Arar v. Ashcroft (2d Cir. 7/2/08)

CABRANES McLaughlin Sack (dissenting)

A Canadian/Syrian citizen was deported to Syria with (allegedly) the express intention that Syria torture him; he brought suit arguing that various individuals had personal and official liability under the TVPA and under a Bivens theory. 

Holdings: (1) The Court held that US Govt officials were not acting "under color of foreign law" because they were not subject to the jurisdiction of Syria. (2) The CtApp held that the INA's administrative appeal and judicial appeal routes counseled against permitting a Bivens claim, notwithstanding the claim that the Govt acted to obstruct his filing of an appeal. (3) The states secret privilege, as well as national security considerations, counsel strongly against permitting a Bivens claim here.  (4) That his Due Process claim re treatment inside US - that he was deprived of his right to counsel - fails because he had no right to counsel since that is only triggered by asylum or removal proceedings, and the Govt excluded him under 235(c) where you get no hearing before an IJ.  (5) Argument that he should have been able to seek a court order to protect him from torture wasn't raised with specificity in the complaint.  (6) Conditions claim was rejected because no "gross physical abuse," and he didn't allege a punitive intent where they deprived him of food and sleep and interrogated him for hours at a time (!?) [no discussion of whether this was a "legitimate" use of the detention].  (7) Declaratory Judgment rejected because a declaration that the exclusion was illegal wouldn't undo it, he'd still be inadmissible.  The Court raised - but did not decide - whether the "zipper clause" of 1252(b)(9) would bar these claims, particularly where he alleged that US Govt officials prevented him from appealing his case.

Sack, dissenting: Majority treats this as if it were an immigration case, whereas it's really about Govt tactics. Did not disagree re TVPA dismissal, but argued that Due Process analysis was unduly narrow, Bivens approach incorrect.

Read opinion here: 

1.  Any right to counsel is linked to asylum or to removal proceedings - and since he was excluded under 235(c) as a security risk - and wouldn't have had a right to any proceedings - the right to counsel didn't attach.  Also, he was an unadmitted alien, in a constitutionally weaker position than aliens within the US.

   Arar contends that our prior precedents—specifically, Montilla v. INS, 926 F.2d 162 (2d Cir. 1991) and Waldron v. INS, 17 F.3d 511 (2d Cir. 1993)—establish that, although he was an unadmitted alien, he possessed a constitutional right to counsel under the Due Process Clause of the Fifth Amendment. He also contends that he possessed a due process right to counsel derived from the rights accorded to him under 8 C.F.R. § 235.8(a)21 and 8 U.S.C. §§ 1362,22 1225(c)(3),23 and 1225(b)(1)(B)(iv).24 We conclude that certain of the authorities upon which Arar relies—namely, Montilla, Waldron, and 8 U.S.C. §§ 1362 and 1225(b)(1)(B)(iv)—are simply inapplicable to an individual in Arar’s position. We further conclude that, even if an unadmitted alien does enjoy a derivative due process right to the assistance of counsel under 8 U.S.C. § 1225(c)(3) and 8 C.F.R. § 235.8(a), that right was neither triggered nor violated by the factual allegations stated in Arar’s complaint.

   Section 1362 applies only to “removal proceedings before an immigration judge and . . . appeal proceedings before the Attorney General.” Similarly, Montilla and Waldron, recognize the existence of a due process right to counsel in a subset of the circumstances to which section 1362 applies—that is, removal of an alien through deportation. See Waldron, 17 F.3d at 517; Montilla, 926 F.2d at 166

   As an unadmitted alien, Arar as a matter of law lacked a physical presence in the United States.25 See Kaplan v. Tod, 267 U.S. 228, 230 (1925) (noting that an alien “stopped at the boundary line” of the United States “had gained no foothold” in the country). His entitlement to a removal procedure of the sort that would trigger the provisions of section 1362 was therefore limited to what Congress and the INS saw fit to provide.26 See, e.g., Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (observing that the full protections of the Due Process Clause apply only to “‘persons’ within the United States”); Landon v. Plasencia, 459 U.S. 21, 32 (1982) (noting that “an alien seeking initial admission to the United States . . . has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative”); Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950) (holding that “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”).

   In this case, the applicable statutory provisions specifically authorized the Attorney General to remove Arar “without further inquiry or hearing by an immigration judge” if the Attorney General, after reviewing the evidence establishing his inadmissibility, determined that a hearing “would be prejudicial to the public interest, safety, or security.27 See 8 U.S.C. § 1225(c)(2)(B). Arar does not claim that the Attorney General failed to properly review the evidence of his inadmissibility. Nor does he contend that the procedures set forth in section 1225(c) were constitutionally inadequate. Cf. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953) (holding that the due process rights of an unadmitted alien barred from entry on security grounds were not violated when he was excluded from the United States without a hearing). Accordingly, Arar fails to establish that he possessed any entitlement to a pre-removal hearing. And because he possessed no entitlement to a hearing, he falls beyond the scope of section 1362 and—by extension—our holdings in Montilla and Waldron. Cf. Plasencia, 459 U.S. at 25 (noting that a “deportation hearing is the usual means of proceeding against an alien already physically in the United States, . . . [and] [an] exclusion hearing is the usual means of proceeding against an alien outside the United States seeking admission,” and that “the alien who loses his right to reside in the United States in a deportation hearing has a number of substantive rights not available to the alien who is denied admission in an exclusion proceeding”). Arar also falls beyond the scope of the right to counsel set forth in section 1225(b)(1)(B)(iv); this provision is limited to applicants for asylum and Arar neither made and nor makes no claim to asylum in the United States.

   Section 1225(c)(3) and 8 C.F.R. § 235.8(a) both contemplate that an unadmitted alien being excluded on security grounds will have the opportunity to submit “a written statement and additional information for consideration by the Attorney General.” Assuming for the sake of argument that an unadmitted alien who cannot provide a written statement without the assistance of counsel may enjoy a due process entitlement to counsel, we conclude that Arar has not alleged any facts that would trigger such a right. For example, Arar’s complaint nowhere alleges that he wished to submit a written statement but was prevented from doing so by the restrictions that defendants allegedly imposed on his access to counsel. Nor does it allege any background circumstances from which we may draw such an inference.28

   In sum, Arar is unable to point to any legal authority suggesting that, as an unadmitted alien who was excluded pursuant to the procedures set forth in 8 U.S.C. § 1225(c), he possessed any form of entitlement to the assistance of counsel—let alone a constitutional entitlement, the violation of which could constitute a predicate for the Bivens relief he seeks. Accordingly, we conclude that Arar’s allegations about the various ways in which defendants obstructed his access to counsel fail to state a claim under the Due Process Clause of the Fifth Amendment.

2.  Conditions claim failed because he didn't argue that Govt had any punitive intent - its intent was to interrogate him, which is non-punitive.  Did not decide whether to adopt the standard of 5th and 11th cirs re when non-admitted aliens' detention is erroneous. Cf. Lynch v. Cannatella, 810 F.2d 1363, 1374 (5th Cir. 1987) (asking whether the challenged actions amounted to “gross physical abuse"); Adras v. Nelson, 917 F.2d 1552, 1559 (11th Cir. 1990).

   Only if a detention facility official has “expressed intent to punish,” id. at 538 or “a restriction or condition is not reasonably related to a legitimate goal” may a court “infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees,” id. at 539. Arar nowhere alleges that the conditions of his confinement were inflicted with punitive intent or were otherwise unrelated to a legitimate government purpose.

Atty: David Cole

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