Bernardo Mendia v. John Garcia, et al

Filing

FILED OPINION (JOHN T. NOONAN, JACQUELINE H. NGUYEN and PAUL J. WATFORD) We reverse the district court s dismissal of Mendia s complaint and remand for further proceedings. The parties requests for judicial notice are GRANTED. Defendants motion to supplement the record is DENIED. REVERSED AND REMANDED. Judge: PJW Authoring. FILED AND ENTERED JUDGMENT. [9256596]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BERNARDO MENDIA,
Plaintiff-Appellant,
v.

No. 12-16220
D.C. No.
3:10-cv-03910MEJ

JOHN M. GARCIA; U.S. DEPARTMENT
OF HOMELAND SECURITY; CHING
CHANG,
Defendants-Appellees.

OPINION

Appeal from the United States District Court
for the Northern District of California
Maria-Elena James, Magistrate Judge, Presiding
Argued and Submitted
April 8, 2014—San Francisco, California
Filed September 29, 2014
Before: John T. Noonan, Jacqueline H. Nguyen,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Watford

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MENDIA V. GARCIA
SUMMARY*

Civil Rights
The panel reversed the district court’s dismissal, for lack
of standing, and remanded in an action brought against two
agents of the United States Immigration and Customs
Enforcement seeking damages for the time plaintiff spent in
pre-trial detention on state criminal charges allegedly as a
result of the agents wrongfully lodging an immigration
detainer against him even though he was United States
citizen.
The panel held that plaintiff adequately pled causation for
Article III purposes because he sufficiently alleged that his
inability to utilize the services of a bail bondsman caused him
to remain in pre-trial detention unnecessarily, at least during
the period in which the bail condition remained in effect. The
panel determined that plaintiff plausibly alleged that the
immigration detainer was at least a substantial factor
motivating the bail bondsmen’s refusal to do business with
him.

COUNSEL
Purvi G. Patel (argued), Benjamin J. Fox, and Michael T.
Baldock, Morrison & Foerster LLP, Los Angeles, California,
for Plaintiff-Appellant.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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Lana L. Vahab (argued), Trial Attorney; Stuart F. Delery,
Acting Assistant Attorney General; and Colin A. Kisor,
Deputy Director, United States Department of Justice, Civil
Division, Washington, D.C., for Defendants-Appellees.

OPINION
WATFORD, Circuit Judge:
Bernardo Mendia sued two agents of the United States
Immigration and Customs Enforcement (ICE), seeking
damages for the time he spent in pre-trial detention on state
criminal charges allegedly as a result of the agents’ wrongful
acts. The district court granted the government’s motion to
dismiss Mendia’s lawsuit on the ground that he lacks Article
III standing to pursue his claims. We conclude that Mendia’s
standing allegations are adequate to survive a motion to
dismiss.
According to Mendia’s pro se complaint, the State of
California arrested him in May 2007 and charged him with
“various alleged financial crimes.” A state court granted
Mendia bail, but he lacked the means to post it without the
assistance of a bail bondsman. In June 2007, before Mendia
could post the required bail, the defendant ICE agents
interviewed him at the county jail. Mendia told them he is a
United States citizen. To back that assertion up, he gave the
agents his Social Security number and informed them he had
a valid United States passport. Mendia then invoked his Fifth
Amendment right to remain silent, directing the agents to
contact his lawyer at the county Public Defender’s office if
they had additional questions or wanted to verify the
information he had given them. One of the agents became

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irate, stating something to the effect of, “Oh! You don’t want
to talk to me? We’ll see if you want to talk when we’re
deporting your ass!”
The ICE agents lodged an immigration detainer against
Mendia that same day. The purpose of such detainers is to
notify other law enforcement agencies that the Department of
Homeland Security “seeks custody of an alien . . . for the
purpose of arresting and removing the alien.” 8 C.F.R.
§ 287.7(a). Mendia’s detainer stated that he was an alien of
Mexican nationality and that ICE had initiated an
investigation to determine whether he was subject to removal
from the United States. Mendia alleges that the agents issued
the detainer with malice, knowing or in reckless disregard of
the fact that he is a United States citizen not subject to
removal.
According to Mendia’s complaint, the immigration
detainer precluded him from securing pre-trial release. When
Mendia contacted various bail bondsmen for assistance in
posting bail, all of them “refused to even consider posting a
bail for the Plaintiff because of the immigration detainer.”
The bail bondsmen told Mendia that “no bail bond would be
afforded to the Plaintiff on account of the fact that there was
an immigration detainer placed on the Plaintiff.” Mendia
alleges that, but for the immigration detainer, he would have
posted bail with the assistance of a bail bondsman, as he had
been able to do following prior arrests.
Approximately six months after lodging the detainer
against Mendia, the ICE agents cancelled it, although Mendia
alleges he didn’t learn of that fact until much later. In the
interim, on an unspecified date, the state court removed the
bail condition and granted Mendia release on his own

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recognizance. Mendia alleges that, because he believed the
immigration detainer was still in place, he refused to accept
release, even though he no longer needed the assistance of a
bail bondsman to get out. Mendia’s explanation is that he
feared ICE agents would re-arrest and deport him, thereby
jeopardizing his defense of the pending state criminal
charges. (He doesn’t explain why he apparently lacked that
fear when attempting to engage the services of a bail
bondsman earlier.) Mendia alleges that he accepted release
on his own recognizance in July 2009, after finally learning
that the detainer had been cancelled.
Mendia sued the ICE agents under Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388 (1971), and the
Federal Tort Claims Act, 28 U.S.C. § 1346(b), asserting
various constitutional and common-law tort claims. The
government moved to dismiss the action under Federal Rule
of Civil Procedure 12(b)(1), arguing that, on their face,
Mendia’s allegations don’t establish Article III standing. The
district court dismissed the action on that basis, and therefore
did not address the government’s alternative motion to
dismiss under Rule 12(b)(6) for failure to state a claim.
Of the three elements required to establish Article III
standing—injury, causation, and redressability—injury and
redressability are easily met here. If we take Mendia’s wellpleaded allegations as true, as we must on this facial attack,
see Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014),
he spent two years in pre-trial detention that he should not
have endured. He thus claims as his injury loss of liberty,
which satisfies Article III because it’s “an injury that affects
him in a ‘personal and individual way.’” Hollingsworth v.
Perry, 133 S. Ct. 2652, 2662 (2013) (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992)). In fact,

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it’s difficult to imagine an injury that could affect one more
personally and individually than a deprivation of one’s
liberty. That’s presumably why no one questions the
existence of Article III injury when a civil rights plaintiff sues
on the theory that the actions of the defendants (say, the
police) resulted in wrongful confinement on criminal charges,
whether before or after trial. See, e.g., Wallace v. Kato,
549 U.S. 384 (2007); Tatum v. Moody, — F.3d —, 2014 WL
4627967 (9th Cir. Sept. 17, 2014). And it’s clear that the
relief Mendia seeks—an award of monetary damages—would
redress the injury he has alleged.
The ICE agents argued, and the district court concluded,
that Mendia could not have suffered Article III injury because
ICE never took him into custody. Whether ICE had custody
has some bearing on the element of causation, to which we
will turn in a moment, but it has no bearing on the element of
injury. Remaining confined in jail when one should
otherwise be free is an Article III injury, plain and simple;
who or what caused that injury is of course a separate
question. The case on which the district court relied, Garcia
v. Taylor, 40 F.3d 299 (9th Cir. 1994), doesn’t apply here.
We held there that a prisoner already serving a sentence on
federal criminal charges could not use the habeas corpus
statute to challenge an immigration detainer lodged against
him. Id. at 303. The detainer did not place the prisoner in
“custody” for purposes of habeas jurisdiction, we concluded,
because a detainer standing alone does not restrain liberty.
Id. Even if Garcia applies outside the habeas context, it’s not
on point because Mendia does not allege injury on the theory
that the detainer independently restrained him.
The question that remains is whether Mendia has
adequately alleged causation, which for Article III purposes

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requires a showing that his injury is “fairly traceable to the
challenged action of the defendant, and not the result of the
independent action of some third party not before the court.”
Bennett v. Spear, 520 U.S. 154, 167 (1997).
It’s true, as just noted, that ICE never had custody of
Mendia, and he therefore cannot allege that the ICE detainer
directly caused his confinement. But the fact that “the harm
to [the plaintiff] may have resulted indirectly does not in
itself preclude standing.” Warth v. Seldin, 422 U.S. 490, 504
(1975). Causation may be found even if there are multiple
links in the chain connecting the defendant’s unlawful
conduct to the plaintiff’s injury, and there’s no requirement
that the defendant’s conduct comprise the last link in the
chain. Bennett, 520 U.S. at 168–69. As we’ve said before,
“what matters is not the ‘length of the chain of causation,’ but
rather the ‘plausibility of the links that comprise the chain.’”
Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d 835, 849 (9th
Cir. 2002) (quoting Autolog Corp. v. Regan, 731 F.2d 25, 31
(D.C. Cir. 1984)).
Mendia relies on a causal chain with multiple links—the
state court’s decision to impose bail, his inability to post bail
without the assistance of a bail bondsman, the ICE agents’
imposition of the immigration detainer, and finally the bail
bondsmen’s refusal to do business with him. The last link in
the chain is the critical one for our purposes. Mendia alleges
that the bail bondsmen’s refusal to do business with him is
attributable to the immigration detainer lodged against him.
Mendia’s causation theory is that the government’s unlawful
conduct, while not directly causing his injury, nonetheless led
third parties to act in a way that injured him.

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That is a perfectly viable theory. See Lujan, 504 U.S. at
562. But when a plaintiff alleges that government action
caused injury by influencing the conduct of third parties,
we’ve held that “more particular facts are needed to show
standing.” Nat’l Audubon Soc’y, 307 F.3d at 849. That’s so
because the third parties may well have engaged in their
injury-inflicting actions even in the absence of the
government’s challenged conduct. Americans for Safe Access
v. DEA, 706 F.3d 438, 448 (D.C. Cir. 2013). To plausibly
allege that the injury was “not the result of the independent
action of some third party,” Bennett, 520 U.S. at 167
(emphasis added), the plaintiff must offer facts showing that
the government’s unlawful conduct “is at least a substantial
factor motivating the third parties’ actions.” Tozzi v. U.S.
Dep’t of Health & Human Servs., 271 F.3d 301, 308 (D.C.
Cir. 2001) (internal quotation marks omitted); accord San
Luis & Delta-Mendota Water Auth. v. Salazar, 638 F.3d
1163, 1171 (9th Cir. 2011). So long as the plaintiff can make
that showing without relying on “speculation” or
“guesswork” about the third parties’ motivations, Clapper v.
Amnesty Int’l USA, 133 S. Ct. 1138, 1150 (2013), she has
adequately alleged Article III causation.
When we apply these principles here, we have little
difficulty concluding that Mendia’s allegations are adequate.
None of the links in Mendia’s causal chain relies on
speculation or guesswork. For example, we aren’t left to
speculate whether the bail bondsmen’s refusal to do business
with Mendia left him unable to post bail. He specifically
alleges that he needed the assistance of a bail bondsman to
post the required bail and that he unsuccessfully tried to
secure such assistance. Those allegations are plausible in
light of the fact that, according to Mendia’s complaint, he
never did post bail. Instead, he spent two years in pre-trial

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detention, obtaining release only after the state court
eliminated the bail condition. Mendia has adequately alleged
that his inability to utilize the services of a bail bondsman
caused him to remain in pre-trial detention unnecessarily, at
least during the period in which the bail condition remained
in effect.1
Nor are we left to speculate as to why Mendia was unable
to utilize the services of a bail bondsman. Mendia’s
complaint expressly alleges that every bail bondsman he
contacted told him why: “because of the immigration
detainer.” This is not a case in which the existence of a
cause-and-effect relationship between the government’s
allegedly unlawful conduct and the third parties’ injuryinflicting actions is “purely speculative.” Simon v. Eastern
Ky. Welfare Rights Org., 426 U.S. 26, 42 (1976). Indeed, it’s
unclear how Mendia could have alleged the causal connection
between the detainer and the actions of the bail bondsmen any
more concretely. His complaint relies on words directly from

1

As noted earlier, Mendia alleges that after the state court granted him
release on his own recognizance, he refused to accept it because he feared
ICE would re-arrest and then deport him, thereby prejudicing his defense
of the pending state criminal charges. Mendia lacks standing to seek
damages for any period of pre-trial detention he suffered after the state
court granted him release on his own recognizance. Given that he chose
to remain in state custody rather than accept release, his injury can’t be
deemed fairly traceable to the actions of the ICE agents unless it was
reasonably incurred “to mitigate or avoid” the future harm he claimed to
fear. Clapper, 133 S. Ct. at 1151 n.5. But to establish standing to seek
redress for this injury, Mendia must be able to allege a “substantial risk”
that the future harm would occur, id., and here he can’t. His alleged fear
that if he left state custody ICE would somehow manage to seize and
deport him, notwithstanding his status as a U.S. citizen, is entirely
speculative. The loss of liberty he experienced after being granted release
on his own recognizance is thus a self-inflicted injury. See id. at 1151–52.

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the mouths of the relevant third parties explaining why they
took the actions that caused Mendia’s injury.
Contrary to the ICE agents’ argument, Mendia’s causation
theory—that the detainer led the bail bondsmen to refuse to
do business with him—isn’t facially implausible. When ICE
announces that it “seeks custody of an alien . . . for the
purpose of arresting and removing the alien,” 8 C.F.R.
§ 287.7(a), there’s certainly a higher risk that, if released on
bail from state custody, the alien might not be around to make
his court dates. See State v. Fajardo-Santos, 973 A.2d 933,
934 (N.J. 2009) (lodging of detainer increased risk of nonappearance at trial, warranting increase in defendant’s bail).
Whether that heightened risk was enough to lead bail
bondsmen to refuse Mendia’s business altogether, rather than
simply to demand an increased fee, strikes us as the sort of
factual issue that can’t be resolved in the context of a facial
attack on the sufficiency of a complaint’s allegations.
Mendia’s causation allegations do not rely on speculation
or guesswork any more than those we upheld as sufficient in
Barnum Timber Co. v. EPA, 633 F.3d 894 (9th Cir. 2011).
There, the Environmental Protection Agency designated a
stream running through the plaintiff’s timber lands as an
“impaired” water body under the Clean Water Act. Id. at
895–96. The plaintiff’s injury consisted of the decrease in the
value of its property, which it alleged was caused by the
EPA’s impairment listing. Id. at 896. The plaintiff supported
its causation allegation with an affidavit from a licensed
professional forester, who explained that “‘[w]hen a listing
occurs, the public perceives—whether accurately or not—that
the subject property will be subject to additional and onerous
regulation.’” Id. at 899. The forester opined that “‘the
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devalued because of the § 303(d) listing.’” Id. We held that
“Barnum has alleged specific facts plausibly explaining
causality,” rejecting the government’s factual attack on the
complaint’s allegations. Id. If anything, Mendia’s causation
allegations are even less speculative than those in Barnum
Timber, because rather than relying on an expert’s opinion
about “the market reaction” to the government’s challenged
conduct, Mendia included allegations straight from the
relevant third parties’ mouths stating that they declined to do
business with Mendia “because of” the immigration detainer.
The ICE agents contend this case is more analogous to
San Diego County Gun Rights Committee v. Reno, 98 F.3d
1121 (9th Cir. 1996), than to Barnum Timber. We don’t
share their view. The plaintiffs in San Diego County were
prospective purchasers of certain weapons banned by the
Crime Control Act of 1994. Id. at 1124. They sought to
challenge the constitutionality of the Act and predicated
Article III standing on the bare allegation—bereft of any
supporting facts—that prices for the banned weapons had
increased by 40 to 100 percent as a direct result of the Act.
Id. at 1130. We held that the plaintiffs’ allegation of a causal
connection between the increase in prices and the Crime
Control Act rested on “sheer speculation.” Id. We pointed
out that the higher prices were imposed by third-party gun
dealers and manufacturers, not by the Crime Control Act
itself, and that an obvious alternative explanation appeared to
exist for the increase in prices: California had enacted its
own ban of the same types of weapons covered by the federal
Act. Id. In those circumstances, the plaintiffs were required
to allege “more particular facts” to substantiate their theory
of causation, see Nat’l Audubon Soc’y, 307 F.3d at 849, but
they alleged no facts at all. Here, in contrast, Mendia’s chain
of causation does not rest on speculation, and he has

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supported each link in the chain with specific factual
allegations.
We must reject the ICE agents’ remaining arguments.
They assert that the immigration detainer can’t support
causation because ICE didn’t “control” the actions of the bail
bondsmen. That’s not the relevant test. While such “control”
would certainly suffice to establish causation, see Bennett,
520 U.S. at 169, it’s not a requirement. What Mendia needed
to allege is that the immigration detainer was at least a
substantial factor motivating the bail bondsmen’s refusal to
do business with him, see Tozzi, 271 F.3d at 308, and he’s
done that. The ICE agents also assert that Mendia’s
indigency—not the imposition of the detainer—was the real
reason he couldn’t utilize the services of a bail bondsman.
That, too, is a factual dispute that can’t be resolved in the
context of a facial attack on the sufficiency of the complaint’s
allegations. Its resolution, if necessary, must be left for later
stages of the litigation.
We reverse the district court’s dismissal of Mendia’s
complaint and remand for further proceedings. The parties’
requests for judicial notice are GRANTED. Defendants’
motion to supplement the record is DENIED.
REVERSED AND REMANDED.

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