Mirmehdi v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MOHAMMAD MIRMEHDI; MOSTAFA 

MIRMEHDI; MOHSEN MIRMEHDI;

MOJTABA MIRMEHDI,

Plaintiffs-Appellants,

No. 09-55846

v.

D.C. No.

UNITED STATES OF AMERICA; MARIO  2:06-cv-05055-

LOPEZ; JOHN ASHCROFT; ROBERT S. R-PJW

MUELLER, III; JAMES W. ZIGLAR;

OPINION

MICHAEL GARCIA, Esquire;

CHRISTOPHER CASTILLO; JAMES

MACDOWELL,

Defendants-Appellees.



Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted

August 30, 2011—Pasadena, California

Filed November 3, 2011

Before: Arthur L. Alarcón, Diarmuid F. O’Scannlain, and

Barry G. Silverman, Circuit Judges.

Opinion by Judge O’Scannlain;

Concurrence by Judge Silverman

19877

19880 MIRMEHDI v. UNITED STATES

COUNSEL

Paul L. Hoffman, Schonbrun DeSimone Seplow Harris Hoff-

man & Harrison LLP, Venice, California, argued the cause

and filed the briefs for the plaintiffs-appellants. With him on

the briefs were Michael Seplow, Adrienne Quarry, and Victo-

ria Don, Schonbrun DeSimone Seplow Harris Hoffman &

Harrison LLP, Venice, California.

Jeremy S. Brumbelow, United States Department of Justice,

Torts Branch, Civil Division, Washington, D.C., filed the

briefs for the defendants-appellees. With him on the brief

were Tony West, Timothy P. Garren, and Andrea W. McCar-

thy, Department of Justice Civil Division, Washington, D.C.

OPINION

O’SCANNLAIN, Circuit Judge:

We are asked to decide, among other things, whether an

alien not lawfully in the United States may sue for monetary

damages claiming constitutionally invalid detention.

I

Mohammad, Mostafa (“Michael”), Mohsen, and Mojtaba

Mirmehdi (collectively the “Mirmehdis”) are four citizens of

MIRMEHDI v. UNITED STATES 19881

Iran who came to the United States at various times, purport-

edly due to their long-standing opposition to that nation’s

theocratic regime. In 1978, Michael arrived on a student visa.

Having abandoned the degree that earned him entry into the

United States, he became a real estate agent in 1985. Mohsen,

Mojtaba, and Mohammad joined Michael in California in the

early 1990s. Mohsen and Mohammad also became real estate

agents. Unable to pass the real estate licensing exam, Mojtaba

worked in construction.

In 1998, the Mirmehdis applied for political asylum with

the assistance of an attorney named Bahram Tabatabai.

Tabatabai falsified certain details in the Mirmehdis’ applica-

tions. After Tabatabai was arrested for immigration fraud in

March 1999, he agreed to cooperate with federal authorities.

As part of his plea bargain, Tabatabai spoke to Special Agents

Christopher Castillo of the Federal Bureau of Investigation

and J.A. MacDowell of the Immigration and Naturalization

Service regarding their ongoing investigation of a terrorist

group known as the Mujahedin-e Khalq (“MEK”). Though he

later recanted, Tabatabai told Castillo and MacDowell that the

Mirmehdis were supporters of the group, which was founded

on an antipathy for the Iranian government.

Based on this information, agents arrested the Mirmehdis

for immigration violations in March 1999. Michael, Mojtaba,

and Mohsen were released on bond later that year; Moham-

mad was released in September 2000.

On October 2, 2001, immigration authorities revoked the

Mirmehdis’ bond, largely based on a document known as the

“L.A. Cell Form,” a handwritten piece of paper that has

become the subject of considerable litigation and is at the cen-

ter of this case. The government has always maintained that

the Form lists members, affiliates, and supporters of the

MEK. During the Mirmehdis’ bond revocation proceedings,

Castillo testified that the FBI seized the document from an

19882 MIRMEHDI v. UNITED STATES

MEK facility and that a confidential informant told him of its

significance.

The Mirmehdis have always denied their involvement in

the MEK and allege that Castillo and MacDowell knew from

the start that the document was really just a list of attendees

at a rally hosted by the National Council of Resistance of Iran

(“NCRI”). It is undisputed that the MEK was listed as a ter-

rorist group in 1997 and is affiliated with the NCRI. But the

Mirmehdis assert that they attended the rally before that clas-

sification occurred.

The Mirmehdis also assert that Castillo concocted evidence

to convince immigration authorities to revoke their bond.

They claim that the cooperating witness never existed and that

Castillo unreasonably continued to rely upon Tabatabai, even

after he recanted. Castillo’s motive, the Mirmehdis contend,

was to pressure them into giving up information about the

MEK that they did not possess.

The Mirmehdis’ assertions are not new. They raised them

on direct appeal of their detention, during the merits proceed-

ing related to their asylum applications, and in a federal peti-

tion for a writ of habeas corpus. Almost all such forms of

relief were denied. The Mirmehdis were, however, granted

withholding of removal because they had demonstrated a like-

lihood of mistreatment if removed to Iran, and because the

government failed to establish that they were engaged in ter-

rorist activity as defined by statute.

Their immigration proceedings at last final, the Mirmehdis

were released from detention in March 2005. The Mirmehdis

subsequently brought this suit naming as defendants: Attorney

General John Ashcroft, FBI Director Robert Mueller, INS

Commissioners James Ziglar and Michael Garcia, the City of

Santa Ana, the City of Las Vegas, MVM, Inc., Castillo, Mac-

Dowell, several named prison guards, John Does 1–10, and

the United States. They raised a number of claims including

MIRMEHDI v. UNITED STATES 19883

unlawful detention, inhumane detention conditions, witness

intimidation, and the intentional infliction of emotional dis-

tress.

The district court dismissed almost all of the Mirmehdis’

claims for either lack of personal jurisdiction or failure to

state a cause of action. The parties later settled all claims

except those against Castillo and MacDowell for unlawful

detention and conspiracy to violate their civil rights, against

Castillo for intimidation of a witness, and against the United

States for false imprisonment. The district court entered a

final judgment, and the Mirmehdis timely appealed the claims

to which they did not stipulate.

II

[1] The Mirmehdis first appeal the dismissal of their claim

against Castillo and MacDowell for wrongful detention under

Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971).1 Whether such a claim pre-

sents a cognizable legal theory has been an open question in

this circuit. See Wong v. United States INS, 373 F.3d 952, 961

(9th Cir. 2004); see also Sissoko v. Rocha, 412 F.3d 1021,

1028 (9th Cir. 2005), withdrawn and replaced, 509 F.3d 947

(9th Cir. 2007).2

1

The district court dismissed these claims based on its conclusion that

the Mirmehdis had no constitutional right not to be detained pending

deportation proceedings. We do not reach this issue because, even assum-

ing such a violation, we must still decide whether Bivens provides for a

theory for recovery. Wilkie v. Robbins, 551 U.S. 537, 550 (2007); see also

Shaw v. Cal. Dep’t of Alcoholic Beverage Control, 788 F.2d 600, 603 (9th

Cir. 1986) (“We may affirm the judgment on any basis supported by the

record even if the district court did not rely on that basis.”).

2

The Mirmehdis argue that we have, in fact, recognized an immigrant’s

right to pursue a Bivens action citing Papa, 281 F.3d 1004. But because

cases like Papa did not squarely present the issue, it remains open. See

Berry v. Hollander, 925 F.2d 311, 314 & n.3, 316 (9th Cir. 1991) (con-

cluding that no Bivens action exists for government employees despite

previously allowing such claims).

19884 MIRMEHDI v. UNITED STATES

A

In the past, we have suggested that “federal courts have

inherent authority to award damages to plaintiffs whose fed-

eral constitutional rights were violated by federal officials.”

Papa v. INS, 281 F.3d 1004, 1009 (9th Cir. 2002). But as the

Supreme Court has since reminded us, “any freestanding

damages remedy for a claimed constitutional violation has to

represent a judgment about the best way to implement a con-

stitutional guarantee.” Wilkie v. Robbins, 551 U.S. 537, 550

(2007). Such a cause of action “is not an automatic entitle-

ment no matter what other means there may be to vindicate

a protected interest.” Id. (emphasis added).

[2] Indeed, “[i]n the 38 years since Bivens,” the Supreme

Court has repeatedly rejected Bivens claims outside the con-

text discussed in that specific case and has “extended it twice

only: in the context of an employment discrimination claim in

violation of the Due Process Clause, Davis v. Passman, 442

U.S. 228 (1979); and in the context of an Eighth Amendment

violation by prison officials, [Carlson v. Green, 446 U.S. 14

(1980)].” Arar v. Ashcroft, 585 F.3d 559, 571 (2d Cir. 2009)

(en banc). The Supreme Court has refused to extend Bivens

to: violations of federal employees’ First Amendment rights

by their employers, Bush v. Lucas, 462 U.S. 367 (1983);

harms suffered incident to military service, United States v.

Stanley, 483 U.S. 669, (1987); denials of Social Security ben-

efits, Schweiker v. Chilikcy, 487 U.S. 412 (1988); decisions

by federal agencies, FDIC v. Meyer, 510 U.S. 471 (1994);

actions by private corporations operating under federal con-

tracts, Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001); or

retaliation by federal officials against private landowners,

Wilkie, 551 U.S. at 562.

The Court has also “recently and repeatedly said that a

decision to create a private right of action is one better left to

legislative judgment in the great majority of cases.” Sosa v.

Alvarez-Machain, 542 U.S. 692, 727 (2004) (citing inter alia

MIRMEHDI v. UNITED STATES 19885

Malesko, 534 at 68). Such a decision implicates grave separa-

tion of powers concerns because the “creation of a private

right of action raises [policy choices] beyond the mere consid-

eration whether primary conduct should be allowed or not,

entailing, for example, a decision to permit enforcement with-

out the check imposed by prosecutorial discretion.” Id. For

such reasons, the Court has instructed the federal courts to

“respond[ ] cautiously to suggestions that Bivens remedies be

extended into new contexts.” Schweiker, 487 U.S. at 421.

It quickly becomes apparent, however, that this query has

a logical predicate—whether we would need to extend Bivens

in order for illegal immigrants to recover for unlawful deten-

tion during deportation proceedings. Only after answering in

the affirmative, would we need to turn to the issue of whether

we ought to extend Bivens to such a context. Arar, 585 F.3d

at 572.

B

To answer this question requires us to enter by a narrow

gate. Examining the availability of a Bivens remedy at a “high

level of generality” would “invite claims in every sphere of

legitimate governmental action” touching, however tangen-

tially, on a constitutionally protected interest. Wilkie, 551 U.S.

at 561. Examining the question at too low a level of generality

would invite never ending litigation because “every case has

points of distinction.” Arar, 585 F.3d at 572. As such, we join

our sister circuit and “construe the word ‘context’ as it is

commonly used in law: to reflect a potentially recurring sce-

nario that has similar legal and factual components.” Id.

[3] Deportation proceedings are such a context, unique

from other situations where an unlawful detention may arise.

It is well established that immigrants’ remedies for vindicat-

ing the rights which they possess under the Constitution are

not coextensive with those offered to citizens. See, e.g., Reno

v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471, 488 (1999)

19886 MIRMEHDI v. UNITED STATES

(“AADC”) (“As a general matter . . . an alien unlawfully in

this country has no constitutional right to assert selective

enforcement as a defense against his deportation.”). There-

fore, deportation proceedings constitute the relevant “environ-

ment of fact and law” in which to “decide whether to

recognize a Bivens remedy.” Arar, 585 F3d at 572.3

C

[4] Having identified the appropriate context, we now must

apply the Supreme Court’s test from Wilkie, in which it “dis-

tilled its 35-year history of Bivens jurisprudence into a two-

step analysis.” W. Radio Servs. Co. v. U.S. Forest Serv., 578

F.3d 1116, 1120 (9th Cir. 2009). First we must “determine[ ]

whether there is ‘any alternative, existing process for protect-

ing’ the plaintiffs’ interests.” Id. If there is such an alternative

remedy, our inquiry stops. If there is not, we proceed to the

next step and “ask[ ] whether there nevertheless are ‘factors

counseling hesitation’ before devising such an implied right

of action.” Id. The Mirmehdis’ claim for unlawful detention

founders at both obstacles.

[5] The Mirmehdis could—and did—challenge their deten-

tion through not one but two different remedial systems. As

the Second Circuit stated: “Congress has established a sub-

stantial, comprehensive, and intricate remedial scheme in the

context of immigration.” Arar, 585 F.3d at 572. The availabil-

ity of habeas is another remedy. See Rauschenberg v. Wil-

3

By identifying this as the appropriate frame of reference, we do not

hold that an illegal alien may never bring a Bivens claim. Instead, we

merely recognize that because Congress has the ability to “make rules as

to aliens that would be unacceptable if applied to citizens,” Demoore v.

Kim, 538 U.S. 510, 521-22 (2003) (citing inter alia Reno v. Flores, 507

U.S. 292, 305-06 (1993) (“Thus, ‘in the exercise of its broad power over

immigration and naturalization,’ Congress regularly makes rules 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.

MIRMEHDI v. UNITED STATES 19887

liamson, 785 F.2d 985, 987-88 (11th Cir. 1986). The

Mirmehdis took full advantage of both.

[6] We are unpersuaded by the Mirmehdis’ assertions they

are nonetheless entitled to a Bivens remedy because neither

the immigration system nor habeas provides monetary com-

pensation for unlawful detention. “Even where Congress has

given plaintiffs no damages remedy for a constitutional viola-

tion, the Court has declined to create a right of action under

Bivens when doing so ‘would be plainly inconsistent with

Congress’ authority in th[e] field.’ ” W. Radio Servs. Co., 578

F.3d at 1120 (quoting Chappell v. Wallace, 462 U.S. 296, 304

(1983)). Indeed, “[s]o long as Congress’ failure to provide

money damages . . . has not been inadvertent, courts should

defer to its judgment.” Berry v. Hollander, 925 F.2d 311, 314

(9th Cir. 1991) (internal quotation marks omitted).

Congress’s failure to include monetary relief can hardly be

said to be inadvertent, given that despite multiple changes to

the structure of appellate review in the Immigration and

Nationality Act, Congress never created such a remedy. See

Schweiker, 487 U.S. at 423, 425 (1988) (considering “fre-

quent and intense” congressional attention to “the design of a

Government program [to] suggest[ ] that Congress has pro-

vided what it considers adequate remedial mechanisms for

constitutional violations”).

The complexity and comprehensiveness of the existing

remedial system is another factor among a broad range of

concerns counseling hesitation before allowing a Bivens rem-

edy. Id. at 423; see also Idaho v. Coeur d’Alene Tribe, 521

U.S. 261, 280 (1997); see also Saul v. United States, 928 F.2d

829, 840 (9th Cir. 1991) (considering the Civil Service

Reform Act).

Furthermore, immigration issues “have the natural ten-

dency to affect diplomacy, foreign policy, and the security of

the nation,” which further “counsels hesitation” in extending

19888 MIRMEHDI v. UNITED STATES

Bivens. Arar, 585 F.3d at 574. As the Supreme Court has

noted, concerns that always mitigate against “subjecting the

prosecutor’s motives and decisionmaking to outside inquiry”

have particular force in the immigration context. AADC, 525

U.S. at 490 (internal quotation marks omitted). Rather than

mere “disclosure of normal domestic law-enforcement priori-

ties and techniques” such cases often involve “the disclosure

of foreign-policy objectives and (as in this case) foreign-

intelligence products.” Id. at 490-91.

[7] Accordingly, we decline to extend Bivens to allow the

Mirmehdis to sue federal agents for wrongful detention pend-

ing deportation given the extensive remedial procedures avail-

able to and invoked by them and the unique foreign policy

considerations implicated in the immigration context.

III

The Mirmehdis next appeal the dismissal of their claims

against Castillo for witness intimidation and against both Cas-

tillo and MacDowell for conspiracy to intimidate a witness

pursuant to 42 U.S.C. § 1985(2),4 arguing that the district

court erred by failing to find prejudice. Specifically, they

argue that but for Castillo’s supposed threats, Tabatabai was

ready, willing, and able to testify that they were not support-

ers of the MEK.

[8] But “[a]llegations of witness intimidation . . . will not

suffice for a cause of action [under section 1985] unless it can

be shown the litigant was hampered in being able to present

an effective case.” David v. United States, 820 F.2d 1038,

4

To the extent that the Mirmehdis bring a separate claim for conspiracy

selectively to enforce immigration laws, such a claim does not exist. The

Supreme Court has stated that for reasons implicating the constitutional

separation of powers, “an alien unlawfully in this country has no constitu-

tional right to assert [a claim of] selective enforcement” of immigration

laws. AADC, 525 U.S. at 488.

MIRMEHDI v. UNITED STATES 19889

1040 (9th Cir. 1987) (emphasis omitted). This rule applies to

both witness intimidation and conspiracy to intimidate a wit-

ness. Id. at 1040; see also Rutledge v. Ariz. Bd. of Regents,

859 F.2d 732, 735-36 (9th Cir. 1988).

[9] Even assuming that the Mirmehdis could have been

prejudiced by the absence of a witness that the relevant fact

finder had dismissed as not credible, the outcome of the Mir-

mehdis’ immigration proceedings demonstrate that they were

not so harmed.5 According to the Mirmehdis, Tabatabai would

have rebutted Castillo’s testimony that they were involved

with the MEK. As such, his testimony would have helped

them to establish that they were eligible for withholding of

removal because they were not involved with any terrorist

activities as defined by 8 U.S.C. § 1182(a)(3)(B)(i). See also

8 U.S.C. § 1231(b)(3)(B). But the Mirmehdis were awarded

withholding of removal even without Tabatabai’s testimony.

Therefore, they could not have been prejudiced by any alleged

wrongdoing.6

IV

[10] The Mirmehdis also appeal the dismissal of their

claim against the United States under the Federal Tort Claims

Act (“FTCA”), 28 U.S.C. § 1346, arguing that they have

stated a claim for false imprisonment under California law.

5

“When ruling on a Rule 12(b)(6) motion to dismiss, if a district court

considers evidence outside the pleadings, it must normally convert the

12(b)(6) motion into a Rule 56 motion for summary judgment, and it must

give the nonmoving party an opportunity to respond.” United States v. Rit-

chie, 342 F.3d 903, 907 (9th Cir. 2003). But because the Mirmehdis

referred to their related habeas and immigration cases on the face of their

complaint, we may take judicial notice of any matters of public record. See

Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir. 1988).

6

We are not persuaded by the Mirmehdis’ fallback argument that

Tabatabai’s testimony would have allowed them to reopen the bond deter-

mination because we see no evidence that they tried to do so, even after

the IJ’s initial decision in 2002.

19890 MIRMEHDI v. UNITED STATES

We do not reach this contention because even if true, the Mir-

mehdis’ claim still would fall outside our jurisdiction. “The

United States, as a sovereign, may not be sued except insofar

as it consents to be sued.” Rooney v. United States, 634 F.2d

1238, 1241 (9th Cir. 1980). The FTCA does waive that immu-

nity for certain torts, but it is subject to both procedural and

substantive exceptions which “must be strictly interpreted.”

Id. (citing United States v. Sherwood, 312 U.S. 584, 590

(1941)). One such exception is that the United States may not

be sued “based upon the exercise or performance or the fail-

ure to exercise or perform a discretionary function . . . ,

whether or not the discretion involved be abused.” 28 U.S.C.

§ 2680(a).7

[11] To determine whether conduct falls within this excep-

tion, we must first determine if the “challenged conduct

involves an element of judgment or choice” and then if “the

conduct implements social, economic or political policy con-

siderations.” Nurse v. United States, 226 F.3d 996, 1001 (9th

Cir. 2000) (citing Berkovitz v. United States, 486 U.S. 531,

536 (1988)). Because the decision to detain an alien pending

resolution of immigration proceedings is explicitly committed

to the discretion of the Attorney General and implicates issues

of foreign policy, it falls within this exception. Cf. Medina v.

United States, 259 F.3d 220, 229 (4th Cir. 2001) (“Even

though the INS ultimately decided not to pursue the deporta-

tion of Medina, we are fully satisfied that the initial decision

to initiate proceedings and arrest him was the type of agency

conduct Congress intended to immunize in the discretionary

function exception.”); Wright v. United States, 719 F.2d 1032,

1035 (9th Cir. 1983) (“The decision whether or not to prose-

7

Though neither party raised this exception, because the applicability of

an FTCA exception affects our jurisdiction, we must consider it sua

sponte. See Morris v. United States, 521 F.2d 872, 875 & n.1 (9th Cir.

1975).

MIRMEHDI v. UNITED STATES 19891

cute a given individual is a discretionary function for which

the United States is immune from liability.”).8

V

[12] Finally, the Mirmehdis appeal the denial of their

motion to amend their complaint, arguing that they should be

allowed an opportunity to comply with the heightened plead-

ing requirements of Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009),

and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

“[R]equests for leave [to amend] should be granted with

‘extreme liberality,’ ” particularly when a complaint was filed

before Twombly and fails for lack of sufficient factual content.

Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009).

However, a party is not entitled to an opportunity to amend

his complaint if any potential amendment would be futile.

See, e.g., May Dep’t Store v. Graphic Process Co., 637 F.2d

1211, 1216 (9th Cir. 1980). As the Mirmehdis’ woes are not

caused by insufficient allegations of factual content, no poten-

tial amendments would change the outcome.

VI

For the forgoing reasons, the decision of the district court

is

AFFIRMED.

8

This does not immunize the conduct of the officers who made the

arrest at an operational level from judicial review. Wright, 719 F.2d at

1035. But, for the reasons discussed above, the Mirmehdis have not stated

a claim on those grounds.

19892 MIRMEHDI v. UNITED STATES

SILVERMAN, Circuit Judge, concurring:

Although I concur in the opinion of the court, I write sepa-

rately to emphasize that this case does not present the issue

of whether illegal immigrants could ever bring a Bivens

action. In fact, we have previously allowed an illegal immi-

grant to bring a Bivens action. See Papa v. United States, 281

F.3d 1004, 1010-11 (9th Cir. 2002) (holding that immigrant

could bring Bivens action for alleged due process violations

during immigration detention).

However, in this case, I agree with my colleagues that the

plaintiffs lack an implied right of action under Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971). As Judge O’Scannlain aptly points out, the

plaintiffs had available, and indeed availed themselves of, the

comprehensive immigration and habeas remedial mechanisms

created by Congress, a factor that counsels against recogniz-

ing a Bivens action here. See Kotarski v. Cooper, 866 F.2d

311, 312 (9th Cir. 1989). And the immigration context in

which this case arose implicates sensitive issues of “diplo-

macy, foreign policy, and the security of the nation,” further

counseling against allowing a Bivens action. See Arar v. Ash-

croft, 585 F.3d 559, 574 (2d Cir. 2009) (en banc). Thus, I

agree that Bivens does not provide a cause of action for illegal

immigrants claiming unlawful detention pending removal pro-

ceedings.