Mohammad Mirmehdi, et al v. USA, et al

Filing

FILED OPINION (ARTHUR L. ALARCON, DIARMUID F. O'SCANNLAIN and BARRY G. SILVERMAN) AFFIRMED. Judge: DFO Authoring, Judge: BGS Concurring. FILED AND ENTERED JUDGMENT. [7952550]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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.





No. 09-55846
D.C. No.
2:06-cv-05055R-PJW
OPINION



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

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MIRMEHDI v. UNITED STATES

COUNSEL
Paul L. Hoffman, Schonbrun DeSimone Seplow Harris Hoffman & 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 Victoria 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. McCarthy, 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

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Iran who came to the United States at various times, purportedly 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’ applications. 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; Mohammad 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 center 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

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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 terrorist group in 1997 and is affiliated with the NCRI. But the
Mirmehdis assert that they attended the rally before that classification 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 proceeding related to their asylum applications, and in a federal petition 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 likelihood of mistreatment if removed to Iran, and because the
government failed to establish that they were engaged in terrorist 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, MacDowell, several named prison guards, John Does 1–10, and
the United States. They raised a number of claims including

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unlawful detention, inhumane detention conditions, witness
intimidation, and the intentional infliction of emotional distress.
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 presents 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 assuming 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) (concluding that no Bivens action exists for government employees despite
previously allowing such claims).

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A
In the past, we have suggested that “federal courts have
inherent authority to award damages to plaintiffs whose federal 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 constitutional guarantee.” Wilkie v. Robbins, 551 U.S. 537, 550
(2007). Such a cause of action “is not an automatic entitlement 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 context 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 benefits, 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 contracts, 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

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Malesko, 534 at 68). Such a decision implicates grave separation of powers concerns because the “creation of a private
right of action raises [policy choices] beyond the mere consideration whether primary conduct should be allowed or not,
entailing, for example, a decision to permit enforcement without 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 detention 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 tangentially, 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 scenario 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 vindicating 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)

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(“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.”). Therefore, deportation proceedings constitute the relevant “environment 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 “distilled its 35-year history of Bivens jurisprudence into a twostep 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 protecting’ 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 detention through not one but two different remedial systems. As
the Second Circuit stated: “Congress has established a substantial, comprehensive, and intricate remedial scheme in the
context of immigration.” Arar, 585 F.3d at 572. The availability of habeas is another remedy. See Rauschenberg v. Wil3

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.

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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 compensation for unlawful detention. “Even where Congress has
given plaintiffs no damages remedy for a constitutional violation, 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 “frequent and intense” congressional attention to “the design of a
Government program [to] suggest[ ] that Congress has provided 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 remedy. 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 tendency to affect diplomacy, foreign policy, and the security of
the nation,” which further “counsels hesitation” in extending

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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 priorities and techniques” such cases often involve “the disclosure
of foreign-policy objectives and (as in this case) foreignintelligence products.” Id. at 490-91.
[7] Accordingly, we decline to extend Bivens to allow the
Mirmehdis to sue federal agents for wrongful detention pending deportation given the extensive remedial procedures available 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 Castillo 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 supporters 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 constitutional right to assert [a claim of] selective enforcement” of immigration
laws. AADC, 525 U.S. at 488.

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1040 (9th Cir. 1987) (emphasis omitted). This rule applies to
both witness intimidation and conspiracy to intimidate a witness. 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 Mirmehdis’ 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. Ritchie, 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 determination because we see no evidence that they tried to do so, even after
the IJ’s initial decision in 2002.

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We do not reach this contention because even if true, the Mirmehdis’ 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 immunity 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 failure 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 exception, 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 considerations.” 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 deportation 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 prose7

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).

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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 pleading 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 potential 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.

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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 (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 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.