Sissoko v. Rocha

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OUMAR SISSOKO; JULIE SISSOKO, 
Plaintiffs-Appellees,
No. 02-56751
v.
 D.C. No.
LOYDA R. ROCHA; UNITED STATES OF CV-98-07010-ABC
AMERICA,
Defendants-Appellants. 
OUMAR SISSOKO, an individual; JULIE 
SISSOKO, an individual,
Plaintiffs-Appellees,
v.
MICHAEL B. MUKASEY, Attorney
General of the United States; U.S. No. 03-55667
IMMIGRATION & NATURALIZATION D.C. No.
SERVICE; DORIS MEISSNER, formerly  CV-98-07010-ABC
Commissioner, United States INS;
ORDER AND
RICHARD ROGERS, District Director,
OPINION
United States INS; FOUR UNKNOWN
NAMED OFFICERS, of the United
States Immigration and
Naturalization Service; UNITED
STATES; U.S. PUBLIC HEALTH
SERVICES; JOSEPH CHEN, MD; 
14945
14946 SISSOKO v. ROCHA
UNKNOWN NAMED EMPLOYEES OF THE 
UNITED STATES PUBLIC HEALTH
SERVICES,
Defendants,
and 
LOYDA R. ROCHA, Immigration
Inspector, United States INS,
Defendant-Appellant. 
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Argued and Submitted
March 1, 2004—Pasadena, California
Filed November 15, 2007
Before: Otto R. Skopil, Jr., John T. Noonan, and
Marsha S. Berzon, Circuit Judges.
Order;
Opinion by Judge Berzon;
Partial Concurrence and Partial Dissent by Judge Skopil
14948 SISSOKO v. ROCHA
COUNSEL
Robert M. Loeb, Richard A. Olderman and Anne Murphy,
Civil Division, Appellate Staff, U.S. Department of Justice,
Washington, D.C., for the defendants-appellants.
Martin Simone, Leonard M. Roos and Helen Wong, Frank,
Greenberg, Simone & Stefanski, Los Angeles, California, for
the plaintiffs-appellees.
ORDER
The opinion filed on March 16, 2006 is hereby withdrawn
and replaced by this concurrently filed opinion. The petition
for rehearing en banc is denied as moot.
OPINION
BERZON, Circuit Judge:
The factual and procedural background of these appeals is
set out in our now-withdrawn opinion. See Sissoko v. Rocha,
SISSOKO v. ROCHA 14949
440 F.3d 1145, 1149-53 (9th Cir. 2006). We adopt the “scope
of review” section of our prior opinion, id. at 1153-54, and
affirm the district court’s denial of Rocha’s motion under Fed.
R. Civ. P. 59(e) with respect to her newly raised legal issue
concerning Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971).
Rocha contends that the district court lacked subject-matter
jurisdiction over the Sissokos’ Fourth Amendment-based
damages claim for false arrest. See 8 U.S.C. § 1252(g)
(“Exclusive jurisdiction. Except as provided in this section
and notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of title 28, United States
Code, or any other habeas corpus provision, and sections
1361 and 1651 of such title, no court shall have jurisdiction
to hear any cause or claim by or on behalf of any alien arising
from the decision or action by the Attorney General to com-
mence proceedings . . . against any alien under this Act.”).
Appended to Rocha’s second petition for rehearing is a Form
I-860 “Notice and Order of Expedited Removal.” Rocha filled
out the top half of the Form I-860, “Determination of Inad-
missibility,” but not the bottom half, “Order of Removal
under Section 235(b)(1) of the Act.” Why this happened is
now evident: Sissoko indicated at his August 1997 inspection
that he had a fear of persecution if returned to Senegal.
Accordingly, Rocha was required to refer him for an inter-
view by an asylum officer. See 8 C.F.R. § 235.3(b)(4) (“If an
alien subject to the expedited removal provisions indicates an
intention to apply for asylum, or expresses a fear of persecu-
tion or torture, or a fear of return to his or her country, the
inspecting officer shall not proceed further with removal of
the alien until the alien has been referred for an interview by
an asylum officer . . . .”). At this juncture, the mandatory
detention provision contained in 8 U.S.C. § 1225(b)(1)(B)
(iii)(IV) applied: “Any alien subject to the procedures under
this clause shall be detained pending a final determination of
credible fear of persecution and, if found not to have such a
14950 SISSOKO v. ROCHA
fear, until removed.”1 Ultimately, Sissoko never had a credi-
ble fear interview because he was issued a Notice to Appear
and placed in regular removal proceedings.
[1] Considering these circumstances, particularly the exis-
tence in the record of a half-completed Form I-860, we con-
clude that Sissoko’s detention arose from Rocha’s decision to
commence expedited removal proceedings. As a result, 8
U.S.C. § 1252(g) applies to the Sissokos’ claim. Compare
Wong v. U.S. INS, 373 F.3d 952, 964 (9th Cir. 2004) (“Wong
. . . disclaims any challenge to the execution of the removal
itself, but rather asserts that her claims implicate only actions
other than that removal, or the commencement of proceed-
ings, if any, leading to that removal.”). Moreover, we are not
persuaded by the Sissokos’ contention that 8 U.S.C. § 1252(g)
must nevertheless be read to allow them a Bivens damages
remedy for false arrest.
The Supreme Court has emphasized that “any freestanding
damages remedy for a claimed constitutional violation has to
represent a judgment about the best way to implement a con-
stitutional guarantee; it is not an automatic entitlement no
matter what other means there may be to vindicate a protected
interest, and in most instances we have found a Bivens rem-
edy unjustified.” Wilkie v. Robbins, 127 S. Ct. 2588, 2597
(2007); see also AFGE Local 1 v. Stone, No. 05-15206, 2007
WL 2482144, *8 (9th Cir. Sept. 5, 2007) (noting “the courts’
general reluctance to allow damages as a judicially created
remedy for constitutional torts”). Wilkie instructs us to exam-
ine “whether any alternative, existing process for protecting
the interest amounts to a convincing reason for the Judicial
1
Rocha repeatedly cites 8 U.S.C. § 1225(b)(2)(A) as the basis for Sis-
soko’s detention, but that provision is irrelevant. Its plain language
requires a regular, not expedited, removal proceeding, including a hearing
before an immigration judge: “[I]f the examining immigration officer
determines that an alien seeking admission is not clearly and beyond a
doubt entitled to be admitted, the alien shall be detained for a proceeding
under section 240.”
SISSOKO v. ROCHA 14951
Branch to refrain from providing a new and freestanding rem-
edy in damages.” 127 S. Ct. at 2598.
[2] In this case, because Sissoko was never issued an expe-
dited removal order, a habeas petition under 8 U.S.C.
§ 1252(e)(2) could have been successful in remedying his
allegedly false arrest.2 In 1997, as now, that provision limited
the remedies available to an alien in Sissoko’s expedited
removal situation to a habeas petition challenging:
(A) whether the petitioner is an alien,
(B) whether the petitioner was ordered removed
under [the expedited removal] section, and
(C) whether the petitioner can prove by a prepon-
derance of the evidence that the petitioner is an alien
lawfully admitted for permanent residence, has been
admitted as a refugee . . . , or has been granted asy-
lum . . . .
8 U.S.C. § 1252(e)(2) (emphasis added); see also id.
§ 1252(e)(5) (“In determining whether an alien has been
ordered removed under [the expedited removal section], the
court’s inquiry shall be limited to whether such an order in
fact was issued and whether it relates to the petitioner.”).3 If
the district court had determined in such a habeas action that
Sissoko was not “ordered removed” under the expedited
removal section — as he was not, despite his being detained
under those provisions — the statutory remedy would have
been for the district court “to require that the petitioner be
provided a [regular removal] hearing.” Id. § 1252(e)(4).4 Such
2
Sissoko did file a habeas petition on September 18, 1997. Because the
government then chose to place him in regular removal proceedings, how-
ever, the petition was dismissed.
3
We express no opinion on the constitutionality of these limitations.
4
We do not decide whether 8 U.S.C. § 1252(g) would apply if Sissoko
had been ordered removed after an adverse credible fear determination,
thereby eliminating his habeas avenue of relief.
14952 SISSOKO v. ROCHA
a hearing, as Sissoko’s experience bears out, is the first step
of full administrative and judicial review of an alien’s inad-
missibility determination, which was the underlying cause of
Sissoko’s being placed in expedited removal proceedings and
detained. See id. (“Any alien who is provided a [regular
removal] hearing pursuant to this paragraph may thereafter
obtain judicial review of any resulting final order of removal
. . . .”). Compare id. § 1252(e)(5) (stating that in a habeas
petition regarding expedited removal proceedings “[t]here
shall be no review of whether the alien is actually inadmissi-
ble”).
[3] In this limited context, we hold that 8 U.S.C.
§ 1252(g)’s jurisdiction-stripping language covers the Sis-
sokos’ false arrest claim. The claim directly challenges
Rocha’s decision to commence expedited removal proceed-
ings, and an alternative habeas remedy directly addressing the
claimed injury was available through 8 U.S.C. § 1252(e)(2).
The only other circuit to have addressed the interaction of
§ 1252(g) and Bivens similarly stressed the importance of
alternative remedies in precluding a damages action. See
Humphries v. Various Federal USINS Employees, 164 F.3d
936, 945 (5th Cir. 1999) (“Aliens wishing to raise [constitu-
tional] challenges in the future should do so either in a peti-
tion for review or for habeas corpus.”); see also Khorrami v.
Rolince, 493 F. Supp. 2d 1061, 1068-69 (N. D. Ill. 2007) (fol-
lowing Humphries, while commenting that “I am not at all
certain that this [Fourth Amendment cause of action] is the
type of claim Congress sought to bar when it enacted
§ 1252(g),” and noting that “Dr. Khorrami had a remedy
available to him: he could have raised his challenges in a peti-
tion for habeas corpus.”).5 But see Medina v. United States, 92
5
We recognize that Foster v. Townsley, 243 F.3d 210, 214-15 (5th Cir.
2001), in holding that § 1252(g) precluded jurisdiction over an alien’s
Bivens action, did not address Humphries’ concern about the availability
of some remedy other than a Bivens action. There is no indication from
Foster that the issue was raised in that case, however.
SISSOKO v. ROCHA 14953
F. Supp. 2d 545, 554 (E. D. Va. 2000) (rejecting Humphries’
reasoning).
Our reading of 8 U.S.C. § 1252(g) is also consistent with
Reno v. American-Arab Anti-Discrimination Committee, 525
U.S. 471 (1999) (“AADC”). The plaintiffs in that case filed
an action alleging constitutional violations based on the gov-
ernment’s targeted deportations of members of the Popular
Front for the Liberation of Palestine. A damages remedy was
not sought. Id. at 474 n.3. After concluding that the claims fell
within the ambit of § 1252(g), the Court did not end its
inquiry, but proceeded to address whether the particular con-
stitutional harms alleged justified reading the statute to allow
the lawsuit. In holding that the AADC plaintiffs had not
established that such a reading was required by the Constitu-
tion, the Court emphasized that “[w]hen an alien’s continuing
presence in this country is in violation of the immigration
laws, the Government does not offend the Constitution by
deporting him for the additional reason that it believes him to
be a member of an organization that supports terrorist activi-
ty.” Id. at 491-92. Nevertheless, the Court refused to “rule out
the possibility of a rare case in which the alleged basis of dis-
crimination is so outrageous” that its conclusion should be
revisited. Id. at 490.6 Most importantly for our purposes, the
6
An instructive subsequent example of a court limiting the reach of
§ 1252(g) is Arar v. Ashcroft, 414 F. Supp. 2d 250 (E.D.N.Y. 2006),
which refused to apply § 1252(g) to preclude a Fifth Amendment due
process-based Bivens remedy because “Arar challenges, on constitutional
grounds, the decision to send him abroad for torture, pursuant to a pur-
ported policy of extraordinary rendition for individuals suspected of ter-
rorist involvement. That goes far beyond a mere challenge to the ‘decision
or action’ to ‘commence proceedings, adjudicate cases, or execute
removal orders.’ ” Id. at 270-71 (quoting 8 U.S.C. § 1252(g)). Arar
stressed in its jurisdictional analysis that “defendants have failed to dem-
onstrate that ‘Congress has provided an alternative remedy [in the form of
the INA],’ or to identify an alternative venue through which Arar could
have satisfactorily preserved ‘some avenue for judicial relief.’ ” Id. at 281
(citations omitted); see also id. at 279 n.12 (“Precisely what, if any, rem-
edy might have been available to Arar via habeas is uncertain.”).
14954 SISSOKO v. ROCHA
plaintiffs in AADC had administrative and judicial avenues of
review and potential redress for the deportation proceedings
that were, at least in largest part, the harm resulting from the
claimed violations.7
[4] Accordingly, we conclude that the district court lacked
jurisdiction over the Sissokos’ claim because it “aris[es] from
the decision or action by the Attorney General to commence
[removal] proceedings.” 8 U.S.C. § 1252(g). The parties shall
bear their own costs.8
AFFIRMED in part; VACATED in part; REMANDED.
SKOPIL, Senior Circuit Judge, concurring in part; dissenting
in part:
I concur in the decision to withdraw our prior opinion, Sis-
soko v. Rocha, 440 F.3d 1145 (9th Cir. 2006), and to file a
revised one. I do not agree, however, with footnote 8 of the
revised opinion and, accordingly, I dissent from the majority’s
decision to include the footnote.
7
Indeed, two of the plaintiffs “were subsequently granted legalization
and are no longer deportable based on the original status violations.” Id.
at 473 n.1.
8
We end by noting our disappointment with the parties’ performance in
this litigation. At oral argument, we asked the parties repeatedly whether
the record contains an expedited removal order and, if not, to explain any
documented basis for Sissoko’s detention. The parties maintained until
Rocha’s second petition for rehearing that the record contains no such
order and that we should focus on the Form I-275 “Withdrawal of Appli-
cation for Admission.” Both counsels’ representations about the record at
oral argument, as well as the absence of any reference to the Form I-860
in Rocha’s initial petition for rehearing, after our first opinion relied sig-
nificantly on the record’s omission of that form, fall below the standard
of advocacy we expect.