Opinion

Arar v. Ashcroft

  • 585 F.3d 559
  • 2009 U.S. App. LEXIS 23988
  • 2009 WL 3522887
Court
Court of Appeals for the Second Circuit
Filed
Nov 2, 2009
Status
Published
Author
Calabresi
On the bench
Jacobs, McLaughlin, Cabranes, Pooler, Sack, Sotomayor, Parker, Raggi, Wesley, Hall, Livingston, Katzmann, Calabresi
Cited by
326 cases

Declined to follow by Jesus Hernandez v. USA, 757 F.3d 249 (2014)

explaining that “any reliance on the [Immigration and Nationality Act] as an alternative remedial scheme presents difficulties” because the alien “alleged that he was actively prevented from seeking any meaningful review and relief through the [Immigration and Nationality Act] processes”

How later courts described this case

  • explaining that “any reliance on the [Immigration and Nationality Act] as an alternative remedial scheme presents difficulties” because the alien “alleged that he was actively prevented from seeking any meaningful review and relief through the [Immigration and Nationality Act] processes”
  • stating that “complexity” of remedial immigration scheme created (and frequently amended) by Congress would ordinarily warrant “strong inference that Congress intended the judiciary to stay its hand and refrain from creating a Bivens action in this context”
  • stating that it was difficult in the context presented to determine if the INA provided an alternative remedial scheme, but declining to extend Bivens to the context of extraordinary rendition of an alien because of special factors counseling hesitation
  • explaining that “federal system of checks and balances provides means to consider allegedly unconstitutional execu-five policy, but a [judicially created] private action for money damages against individual policymakers is not one of them”

Written by the judges who cited it.

Later courts went against this

  • Declined to follow by Jesus Hernandez v. USA, 757 F.3d 249 (2014)

    First, we decline to follow Mirmehdi, because the opinion unjustifiably extends the special factors identified in Arar well beyond that decision’s specific national security “context of extraordinary rendition.
    Court of Appeals for the Fifth CircuitJun 30, 2014Read it

The opinion

CALABRESI, POOLER, SACK, and PARKER, Circuit Judges,

dissent.

Each joins fully in all the dissenting opinions, but each writes separately to emphasize particular aspects of these dissents.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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