Morales v. Chadbourne

United States Court of Appeals
For the First Circuit
No. 14-1425
ADA MORALES,
Plaintiff, Appellee,
v.
BRUCE CHADBOURNE, DAVID RICCIO, and EDWARD DONAGHY,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Howard, Chief Judge,
Lipez and Barron, Circuit Judges.
Stuart F. Delery, Assistant Attorney General, with whom J. Max
Weintraub, Aaron S. Goldsmith, and William C. Peachey were on
brief, for appellants.
Katherine Desormeau, with whom R. Orion Danjuma, Omar C.
Jadwat, Mark W. Freel, Mackenzie Mango, and Lena Graber were on
brief, for appellee.
July 17, 2015
LIPEZ, Circuit Judge. Ada Morales is a naturalized
United States citizen who was born in Guatemala. In May 2009,
Morales was imprisoned for 24 hours pursuant to an immigration
detainer so agents from the U.S. Immigration and Customs
Enforcement ("ICE") could investigate her immigration status. She
brought this action alleging, inter alia, that the ICE agents --
defendants Edward Donaghy, Bruce Chadbourne, and David Riccio --
unlawfully detained her in violation of her Fourth and Fifth
Amendment rights.
Donaghy, the ICE agent who issued the detainer, moved for
summary judgment on the basis of qualified immunity. Chadbourne
and Riccio, Donaghy's supervisors, moved to dismiss, also on the
basis of qualified immunity. The district court denied the
defendants' motions, and they filed this interlocutory appeal.
Donaghy argues that he is entitled to qualified immunity
on Morales's Fourth Amendment claim because the law was not clearly
established in 2009 that an ICE agent was required to have probable
cause before issuing a detainer. In the alternative, he contends
that, if probable cause was required, the law was not clearly
established in 2009 that the issuance of the detainer under the
applicable circumstances did not constitute probable cause. With
regard to Morales's Fifth Amendment equal protection claim, Donaghy
argues that he did not violate her clearly established Fifth
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Amendment rights because he did not detain Morales solely on the
basis of her race, ethnicity, or national origin.
Chadbourne and Riccio contend that they are entitled to
qualified immunity because Morales failed to allege sufficient
facts to plausibly state a supervisory liability claim holding them
responsible for allowing their subordinates to issue detainers
against U.S. citizens without probable cause in violation of the
Fourth Amendment. They further argue that, even if Morales's
allegations were sufficient, they did not violate a clearly
established Fourth Amendment right.
After review, we agree with Morales that the law was
clearly established in 2009 that, under the Fourth Amendment, an
ICE agent required probable cause to issue an immigration detainer.
We, therefore, affirm the district court's denial of qualified
immunity on Morales's Fourth Amendment claim against Donaghy on
that issue. Because Donaghy's Fourth Amendment argument regarding
the circumstances surrounding the detainer that he issued against
Morales and his Fifth Amendment equal protection argument do not
present pure issues of law, his appeal on these grounds must be
dismissed for lack of appellate jurisdiction. These arguments rely
on facts asserted in Donaghy's declarations, and those facts were
not among the ones that the district court relied upon in denying
Donaghy's motion. Finally, because Morales has sufficiently
alleged that supervisors Chadbourne and Riccio violated a clearly
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established Fourth Amendment right, we also affirm the district
court's denial of qualified immunity on Morales's Fourth Amendment
supervisory liability claim against them. We remand for
proceedings consistent with this opinion.
I.
This appeal addresses both Donaghy's motion for summary
judgment as well as Chadbourne and Riccio's motion to dismiss.
Because the appeal is interlocutory, the summary judgment standard
requires that we "take, as given, the facts that the district court
assumed when it denied summary judgment." Johnson v. Jones, 515
U.S. 304, 319 (1995). The motion to dismiss standard requires that
we draw the facts from Morales's complaint and documents
incorporated into the complaint. Hernandez-Cuevas v. Taylor, 723
F.3d 91, 94 (1st Cir. 2013). For this appeal, however, the facts
are the same regardless of which standard we use. Because the
district court took Morales's allegations as true in deciding both
motions, and did not rely on any contrary assertions by the
defendants, the pertinent facts for our review are those alleged in
Morales's complaint.
Morales is a United States citizen and long-time resident
of Rhode Island. Born in Guatemala, she immigrated to the United
States in the 1980s and naturalized in 1995. Since then, on at
least two occasions, she has been detained by government officials
pursuant to an immigration detainer, which is a request from ICE to
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another law enforcement agency to detain a non-citizen up to 48
hours so that ICE may investigate whether the non-citizen is
subject to deportation. See 8 C.F.R. § 287.7(a), (d).
The first incident took place in July 2004. Morales had
been arrested by the Cranston, Rhode Island, Police Department at
a local K-Mart on charges that were ultimately dismissed. Even
though she was a U.S. citizen, ICE issued a detainer against
Morales indicating that she was a non-citizen subject to removal.
Morales was detained overnight pursuant to the detainer. Her
extended detention caused her to miss a flight she had scheduled to
visit relatives in Guatemala and to forfeit the $3,000 airfare.
The second incident, and the basis for this action,
occurred in May 2009. On May 1, 2009, Morales was arrested while
playing with her children in her front yard by the Rhode Island
State Police on a warrant for criminal charges relating to alleged
misrepresentations in a state benefits application.1 She was
transported to the police station, where a state police officer
asked her where she was born and whether she was "legal." Morales
responded that she was born in Guatemala and that she was a U.S.
citizen. Morales was then transported to the Rhode Island Adult
Correctional Institutions ("ACI"), where she was booked into
custody.
1
According to the complaint, Morales's criminal charges have
been resolved and she remains on probation.
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On May 4, 2009, ICE faxed an immigration detainer form to
the ACI. The detainer incorrectly identified Morales as an alien
whose nationality was Guatemalan, and stated that an
"[i]nvestigation has been initiated to determine whether [Morales]
is subject to removal from the United States." The detainer
further informed the ACI that "[f]ederal regulations (8 C.F.R.
§ 287.7) require that you detain the alien for a period not to
exceed 48 hours . . . to provide adequate time for DHS to assume
custody of the alien." The detainer was issued by Donaghy, an ICE
agent based in ICE's Rhode Island Office. Donaghy was supervised
by Riccio, the Resident-Agent-in-Charge of the Rhode Island office,
and Chadbourne, the Field Office Director of the Boston Field
Office, which has responsibility over ICE operations in Rhode
Island.
Before the detainer was issued, no ICE official
interviewed Morales to ask whether she was a U.S. citizen, nor did
anyone request documentation from her relating to her citizenship.
ICE officials also failed to search federal immigration databases2
to obtain a copy of her citizenship application or certificate of
naturalization.
2
Donaghy claims in declarations attached to his motion for
summary judgment and reply brief filed in the district court that
he did search federal government databases when investigating
Morales's immigration status. The district court, however, did not
rely on those declarations in deciding Donaghy's motion. We,
therefore, recite Morales's version of the facts. See Johnson, 515
U.S. at 319.
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The same day that ICE sent the immigration detainer to
the ACI, a state court ordered Morales released from criminal
custody on personal recognizance. Instead of being released,
however, Morales was re-booked into ACI custody, strip searched,
and kept in jail for 24 more hours based solely on the ICE
detainer. When she was notified that her continued detention was
based on the detainer, Morales told multiple ACI employees that the
detainer was issued in error because she is a U.S. citizen. The
ACI employees disregarded her pleas, and she was kept in detention.
On May 5, 2009, ICE agents arrived at the ACI and drove
Morales to an ICE office in Warwick, Rhode Island. There, the ICE
agents interviewed her, confirmed that she was a U.S. citizen, and
released her to her family. Upon releasing her, an ICE agent
apologized to Morales, but told her "it could happen again in the
future."
On April 24, 2012, Morales filed a civil damages action
against defendants Donaghy, Riccio, and Chadbourne, as well as
other federal and state defendants who are not parties to this
appeal. Morales alleged, inter alia, that, by issuing the detainer
against her, Donaghy violated her Fourth Amendment right to be free
from unreasonable seizures and her Fifth Amendment equal protection
right to be free from discrimination on the basis of race,
ethnicity, and national origin. She alleged that Chadbourne and
Riccio knew or were deliberately indifferent to the fact that their
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subordinates routinely issued ICE detainers without probable cause,
and formulated or condoned policies permitting the issuance of
detainers without probable cause in violation of the Fourth
Amendment. Morales sought damages for these constitutional
violations under Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388 (1971), as well as injunctive
relief to prevent defendants from subjecting her to unlawful
immigration detention again in the future.
In lieu of answering the complaint, defendants filed
various motions to dismiss and for summary judgment. As relevant
here, Donaghy moved for summary judgment on the basis of qualified
immunity on the Fourth and Fifth Amendment claims. Chadbourne and
Riccio moved to dismiss Morales’s Fourth Amendment supervisory
liability claim against them, also on the basis of qualified
immunity. On February 12, 2014, the district court denied
defendants' motions, and defendants timely filed interlocutory
appeals.
II.
A. Claims Against Donaghy
1. Fourth Amendment Claim
We begin by addressing Donaghy's contention that he is
entitled to qualified immunity on Morales's Fourth Amendment claim.
We review de novo a district court's denial of a federal officer's
qualified immunity defense. See Hernandez-Cuevas v. Taylor, 723
-8-
F.3d 91, 97 (1st Cir. 2013). To determine whether a defendant is
entitled to qualified immunity, we generally proceed through a
two-part analysis, considering whether "(1) the facts alleged show
the defendant[']s conduct violated a constitutional right, and (2)
the contours of this right are 'clearly established' under
then-existing law so that a reasonable officer would have known
that his conduct was unlawful." Santana v. Calderón, 342 F.3d 18,
23 (1st Cir. 2003).
Donaghy makes two arguments with regard to Morales's
Fourth Amendment claim. His first argument implicates only the
second prong of the qualified immunity analysis. He contends that
the law was not clearly established in 2009 that an ICE agent
needed probable cause when issuing a detainer. His second argument
implicates both prongs of the qualified immunity analysis. He
argues that, if probable cause was required, the undisputed facts
of this case demonstrate that he had probable cause, and, moreover,
the law was not clearly established in 2009 that these facts fell
short of probable cause. We address each argument in turn.
a. Whether Probable Cause Was Required
A government official's conduct violates clearly
established law when, "at the time of the challenged conduct, [t]he
contours of [a] right [are] sufficiently clear that every
reasonable official would . . . underst[and] that what he is doing
violates that right." Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083
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(2011) (internal quotation marks omitted). There does not need to
be a case exactly on point, "but existing precedent must have
placed the statutory or constitutional question beyond debate."
Id.; see also Hope v. Pelzer, 536 U.S. 730, 741 (2002)
("[O]fficials can still be on notice that their conduct violates
established law even in novel factual circumstances.").
Donaghy issued the immigration detainer against Morales
pursuant to 8 C.F.R. § 287.7. That regulation authorizes an ICE
official to issue a detainer to another law enforcement agency to
"seek[] custody of an alien presently in custody of that agency,
for the purpose of arresting and removing the alien." 8 C.F.R.
§ 287.7(a). Once the alien has completed her criminal custody and
is "not otherwise detained by a criminal justice agency," the
detainer instructs the agency to "maintain custody of the alien for
a period not to exceed 48 hours, excluding Saturdays, Sundays, and
holidays[,] in order to permit assumption of custody by [ICE]."
Id. § 287.7(d); see also id. § 287.7(a) (noting that a "detainer is
a request that [another law enforcement] agency advise [ICE], prior
to release of the alien, in order for [ICE] to arrange to assume
custody" of the alien). Thus, the sole purpose of a detainer is to
request the continued detention of an alien so that ICE officials
may assume custody of that alien and investigate whether to
initiate removal proceedings against her.
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Longstanding precedent establishes that "[t]he Fourth
Amendment applies to all seizures of the person, including seizures
that involve only a brief detention short of traditional arrest."
United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975) (citing
Davis v. Mississippi, 394 U.S. 721 (1969); Terry v. Ohio, 392 U.S.
1, 16-19 (1968)); see also Dunaway v. New York, 442 U.S. 200, 216
(1979) ("[D]etention for custodial interrogation -- regardless of
its label -- intrudes so severely on interests protected by the
Fourth Amendment as necessarily to trigger the traditional
safeguards against illegal arrest.").
In Brignoni-Ponce, the Supreme Court applied this well-
established principle to determine what standard of proof, if any,
an immigration officer must apply to stop and detain individuals to
investigate their immigration status. See 422 U.S. at 880-82. In
that case, the government argued that, within 100 miles of the
border, it had "authority to stop moving vehicles and question the
occupants about their citizenship, even when its officers have no
reason to believe that the occupants are aliens or that other
aliens may be concealed in the vehicle." Id. at 877. The Supreme
Court rejected the government's argument. The Court stated that,
just as in the criminal context, an immigration officer "must have
a reasonable suspicion" to justify briefly stopping individuals to
question them "about their citizenship and immigration status . . .
but any further detention . . . must be based on . . . probable
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cause." Id. at 881-82 (emphasis added) (citing Terry, 392 U.S. at
29); see also id. at 884 ("[T]he Fourth Amendment . . . forbids
stopping or detaining persons for questioning about their
citizenship on less than a reasonable suspicion that they may be
aliens.").
Guided by this Supreme Court precedent, we have also
required that immigration officers have reasonable suspicion to
briefly stop individuals to question them regarding their
immigration status and probable cause for any further arrest and
detention. See, e.g., United States v. Mendez-de Jesus, 85 F.3d 1,
3 (1st Cir. 1996) (recognizing that Brignoni-Ponce stands for "the
principle that an individual may not be [briefly] detained for
questioning about citizenship absent reasonable suspicion that the
person is an illegal alien"); Lopez v. Garriga, 917 F.2d 63, 69
(1st Cir. 1990) (noting that detention to inquire about an
individual's immigration status is "a seizure and implicate[s] the
[F]ourth [A]mendment" (citing Immigration & Naturalization Serv. v.
Delgado, 466 U.S. 210, 216-17 (1984); Terry, 392 U.S. at 21));
Navia-Duran v. Immigration & Naturalization Serv., 568 F.2d 803,
809 n.7 (1st Cir. 1977) (recognizing that an immigration arrest and
detention needs to be "supported by probable cause or reasonable
suspicion").
It was thus clearly established well before Morales was
detained in 2009 that immigration stops and arrests were subject to
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the same Fourth Amendment requirements that apply to other stops
and arrests -- reasonable suspicion for a brief stop, and probable
cause for any further arrest and detention. Moreover, there could
be no question in 2009 that detention authorized by an immigration
detainer would require more than just reasonable suspicion.
Although the line between an arrest that requires probable cause
and a temporary detention for interrogation which does not is not
always clear, pre-2009 cases did clearly show that 48 hours of
imprisonment -- which is what the detainer requests, see 8 C.F.R.
§ 287.7(d) -- falls well on the arrest side of the divide. See,
e.g., United States v. Place, 462 U.S. 696, 709 (1983) (emphasizing
that the Supreme Court had "never approved a seizure of the person
for the prolonged 90-minute period involved here" based solely on
reasonable suspicion, and "cannot do so on the facts presented by
this case"); Manzanarez v. Higdon, 575 F.3d 1135, 1148 (10th Cir.
2009) (explaining that it was unable to find any case in any
circuit upholding a detention of longer than 90 minutes based on
reasonable suspicion); see also Au Yi Lau v. Immigration &
Naturalization Serv., 445 F.2d 217, 222 (D.C. Cir. 1971) (whether
an immigration stop of "several minutes" could be justified based
solely on reasonable suspicion was a "difficult[]" question, but
upholding the stop as it was "minutes rather than hours").
This clear law establishing that the Constitution
requires probable cause for the immigration detention that a
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detainer requests is further reinforced by cases interpreting the
statute authorizing immigration detainers. Under federal law,
immigration officers may arrest and detain an alien "pending a
decision on whether the alien is to be removed from the United
States" if a "warrant [is] issued by the Attorney General." 8
U.S.C. § 1226(a). Statutory authority for warrantless enforcement
actions, including the issuance of detainers, is provided in 8
U.S.C. § 1357. Without a warrant, immigration officers are
authorized to arrest an alien only if they have "reason to believe
that the alien so arrested is in the United States in violation of
any [immigration] law or regulation and is likely to escape before
a warrant can be obtained for his arrest." Id. § 1357(a)(2)
(emphasis added); see also 8 C.F.R. § 287.8(c)(2)(i) ("An arrest
shall be made only when the designated immigration officer has
reason to believe that the person to be arrested has committed an
offense against the United States or is an alien illegally in the
United States." (emphasis added)). The provision specifies that in
order to issue a detainer for aliens who have violated controlled
substances laws, immigration officers require a "reason to believe
that the alien may not have been lawfully admitted to the United
States or otherwise is not lawfully present in the United States."
8 U.S.C. § 1357(d)(1) (emphasis added).
Courts have consistently held that the "reason to
believe" phrase in § 1357 "must be read in light of constitutional
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standards, so that 'reason to believe' must be considered the
equivalent of probable cause." Au Yi Lau, 445 F.2d at 222; see,
e.g., Tejeda-Mata v. Immigration & Naturalization Serv., 626 F.2d
721, 725 (9th Cir. 1980) ("The phrase 'has reason to believe' [in
§ 1357] has been equated with the constitutional requirement of
probable cause."); United States v. Cantu, 519 F.2d 494, 496 (7th
Cir. 1975) ("The words [in § 1357] of the statute 'reason to
believe' are properly taken to signify probable cause."); see also
United States v. Quintana, 623 F.3d 1237, 1239 (8th Cir. 2010)
("Because the Fourth Amendment applies to arrests of illegal
aliens, the term 'reason to believe' in § 1357(a)(2) means
constitutionally required probable cause.").
Based on the "robust consensus of cases [and] persuasive
authority" discussed above, al-Kidd, 131 S. Ct. at 2084, it is
beyond debate that an immigration officer in 2009 would need
probable cause to arrest and detain individuals for the purpose of
investigating their immigration status.
Nevertheless, Donaghy contends that he is entitled to
qualified immunity because there were no cases in 2009 that
specifically held that law enforcement officials required probable
cause in the "difficult and unique circumstance" of issuing a
detainer. In his view, the issuance of a detainer is factually
distinct from other immigration detentions because "[a]n
immigration detainer does not itself constitute an arrest," and he
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was "not himself in a position to control" what happened to Morales
after he issued the detainer. Appellants' Br. at 27, 28.
First, we pause to note the reason why there were likely
no cases in 2009 directly addressing immigration detainers. The
government had conceded for years that a detainer must be supported
by probable cause. For example, in 1985, the Immigration and
Naturalization Service stipulated that a detainer "may only be
authorized . . . when the officer has determined that there is
probable cause . . . ." Cervantez v. Whitfield, 776 F.2d 556, 560
(5th Cir. 1985). Because the government had agreed that the
issuance of a detainer required probable cause, there was never any
case or controversy requiring a court to make a determination on
this issue. See Cnty. Motors, Inc. v. Gen. Motors Corp., 278 F.3d
40, 43 (1st Cir. 2002) ("The Constitution grants federal courts
jurisdiction only over live cases or controversies." (citing U.S.
Const., art. III, § 2, cl. 1.)). A ruling in favor of Donaghy
would create a perverse incentive that would allow the government
to avoid liability by conceding an issue for decades and
subsequently arguing that the law was not clearly established on
that issue because there were no cases directly on point.3
3
In recent years, the government has begun contesting whether
a detainer needs probable cause, and courts have uniformly held
that probable cause is required. See, e.g., Mendoza v. Osterberg,
No. 8:13CV65, 2014 WL 3784141, at *6 (D. Neb. July 31, 2014);
Gonzales v. ICE, No. 13-04416, Dkt. 42, at *12 (C.D. Cal. July 28,
2014); Miranda-Olivares v. Clackamas Cnty., No. 3:12–cv–02317–ST,
2014 WL 1414305, at *9-11 (D. Or. Apr. 11, 2014); Uroza v. Salt
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As to Donaghy's latter point, while a detainer is
distinct from an arrest, it nevertheless results in the detention
of an individual. See 8 C.F.R. § 287.7. Morales alleges that
after her criminal custody had terminated, she was detained for 24
additional hours based solely on the detainer issued by Donaghy.
Because Morales was kept in custody for a new purpose after she was
entitled to release, she was subjected to a new seizure for Fourth
Amendment purposes —- one that must be supported by a new probable
cause justification. See Illinois v. Caballes, 543 U.S. 405,
407-08 (2005); Arizona v. United States, 132 S. Ct. 2492, 2509
(2012) ("[D]elay[ing] the release of some detainees for no reason
other than to verify their immigration status . . . would raise
constitutional concerns.").
Moreover, although Morales continued to be detained by
ACI officials, and not by Donaghy himself, it was also clearly
established that a law enforcement officer is "responsible for the
natural consequences of his actions." Malley v. Briggs, 475 U.S.
335, 344 n.7 (1986) (quoting Monroe v. Pape, 365 U.S. 167, 187
(1961)); see also id. at 344-45 (holding that "an officer whose
request for a warrant allegedly caused an unconstitutional arrest"
can be held liable for the arrest where "the warrant application is
Lake Cnty., No. 2:11CV713DAK, 2013 WL 653968, at *6 (D. Utah Feb.
21, 2013); Galarza v. Szalczyk, No. 10–cv–06815, 2012 WL 1080020,
at *10, *13 (E.D. Pa. Mar. 30, 2012) rev'd on other grounds, 745
F.3d 634 (3d Cir. 2014).
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so lacking in indicia of probable cause as to render official
belief in its existence unreasonable"); Torres Ramirez v. Bermudez
Garcia, 898 F.2d 224, 228 (1st Cir. 1990) (holding that an officer
who knowingly processed an invalid warrant could be held liable for
the subsequent unlawful arrest). The natural consequence of
Donaghy issuing the detainer was that Morales would be detained for
up to 48 hours. Donaghy cannot argue otherwise. The detainer he
issued, on its face, instructed ACI officials to "detain the alien
for a period not to exceed 48 hours."
Donaghy also never explains why detainers present such
"difficult and unique" circumstances as to allow him to circumvent
the Fourth Amendment's probable cause requirement. Indeed, we do
not understand why it would be more difficult to obtain the facts
necessary to establish probable cause for an individual who was
detained in criminal custody than for an individual who was walking
freely in the community. Arguably, it would be easier to establish
probable cause in the case of detainers, because immigration
officers would have easier access to interview and obtain records
from an individual detained in criminal custody. Here, although
federal regulations permit an immigration officer "to ask questions
of anyone as long as the immigration officer does not restrain the
freedom of an individual," 8 C.F.R. § 287.8(b)(1), Donaghy admits
that he "never met or even talked to Ms. Morales before issuing an
ICE detainer" against her. Appellants' Br. at 33.
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Donaghy's argument implies that a reasonable officer in
2009 could have issued an immigration detainer against an
individual for any reason -- or no reason whatsoever. Notably,
Donaghy does not argue that reasonable suspicion or some other
lower evidentiary standard applied to detainers in 2009. Instead,
he contends that it was not clearly established that the Fourth
Amendment would apply at all. Donaghy states that "a reasonable
officer in 2009 could have thought that the constitutional
standards . . . were not applicable to the issuance of the
detainer." Id. at 27. This unprecedented proposition is
contradicted by longstanding Fourth Amendment jurisprudence. See,
e.g., Dunaway, 442 U.S. at 214-15 ("Nothing is more clear than that
the Fourth Amendment was meant to prevent wholesale intrusions upon
the personal security of our citizenry, whether these intrusions be
termed 'arrests' or 'investigatory detentions.'"). Donaghy's
contention simply has no support in our case law. To the contrary,
the law was clearly established that Donaghy required probable
cause to detain Morales pursuant to an immigration detainer. Cf.
Suboh v. Dist. Attorney's Office of Suffolk Dist., 298 F.3d 81, 94
(1st Cir. 2002) ("We have no doubt that there is a clearly
established constitutional right at stake, although we have found
no case exactly on all fours with the facts of this case.").
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b. Whether Donaghy Had Probable Cause
Donaghy contends that, even if probable cause was
required, he is entitled to qualified immunity because he had
probable cause when issuing the detainer against Morales, or, at
the very least, the law was not clearly established in 2009 that
the circumstances applicable to the issuance of the detainer did
not constitute probable cause. Donaghy's argument relies on sworn
declarations that he attached to his motion for summary judgment
and reply brief in the district court. In those declarations,
Donaghy contends that he made the decision to issue the detainer
after reviewing various state and federal computer databases and
determining that Morales was a non-citizen who had "entered the
United States without inspection and [was] present in the United
States without authorization." Donaghy Decl., Dkt. 20-3 at 2, No.
1:12-cv-00301-M-DLM (D.R.I. filed Sept. 4, 2012). In particular,
Donaghy asserts that he analyzed the ACI's database and two federal
databases, the Central Index System and the National Crime
Information Center databases. After reviewing these databases, he
"concluded that Morales was born in Guatemala, that she had made no
claim of being a United States citizen, and that there was probable
cause to issue an ICE detainer against her." Second Donaghy Decl.,
Dkt. 47-1 at 2, No. 1:12-cv-00301-M-DLM (D.R.I. filed Jan. 19,
2013).
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As we have said time and again, "[w]e have jurisdiction
over an interlocutory appeal of a denial of summary judgment on
qualified immunity only insofar as the appeal rests on legal,
rather than factual grounds." Cady, 753 F.3d at 350 (citing
Johnson v. Jones, 515 U.S. 304, 313 (1995)); Goguen v. Allen, 780
F.3d 437, 438 (1st Cir. 2015) (dismissing interlocutory appeal for
want of appellate jurisdiction because defendants' arguments "take
issue with the district court's factual assessments and do not
present a pure issue of law for this court's consideration"); Penn
v. Escorsio, 764 F.3d 102, 111 (1st Cir. 2014) (holding that
jurisdiction for interlocutory appeal was lacking where defendants'
arguments rested on factual, not legal, grounds).
In this case, Morales disputes that Donaghy and his
fellow ICE agents conducted a sufficient database search with
regard to her citizenship status. The complaint alleges that
"federal immigration authorities maintain records of naturalization
applications in their databases," and "ICE could easily have
accessed the information in its possession and confirmed that Ms.
Morales was a U.S. citizen before subjecting her to a detainer in
2009." Compl. ¶ 40. She specifically alleges that Donaghy "failed
to sufficiently investigate Ms. Morales’s immigration status before
issuing the detainer." Id. ¶ 38. She adds that Donaghy "could
have easily conducted further research to verify whether Ms.
Morales was a U.S. citizen, but he failed to do so." Id. ¶ 39.
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Also, Morales has not had the opportunity to conduct any discovery
to assess the credibility of the assertions that Donaghy made in
his declarations.
Therefore, Donaghy would like us to grant him qualified
immunity based on his own version of the facts, even though the
district court did not accept Donaghy's version of the facts. He
fails to understand that in exercising our interlocutory appellate
jurisdiction, we are required to "take, as given, the facts that
the district court assumed when it denied summary judgment."
Johnson, 515 U.S. at 319.
Because Donaghy's argument clearly rests on factual
grounds and does not present a pure issue of law, his appeal on
this ground "must be dismissed for want of appellate
jurisdiction."4 Goguen, 780 F.3d at 438; see also Johnson, 515
U.S. at 317 (stating that "an interlocutory appeal . . . makes
unwise use of appellate courts' time" when it "forc[es] them to
decide in the context of a less developed record, an issue very
similar to one they may well decide anyway later, on a record that
will permit a better decision").
2. Fifth Amendment Claim
Donaghy also argues that he is entitled to qualified
immunity on Morales's Fifth Amendment equal protection claim.
4
Donaghy does not make any argument that probable cause
existed even on the facts that the district court assumed to be
true.
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Morales alleges that Donaghy based his decision to issue a detainer
against her solely on her Guatemalan origin and/or her Spanish
surname, which violated her Fifth Amendment equal protection right
to be free from discrimination on the basis of race, ethnicity, and
national origin. Donaghy contends that he is entitled to qualified
immunity because, on the facts of this case, he did not detain
Morales solely on the basis of these protected traits, and,
therefore, did not violate her clearly established Fifth Amendment
rights.
Relying once again on the declarations he attached to his
motion for summary judgment and reply brief in the district court,
Donaghy argues that he issued the detainer against Morales based
primarily on the database searches that he conducted. He stated
that he issued the detainer after determining she was born in
Guatemala "[b]ecause there was no record [that Morales had] any
prior encounter with ICE, no record of Morales applying for
immigration benefits, including naturalization, and evidence of at
least one alias with multiple social security numbers." Donaghy
Decl., Dkt. 20-3 at 2. Donaghy added that he "did not issue the
detainer to discriminate against Morales on the basis of race,
ethnicity, or national origin, or on any other basis." Id. He
contends that "this appeal involves solely a question of law"
regarding "whether an officer may constitutionally rely, in part,
on an individual's birth in a foreign country in determining
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whether to issue a detainer." Appellants' Reply Br. at 25
(emphasis added).
Donaghy's contention misses the point. His argument that
he only relied "in part" on Morales's foreign birth is based
entirely on his self-serving declarations. Donaghy requests that
we reject the district court's "finding that he issued the ICE
detainer solely because Ms. Morales was born in a foreign country,"
Appellants' Br. at 33, based on his declarations even though the
district court did not credit those declarations in denying
Donaghy's motion for summary judgment. We simply do not have
appellate jurisdiction to entertain Donaghy's argument at this
time. See Escorio, 764 F.3d at 111 (stating that "we have no basis
on which to exercise jurisdiction" because "nowhere in the
defendants' brief does there appear any developed argument that the
defendants are entitled to summary judgment even if the district
court's conclusions about the record were correct" (internal
quotation marks omitted)).
B. Claim Against Chadbourne and Riccio
Chadbourne and Riccio contend that they are entitled to
qualified immunity on Morales's Fourth Amendment supervisory
liability claim against them. In reviewing the district court's
denial of their motion to dismiss, we analyze, first, whether the
facts alleged in the complaint "show the defendants' conduct
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violated a constitutional right," and second, whether that right
was "clearly established" in 2009. Santana, 342 F.3d at 23.
Morales alleges that ICE supervisors Chadbourne and
Riccio violated her Fourth Amendment rights because they knew or
were deliberately indifferent to the fact that their subordinates
routinely issued immigration detainers against naturalized U.S.
citizens without probable cause, and formulated or condoned
policies permitting the issuance of detainers without probable
cause. Defendants argue that Morales has failed to allege
sufficient facts to plausibly state a supervisory liability claim.
A supervisor may be held liable for the constitutional
violations committed by his subordinates where "an affirmative link
between the behavior of a subordinate and the action or inaction of
his supervisor exists such that the supervisor's conduct led
inexorably to the constitutional violation." Maldonado v.
Fontanes, 568 F.3d 263, 275 (1st Cir. 2009) (internal quotation
marks omitted). A plaintiff can establish that "affirmative link"
by alleging that the supervisor was "a primary violator or direct
participant in the rights-violating incident," or that "a
responsible official supervises, trains or hires a subordinate with
deliberate indifference toward the possibility that deficient
performance of the task eventually may contribute to a civil rights
deprivation." Sanchez v. Pereira-Castillo, 590 F.3d 31, 49 (1st
Cir. 2009) (internal quotation marks omitted).
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Morales alleges that ICE agents in Rhode Island
maintained a practice of "routinely collaborat[ing]" with state law
enforcement authorities "to issue and enforce detainers against
U.S. citizens, particularly naturalized U.S. citizens, . . .
without sufficient investigation into their citizenship or
immigration status and without probable cause to believe that they
are non-citizens subject to removal and detention." Compl. ¶ 67.
The complaint further alleges that when an individual is arrested
at the ACI and "provide[s] a foreign country of birth, has a
foreign-sounding last name, speaks English with an accent, and/or
appears to be Hispanic," ICE agents "often fail sufficiently to
investigate the arrestee’s citizenship or immigration background
before issuing an immigration detainer . . . without probable cause
to believe that the individual is a noncitizen subject to detention
and removal by ICE." Id. ¶¶ 69-70.
The complaint further alleges that Chadbourne and Riccio,
as the heads of the ICE Boston Field Office and Rhode Island
sub-office, "knew or should have known that their subordinates,
including Defendant Donaghy, regularly . . . issued immigration
detainers against individuals such as Ms. Morales, without
conducting sufficient investigation and without probable cause to
believe that the subject of the immigration detainer was a
non-citizen subject to removal and detention." Id. ¶ 81. The
complaint adds that Chadbourne and Riccio "formulated, implemented,
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encouraged, or willfully ignored [ICE's] policies and customs [in
Rhode Island] with deliberate indifference to the high risk of
violating Ms. Morales’s constitutional rights" and failed to
"change[] these harmful policies and customs" although they "had
the power and the authority to change [them] by, for instance,
training officers such as Defendant Donaghy to perform an adequate
investigation into individuals' citizenship and immigration status
before issuing detainers." Id. ¶¶ 84-85.
Relying on the Supreme Court's decision in Ashcroft v.
Iqbal, 556 U.S. 662 (2009), Chadbourne and Riccio contend that
Morales's allegations are conclusory and fail to establish an
affirmative link between Donaghy's behavior and their action or
inaction. In Iqbal, the Supreme Court held that the plaintiff,
Javaid Iqbal, had not alleged a plausible supervisory liability
claim against Attorney General John Ashcroft and FBI Director
Robert Mueller under Federal Rule of Civil Procedure 8. See 556
U.S. at 680-82. Iqbal alleged that Ashcroft and Mueller "knew of,
condoned, and willfully and maliciously agreed to subject" him to
harsh conditions of confinement "as a matter of policy, solely on
account of [his] religion, race, and/or national origin and for no
legitimate penological interest." Id. at 680 (internal quotation
marks omitted). The Supreme Court rejected "[t]hese bare
assertions" as conclusory because they "amount to nothing more than
'a formulaic recitation of the elements' of a constitutional
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discrimination claim." Id. at 681 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
We reject Chadbourne and Riccio's argument because,
unlike the conclusory allegations in Iqbal, the allegations in
Morales's complaint are based on factual assertions that establish
the affirmative link necessary to sufficiently plead a supervisory
liability claim. Morales alleges that, as a U.S. citizen, she has
been detained pursuant to an immigration detainer "on at least two
separate occasions" in July 2004 and May 2009. Compl. ¶¶ 11-13.
Furthermore, during the second encounter, Morales informed ICE
agents that "she had been erroneously detained by ICE on a previous
occasion . . . and that she was afraid that it may happen again."
Id. ¶ 61. The ICE agents "reinforced [her] fear, stating that it
could happen again in the future" even though they had just
verified she was a U.S. citizen. Id. The agents "never told
Morales that ICE would correct the problem or take any steps to
ensure that she would not be subject to wrongful detention again in
the future." Id. Finally, after Morales's release, Joan Mathieu,
an immigration attorney, contacted ICE's Rhode Island office to
learn more about why an immigration detainer had been issued
against Morales. Id. ¶ 66. An ICE agent told Mathieu that "the
erroneous detention of U.S. citizens" pursuant to immigration
detainers "happens not infrequently." Id. The agent added that
"ICE routinely issues detainers" against naturalized U.S. citizens
-28-
and that "if Ms. Morales is arrested again, ICE will likely put a
detainer on her." Id.
Based on these detailed allegations -- combined with the
previously highlighted allegations discussing Chadbourne and
Riccio's specific roles -- and drawing all reasonable inferences in
favor of Morales (which we must do at the motion to dismiss stage),
it is plausible that Chadbourne and Riccio either formulated and
implemented a policy of issuing detainers against naturalized U.S.
citizens without probable cause or were deliberately indifferent to
the fact that their subordinates were issuing detainers against
naturalized U.S. citizens without probable cause. Thus, Morales
has sufficiently alleged that Chadbourne and Riccio, through their
action or inaction, permitted their subordinates, including
Donaghy, to issue detainers without probable cause in violation of
the Fourth Amendment.5
5
We also find that this Fourth Amendment right was "clearly
established" in 2009. Santana, 342 F.3d at 23. As explained
above, the law was clearly established in 2009 that an immigration
officer needed probable cause to issue a detainer. Furthermore,
the law was also clearly established that a supervisor may be held
liable for unconstitutional actions of a subordinate if he
"supervises, trains, or hires a subordinate with deliberate
indifference toward the possibility that deficient performance of
the task eventually may contribute to a civil rights deprivation."
Camilo-Robles v. Zapata, 175 F.3d 41, 44 (1st Cir. 1999). A
supervisor may also be held liable for "formulating a policy, or
engaging in a custom, that leads to the challenged occurrence."
Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir.
1994). Although there were no specific cases in 2009 directly
addressing a supervisor's liability with regard to the issuance of
immigration detainers, it is beyond debate that a supervisor who
either authorized or was deliberately indifferent to his
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III.
For the reasons stated above, we affirm the district
court's denial of qualified immunity on Morales's Fourth Amendment
claim against Donaghy on the ground that the law was clearly
established in 2009 that an ICE agent required probable cause to
issue an immigration detainer. We dismiss Donaghy's appeal on his
Fourth Amendment argument regarding the circumstances surrounding
the issuance of the detainer and his Fifth Amendment equal
protection argument for want of jurisdiction. We also affirm the
district court's denial of qualified immunity on Morales's Fourth
Amendment supervisory liability claim against Chadbourne and
Riccio. We remand for proceedings consistent with this opinion.
So ordered.
subordinate's issuance of a detainer without probable cause could
be held liable for violating the Fourth Amendment. See Hall, 817
F.2d at 925 ("The fact that no court had put these pieces together
in the precise manner we do today does not absolve defendants of
liability.").
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