No Relief for Unlawful Detention of Illegals

     (CN) – Four Iranian brothers who spent years in jail after their immigration attorney said they belonged to a terrorist group cannot sue federal agents for wrongful detention, the 9th Circuit ruled Thursday.



     Mohammad, Mostafa, Mohsen and Mojtaba Mirmehdi applied for political asylum in 1998 after living in the United States for several years.
     The brothers claimed to have a “long-standing opposition to … [Iran’s] theocratic regime,” according to the ruling. Apparently unbeknownst to the brothers, their immigration attorney, Bahram Tabatabai, was under investigation by the FBI and the Immigration and Naturalization Service for immigration fraud. Federal agents arrested Tabatabai in 1999.
     As part of a deal he worked out with the government, Tabatabai helped the FBI and INS investigate the Mujahedin-e Khalq (MEK), a militant Iranian group opposed to the Islamic Republic that the Clinton administration designated as a terrorist organization in 1997.
     When Tabatabai fingered the Mirmehdi brothers as MEK supporters, agents arrested them in 1999 for immigration violations. The Mirmehdis were all out on bond in October 2001 when investigators found a document that supposedly listed members of an MEK cell in Los Angeles. The brothers had their bonds revoked and spent the next several years in the limbo of detention. They have consistently denied being members of an MEK cell, according to the ruling.
     They finally got out in 2005 after the government granted them withholding of removal. Immigration officials determined that they would likely be mistreated if sent back to Iran and found that the “government failed to establish that they were engaged in terrorist activity as defined by statute,” the ruling states.
     The Mirmehdis filed a federal lawsuit after their release against former Attorney General John Ashcroft, former FBI Director Robert Mueller and others, alleging unlawful detention, inhumane detention conditions, witness intimidation and the intentional infliction of emotional distress. Tabatabai’s government handlers, FBI agent Christopher Castillo and INS agent J.A. MacDowell, faced claims that they had unlawful detained the Mirmehdis and conspired to violate their civil rights. U.S. District Judge Manuel Real in Los Angeles dismissed these and many other claims for either lack of personal jurisdiction or failure to state a cause of action.
     The brothers fared no better on appeal to the 9th Circuit.
     In a unanimous ruling Thursday, the Pasadena-based federal appeals court affirmed the lower court, finding that illegal immigrants cannot recover for unlawful detention during deportation proceedings.
     A three-judge panel refused to expand the damages remedies for constitutional violations committed by federal agents that were first established in the U.S. Supreme Court’s landmark 1971 decision Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.
     “It is well established that immigrants’ remedies for vindicating the rights which they possess under the constitution are not coextensive with those offered to citizens,” Judge Diarmuid O’Scannlain wrote for the panel.
     He added that the “extensive remedial procedures available to and invoked by” the Mirmehdis during their detention, along with the “unique foreign policy considerations implicated in the immigration context” had persuaded the court not extend Bivens to illegal immigrants.
     O’Scannlain noted, however, that the present ruling should not be interpreted too broadly.
     “We do not hold that an illegal alien may never bring a Bivens claim,” he wrote. “Instead, we merely recognize that because Congress has the ability to ‘make rules as to aliens that would be unacceptable if applied to citizens,’ we must consider whether an immigrant may bring a Bivens claim to vindicate certain constitutional rights separately from whether a citizen may bring such a Bivens claim.”

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