Agents Can’t Duck Suit|Over Deportation Threat

     SAN JOSE, Calif. — A federal judge ruled that U.S. citizen can sue two Immigrations and Custom Enforcement agents who threatened him with deportation because law enforcement officers “are responsible for the natural consequences of their actions.”
     U.S. District Judge Maria-Elena James’ May 10 ruling comes in response to ICE agents John Garcia and Ching Chang’s motion to dismiss Bernardo Mendia’s third amended complaint.
     Mendia claims that after he was arrested for “various alleged financial crimes” and was granted bail, ICE agents John Garcia and Ching Chang came to interview him in jail. Mendia says he told them he was a U.S. citizen and offered his Social Security number and passport as proof, and then exercised his Fifth Amendment right to remain silent.
     The agents became irate and threatened him, Mendia says.
     “Oh, you don’t want to talk to me? We’ll see if you want to talk when we’re deporting your ass,” Garcia said, according to the complaint.
     The ICE agents immediately lodged an immigration detainer for Mendia, stating he was a Mexican national being investigated for possible deportation. With the immigration hold, no bail bondsman would help him and Mendia didn’t have the money to post bail himself.
     Mendia says he also couldn’t make a plea bargain that involved probation and even after the trial court granted Mendia release on his own recognizance, he says he was afraid to leave jail because he thought ICE would just arrest him again and deport him.
     The man finally left jail nearly two years after his arrest, when he discovered in court that ICE had canceled the immigration hold 18 months earlier.
     After his original complaint was dismissed by James, Mendia, appealed and pointed to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics to assert a claim for violations of his rights to due process and reasonable bail. He also said the Federal Tort Claims Act supported his claims for false imprisonment, malicious prosecution, abuse of process, negligence and negligent infliction of emotional distress. A three-judge panel of Ninth Circuit reversed the dismissal in 2014.
     Back in James’ court, Chang and Garcia challenged Mendia’s complaint on two grounds: that they are entitled to qualified immunity due to their job as law enforcement officers, and that Bivens doesn’t apply — the Supreme Court ruling allowed Webster Bivens to sue for violation of his Fourth Amendment rights after the Federal Bureau of Narcotics searched his home without a warrant and he was arrested.
     James was occasionally terse in her latest denial of the agents’ motion to dismiss, pointing out that many issues that had already been addressed by the Ninth Circuit.
     “Regardless of what defendants now allege was the purpose of issuing a detainer at the time, the detainer form they utilized had specific connotations and foreseeable effects,” she wrote. “Plaintiff’s factual allegations show that defendants could not have reasonably believed probable cause existed to place a detainer on him.”
     She added that even though Mendia was not in the custody of ICE, it has been “clearly established that a law enforcement officer is responsible for the natural consequences of his actions.”
     James also showed little patience for the argument that Bivens did not apply.
     “Defendants’ general argument that this court should refuse to imply a Bivens remedy merely because no other court has in this precise context is a non-starter. The court cannot wait for ‘guidance’ from the Supreme Court on this matter — the Supreme Court does not issue independent decrees but hears appeals from cases just like this one,” she wrote.
     Mendia is represented by Elisa Marie Della-Piana of the Lawyers Committee for Civil Rights in San Francisco and Michael David Battaglia of Mayer Brown in Palo Alto.
     “Unfortunately, the United States has a long history of putting immigration holds on its own citizens, just because of their race or national origin,” Della-Piana said in a statement. “There are over 17 million foreign-born citizens, and no one should be kept behind bars by their own government simply because of their name, appearance or the place of their birth.
     “We hope that Mr. Mendia’s case, and others like it, will cause Immigrations and Customs Enforcement to stop this unconstitutional practice.”
     Della-Piana also credited her colleagues at Mayer Brown for doing excellent work.
     The U.S. Justice Department declined to comment.

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