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.
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.