Ignacio Lanuza v. Jonathan Love

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

IGNACIO LANUZA, No. 15-35408
Plaintiff-Appellant,
D.C. No.
v. 2:14-cv-01641-
MJP
JONATHAN M. LOVE, Assistant Chief
Counsel, Immigration and Customs
Enforcement, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Senior District Judge, Presiding

Argued and Submitted October 3, 2017
Seattle, Washington

Filed August 14, 2018

Before: Kermit Victor Lipez, * Kim McLane Wardlaw,
and John B. Owens, Circuit Judges.

Opinion by Judge Wardlaw

*
The Honorable Kermit V. Lipez, United States Circuit Judge for
the First Circuit, sitting by designation.
2 LANUZA V. LOVE

SUMMARY **

Bivens

The panel reversed the district court’s order declining to
extend a Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), remedy to an
immigrant pursuing lawful permanent resident status where
a government immigration attorney intentionally submitted
a forged document in an immigration proceeding to
completely bar that immigrant from pursuing relief to which
he was entitled.

The panel concluded that while the Supreme Court “has
made clear that expanding the Bivens remedy is now a
‘disfavored’ judicial activity,” Ziglar v. Abbasi, 137 S. Ct.
1843, 1857 (2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
675 (2009)), a Bivens remedy was available in this narrow
circumstance because none of the special factors outlined in
Abbasi and other Supreme Court precedent applied.

The panel affirmed the district court’s order denying
qualified immunity to ICE Assistant Chief Counsel Jonathan
Love because qualified immunity was not meant to protect
those who are “plainly incompetent or those who knowingly
violate the law.” Taylor v. Barkes, 135 S. Ct. 2042, 2044
(2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743
(2011)). The panel concluded that qualified immunity could
not shield an officer from suit when he intentionally

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 LANUZA V. LOVE 3

submitted a forged document in an immigration proceeding
in clear violation of 8 U.S.C. § 1357(b).

COUNSEL

Matt Adams (argued) and Glenda M. Aldana Madrid,
Northwest Immigrant Rights Project, Seattle, Washington;
Christopher Schenck and Stephanie M. Martinez, Kilpatrick
Townsend & Stockton LLP, Seattle, Washington; for
Plaintiff-Appellant.

Amanda E. Lee (argued), Law Office of Amanda Lee PLLC,
Seattle, Washington, for Defendant-Appellee.

H. Thomas Byron III (argued) and Barbara L. Herwig,
Appellate Staff; Joseph H. Harrington, Acting United States
Attorney; Chad A. Readler, Acting Assistant Attorney
General; Civil Division, United States Department of
Justice, Washington, D.C.; for Amicus Curiae United States.

Mary Kenney, American Immigration Council, Washington,
D.C.; Trina Realmuto, National Immigration Project of the
National Lawyers Guild, Boston, Massachusetts; for Amici
Curiae American Immigration Council and National
Immigration Project of the National Lawyers Guild.
4 LANUZA V. LOVE

OPINION

WARDLAW, Circuit Judge:

We are tasked with answering in part a question asked
by many legal commentators in the wake of the Supreme
Court’s decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017):
where does Bivens stand? Bivens is the first Supreme Court
decision to recognize an implied right of action for damages
against federal officers alleged to have violated a plaintiff’s
constitutional rights. See Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 392–98
(1971). Here, a U.S. Immigration and Customs Enforcement
(ICE) Assistant Chief Counsel representing the government
intentionally forged and submitted an ostensible government
document in an immigration proceeding, which had the
effect of barring Ignacio Lanuza (Lanuza) from obtaining
lawful permanent resident status, a form of relief to which
he was otherwise lawfully entitled. We recognize that the
Supreme Court “has made clear that expanding the Bivens
remedy is now a ‘disfavored’ judicial activity,” Abbasi,
137 S. Ct. at 1857 (quoting Ashcroft v. Iqbal, 556 U.S. 662,
675 (2009)), but, if the principles animating Bivens stand at
all, they must provide a remedy on these narrow and
egregious facts. We therefore reverse the district court’s
holding that Lanuza was not entitled to a Bivens remedy.

I.

Lanuza is a 38-year-old lawful permanent resident
married to a U.S. citizen with two U.S. citizen children. He
was born in Mexico and first came to the United States
without inspection when he was seventeen years old. He
lives and works in Seattle, Washington. In July 2008, the
Department of Homeland Security (DHS) commenced
removal proceedings against him before the Tacoma
 LANUZA V. LOVE 5

immigration court, which were ultimately transferred to the
Seattle immigration court.

On May 6, 2009, Lanuza appeared before an
immigration judge for a master calendar hearing. During
that hearing, Lanuza notified the court of his intention to
apply for Cancellation of Removal and Adjustment of Status
for Certain Nonpermanent Residents (cancellation of
removal or cancellation) under 8 U.S.C. § 1229b(b)(1). At
the time, he was prima facie eligible to apply for cancellation
of removal, which is a type of immigration relief that enables
nonpermanent residents to adjust their status to that of
permanent residents. To qualify for cancellation, a person
must demonstrate (1) continuous physical presence in the
United States for ten years immediately prior to being served
with the Notice to Appear; (2) good moral character; (3) that
he is not subject to any other bar to eligibility on account of
having certain criminal convictions; and (4) the existence of
a U.S. citizen or lawful permanent resident spouse, parent,
or child who would suffer exceptional and extremely
unusual hardship if the person were removed. See 8 U.S.C.
§ 1229b(b)(1). As later events would confirm, Lanuza
satisfied all these requirements: (1) he had been residing
continuously in the United States since 1996 and thus had
more than ten years of continuous residence; (2) he
possessed good moral character; (3) he was not subject to
any other bar to eligibility; and (4) his U.S. citizen wife and
children would suffer exceptional and extremely unusual
hardship without him.

During the master calendar hearing, ICE Assistant Chief
Counsel Jonathan Love (“Love”) stated that Lanuza’s
immigration file contained an I-826 form, signed by Lanuza,
accepting voluntary departure to Mexico in 2000. The I-826
form was critical in determining whether Lanuza would be
6 LANUZA V. LOVE

able to remain in the United States with his family, because
a signed I-826 form would render him ineligible for
cancellation of removal. By signing an I-826 form, a person
accepts an administrative voluntary departure instead of
exercising his right to appear before an immigration judge in
removal proceedings and thereby breaks whatever
continuous physical presence he may have accrued. See
Ibarra-Flores v. Gonzales, 439 F.3d 614, 618–20 (9th Cir.
2006); see also Landin-Zavala v. Gonzales, 488 F.3d 1150,
1152–53 (9th Cir. 2007) (“When [an individual] leaves
pursuant to an administrative voluntary departure[ ]‘[he]
leaves with the knowledge that he does so in lieu of being
placed in proceedings. . . .’” (quoting Tapia v. Gonzales,
430 F.3d 997, 1002 (9th Cir. 2005))). As a result, even
though Lanuza met all the other elements of § 1229b(b)(1),
if Lanuza had signed an I-826 form in 2000, he would have
accrued continuous residence in the United States for only
seven years, rather than the requisite ten years. See 8 U.S.C.
§ 1229b(b)(1).

On May 11, 2009 at Lanuza’s actual immigration
hearing, Love submitted an I-826 form agreeing to voluntary
departure, purportedly signed by Lanuza on January 13,
2000, making Lanuza ineligible for cancellation of removal.
See id. Based solely on that I-826 form, the immigration
judge issued an order of removal on January 5, 2010; the
Board of Immigration Appeals (“BIA”) affirmed on
November 15, 2011.

On December 9, 2011, Lanuza hired new counsel, Hilary
Han (“Han”), who discovered, for the first time, evidence
that the I-826 form Love submitted was forged. Han sent the
I-826 form to a forensic examiner, who, on February 1, 2012,
confirmed that the form was forged. While several aspects
of the form demonstrated it was forged, most glaringly, it
 LANUZA V. LOVE 7

referred to the “U.S. Department of Homeland Security” at
the top of the page, an agency that did not exist at the time
Lanuza purportedly signed the form on January 13, 2000.
Congress created DHS in response to the September 11,
2001 terrorist attacks, and the agency did not begin formal
operations until 2003. Therefore, it would have been
impossible for Lanuza to sign the DHS I-826 form in January
2000, because that form did not then exist.

Based on the forensic report, the BIA reopened and
remanded the case, and, on remand, the immigration judge
ultimately found that Lanuza was prima facie eligible to
apply for cancellation of removal. The agency adjusted his
status to lawful permanent resident on January 9, 2014.

The government did not take any action against Love
until after this lawsuit was filed on October 24, 2014. Love
was ultimately prosecuted and pleaded guilty to deprivation
of rights under color of law pursuant to 18 U.S.C. § 242,
which ICE characterized as a “deprivation of constitutional
rights” in a press release. 1 Love was sentenced to a thirty-
day term of imprisonment, one year of supervised release,
and 100 hours of community service. See United States v.
Love, No. 2:16-cr-00005-BAT-1, ECF No. 16 (W.D. Wash.
April 20, 2016). He was also barred from practicing law for
ten years and was required to pay restitution to Lanuza in the
amount of $12,000, a figure the government proposed based
on its approximation of the legal fees Lanuza paid related to

1
Press Release, U.S. Immigration & Customs Enforcement, Ex-Ice
Attorney Sentenced to Prison for Falsifying Document in Immigration
Case (Apr. 20, 2016), https://www.ice.gov/news/releases/ex-ice-
attorney-sentenced-prison-falsifying-document-immigration-case.
8 LANUZA V. LOVE

his removal proceedings as a result of Love’s submission of
the forged I-826 form. Id. at 6–7.

On October 23, 2014, Lanuza filed a complaint against
Love and the United States alleging, among other things, that
he was entitled to damages under Bivens for a violation of
his Fifth Amendment right to due process. Love filed a
motion to dismiss, which the district court hesitantly granted.
While the district court believed Lanuza was entitled to
relief, the court felt its hands were tied by our decision in
Mirmehdi v. United States, 689 F.3d 975 (9th Cir. 2012),
which declined to extend Bivens to a claim for wrongful
detention in the course of immigration removal proceedings.
The district court further held that, if a Bivens remedy were
available, Love was not entitled to qualified immunity.
Lanuza timely appealed.

II.

Whether a Bivens remedy is available here turns on the
presence of the conditions articulated in Abbasi for
extending the Bivens remedy. See Abbasi, 137 S. Ct. at
1856–58. In Abbasi, the Supreme Court addressed whether
Respondents, noncitizens who were suspected of having ties
to terrorism and detained in harsh conditions in the aftermath
of September 11, could pursue Bivens remedies against
various high-level federal officials responsible for the policy
that authorized their detention and the wardens responsible
for their treatment thereafter. Id. at 1853–54. The Court
articulated a two-part test for determining whether Bivens
remedies should be extended. Id. at 1859–60. First, courts
must determine whether the plaintiff is seeking a Bivens
remedy in a new context. Id. If the answer to this question
is “no,” then no further analysis is required. Id. If the answer
is “yes,” then the court must determine whether “special
factors counsel[] hesitation.” Id. at 1860.
 LANUZA V. LOVE 9

A case presents a new context if it “is different in a
meaningful way from previous Bivens cases decided by [the
Supreme Court].” Id. at 1859. The Court explained that:

[A] case might differ in a meaningful way
because of the rank of the officers involved;
the constitutional right at issue; the generality
or specificity of the official action; the extent
of judicial guidance as to how an officer
should respond to the problem or emergency
to be confronted; the statutory or other legal
mandate under which the officer was
operating; the risk of disruptive intrusion by
the Judiciary into the functioning of other
branches; or the presence of potential special
factors that previous Bivens cases did not
consider.

Id. at 1860.

Applying this framework to that suit, the Court found
that Respondents’ challenge to the executive officials’
detention policy presented a new context, reasoning that:

[The challenge to] the confinement
conditions imposed on illegal aliens pursuant
to a high-level executive policy created in the
wake of a major terrorist attack on American
soil . . . [bore] little resemblance to the three
Bivens claims the [Supreme] Court . . .
approved in the past: a claim against FBI
agents for handcuffing a man in his own
home without a warrant; a claim against a
Congressman for firing his female secretary;
and a claim against prison officials for failure
to treat an inmate’s asthma.
10 LANUZA V. LOVE

Id. (referring to Bivens, 403 U.S. 388; Davis v. Passman,
442 U.S. 228 (1979); and Carlson v. Green, 446 U.S. 14
(1980), respectively).

Proceeding to the “special factors analysis,” the Court
found those factors counseled against implying a Bivens
remedy. Id. First, a Bivens action is intended to discourage
illegal acts by individual officers and is not “a proper vehicle
for altering an entity’s policy.” Id. (citing Corr. Servs. Corp.
v. Malesko, 534 U.S. 61, 74 (2001)). Second, “the burden
and demand of litigation [against high-level officials] might
well prevent them—or, to be more precise, future officials
like them—from devoting the time and effort required for
the proper discharge of their duties.” Id. (citing Cheney v.
U.S. Dist. Ct. for D.C., 542 U.S. 367, 382 (2004)). Third,
these claims raise serious separation-of-powers issues and
“would require courts to interfere in an intrusive way with
sensitive functions of the Executive Branch” and “challenge
. . . major elements of the Government’s whole response to
the September 11 attacks, thus of necessity requiring an
inquiry into sensitive issues of national security.” Id. at 1861
(citations omitted). Fourth, congressional interest in the
response to the terrorist attacks was “frequent and intense,”
including interest in “the conditions of confinement at
issue[,]” and Congress chose not to create a damages
remedy. Id. at 1862 (citation omitted). Finally, Respondents
had alternate avenues of relief available to challenge their
condition of confinement. Respondents could have pursued
injunctive relief to attack the large-scale detention policy or
perhaps a petition for a writ of habeas corpus to attack their
own confinement. Id. at 1862–63. The Court reasoned,
while “[t]here is . . . a balance to be struck, in situations like
this one, between deterring constitutional violations and
freeing high officials to make the lawful decisions necessary
to protect the Nation in times of great peril . . . . [t]he proper
 LANUZA V. LOVE 11

balance is one for the Congress, not the Judiciary, to
undertake.” Id. at 1863 (citation omitted).

The Court separately considered the prisoner abuse
claim against Warden Hasty, the warden of the prison where
Respondents were held. Addressing whether this claim
presented a new context, the Court compared Respondents’
case to Carlson v. Green, 446 U.S. 14 (1980), a Supreme
Court case where a prisoner’s estate sued federal jailers for
failing to treat the prisoner’s asthma, ultimately leading to
his death. Id. at 16 n.1; Abbasi, 137 S. Ct. at 1864. In
Carlson, the Court found the failure to treat a prisoner’s
medical needs violated his Eighth Amendment right to be
free from cruel and unusual punishment. 446 U.S. at 17–18.
The Abbasi Court distinguished Respondents’ case from
Carlson, finding it meaningful that the Abbasi Respondents
challenged violations of the Bureau of Prisons’ policy,
unlike in Carlson where the prison’s policy was not at issue.
Abbasi, 137 S. Ct. at 1864. The Court further noted that,
unlike judicial guidance as to the medical treatment at issue
in Carlson, “the judicial guidance available to this warden,
with respect to his supervisory duties, was less developed.”
Id. Acknowledging that there were “significant parallels”
between the Respondents’ case and Carlson, and that the
“allegations of injur[ies] here are just as compelling as those
at issue in Carlson,” the Court nevertheless found
Respondents’ claims presented a new Bivens context,
reasoning that “a modest extension is still an extension.” Id.
And, the Court found that “this case does seek to extend
Carlson to a new context.” Id. The Court did not perform
the special factors analysis, and instead remanded the claim
against Warden Hasty to the Court of Appeals to perform a
special factors analysis in the first instance. Id. at 1865.
12 LANUZA V. LOVE

One week after Abbasi was decided, the Supreme Court
again had the opportunity to revisit Bivens. In Hernandez v.
Mesa, a U.S. Border Patrol agent standing on U.S. soil shot
and killed a fifteen-year-old Mexican boy who was playing
with a group of friends in the cement culvert that separates
Texas and Mexico. 137 S. Ct. 2003, 2004–06 (2017) (per
curiam). His parents brought a claim against the officer for
damages under Bivens. Id. at 2005. The Court declined to
decide whether a Bivens claim existed in the first instance
because the Court of Appeals had not had the opportunity to
consider how the reasoning in Abbasi might bear on
Hernandez’s case, and the parties had not briefed the issue.
Id. at 2006–07. The Court remanded the case to the Court of
Appeals to apply the Abbasi framework to Hernandez’s
Fourth and Fifth Amendment claims. Id.

A.

Before addressing Abbasi’s two part test, we must first
consider whether providing a Bivens remedy here is
precluded by prior cases in which the Supreme Court or our
court has declined to extend Bivens. We have found no such
case. And, unlike the district court, we do not believe that
our decision in Mirmehdi precludes a remedy here.

The conduct at issue—the falsification of evidence—has
been regularly considered by the courts in actions against
prosecutors who commit similar constitutional violations by
falsifying evidence and suborning perjury. The Supreme
Court has long recognized that “[t]he principle that a State
may not knowingly use false evidence . . . to obtain a tainted
conviction [is] implicit in any concept of ordered liberty,”
and a violation of due process. Napue v. Illinois, 360 U.S.
264, 269 (1959); see also Pyle v. Kansas, 317 U.S. 213, 215–
16 (1942); Mooney v. Holohan, 294 U.S. 103, 110, 112–13
(1935) (per curiam). For this reason, in 42 U.S.C. § 1983
 LANUZA V. LOVE 13

cases, 2 the Supreme Court has declined to extend absolute
prosecutorial immunity to prosecutors who falsify evidence
because the collection of evidence is an “investigative
function[] normally performed by a detective or police
officer.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).

We see no reason to distinguish the due process rights of
a criminal defendant in a criminal proceeding from the due
process rights of an immigrant in a deportation proceeding
when a government attorney falsifies evidence. It is well-
settled that “the Due Process clause applies to all ‘persons’
within the United States, including aliens, whether their
presence here is lawful, unlawful, temporary, or permanent.”
Zadvydas v. Davis, 533 U.S. 678, 693 (2001); see also
Sessions v. Dimaya, 138 S. Ct. 1204, 1209 (2018) (plurality

2
The Supreme Court has concluded that a prosecutor may be held
liable for damages under Bivens, but has not extended a Bivens remedy
to a claim of prosecutorial misconduct. Hartman v. Moore, 547 U.S.
250, 261–66 (2006) (holding that a Bivens remedy may be available for
malicious prosecution, but the plaintiff had to allege and prove lack of
probable cause).

The Seventh Circuit, however, has extended Bivens remedies in the
Brady context. Engel v. Buchan, 710 F.3d 698, 708 (7th Cir. 2013). In
Engel v. Buchan, the Seventh Circuit provided a Bivens remedy for
Brady violations pursuant to the Due Process Clause of the Fourteenth
Amendment. Id. The court explained that punishing a federal officer in
that context presents “no great problem of judicial interference with the
work of law enforcement, certainly no greater than the Fourth
Amendment claim in Bivens.” Id. While unlike the court in Engel, the
Board of Immigration Appeals is not an Article III court, it conducts its
hearings using similar procedures: parties submit evidence, question
witnesses under oath, and the procedure is overseen by an individual
called a “judge.” If remedies are available to punish Brady violations in
a criminal proceeding where liberty is at stake, they should also be
available in the context of immigration proceedings to determine
removability—a deprivation of liberty that can be as consequential.
14 LANUZA V. LOVE

opinion) (“[T]his Court has reiterated that deportation is ‘a
particularly severe penalty,’ which may be of greater
concern to a convicted alien than ‘any potential jail
sentence.’” (quoting Jae Lee v. United States, 137 S. Ct.
1958, 1968 (2017); Padilla v. Kentucky, 559 U.S. 356, 365,
368 (2010))); Zahedi v. INS, 222 F.3d 1157, 1164 n.6 (9th
Cir. 2000) (stating that “immigration proceedings as a
whole” are governed “by the Fifth Amendment’s Due
Process Clause”).

Moreover, while Abbasi clearly limited Bivens’s scope,
it did not preclude this case; nor is this case precluded by
other Supreme Court precedent. The Supreme Court has
recognized a Bivens remedy is available under the Fifth
Amendment. In Davis v. Passman, the Court concluded that
a U.S. Congressman’s former staff member was entitled to a
Bivens remedy where the Congressman terminated her
because of her gender, violating her rights under the equal
protection component of the Fifth Amendment. 442 U.S. at
248–49. While the Supreme Court has not extended Bivens
to a case involving the substantive and procedural clauses of
the Fifth Amendment, Abbasi did not preclude the
possibility of such an extension. See Abbasi, 137 S. Ct. at
1860–64.

Nor has the Supreme Court barred extending Bivens
remedies to an immigration case. Although Abbasi could
have stood for the broad proposition that Bivens remedies are
not available in the context of immigration proceedings
because of the sensitive nature of immigration policy, the
Abbasi Court did not paint in such broad strokes; rather, it
cabined its holding to suits against executive officials issuing
policy responses to sensitive issues of national security. Id.
at 1863. Abbasi made no statements about the general nature
 LANUZA V. LOVE 15

of immigration, low-level immigration officials, or the
comprehensiveness of the INS’s remedial scheme. 3

Nor is this case precluded by our precedent. The
government argues that this action is foreclosed by
Mirmehdi, where we declined to extend Bivens to claims
challenging unlawful immigration detention. In that case,
which closely mirrors the facts addressed in Abbasi,
petitioners Mohammad, Mostafa, Mohsen, and Mojtaba
Mirmehdi (collectively the “Mirmehdis”) were originally
detained for national security reasons and charged as
supporters of an officially listed terrorist organization, the
Mujahedin-e Khalq. 689 F.3d at 978–79. We concluded that
the Mirmehdis were not entitled to Bivens damages because

3
In other contexts, the Supreme Court has declined to extend Bivens
remedies based on the special class of federal defendants or the
sensitivity of government activity involved. See, e.g., Malesko, 534 U.S.
at 63 (no Bivens action against private correctional corporation acting
under color of federal law); F.D.I.C. v. Meyer, 510 U.S. 471, 473 (1994)
(no Bivens action against a federal agency); United States v. Stanley,
483 U.S. 669, 683–84 (1987) (no Bivens action for injuries arising out of
or in the course of activity incident to military service); Chappell v.
Wallace, 462 U.S. 296, 299–304 (1983) (same). It has also declined to
extend Bivens if Congress has articulated a complex remedial scheme,
even if there is no damages remedy available. See, e.g., Schweiker v.
Chilicky, 487 U.S. 412, 414 (1988) (no Bivens action for an alleged due-
process violation in connection with the denial of disability benefits
because Congress did not provide for damages in its comprehensive
remedial scheme); Bush v. Lucas, 462 U.S. 367, 368 (1983) (no Bivens
action where a federal employer commits a First Amendment violation
because relief, even if incomplete, is available under a comprehensive
statutory scheme). These cases do not preclude extending a Bivens
remedy here because Love is not a member of a special class, there is no
sensitive government information at issue, and the INA’s complex
remedial scheme does not address the conduct at issue here. See infra
Part II.C.
16 LANUZA V. LOVE

they were able to challenge their detention through two
different remedial systems: the immigration system and
habeas relief. Id. at 982. We noted that “Congress’s failure
to include monetary relief [in the INA] can hardly be said to
be inadvertent, given that despite multiple changes to the
structure of the [INA,] Congress never created such a
remedy.” Id. (citing Schwieker, 487 U.S. at 423, 425). We
also concluded that the Mirmehdis’ case implicated national
security concerns, because allowing the Mirmehdis to pursue
this lawsuit would result in disclosing “foreign-intelligence
products.” Id. at 983 (citation omitted).

Without the benefit of Abbasi, the district court in this
case agreed with the government’s argument that our
decision in Mirmehdi precluded a Bivens remedy because it
stood for the broad proposition that there can be no Bivens
remedy for any constitutional violation in the context of
immigration proceedings, even while noting the obvious
problems with such a reading. 4 However, Abbasi makes
clear that Mirmehdi does not, and cannot, stand for such a
categorically broad proposition. Instead, we must look to the
specific facts of this case and the claims presented. See
Abbasi, 137 S. Ct. at 1859–60. Although Mirmehdi and this
case both arise out of immigration generally, the similarities
between Mirmehdi and Lanuza’s case end there. Mirmehdi
relates to the detention of suspected terrorists, while

4
The district court correctly noted that “this analysis conflates the
availability of procedures to challenge an immigration decision with the
availability of protections to deter constitutional violations in the first
instance.” The district court also correctly noted that under Mirmehdi,
the simple fact that this is an immigration case does not mean that issues
of national security, diplomacy or foreign policy are necessarily
implicated.
 LANUZA V. LOVE 17

Lanuza’s case concerns an individual attorney’s violation of
his due process rights in a routine immigration proceeding.

Accordingly, precedent does not preclude providing a
Bivens remedy here.

B.

Lanuza’s claim arises in the context of deportation
proceedings where a federal immigration prosecutor
submitted falsified evidence in order to deprive Lanuza of
his right to apply for lawful permanent residence. We know
of no other case that has discussed a Bivens remedy in this
context. 5 The conclusion that Lanuza’s case arises in a
5
We have addressed Abbasi’s new Bivens framework in five
circumstances, including two published opinions, which are also
distinguishable from this case. See Rodriguez v. Swartz, No. 15-16410,
2018 WL 3733428 (9th Cir. Aug. 7, 2018) (extending a Bivens remedy
to the mother of a child who was shot and killed on Mexican soil by an
American agent standing on U.S. soil); see Vega v. United States, 881
F.3d 1146 (9th Cir. 2018); see also Brunoehler v. Tarwater, No. 16-
56634, 2018 WL 3470210 (9th Cir. July 19, 2018) (unpublished)
(declining to extend Bivens to claim for unlawful wiretapping); Zavala
v. Rios, 721 F. App’x 720 (9th Cir. 2018) (unpublished) (declining to
extend Bivens to claim challenging prison-wide policy regarding
handling of unopened mail); Krug v. Pellicane, 703 F. App’x 558 (9th
Cir. 2017) (unpublished) (dismissing Bivens action for failure to allege
sufficient facts to prove First Amendment retaliation and not reaching
new context analysis). In Vega, we declined to extend Bivens remedies
to an action against private employees for alleged violations of Juan
Vega, Jr.’s First and Fifth Amendment rights. 881 F.3d at 1147–48.
Vega, a prisoner who was transferred to a residential reentry center to
complete the remainder of his prison sentence, sued “federal and private
employees [who] conspired to remove him from the halfway house . . .
ostensibly based on his race and for asserting his First Amendment
rights, by filing a false incident report.” Id. at 1147. We concluded
Vega’s claims would require expanding Bivens to a new context
“because neither the Supreme Court nor we have expanded Bivens in the
18 LANUZA V. LOVE

context meaningfully different is ineluctable. And it is likely
for that reason that the district court, and both parties, agree.

C.

Because Lanuza’s claims arise in a new context, we must
ask whether there are “special factors counselling hesitation
in the absence of affirmative action by Congress.” Abbasi,
137 S. Ct. at 1857 (quoting Carlson, 446 U.S. at 18). We
conclude that the special factors articulated in Abbasi do not
counsel against extending a Bivens remedy to the narrow
claim here, where an immigration official and officer of the
court forged and submitted evidence in a deportation
proceeding to deprive an individual of his right to relief
under congressionally enacted laws.

Abbasi clarifies the concept of “special factors” by
focusing the inquiry on the separation of powers. Id. at
1857–58. Abbasi’s special factors include: the rank of the
officer involved; whether Bivens is being used as a vehicle
to alter an entity’s policy; the burden on the government if
such claims are recognized; whether litigation would reveal
sensitive information; whether Congress has indicated that it
does not wish to provide a remedy; whether there are
alternate avenues of relief available; and whether there is
adequate deterrence absent a damages remedy, among other
factors. Id. at 1857–63. But the most important question for
us to examine is “whether the Judiciary is well suited, absent
congressional action or instruction, to consider and weigh
the costs and benefits of allowing a damages action to
proceed.” Id. at 1857–58. If “there are sound reasons to

context of a prisoner’s First Amendment access to court or Fifth
Amendment procedural due process claims arising out of a prison
disciplinary process.” Id. at 1153.
 LANUZA V. LOVE 19

think Congress might doubt the efficacy or necessity of a
damages remedy . . . the courts must refrain from creating
the remedy in order to respect the role of Congress in
determining the nature and extent of federal-court
jurisdiction under Article III.” Id. at 1858. However, Abbasi
makes clear that, though disfavored, Bivens may still be
available in a case against an individual federal officer who
violates a person’s constitutional rights while acting in his
official capacity. See id. at 1857.

Applying Abbasi’s separation-of-powers principles to
this case reveals that there are no “special factors”
suggesting Bivens remedies should be unavailable. To
begin, Lanuza does not challenge high-level executive
action. The Abbasi Court stressed that “Bivens is not
designed to hold officers responsible for acts of their
subordinates.” Id. at 1860. “The purpose of Bivens is to
deter the officer[,]” and thus a Bivens claim should be
“brought against the individual official for his or her own
acts, not the acts of others.” Id. (quoting F.D.I.C. v. Meyer,
510 U.S. 471, 485 (1994)). Further, Bivens actions against
high-ranking executive officers, such as the Director of the
Federal Bureau of Investigation and the U.S. Attorney
General in Abbasi, are disfavored because such suits “would
call into question the formulation and implementation of a
high-level executive policy, and the burdens of that litigation
could prevent officials from properly discharging their
duties.” Id. at 1849. As ICE Assistant Chief Counsel, Love
was a low-level federal officer acting as the government’s
attorney, not the U.S. Attorney General as in Abbasi. And
strictly comporting with Bivens, Lanuza is suing Love for his
own actions; he does not seek to hold anyone else, including
high-level officials, accountable. Allowing a damages suit
to proceed against Love therefore does not raise the same
concerns on this score as were present in Abbasi.
20 LANUZA V. LOVE

Relatedly, Lanuza does not challenge or seek to alter the
policy of the political branches. Cf. Abbasi, 137 S. Ct. at
1860 (“[A] Bivens action is not ‘a proper vehicle for altering
an entity’s policy.’” (quoting Malesko, 534 U.S. at 74)).
While immigration officials have “broad discretion,”
Arizona v. United States, 567 U.S. 387, 396 (2012), no one
is arguing that the United States has a policy of allowing
federal officers to submit forged government documents to
thwart the integrity of immigration proceedings. To the
contrary: when Love knowingly forged evidence, his actions
violated the INA, which explicitly prohibits the submission
of false evidence. See 8 U.S.C. § 1357(b) (making the
submission of false evidence in immigration proceedings
actionable under the federal criminal statute for perjury).

Love argues that all actions taken by immigration
officials in the course of their duties—even criminal acts—
are necessarily intertwined with the execution of
immigration policy. We decline to entertain such a broad
reading of immigration law, as the illogical nature of such a
reading is demonstrated by the absurdity of its results. If, for
example, an immigration official physically forced himself
on an asylum-seeker and offered to help her obtain relief if
she kept quiet, we would have no trouble concluding that
such criminal conduct bears no relationship to the legitimate
execution of immigration policy. Likewise, we will not
allow an officer of the immigration court to cloak himself in
the government’s protection when he commits the crimes of
forgery and perjury. Indeed, holding accountable an
immigration official and officer of the court who engages in
domestic criminal activity supports the enforcement of our
immigration law in a manner consistent with the intent of the
political branches.
 LANUZA V. LOVE 21

Abbasi also advised against allowing suits against
executive officials because “the burden and demand of
litigation might well prevent them—or, to be more precise,
future officials like them—from devoting the time and effort
required for the proper discharge of their duties.” Abbasi,
137 S. Ct. at 1860. Abbasi noted particular concern for cases
in which discovery could reveal “the discussion and
deliberations that led to the formation of the policy in
question.” Id. at 1860–61 (citing Fed. Open Market Comm.
v. Merrill, 443 U.S. 340, 360 (1979)). As this is a
straightforward case against a single low-level federal
officer, we are not concerned that this litigation will burden
the Executive Branch to an unacceptable degree. Further,
because the issues in this case involve facts the government
itself made publicly available, this lawsuit will not require
unnecessary inquiry or discovery into government
deliberations or policy making. At most, allowing a lawsuit
to proceed in this context would involve the “mere
‘disclosure of normal domestic law-enforcement priorities
and techniques,’” Mirmehdi, 689 F.3d at 983 (quoting Reno
v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471, 490
(1999))—although, since the facts are undisputed, discovery
would likely not involve the disclosure of any sensitive
government information at all. Indeed, Lanuza’s civil suit
against Love will likely involve no more investigative
intrusion than the criminal prosecution initiated against Love
by the United States itself. Accordingly, the fact that the
United States saw fit to prosecute Love further supports
permitting this lawsuit to proceed.

Similarly, because this case relates only to routine
immigration proceedings, expanding Bivens to this context
does not threaten the political branches’ supervision of
national security and foreign policy. Quoting our decision
in Mirmehdi, Love argues that “immigration issues ‘have the
22 LANUZA V. LOVE

natural tendency to affect diplomacy, foreign policy, and the
security of the nation,’ which further ‘counsels hesitation’ in
extending Bivens.” Mirmehdi, 689 F.3d at 982 (quoting Arar
v. Ashcroft, 585 F.3d 559, 574 (2d Cir. 2009)). But Abbasi
and Mirmehdi involved Congressional and Executive
Branch policy decisions in response to the biggest terrorist
attack in our nation’s history. In contrast, the facts of this
case show that immigration cases often do not implicate
high-level policy decisions related to national security.
Lanuza has no ties to terrorism and, as a run-of-the-mill
immigration proceeding, his case is unrelated to any other
national security decision or interest.

Nor is this a case that has garnered any executive or
congressional attention. Compare this case with Hernandez
v. Mesa, where, upon remand from the Supreme Court, the
Fifth Circuit declined to provide Bivens remedies to the
parents of a fifteen-year-old Mexican citizen who had been
fatally shot by a federal law enforcement agent, in part
because the United States and Mexican governments had
engaged in “serious dialogue” regarding the events at issue
in that case. 885 F.3d 811, 820 (5th Cir. 2018). Specifically,
Mexico had requested the extradition of the law enforcement
agent who shot Hernandez, and the United States had denied
this request and refused to indict the agent. Id. The Fifth
Circuit reasoned that “[i]t would undermine Mexico’s
respect for the validity of the Executive’s prior
determinations if, pursuant to a Bivens claim, a federal court
entered a damages judgment against [the federal officer].”
Id. Here, in contrast, there is no evidence that any executive
official has taken an interest in Lanuza’s case, or that his
situation has been the subject of diplomatic discussions
between the United States and other sovereign nations. The
constraints Lanuza seeks mirror the existing Executive
Branch policy for federal immigration attorneys, and
 LANUZA V. LOVE 23

therefore a Bivens action in this context does not interfere
with executive policy by “risk[ing] interference with foreign
affairs and diplomacy more generally.” Id. at 819.

Even so, where, as here, the underlying statutory scheme
does not provide a remedy for the injury, we must consider
whether Congress’s failure to provide a damages remedy is
“more than mere oversight” and that “congressional silence”
is more than “inadvertent.” Abbasi, 137 S. Ct. at 1862
(quoting Schweiker, 487 U.S. at 423). Though the INA itself
lacks a damages remedy, Congress was not silent. Indeed, a
comprehensive review of the INA suggests that Congress
intended federal criminal and civil laws outside of the Act
itself to provide remedies for the misconduct at issue here.
As discussed above, the subsection of the INA that addresses
the “[p]ower of immigration officers and employees”
specifically delegates punishment for submission of false
evidence to 18 U.S.C. § 1621, the federal criminal statute for
perjury. See 8 U.S.C. § 1357(b). Further, the INA addresses
the “[p]erformance of [federal] immigration officer
functions by [s]tate officers and employees” in 8 U.S.C.
§ 1357(g)(8). Subsection 8 provides that any state employee
“shall be considered to be acting under color of Federal
authority for purposes of determining the liability, and
immunity from suit, of the officer or employee in a civil
action brought under Federal or State law.” Id. This
demonstrates Congress contemplated that civil actions
would be maintained against both federal immigration
officers and state employees acting in the capacity of federal
immigration officers when their actions allegedly violate the
Constitution or other laws. In providing a Bivens remedy
here, we are not attempting to imply “a private remedy”
within the INA where “a cause of action does not exist.”
Abbasi, 137 S. Ct. at 1856 (quoting Alexander v. Sandoval,
532 U.S. 275, 286–87 (2001)) (citations omitted). Instead,
24 LANUZA V. LOVE

we are “recogniz[ing] an implied cause of action to enforce
a provision of the Constitution itself[,]” where “there is no
single, specific congressional action to consider and
interpret.” Id. Congress indicated that such constitutional
remedies may be pursued when federal immigration officials
violate an individual’s constitutional rights.

While it is true that there has been “frequent and intense”
congressional attention to immigration law generally, that
congressional attention does not “suggest[] that Congress
has provided what it considers adequate remedial
mechanisms for constitutional violations” in this case. See
Schweiker, 487 U.S. at 423, 425. There is no evidence that
Congress has focused on the misconduct here—ICE
attorneys intentionally manipulating evidence to deprive
immigrants of rights under U.S. laws. To the contrary,
Congress presumes that, as a general matter, federal
employees faithfully execute federal law, and when they do
not, Congress requires those employees be punished for such
transgressions. 6 8 U.S.C. § 1357(b).

Abbasi also counseled against allowing a Bivens remedy
if there is an “alternative, existing process for protecting the

6
If Congress intended all actions taken by an officer while acting
pursuant to the INA to be regulated by the INA itself in a separate court,
it would have said so. Compare the INA with the Article 3(b) of the
Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. §§ 801–946,
codified at 10 U.S.C. § 803(b), which grants jurisdiction over certain
criminal acts to military courts-martial. In the UCMJ, Congress
specifically decided that the military would police itself. But when
drafting the INA, it decided that traditional Article III jurisdiction was
appropriate. Thus, unlike in the UCMJ, in the INA, “Congress ha[s] not
foreclosed a damages remedy in ‘explicit’ terms.” Abbasi, 137 S. Ct. at
1854 (quoting Bivens, 403 U.S. at 397).
 LANUZA V. LOVE 25

[injured party’s] interest.” Abbasi, 137 S. Ct. at 1858
(quoting Wilkie v. Robbins, 551 U.S. 537, 550 (2007) and
citing Bush v. Lucas, 462 U.S. 367, 385–88 (1983); Malesko,
534 U.S. at 73–74; and Minneci v. Pollard, 565 U.S. 118,
127–130 (2012)). 7 In Abbasi, the Court found that
Congress’s silence, in conjunction with the plaintiffs’ ability
to challenge the conditions of their confinement through a
successful habeas petition, indicated that Congress intended
for plaintiffs to use other judicially available forms of relief.
Id. at 1862–63. But there are no such alternative remedial
schemes available to Lanuza. The INA does not provide a
remedy for actions by immigration officials that are designed
to prevent individuals from accessing its lawful forms of
relief. Lanuza was following the law, using the procedures
Congress legislated, until his lawful pursuit of legal
permanent resident status was criminally obstructed. Love’s
submission of the forged I-826 form completely barred
Lanuza from using the INA’s remedial scheme. The Act
provides no remedial scheme for forgery if undiscovered.
And to be sure, there are other individuals like Lanuza who
may also be entitled to relief and who may not have obtained
it for this very reason. While Lanuza was ultimately able to
reopen his case, if Lanuza had not, by stroke of luck, found
an exceptionally thorough immigration attorney, the forgery
might never have been discovered and Lanuza would be

7
We note that in Vega and Rodriguez, this court viewed Wilkie’s
test for whether there are “alternative remedial structure[s] present” as
separate from Abbasi’s special-factors analysis. Vega, 881 F.3d at 1154;
Rodriguez, No. 15-16410, 2018 WL 3733428, at *10 (9th Cir. Aug. 7,
2018). We read Abbasi’s special-factors analysis as encompassing all
circumstances that counsel against extending a Bivens remedy, including
those addressed in Wilkie. Accordingly, we address the “alternative
remedial structure[s]” question within our broader special-factors
inquiry, but we emphasize that this variance is one of form, not
substance.
26 LANUZA V. LOVE

deported and separated from his U.S. citizen wife and
children. The system does not account for actions designed
to circumvent it.

The government also argues that the $12,000 Love paid
Lanuza in restitution pursuant to his criminal guilty plea is
an alternative form of judicial relief. However, criminal
prosecutions vindicate the government’s interests, not the
interests of the victim. The victim does not choose whether
to prosecute the case. As such, the criminal law is not an
alternative remedial structure designed by Congress for
individuals like Lanuza. When Lanuza discovered Love’s
transgression, he had no right to force the government to
prosecute; indeed the government declined to do so until
Lanuza brought his Bivens action—after Lanuza’s
immigration proceeding and long after the forgery was
discovered. What is more, it is the judge, not the victim, who
decides if and how much restitution is appropriate. 8

With all of these factors in mind, we must now ask
“whether the Judiciary is well suited, absent congressional
action or instruction, to consider and weigh the costs and
benefits of allowing a damages action to proceed.” Abbasi,
137 S. Ct. at 1858. We recognize that “it is a significant step
under separation-of-powers principles for a court to
determine that it has the authority, under the judicial power,
to create and enforce a cause of action for damages against
federal officials in order to remedy a constitutional
violation.” Id. at 1856. We do not take that step lightly.
However, we conclude that doing so here is not an improper

8
Lanuza’s counsel represented at oral argument that he requested
that Lanuza’s attorney’s fees and expenses be included in the restitution
amount, but government counsel rejected the request, saying that Love
and the government had agreed that the amount of restitution was “fair.”
 LANUZA V. LOVE 27

intrusion into the decisions of other governmental branches
where the factors discussed above all suggest that providing
a damages remedy is consistent with congressional and
executive policy. Although Congress is often better suited
to finding a balance between deterrence of constitutional
violations and the costs of allowing a lawsuit to proceed, we
do not believe that finding “[t]he proper balance” in this case
“is one for the Congress, not the Judiciary, to undertake.” Id.
at 1863.

Judges are particularly well-equipped to weigh the costs
of constitutional violations that threaten the credibility of our
judicial system. Indeed, there are few persons better
equipped to weigh the cost of compromised adjudicative
proceedings than those who are entrusted with protecting
their integrity. And, more often than not, the Judicial
Branch, not Congress or the Executive, is responsible for
remedying circumstances where a court’s integrity is
compromised by the submission of false evidence. Thus, it
falls within the natural ambit of the judiciary’s authority to
decide whether to provide a remedy for the submission of
false evidence in an immigration proceeding.

The consequences of allowing the submission of false
evidence by government attorneys without repercussion
extends beyond its effect on Lanuza. The magnitude of its
societal injury was addressed in the government’s press
release about Love’s conviction: “[D]efendants in
immigration court have a ‘right to proceedings free from
false and fabricated evidence knowingly presented against
them. When that right is denied, a real harm is inflicted both
28 LANUZA V. LOVE

on society, which loses faith that its government plays fair,
and the individual who suffers directly.’” 9

Accordingly, there are compelling interests that favor
extending a Bivens remedy here, and, on balance, those
interests outweigh the costs of allowing this narrow claim to
proceed against federal officials. See Abbasi, 137 S. Ct. at
1863. The legal standards for adjudicating this claim are
well established and administrable. See Wilkie, 551 U.S. at
555 (observing that “difficulty in defining a workable cause
of action” may be a special factor). Lanuza’s claim for
denial of procedural due process is a “workable cause of
action.” Id. Whether the evidence was falsified, and
whether it was submitted willfully, and whether the
submission of that evidence deprived Lanuza of his right to
due process, have definite answers, and we have “established
methods” to come to these conclusions. Id. at 556. Indeed,
the administration of Lanuza’s case is particularly
straightforward because it is undisputed that Love
intentionally submitted forged documents, and therefore the
only question remaining for the district court is determining
the amount of damages to which Lanuza is entitled, an area
where our courts have substantial experience.

Finally, we do not foresee a “deluge” of potential
claimants seeking to avail themselves of this particular
Bivens action. See Davis, 442 U.S. at 248 (rejecting
argument that implying Bivens action would cause a deluge
of claims). Recognizing a Bivens action here will produce

9
Ex-ICE Attorney Sentenced to Prison for Falsifying Document in
Immigration Case (Apr. 20, 2016), https://www.ice.gov/news/releases/e
x-ice-attorney-sentenced-prison-falsifying-document-immigration-case
(quoting Assistant U.S. Attorney Matthew Diggs for the Western District
of Washington).
 LANUZA V. LOVE 29

widespread litigation only if ICE attorneys routinely submit
false evidence, which no party argues is the case. And if this
problem is indeed widespread, it demonstrates a dire need
for deterrence, validating Bivens’s purpose. Moreover, a
plaintiff seeking a Bivens remedy under this theory must
allege sufficient facts to show that a federal official willfully
submitted falsified evidence and the submission of this
evidence resulted in a complete bar to relief to which the
individual was otherwise entitled under congressionally
enacted laws. Therefore, frivolous suits will not survive
Ashcroft v. Iqbal’s heightened pleading requirements.
556 U.S. 662, 678 (2009).

Because providing a Bivens remedy does not risk
improper intrusion by the judiciary into the functioning of
other branches; the judiciary is well-equipped to weigh the
costs and benefits of this case; the need for deterrence is
substantial; and allowing a lawsuit to proceed will place little
burden on the government, it is a proper use of our judicial
power to allow this Bivens action to proceed.

III.

There can be no doubt that Love—who intentionally, and
illegally, submitted falsified evidence in an immigration
hearing—is not protected by qualified immunity, as the
district court properly held. 10 “Qualified immunity balances
two important interests—the need to hold public officials
accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and
10
The district court reasoned, “It should be obvious to any
reasonable federal official that submitting false evidence in an
immigration proceeding, or in any judicial or quasi-judicial proceeding
for that matter, is unlawful and unconstitutional and would undermine
the integrity of such a proceeding.”
30 LANUZA V. LOVE

liability when they perform their duties reasonably.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009). “The
doctrine of qualified immunity shields officials from civil
liability so long as their conduct ‘does not violate clearly
established . . . constitutional rights of which a reasonable
person would have known.’” Mullenix v. Luna, 136 S. Ct.
305, 308 (2015) (per curiam) (quotations and citations
omitted). Qualified immunity is not meant to protect those
who are “plainly incompetent or those who knowingly
violate the law.” Taylor v. Barkes, 135 S. Ct. 2042, 2044
(2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743
(2011)). It cannot shield an officer from suit when he
intentionally submits a forged document in an immigration
proceeding in clear violation of 8 U.S.C. § 1357(b). 11

IV.

For these reasons, we hold that a Bivens remedy is
available here, where a government immigration attorney

11
Love alternatively argues Lanuza’s claim is time-barred because
the three-year statute of limitations began to run when Lanuza first
received the forged I-826 form in May 2009, instead of when Lanuza
learned it may have been forged sometime in December/January 2011,
or when the forensic examiner confirmed it was forged in February 2012.
A Bivens claim accrues when the plaintiff knows or has reason to know
of the injury that forms the basis of his cause of action, see Wallace v.
Kato, 549 U.S. 384, 388 (2007), or, in a case involving the submission
of fabricated evidence, when the case is “fully and finally resolved,”
Bradford v. Scherschligt, 803 F.3d 382, 388–89 (9th Cir. 2015). Under
either analysis, Lanuza’s claim was timely. The argument that Lanuza
should have known the I-826 form was forged the second he laid eyes
on it is absurd. The form was provided by the government—a party
normally thought to be trustworthy—which represented that it came
from Lanuza’s A-file. Moreover, both the BIA and the immigration
judge, who review these cases for a living, believed it was authentic.
Lanuza should not be held to a higher standard.
 LANUZA V. LOVE 31

intentionally submitted a forged document in an immigration
proceeding to completely bar an individual from pursuing
relief to which he was entitled. Failing to provide a narrow
remedy for such an egregious constitutional violation would
tempt others to do the same and would run afoul of our
mandate to enforce the Constitution.

At its core, this case is about a lie, and all the ways it was
used, over several years, to defraud the courts. Government
attorneys are given great power, and with that power comes
great responsibility. These attorneys represent the United
States, and when they act, they speak for our government.
“[T]he federal courts have an obligation to set their face
against enforcement of the law by lawless means or means
that violate rationally vindicated standards of justice, and to
refuse to sustain such methods by effectuating them. . . .
Public confidence in the fair and honorable administration of
justice, upon which ultimately depends the rule of law, is the
transcending value at stake.” Sherman v. United States,
356 U.S. 369, 380 (1958) (Frankfurter, J., concurring); see
also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,
594 n.19 (1980) (Brennan, J., concurring) (quoting
Sherman).

AFFIRMED IN PART, REVERSED IN PART,
REMANDED. 12

12
Appellant’s motion for judicial notice (Docket no. 30) is
GRANTED. Costs are awarded to Lanuza under FRACP 39(a)(4).