General, Gregory G. Garre, Deputy Solicitor General, Jonathan F. Cohn, Deputy Assistant Attorney General, Kannon K. Shanmugam, Assistant to the Solicitor General, Tony West, Assistant Attorney General, Barbara L. Herwig, Sarang V. Damle, Dennis C. Barghaan, Richard W. Sponseller, Larry Lee Gregg, and R. Craig Lawrence, Assistant United States Attorneys, on the brief) United States Department of Justice, Washington, D.C., United States Attorney s Office for the District of Columbia, Washington, D.C., and United States Attorney s Office for the Eastern District of Virginia, Alexandria, VA, for DefendantsAppellants-Cross-Appellees John Ashcroft and Robert Mueller. 3 WILLIAM ALDEN MCDANIEL, JR. (Bassel Bakhos, on the brief), Law Office of William Alden McDaniel, Jr., Baltimore, MD, for Defendant-Appellant-CrossAppellee James Ziglar. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 MICHAEL L. MARTINEZ (Shari Ross Lahlou, David E. Bell, Justin P. Murphy, Kyler E. Smar, and Matthew F. Scarlato, on the brief) Crowell & Moring LLP, Washington, D.C., for DefendantAppellant-Cross-Appellee Dennis Hasty. DEBRA L. ROTH (Thomas M. Sullivan, on the brief), Shaw, Bransford, Veilleux & Roth, P.C., Washington, D.C., for Defendant-Appellant-CrossAppellee James Sherman. SITAL KALANTRY, Cornell Law School, Ithaca, NY for amici curiae former wardens and senior prison officials in support of Plaintiffs-Appellees-CrossAppellants. PER CURIAM: This putative class action was brought by seven named 33 plaintiffs, all non-citizens who were detained on 34 immigration violations following the terrorist attacks of 35 September 11, 2001.1 The plaintiffs allege, inter alia, 1 An eighth named plaintiff, Syed Amjad Ali Jaffri, has withdrawn his claims. 4 1 that on account of their Arab or Muslim background (or 2 perceived background), they were subjected to excessively 3 prolonged detention, abused physically and verbally, 4 subjected to arbitrary and abusive strip searches, and 5 otherwise mistreated while in custody. 6 plaintiffs acknowledge that at the time they were detained 7 they were present in the United States illegally, and were 8 subject to removal. 9 the conditions of their confinement, and (ii) the allegation Crucially, Their constitutional claims rest on (i) 10 that their detentions were illegally prolonged so that the 11 Government could investigate any potential ties to 12 terrorism. 13 Plaintiffs brought thirty-one separate claims against 14 thirty-one identified defendants, including the United 15 States, former Attorney General John Ashcroft, FBI Director 16 Robert Mueller, and former Immigration and Naturalization 17 Service ( INS ) Commissioner James W. Ziglar, as well as 18 Metropolitan Detention Center ( MDC ) officials and 19 correctional officers. 20 The United States, Ashcroft, Mueller, and Ziglar, as 5 1 well as four high-ranking MDC officials2 (collectively, the 2 moving defendants ) moved to dismiss certain claims on 3 grounds that include qualified immunity and failure to state 4 a claim. 5 the United States District Court for the Eastern District of 6 New York (Gleeson, J.) denied the motions to dismiss claims 7 concerning the conditions of confinement, but dismissed 8 claims concerning the length of detention. 9 Ashcroft, No. 02 Civ. 2307(JG), 2006 WL 1662663, at *1 10 At the risk of oversimplifying a complex ruling: (E.D.N.Y. June 14, 2006). See Turkmen v. Both sides appealed. 11 12 I 13 On November 2, 2009, plaintiffs moved for dismissal 14 without prejudice of the pending appeals and cross-appeals 15 in their entirety. 16 appeals and cross-appeals are moot in light of a settlement 17 recently reached with five named plaintiffs and plaintiffs Plaintiffs argue principally that the 2 By consolidated motion, former MDC wardens Dennis Hasty and Michael Zenk joined the United States, Ashcroft, Mueller, and Ziglar in moving to dismiss. The United States sought partial dismissal, and the five individual defendants sought dismissal of all claims brought against them. MDC associate warden James Sherman separately moved to dismiss all claims brought against him, as did MDC unit manager Clemmet Shacks. 6 1 counsel s intent to seek leave in the district court to file 2 a proposed Fourth Amended Complaint on behalf of the two 3 remaining plaintiffs, other plaintiffs to be named, and the 4 putative class. 5 dismissal. 6 Ashcroft and Mueller oppose such a Plaintiffs argue that we should dismiss as moot the 7 appeals related to the denial of the conditions of 8 confinement claims, because the two remaining named 9 plaintiffs (Ibrahim Turkmen and Akil Sachdeva) did not 10 appeal the dismissal of claim 3 and never asserted claims 11 20-23. 12 claims 3 and 20-23 as part of the putative class complaint 13 by proposing to file a Fourth Amended Complaint adding five 14 new named plaintiffs. 15 that they appealed the district court s decision to deny the 16 dismissal of claims 5 (in part), 7, and 8 (in addition to 17 claims 3 and 20-23)--three claims that Turkmen and Sachdeva 18 asserted along with the five settling plaintiffs. 19 Plaintiffs indicate that the proposed Fourth Amended 20 Complaint will not allege claim 8; however, claims 5 and 7 21 remain live (as does claim 8 pending its withdrawal). 22 Moreover, defendants retain a strong interest in a decision However, plaintiffs counsel intends to preserve Further, Ashcroft and Mueller argue 7 1 on their invocation of qualified immunity concerning claims 2 that have been long pending and (as plaintiffs counsel 3 confirms) will be asserted in a new pleading. 4 is not the kind of case in which the class representative s 5 interest abated during briefing or before oral argument; the 6 settlement did not arise until long after the February 14, 7 2008 argument and the settling plaintiffs thus maintained a 8 personal stake in pressing this appeal throughout. 9 Finally, this Based on these circumstances and the district court s 10 stay of the class certification motion, this Court is 11 persuaded that the appeals related to the conditions of 12 confinement claims are not moot. 13 F.3d 775, 799 (2d Cir. 1994) ( Where the claims of the named 14 plaintiffs become moot prior to class certification, there 15 are several ways in which mootness is not had. ); see also 16 Swan v. Stoneman, 635 F.2d 97, 102 n.6 (2d Cir. 1980) ( To 17 the extent that appellants argument is that Swan s death 18 does not moot the class claim if one of the proposed 19 intervenors can be substituted as named plaintiff, we 20 agree. ); In re Nat l Australia Bank Sec. Litig., No. 03 21 Civ. 6537(BSJ), 2006 WL 3844463, at *2 (S.D.N.Y. Nov. 8, 22 2006) (recognizing general rule that lack of class 8 See Comer v. Cisneros, 37 1 representative renders class action moot, and exceptions to 2 that rule where motion for class certification is pending or 3 plaintiff did not have reasonable opportunity to move for 4 class certification); id. at *3 (explaining that live 5 controversy exists where new named plaintiff may be 6 substituted or may intervene upon pre-certification mooting 7 of class representative s claims). 8 plaintiffs motion to dismiss this appeal without prejudice 9 on the ground of mootness.3 10 Accordingly, we deny The appeals and cross-appeals are hereby dismissed only 11 to the limited extent necessary to recognize the settlement 12 of five named plaintiffs. 13 proposed Fourth Amended Complaint, virtually all of the 14 appeals and cross-appeals remain pending for our review Despite this settlement and the 3 Plaintiffs do not argue that their cross-appeals related to the length of detention claims are moot. Any such argument would be untenable because the two remaining plaintiffs joined the settling plaintiffs in appealing the dismissal of claims 1, 2, and 5 (in part). The district court also dismissed two additional claims, 24 and 25, which are related to the length of detention. We do not reach claim 24 because it was asserted only by the settling plaintiffs (and not by the two remaining plaintiffs); the proposed Fourth Amended Complaint does not seek to preserve claim 24 through the proposed intervenor plaintiffs; and Ashcroft and Mueller concede that claim 24 is moot. We do not reach claim 25 because no plaintiffs appealed the dismissal of this claim. 9 1 because (i) the two remaining plaintiffs asserted several of 2 the claims underlying the moving defendants appeals, and 3 (ii) plaintiffs propose to file a Fourth Amended Complaint 4 preserving for the putative class the claims asserted only 5 by the settling plaintiffs through the addition of the 6 proposed intervenor plaintiffs. 7 II 8 9 We review de novo the grant or denial of a motion to 10 dismiss a complaint. See Woods v. Rondout Valley Cent. Sch. 11 Dist. Bd. of Educ., 466 F.3d 232, 235 (2d Cir. 2006). 12 survive a motion to dismiss, a complaint must contain 13 sufficient factual matter, accepted as true, to state a 14 claim to relief that is plausible on its face. 15 v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. 16 Corp. v. Twombly, 550 U.S. 554, 570 (2007)). 17 facial plausibility when the plaintiff pleads factual 18 content that allows the court to draw the reasonable 19 inference that the defendant is liable for the misconduct 20 alleged. Id. 21 22 III 10 To Ashcroft A claim has 1 We first consider defendants challenge to the district 2 court s order denying dismissal of claims related to the 3 conditions of confinement--claims 3, 5 (in part), 7, 8, and 4 20-23. 5 The district court ruled on the defendants motions to 6 dismiss prior to the Supreme Court s decisions in Twombly 7 and Iqbal. 8 would not dismiss a claim unless it appears beyond doubt . 9 . . that the plaintiff can prove no set of facts which would It applied a standard of review under which it 10 entitle him to relief. Turkmen, 2006 WL 1662663, at *24 11 (citing Jaghory v. N.Y. State Dep t of Educ., 131 F.3d 326, 12 329 (2d Cir. 1997)). 13 decision, Twombly and Iqbal require a heightened pleading 14 standard in those contexts where factual amplification is 15 needed to render a claim plausible. 16 America, N.A. (USA), 524 F.3d 217, 225 (2d Cir. 2008) 17 (internal quotation marks, citations, brackets, and emphasis 18 omitted). 19 challenged claims satisfy the pleading standard of Twombly 20 and Iqbal; however, in the circumstances of this case--where 21 plaintiffs have already announced their intent to file a 22 Fourth Amended Complaint to preserve for the putative class Now, following the district court s Ross v. Bank of We could undertake to decide whether the 11 1 the claims asserted only by the settling plaintiffs--we 2 think it better to vacate that portion of the district 3 court s order denying dismissal of the conditions of 4 confinement claims on the ground that an outdated pleading 5 standard was applied, and to remand the case for further 6 proceedings consistent with the standard articulated in 7 Twombly and Iqbal. 8 9 It may be that the district court will grant plaintiffs leave to file the proposed Fourth Amended Complaint to 10 satisfy the heightened pleading standard. See Fed. R. Civ. 11 P. 15(a)(2) (providing that a court should freely give 12 leave when justice so requires ). 13 whether plaintiffs should be allowed to replead yet again 14 because, [i]n the ordinary course, we are accustomed to 15 reviewing a district court s decision whether to grant or 16 deny leave to amend, rather than making that decision for 17 ourselves in the first instance. 18 F.3d 820, 822 (2d Cir. 2009). We decline to consider Iqbal v. Ashcroft, 574 19 If the district court denies leave to file the proposed 20 Fourth Amended Complaint, it should evaluate the sufficiency 21 of the Third Amended Complaint in light of the settlement 22 and the heightened pleading standard. 12 The district court 1 can then address whether, under Twombly and Iqbal, the Third 2 Amended Complaint fails to state a claim, or inadequately 3 alleges the personal involvement of the moving defendants, 4 or entitles the moving defendants to qualified immunity with 5 respect to the conditions of confinement claims. 6 At this stage of proceedings, we do no more than vacate 7 the order denying the motions to dismiss with respect to the 8 conditions of confinement claims, and remand to the district 9 court for further proceedings. 10 IV 11 12 The district court entered final judgment dismissing 13 plaintiffs length of detention claims as against all 14 defendants for failure to state a claim. 15 challenge these dismissals. Plaintiffs 16 The claims concerning length of detention allege 17 generally that defendants detained plaintiffs longer than 18 necessary to effect their removal (or voluntary departure) 19 from the United States. 20 that they violated the immigration laws (for instance by 21 overstaying their visas), they allege that the Government 22 used these immigration violations as a cover, as an excuse Although plaintiffs acknowledge 13 1 to investigate whether plaintiffs were tied to terrorism. 2 Turkmen, 2006 WL 1662663, at *1. 3 their excessive detentions violated their Fourth and Fifth 4 Amendment rights.4 Plaintiffs maintain that 5 A. The Statutory Scheme 6 By statute, aliens ordered removed shall be removed by 7 the Attorney General within the 90-day removal period. 8 See 8 U.S.C. § 1231(a)(1)(A). 9 detain an alien ordered removed until removal is effected, 10 11 The government is required to at least for the removal period. Id. § 1231(a)(2). By regulation, prior to the expiration of the removal 12 period, the District Director or the Director of the 13 Detention and Removal Field Office conducts a custody 14 review --a review of an alien s record to determine whether 15 detention is warranted after the removal period (if removal 16 cannot be accomplished during the removal period). 17 C.F.R. § 241.4(c)(1), (h), (k)(1)(i). 18 this determination include a detainee s criminal conduct, 4 See 8 Factors considered in Claim 1 alleged that a prolonged detention was an unreasonable seizure under the Fourth Amendment; Claim 2 that it was a violation of the Due Process Clause of the Fifth Amendment; and Claim 5 that it (along with other conduct) violated the equal protection guarantee of the Fifth Amendment. 14 1 mental health, ties to the United States, prior immigration 2 violations and history, and the likelihood that the alien is 3 a significant flight risk or a potential danger to the 4 community. 5 detained, the regulations require additional periodic 6 custody reviews. 7 Notice of the records review component of the custody review 8 must be provided to an alien so that he may submit 9 information in support of his release. 10 See 8 C.F.R. § 241.4(f). If an alien is further See 8 C.F.R. § 241.4(k)(1)(ii), (k)(2). See 8 C.F.R. § 241.4(h)(2). 11 B. Zadvydas 12 In Zadvydas v. Davis, 533 U.S. 678 (2001), two aliens 13 who had been ordered removed claimed that the length of 14 their detention following the 90-day removal period violated 15 their due process rights. 16 remove the aliens because no country was willing to accept 17 them. 18 authorizes indefinite post-removal-period detention. 19 Supreme Court concluded, however, that such a reading would 20 render the statute unconstitutional in certain contexts 21 under the Fifth Amendment s Due Process Clause, and held 22 that once removal is no longer reasonably foreseeable, The Government had been unable to The Government argued that 8 U.S.C. § 1231(a)(6) 15 The 1 continued detention is no longer authorized by statute. 2 Zadvydas, 533 U.S. at 699. 3 In order to give appropriate leeway to the Executive 4 Branch (based on its immigration-related expertise and 5 the serious administrative needs and concerns associated 6 with immigration enforcement), and [i]n order to limit the 7 occasions when courts will need to make the difficult 8 judgments required by recognizing such Executive leeway, 9 Zadvydas accorded a presumption of reasonableness to six 10 months detention for an alien subject to an order of 11 removal.5 Id. at 700-01. Zadvydas indicated that, 5 The seven named plaintiffs were detained for the following durations: Turkmen was detained for three months and 25 days from the date he accepted a voluntary departure order; Sachdeva was detained for three months and 17 days after he was ordered removed; Asif-Ur-Rehman Saffi was detained for four months and 18 days after he was ordered removed; Ashraf Ibrahim was detained for four months and 22 days after he was ordered removed; Hany Ibrahim was detained for six months and nine days after he was ordered removed; Yasser Ebrahim was detained for six months and 16 days after he was ordered removed; and Shakir Baloch was detained for six months and 27 days after he was ordered removed. Accordingly, Turkmen, Sachdeva, and two of the settling plaintiffs were detained for less than six months; and three of the settling plaintiffs were detained in excess of six months. Turkmen s and Sachdeva s detentions were under six months, and thus were presumptively reasonable. However, our analysis proceeds to consider detentions in excess of six months because the proposed intervenor plaintiffs intend to assert claims 1, 2, and 5. See Comer v. Cisneros, 37 16 1 thereafter, the alien s continued detention would be deemed 2 unlawful if (1) an alien demonstrates that there is no 3 significant likelihood of removal in the reasonably 4 foreseeable future and (2) the government is unable to rebut 5 this showing. 6 2003). 7 Government s ability to detain aliens (other than those 8 serving criminal sentences) without jeopardizing their due 9 process rights. Wang v. Ashcroft, 320 F.3d 130, 146 (2d Cir. Zadvydas thus articulates the outer bounds of the Id. 10 C. The District Court s Decision 11 The district court, relying on Zadvydas and Wang, 12 concluded that plaintiffs failed to state a claim because 13 the complaint does not allege that during the period of 14 their detention there was no significant likelihood of 15 removal in the reasonably foreseeable future. Turkmen, F.3d 775, 799 (2d Cir. 1994) ( Where the claims of the named plaintiffs become moot prior to class certification, there are several ways in which mootness is not had. ); see also Swan v. Stoneman, 635 F.2d 97, 102 n.6 (2d Cir. 1980) ( To the extent that appellants argument is that Swan s death does not moot the class claim if one of the proposed intervenors can be substituted as named plaintiff, we agree. ); In re Nat l Australia Bank Sec. Litig., No. 03 Civ. 6537(BSJ), 2006 WL 3844463, at *3 (S.D.N.Y. Nov. 8, 2006) (explaining that live controversy exists where new named plaintiff may be substituted or may intervene upon pre-certification mooting of class representative s claims). 17 1 2006 WL 1662663, at *39. 2 the detentions were longer than necessary to effectuate 3 removal. 4 such a claim as a violation of due process would flood the 5 courts with habeas petitions brought by aliens seeking to be 6 removed as soon as they deemed it practicable. 7 (emphasis added). 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Id. The complaint alleged simply that As the district court reasoned, recognizing Id. The district court explained that: [Plaintiffs] assume that all that is required for the Attorney General to secure removal is a deportation order and an airplane. This assumption ignores legitimate foreign policy considerations and significant administrative burdens involved in enforcing immigration law in general, and, specifically, those concerns immediately following a terrorist attack perpetrated on the United States by non-citizens, some of whom had violated the terms of their visas at the time of the attack. Id. On appeal, plaintiffs argue that they were detained for 22 a criminal investigation, and their detentions thus 23 constituted separate seizures requiring their own 24 justification and probable cause. 25 the [district] court asked the wrong question. 26 question is not how long could Plaintiffs be detained, but 27 for what reason. 28 Br. at 20. As plaintiffs see it, The Plaintiffs-Appellees-Cross-Appellants Plaintiffs further argue that their prolonged 18 1 detentions violated their rights to substantive due process, 2 procedural due process, and equal protection.6 3 D. Qualified Immunity 4 Plaintiffs assert that the Zadvydas standard identifies 5 constitutional violations only when removal is impossible ; 6 they submit that it is inadequate to identify constitutional 7 violations where, as alleged here, defendants employ 8 detention as an alternative to removal. 9 Appellees-Cross-Appellants Br. at 27. Plaintiffs- We disagree. In 10 Whren v. United States, 517 U.S. 806, 813 (1996), the 11 Supreme Court held that a law enforcement official s actual 12 motivation for the Fourth Amendment seizure of a person is 13 constitutionally irrelevant if the seizure is supported by 14 probable cause. To the extent plaintiffs challenge their 6 Plaintiffs also argue that Ebrahim and Turkmen were removed under 8 U.S.C. § 1227(a)(1)(B), thereby rendering inapplicable the 8 U.S.C. § 1231(a)(6) framework described in the text. Assuming arguendo that Ebrahim and Turkmen did not waive this argument by failing to raise it before the district court and failing to plead the relevant details, plaintiffs argument overlooks (i) that an immigration judge found Ebrahim was a disappearance risk, and he thus fell under 8 U.S.C. § 1231(a)(6) (permitting further detention of an alien ordered removed who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal ), and (ii) that Turkmen declined to request bond after he accepted a voluntary departure order. 19 1 prolonged detention after final orders of removal (or 2 voluntary departure) were entered against them, it is clear 3 from the complaint that such detention was supported by the 4 IJs findings of removability, which constitute a good deal 5 more than probable cause. 6 lawfully detained as aliens subject to orders of removal (or 7 voluntary departure), they could not state a claim for 8 unconstitutionally prolonged detention without pleading 9 facts plausibly showing no significant likelihood of Because plaintiffs were thus 10 removal in the reasonably foreseeable future. Wang, 320 11 F.3d at 146; see also Zadvydas, 533 U.S. at 699. 12 absence of such a pleading, plaintiffs challenge to their 13 detention was properly dismissed under Federal Rule of Civil 14 Procedure 12(b)(6). 15 under what circumstances aliens subject to removal (or 16 voluntary departure) orders could state claims for 17 unconstitutional detentions without satisfying Zadvydas. 18 the extent plaintiffs claims are not based on Zadvydas, the 19 moving defendants are entitled to qualified immunity. 20 Pearson v. Callahan, 129 S. Ct. 808, 818 (2009) (concluding 21 that two-step qualified immunity analysis set forth in 22 Saucier v. Katz, 533 U.S. 194 (2001), is no longer In the Moreover, we need not decide whether or 20 To See 1 mandatory). In light of the analysis above, plaintiffs can point to 2 3 no authority clearly establishing a due process right to 4 immediate or prompt removal (following an order of removal 5 or voluntary departure). 6 *40. 7 qualified immunity with respect to claim 2. 8 9 Cf. Turkmen, 2006 WL 1662663, at The moving defendants therefore are entitled to Assuming arguendo that the Fourth Amendment applies to post-arrest detention, probable cause would be required only 10 if the detentions at issue were not otherwise authorized. 11 For reasons stated above, the moving defendants had an 12 objectively reasonable belief that the detentions were 13 authorized, and therefore are entitled to qualified immunity 14 with respect to claim 1. 15 Similarly, plaintiffs point to no authority clearly 16 establishing an equal protection right to be free of 17 selective enforcement of the immigration laws based on 18 national origin, race, or religion at the time of 19 plaintiffs detentions. 20 Discrimination Comm., 525 U.S. 471, 490-91 (1999) ( What 21 will be involved in deportation cases is not merely the 22 disclosure of normal domestic law enforcement priorities and See Reno v. American-Arab Anti- 21 1 techniques, but often the disclosure of foreign-policy 2 objectives and (as in this case) foreign-intelligence 3 products and techniques. 4 disclose its real reasons for deeming nationals of a 5 particular country a special threat--or indeed for simply 6 wishing to antagonize a particular foreign country by 7 focusing on that country s nationals--and even if it did 8 disclose them a court would be ill equipped to determine 9 their authenticity and utterly unable to assess their The Executive should not have to 10 adequacy. ); see also Zadvydas, 533 U.S. at 696 ( terrorism 11 might warrant special arguments for heightened deference 12 to the judgments of the political branches with respect to 13 matters of national security ); Matthews v. Diaz, 426 U.S. 14 67, 81-82 (1976) ( The reasons that preclude judicial review 15 of political questions also dictate a narrow standard of 16 review of decisions made by the Congress or the President in 17 the area of immigration and naturalization. ); but see Iqbal 18 v. Hasty, 490 F.3d 143, 175 (2d Cir. 2007) (determining that 19 Reno does not stand for the proposition that the Government 20 may subject members of a particular race, ethnicity, or 21 religion to more restrictive conditions of confinement than 22 members of other races, ethnic backgrounds, or religions ), 22 1 rev d on other grounds and remanded, Iqbal, 129 S. Ct. at 2 1954. 3 qualified immunity with respect to claim 5 (to the extent 4 that claim 5 is based on the length of plaintiffs 5 detentions). The moving defendants therefore are entitled to 6 CONCLUSION 7 8 9 10 For the foregoing reasons, we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion. 11 23

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