# Mirmehdi v. United States

> Court of Appeals for the Ninth Circuit · November 3, 2011 · 662 F.3d 1073

URL: https://www.frixlaw.com/law-library/cases/9484957

## Case

- **Full name:** Mohammad MIRMEHDI; Mostafa Mirmehdi; Mohsen Mirmehdi; Mojtaba Mirmehdi, Plaintiffs-Appellants, v. UNITED STATES of America; Mario Lopez; John Ashcroft; Robert S. Mueller, III; James W. Ziglar; Michael Garcia, Esquire; Christopher Castillo; James MacDowell, Defendants-Appellees
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** November 3, 2011
- **Citations:** 662 F.3d 1073; 2011 U.S. App. LEXIS 22159; 2011 WL 5222884
- **Precedential status:** Published
- **Opinion:** Concurrence by Silverman
- **Judges:** Alarcón, O'Scannlain, Silverman
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9484957

## How later opinions describe it (automated extraction)

- observing that damages can be awarded under Bivens for only constitutional violations

## Opinion text

SILVERMAN, Circuit Judge,
concurring:
Although I concur in the opinion of the court, I write separately 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 immigrant 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 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971). As Judge O’Scannlain aptly points out, the plaintiffs had available, and indeed availed them *1083 selves of, the comprehensive immigration and habeas remedial mechanisms created by Congress, a factor that counsels against recognizing 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 “diplomacy, foreign policy, and the security of the nation,” further counseling against allowing a Bivens action. See Arar v. Ashcroft, 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 proceedings.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9484957. Public record. Not legal advice.