and Submitted October 3, 2017 Seattle, Washington
from the United States District Court for the Western
District of Washington, No. 2:14-cv-01641-MJP Marsha J.
Pechman, Senior District Judge, Presiding
Adams (argued) and Glenda M. Aldana Madrid, Northwest
Immigrant Rights Project, Seattle, Washington; Christopher
Schenck and Stephanie M. Martinez, Kilpatrick Townsend &
Stockton LLP, Seattle, Washington; for Plaintiff-Appellant.
E. Lee (argued), Law Office of Amanda Lee PLLC, Seattle,
Washington, for Defendant-Appellee.
Thomas Byron III (argued) and Barbara L. Herwig, Appellate
Staff; Joseph H. Harrington, Acting United States Attorney;
Chad A. Readler, Acting Assistant Attorney General; Civil
Division, United States Department of Justice, Washington,
D.C.; for Amicus Curiae United States.
Kenney, American Immigration Council, Washington, D.C.; Trina
Realmuto, National Immigration Project of the National
Lawyers Guild, Boston, Massachusetts; for Amici Curiae
American Immigration Council and National Immigration Project
of the National Lawyers Guild.
Before: Kermit Victor Lipez, [*] Kim McLane Wardlaw, and John B.
Owens, Circuit Judges.
panel reversed the district court's order declining to
extend a Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), remedy to an
immigrant pursuing lawful permanent resident status where a
government immigration attorney intentionally submitted a
forged document in an immigration proceeding to completely
bar that immigrant from pursuing relief to which he was
panel concluded that while the Supreme Court "has made
clear that expanding the Bivens remedy is now a
'disfavored' judicial activity," Ziglar v.
Abbasi, 137 S.Ct. 1843, 1857 (2017) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)), a
Bivens remedy was available in this narrow
circumstance because none of the special factors outlined in
Abbasi and other Supreme Court precedent applied.
panel affirmed the district court's order denying
qualified immunity to ICE Assistant Chief Counsel Jonathan
Love because qualified immunity was not meant to protect
those who are "plainly incompetent or those who
knowingly violate the law." Taylor v. Barkes,
135 S.Ct. 2042, 2044 (2015) (quoting Ashcroft v.
al-Kidd, 563 U.S. 731, 743 (2011)). The panel concluded
that qualified immunity could not shield an officer from suit
when he intentionally submitted a forged document in an
immigration proceeding in clear violation of 8 U.S.C. §
WARDLAW, CIRCUIT JUDGE:
tasked with answering in part a question asked by many legal
commentators in the wake of the Supreme Court's decision
in Ziglar v. Abbasi, 137 S.Ct. 1843 (2017): where
does Bivens stand? Bivens is the first
Supreme Court decision to recognize an implied right of
action for damages against federal officers alleged to have
violated a plaintiff's constitutional rights. See
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388, 392-98 (1971). Here, a U.S.
Immigration and Customs Enforcement (ICE) Assistant Chief
Counsel representing the government intentionally forged and
submitted an ostensible government document in an immigration
proceeding, which had the effect of barring Ignacio Lanuza
(Lanuza) from obtaining lawful permanent resident status, a
form of relief to which he was otherwise lawfully entitled.
We recognize that the Supreme Court "has made clear that
expanding the Bivens remedy is now a
'disfavored' judicial activity,"
Abbasi, 137 S.Ct. at 1857 (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 675 (2009)), but, if the principles
animating Bivens stand at all, they must provide a
remedy on these narrow and egregious facts. We therefore
reverse the district court's holding that Lanuza was not
entitled to a Bivens remedy.
is a 38-year-old lawful permanent resident married to a U.S.
citizen with two U.S. citizen children. He was born in Mexico
and first came to the United States without inspection when
he was seventeen years old. He lives and works in Seattle,
Washington. In July 2008, the Department of Homeland Security
(DHS) commenced removal proceedings against him before the
Tacoma immigration court, which were ultimately transferred
to the Seattle immigration court.
6, 2009, Lanuza appeared before an immigration judge for a
master calendar hearing. During that hearing, Lanuza notified
the court of his intention to apply for Cancellation of
Removal and Adjustment of Status for Certain Nonpermanent
Residents (cancellation of removal or cancellation) under 8
U.S.C. § 1229b(b)(1). At the time, he was prima facie
eligible to apply for cancellation of removal, which is a
type of immigration relief that enables nonpermanent
residents to adjust their status to that of permanent
residents. To qualify for cancellation, a person must
demonstrate (1) continuous physical presence in the United
States for ten years immediately prior to being served with
the Notice to Appear; (2) good moral character; (3) that he
is not subject to any other bar to eligibility on account of
having certain criminal convictions; and (4) the existence of
a U.S. citizen or lawful permanent resident spouse, parent,
or child who would suffer exceptional and extremely unusual
hardship if the person were removed. See 8 U.S.C.
§ 1229b(b)(1). As later events would confirm, Lanuza
satisfied all these requirements: (1) he had been residing
continuously in the United States since 1996 and thus had
more than ten years of continuous residence; (2) he possessed
good moral character; (3) he was not subject to any other bar
to eligibility; and (4) his U.S. citizen wife and children
would suffer exceptional and extremely unusual hardship
the master calendar hearing, ICE Assistant Chief Counsel
Jonathan Love ("Love") stated that Lanuza's
immigration file contained an I-826 form, signed by Lanuza,
accepting voluntary departure to Mexico in 2000. The I-826
form was critical in determining whether Lanuza would be able
to remain in the United States with his family, because a
signed I-826 form would render him ineligible for
cancellation of removal. By signing an I-826 form, a person
accepts an administrative voluntary departure instead of
exercising his right to appear before an immigration judge in
removal proceedings and thereby breaks whatever continuous
physical presence he may have accrued. See Ibarra-Flores
v. Gonzales, 439 F.3d 614, 618-20 (9th Cir. 2006);
see also Landin-Zavala v. Gonzales, 488 F.3d 1150,
1152-53 (9th Cir. 2007) ("When [an individual] leaves
pursuant to an administrative voluntary departure[ ]'[he]
leaves with the knowledge that he does so in lieu of being
placed in proceedings. . . .'" (quoting Tapia v.
Gonzales, 430 F.3d 997, 1002 (9th Cir. 2005))). As a
result, even though Lanuza met all the other elements of
§ 1229b(b)(1), if Lanuza had signed an I-826 form in
2000, he would have accrued continuous residence in the
United States for only seven years, rather than the requisite
ten years. See 8 U.S.C. § 1229b(b)(1).
11, 2009 at Lanuza's actual immigration hearing, Love
submitted an I-826 form agreeing to voluntary departure,
purportedly signed by Lanuza on January 13, 2000, making
Lanuza ineligible for cancellation of removal. See
id. Based solely on that I-826 form, the immigration
judge issued an order of removal on January 5, 2010; the
Board of Immigration Appeals ("BIA") affirmed on
November 15, 2011.
December 9, 2011, Lanuza hired new counsel, Hilary Han
("Han"), who discovered, for the first time,
evidence that the I-826 form Love submitted was forged. Han
sent the I-826 form to a forensic examiner, who, on February
1, 2012, confirmed that the form was forged. While several
aspects of the form demonstrated it was forged, most
glaringly, it referred to the "U.S. Department of
Homeland Security" at the top of the page, an agency
that did not exist at the time Lanuza purportedly signed the
form on January 13, 2000. Congress created DHS in response to
the September 11, 2001 terrorist attacks, and the agency did
not begin formal operations until 2003. Therefore, it would
have been impossible for Lanuza to sign the DHS I-826 form in
January 2000, because that form did not then exist.
on the forensic report, the BIA reopened and remanded the
case, and, on remand, the immigration judge ultimately found
that Lanuza was prima facie eligible to apply for
cancellation of removal. The agency adjusted his status to
lawful permanent resident on January 9, 2014.
government did not take any action against Love until after
this lawsuit was filed on October 24, 2014. Love was
ultimately prosecuted and pleaded guilty to deprivation of
rights under color of law pursuant to 18 U.S.C. § 242,
which ICE characterized as a "deprivation of
constitutional rights" in a press release. Love was
sentenced to a thirty-day term of imprisonment, one year of
supervised release, and 100 hours of community service.
See United States v. Love, No. 2:16-cr-00005-BAT-1,
ECF No. 16 (W.D. Wash. April 20, 2016). He was also barred
from practicing law for ten years and was required to pay
restitution to Lanuza in the amount of $12, 000, a figure the
government proposed based on its approximation of the legal
fees Lanuza paid related to his removal proceedings as a
result of Love's submission of the forged I-826 form.
Id. at 6-7.
October 23, 2014, Lanuza filed a complaint against Love and
the United States alleging, among other things, that he was
entitled to damages under Bivens for a violation of
his Fifth Amendment right to due process. Love filed a motion
to dismiss, which the district court hesitantly granted.
While the district court believed Lanuza was entitled to
relief, the court felt its hands were tied by our decision in
Mirmehdi v. United States, 689 F.3d 975 (9th Cir.
2012), which declined to extend Bivens to a claim
for wrongful detention in the course of immigration removal
proceedings. The district court further held that, if a
Bivens remedy were available, Love was not entitled
to qualified immunity. Lanuza timely appealed.
a Bivens remedy is available here turns on the
presence of the conditions articulated in Abbasi for
extending the Bivens remedy. See Abbasi,
137 S.Ct. at 1856-58. In Abbasi, the Supreme Court
addressed whether Respondents, noncitizens who were suspected
of having ties to terrorism and detained in harsh conditions
in the aftermath of September 11, could pursue
Bivens remedies against various high-level federal
officials responsible for the policy that authorized their
detention and the wardens responsible for their treatment
thereafter. Id. at 1853-54. The Court articulated a
two-part test for determining whether Bivens
remedies should be extended. Id. at 1859-60. First,
courts must determine whether the plaintiff is seeking a
Bivens remedy in a new context. Id. If the
answer to this question is "no," then no further
analysis is required. Id. If the answer is
"yes," then the court must determine whether
"special factors counsel hesitation."
Id. at 1860.
presents a new context if it "is different in a
meaningful way from previous Bivens cases decided by
[the Supreme Court]." Id. ...