Appeal from the United States District Court for the Western District of Texas.
Appeal from the United States District Court for the Northern District of Texas.
For Alejandro Garcia DE LA Paz, Plaintiff - Appellee (13-50768): David Anton Armendariz, Esq., De Mott McChesney Curtright & Armendariz, L.L.P., San Antonio, TX.
For JASON COY, United States Customs and Border, Defendant - Appellant (13-50768): Edward Himmelfarb, Joseph Cuauhtemoc Rodriguez, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC.
For MARIO VEGA, United States Customs and Border Protection Officer, Defendant - Appellant (13-50768): Edward Himmelfarb, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC; Joseph Cuauhtemoc Rodriguez, U.S. Attorney's Office, Western District of Texas, San Antonio, TX.
For American Immigration Council, Amicus Curiae (13-50768): Mary A. Kenney, American Immigration Council, Washington, DC; Trina Ann Realmuto, National Immigration Project, of the National Lawyers Guild, Boston, MA.
For National Immigration Project of The National Lawyer's Guild, Amicus Curiae (13-50768): Mary A. Kenney, American Immigration Council, Washington, DC; Trina Ann Realmuto, National Immigration Project, of the National Lawyers Guild, Boston, MA.
For DANIEL FRIAS, Plaintiff - Appellee (14-10018): David Anton Armendariz, Esq., De Mott McChesney Curtright & Armendariz, L.L.P., San Antonio, TX.
For ARTURO TORREZ, United States Customs and Border Protection Officer, formerly known as John Doe, Defendant - Appellant (14-10018): Edward Himmelfarb, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC; Lisa Robin Hasday, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX.
For AMERICAN IMMIGRATION COUNCIL, Amicus Curiae (14-10018): Mary A. Kenney, American Immigration Council, Washington, DC.
For NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYER'S GUILD, Amicus Curiae (14-10018): Trina Ann Realmuto, National Immigration Project of the National Lawyers Guild, Boston, MA.
Before JOLLY and JONES, Circuit Judges, and GODBEY, District Judge.[*]
Customs and Border Patrol (" CBP" ) agents apprehended Daniel Frias and Alejandro Garcia de la Paz, both illegal aliens, in separate incidents miles from the U.S.-Mexico border, in the heart of Texas. Both allege that the agents stopped them only because they are Hispanic. Represented by the same attorney, both filed Bivens suits against the arresting agents, alleging Fourth Amendment violations. On appeal, both cases present the same fundamental question: can illegal aliens pursue Bivens claims against CBP agents for illegally stopping and arresting them? This question has not been squarely faced in our circuit, although two other circuits have held in the negative. Mirmehdi v. United States, 689 F.3d 975 (9th Cir. 2011) (no Bivens claim for constitutionally invalid immigration detention); Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc) (no Bivens claim regarding extraordinary rendition of alien). Like those courts, we conclude that Bivens actions are not available for claims that can be addressed in civil immigration removal proceedings. Accordingly, we REVERSE and REMAND with instructions to dismiss both actions against the individual officers.
Frias's Stop and Arrest. On April 28, 2010 Frias and a colleague were travelling
on I-20 about twenty miles east of Abilene, heading west toward Baird, Texas. The two men were in a four-door Dodge pickup truck modified to carry heavy loads. At the same time, CBP agent Arturo Torrez was driving eastbound on I-20 toward Dallas. As Frias's truck passed, Torrez noticed what looked like bodies lying in the backseat. Torrez also observed that the truck had a large shielded rear bed. Torrez immediately turned his vehicle around to follow the truck. After Torrez caught up, he radioed for a " 1028" to determine the vehicle's origin. He then maneuvered his vehicle alongside Frias's to look inside. There, Torrez again saw what looked like bodies lying in the backseat. When the " 1028" revealed that the truck was not from the area, Torrez knew enough. He maneuvered his vehicle behind the truck and turned on his emergency lights. At the time of the stop, the men were about 250 miles from the U.S.-Mexico border. After a brief interrogation, Frias admitted he was an illegal alien and was taken into custody. Although the reason does not appear in the record, Frias's immigration proceedings have been terminated.
As a result of his stop and arrest, Frias brought five claims against the U.S. Government and Torrez. His first two claims sought declaratory relief under the Declaratory Judgment Act, 28 U.S.C. § 2201, and the Administrative Procedures Act, 5 U.S.C. § § 500-596. Third, he brought a Bivens claim against Torrez individually, alleging that Torrez violated the Fourth Amendment because he lacked reasonable suspicion for the stop and probable cause for Frias's arrest. The fourth and fifth claims were brought under the Federal Tort Claims Act, 28 U.S.C. § § 2671-2680, against the government for false imprisonment and assault.
Both the government and Torrez moved to dismiss the complaint. Torrez argued that the Immigration and Nationality Act (" INA" ), 8 U.S.C. § 1101, et seq., makes a Bivens claim unavailable and asserted qualified immunity. The district court disagreed, holding that the INA does not preclude a Bivens claim. It postponed ruling on qualified immunity until the summary judgment phase. In response to Torrez's summary judgment motion, the court held definitively that Torrez does not have qualified immunity. He timely appealed.
Garcia's Stop and Arrest.
 On October 11, 2010, Garcia and three others left their worksite near Vanderpool, Texas in a red Ford F-150 extended-cab pickup truck, travelling north on Ranch Road 187. The men were heading for San Antonio, from which their travel originated. As the four men travelled north, they passed CBP Agents Coy and Vega who were travelling south on Ranch Road 187 in separate vehicles. When the truck then turned east onto Ranch Road 337, Coy and Vega decided to follow it. Sometime thereafter, and about 100 miles from the U.S.-Mexico border, the agents decided to stop the truck. ...