UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 96-10383
____________
ALEXANDER TITO HUMPHRIES,
Plaintiff-Appellant,
versus
VARIOUS FEDERAL USINS EMPLOYEES,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
January 21, 1999
Before EMILIO M. GARZA, STEWART, and DENNIS, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Alexander Tito Humphries, proceeding pro se, appeals from the district court’s dismissal of
his various civil rights and contract claims as frivolous under 28 U.S.C. § 1915(d), now designated
28 U.S.C. § 1915(e)(2)(B)(i). We affirm in part, reverse in part, and remand.
I
The complaint presently before us consists of numerous handwritten pages, submitted along
with various attachments in the form of what purport to be original documents and photocopies of
such documents. The complaint as a whole is difficult to understand, but generally appears to allege
the following facts: In March 1986, Humphries, a citizen of Kenya, entered the United States on
a nonimmigrant visa. At some point during the next several years, Humphries began working for the
United States Customs Service (the “Customs Service”) as a confidential informant, providing
undercover officers with various leads as to drug-related activity. In November 1991, Humphries
traveled to Kenya under the supervision of the Customs Service in order to participate in a two-week,
undercover drug-buying operation. Humphries had intended to use some of this time to renew his
visa, which had expired earlier that year, but his supervisors kept him too busy to fill out the proper
paperwork. Humphries therefore returned from his trip without a valid visa to authorize his re-entry
into the United States. Federal Bureau of Investigation (“FBI”) agent Robert Dodge solved this
problem by paroling Humphries into the country “in the public interest.”
Following the November 1991 trip to Kenya, Humphries may have left the country and
returned as many as two or three times—on each occasion being paroled back into the United States
“in the public interest.” In May 1993, Humphries’ employment with the Customs Service appears
to have ended, but the Immigration and Naturalization Service (“INS”) made no move to revoke
Humphries’ parole. Approximately one year later, in April 1994, Humphries began working with
both the INS and the FBI in an invest igation of Sunday Ukwu, a Nigerian national suspected of
importing heroin and forging immigration documents. At some point during the investigation,
Humphries became concerned that the government’s tactics amounted to entrapment. Humphries
voiced these concerns to his supervisors, but the government proceeded with the investigation,
ultimately convicting Ukwu and several associates of bribing a public official, immigration document
fraud, and conspiracy.
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Following Ukwu’s conviction, the INS, under George Putnam’s signature, filed an official
charging document known as an “I-122" against Humphries. The form provided written notice that
the INS was terminating Humphries’ parole and instituting exclusion1 proceedings against him, based
on his lack of a valid visa. Humphries sought to persuade the INS that he was actively involved with
the Customs Service in an ongoing undercover investigation, but Special Agents Alex Nick and Ken
Kates contradicted these claims. Based on the I-122, an Immigration Judge ordered Humphries
excluded from the United States.
Separate and apart from these factual allegations, the parties currently before us agree that
Humphries did in fact receive an order of exclusion from an Immigration Judge, and that after raising
various, unsuccessful legal challenges to this decision, Humphries left the United States for his home
country of Kenya on June 18, 1997.2 Before leaving the United States, however, Humphries filed the
present complaint pro se in federal district court, alleging generally that various government officials,
including Dodge, Putnam, Kates, and Nick,3 had conspired to deprive him of his constitutional rights.
The exact contours of these claims are difficult to discern, but the pleadings, liberally construed,
indicate five general complaints. First, Humphries claims that various government agents deprived
1
“Exclusion” once referred to a denial of entry, while “deportation” referred to the expulsion of an alien already
residing within the United States. See Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 159, 113 S. Ct. 2549, 2552,
125 L. Ed. 2d 128 (1993). Aliens paroled into the country and subsequently required to leave were nevertheless termed
“excluded” rather than “deported” under the legal fiction that parolees remained “at the border” awaiting a decision
on admissibility. See id. at n.5. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (1996) (codified as amended in scattered sections of 8 U.S.C.),
abandoned this dichotomy and now refers jointly to both decisions as “removal.” See IIRIRA § 304(a)(7). We will
use either the old term “exclusion” or the new term “removal”, as appropriate.
2
The record is unclear as to whether Humphries was formally excluded, agreed to voluntarily depart, or
requested that the INS exclude him in lieu of being placed in detention. For present purposes, these distinctions are
irrelevant.
3
Nothing in the record before us indicates whether any party has been formally served with Humphries’
complaint. The INS was notified of Humphries’ appeal, and that agency did appear before us at oral argument.
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Sunday Ukwu of a fair trial, initially by entrapping Ukwu and then by perjuring themselves on the
stand at his trial (“entrapment” claim). Second, Humphries complains that he was forced to work for
the INS under threats of deportation in violation of the Thirteenth Amendment (“involuntary
servitude” claim). Third, Humphries claims that he was mistreated and subjected to various
constitutional violations while in detention awaiting exclusion (“mistreatment while in detention”
claim). Fourth, Humphries claims that his parole was revoked and exclusion proceedings begun in
direct retaliation for his speaking out about the agencies’ entrapment of Ukwu (“retaliatory exclusion”
claim). Fifth, Humphries claims that the government made various oral contracts with him as to how
he would be paid and what benefits he would receive at the end of the Ukwu investigation (“breach
of contract” claim). In terms of requested relief, Humphries’ complaint makes vague references to
the injustice of Humphries’ then-impending exclusion, but is explicit in seeking damages for each of
the above claims as well as specific performance for certain of the alleged contracts.
The district court assigned the case to a magistrate judge, who characterized the complaint
as a request for damages resulting from a “wrongful deportation.” Based on that characterization,
the magistrate judge recommended dismissing the complaint as frivolous in light of Heck v.
Humphrey, 512 U.S. 477, 487, 114 S. Ct. 2364, 2372, 129 L. Ed. 2d 383 (1994) (holding that no
cause of action exists under § 1983 for actions that, if proven, would “necessarily imply” the invalidity
of an underlying conviction or sentence, unless that conviction or sentence is first properly
invalidated, either on appeal or through habeas). The district court followed this recommendation
and adopted the opinion of the magistrate judge as its own. Following Humphries’ timely appeal, we
recognized that the question of whether we should apply the rationale of Heck in the context of
exclusion is an issue of first impression in this Circuit. We therefore appointed counsel to argue this
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issue on Humphries’ behalf before the court.
II
Because the district court dismissed this case as frivolous under 28 U.S.C. § 1915(d), now
designated 28 U.S.C. § 1915(e)(2)(B)(i) by § 804 of the Prison Litigation Reform Act (“PLRA”),
Pub. L. No. 104-134, 110 Stat. 1321 (1996),4 we review the dismissal only for an abuse of discretion.
See McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997). In determining whether a district
court abused its discretion, we consider factors such as “whether (1) the plaintiff is proceeding pro
se, (2) the court inappropriately resolved genuine issues of disputed fact, (3) the court applied
erroneous legal conclusions, (4) the court has provided a st atement of reasons which facilitates
‘intelligent appellate review,’ and (5) any factual frivolousness could have been remedied through a
more specific pleading.” Moore v. Mabus, 976 F.2d 268, 270 (5th Cir. 1992).
Humphries urges that we find an abuse of discretion here because the district court’s
application of Heck in this context is both legally incorrect and factually irrelevant. In Heck, the
Supreme Court held that in order to state a claim under § 1983 for a constitutional violation that, if
4
Prior to the passage of the PLRA, § 1915(d) simply provided that a court “may dismiss [a] case [brought in
forma pauperis] if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” 28 U.S.C.
§ 1915(d) (1988). The corresponding portion of § 1915(e) now provides:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
dismiss the case at any time if the court determines that—
(A) the allegation of poverty is untrue; or
(B) the action or appeal—
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2). Because on remand the district court may yet determine that Humphries’ remaining claims
are frivolous, we need not address the applicability of the new § 1915(e)(2)(B)(ii) or (iii). See McCormick v. Stalder,
105 F.3d 1059, 1061 (5th Cir. 1997) (reviewing the dismissal as one under § 1915(d) although the PLRA was in effect
at the time of appeal).
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proven, would imply the invalidity of a criminal conviction or sentence, one first must demonstrate
that some proper tribunal has held the conviction or sentence invalid. See Heck, 515 U.S. at 486-87,
114 S. Ct. at 2372. Applying this rationale in the context of immigration law, the district court
determined that in order to state a cause of action for a constitutional violation that, if proven, would
imply the invalidity of an exclusion order, one first must demonstrate that some proper tribunal has
held the order invalid. Humphries claims that this holding stretches Heck beyond its underlying
principles5 and that, in any event, most of his claims have no legal relationship to his order of
exclusion.
The government, on the other hand, refuses to differentiate among any of Humphries’
individual claims, instead relying on the district court’s characterization of the complaint as
challenging solely the validity of Humphries’ exclusion order. On that basis, the government argues
that (1) Humphries’ claim is moot in light of the fact that he was excluded at his own request on June
18, 1997, (2) even assuming a live controversy, Congress’ recent amendments to the Immigration and
Naturalization Act (“INA”) deprive us of jurisdiction over Humphries’ claims, and (3) assuming
jurisdiction, the district court nevertheless correctly applied Heck in dismissing Humphries’ complaint.
After addressing elementary issues of standing and jurisdiction, we will consider in turn the
government’s arguments regarding the requested injunctive relief, jurisdiction under the amended
INA, and the applicability of Heck v. Humphrey.
III
5
We have applied Heck previously in a multitude of situations, see, e.g., Stephenson v. Reno, 28 F.3d 26, 27
(5th Cir. 1994) (Bivens actions); Littles v. Bd. of Pardons and Paroles Div., 68 F.3d 122, 123 (5th Cir. 1995) (parole-
revocation proceedings); Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir. 1995)(probation-revocation proceedings);
cf. Edwards v. Balisok, 520 U.S. 641, ___, 117 S. Ct. 1584, 1588, 137 L. Ed. 2d 906 (1997) (disciplinary proceedings
involving the deprivation of good-time credits), although never in the context of removal.
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A
Humphries’ claim of entrapment alleges generally that various government officials conspired
to entrap Sunday Ukwu and deny him a fair trial. Humphries has articulated no concrete, personal
injury fairly traceable to this behavior, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112
S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992), and we therefore hold that the district court did not
abuse its discretion in dismissing this claim as frivolous.
B
Humphries’ claims of breach of contract allege that Agents Putnam and Dodge made various
agreements in exchange for Humphries’ services as an informant. For these alleged agreements to
prove enforceable, Agents Putnam and Dodge must have been acting in their official, as opposed to
their individual, capacity. See Whiteside v. United States, 93 U.S. 247, 257, 23 L. Ed. 882 (1876)
(noting that the government is generally not bound by the unauthorized actions of its agents) (citing
STORY’S AGENCY (6th ed.) § 307(a)). A contract suit against a government agent in his official
capacity, however, is nothing more than a suit directly against the sovereign—permissible only within
the limited confines of the Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491. See Ware v. United States,
626 F.2d 1278, 1286-87 (5th Cir. 1980) (noting that the Tucker Act constitutes a limited waiver of
sovereign immunity for contract claims against the United States government). Moreover, “[t]he law
of this circuit is clear [that] the Court of Claims has exclusive jurisdiction of a Tucker Act claim in
excess of $10,000.” Id. at 1287. Because Humphries requested $65,000 as “money owed for his
participation in the case [of Sunday Ukwu],” the district court had no jurisdiction to entertain
Humphries’ claims for breach of contract. Id. Accordingly, we find no abuse of discretion in the
district court’s dismissal of these claims as frivolous. See, e.g., Oltremari v. Kansas Soc. &
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Rehabilitative Serv., 871 F. Supp. 1331, 1333 (D. Kan. 1994) (“A complaint is frivolous within the
meaning of § 1915(d), if its subject matter is outside the jurisdiction of the court.”); Johnson v.
Eastern Band Cherokee Nation, 718 F. Supp. 6, 6 (N.D.N.Y. 1989) (“When a court does not have
jurisdiction to hear an action, the claim is considered frivolous.”).
IV
With regard to Humphries’ remaining claims of involuntary servitude, mistreatment while in
detention, and retaliatory exclusion, we agree with the INS that to the extent these claims seek
injunctive relief against Humphries’ exclusion, they are moot. On June 18, 1997, Humphries left the
United States for Kenya, and no order of this court can reverse that event. See Marilyn T., Inc. v.
Evans, 803 F.2d 1383, 1384-85 (5th Cir. 1986) (holding an appeal from a denial of a preliminary
injunction moot because “‘[n]o order of [the court] could affect the parties’ rights with respect to the
injunction we are called upon to review’”) (quoting Honig v. Students of the Cal. Sch. for the Blind,
471 U.S. 148, 149, 105 S. Ct. 1820, 1821, 85 L. Ed. 2d 114, 116 (1985)). To the extent that
Humphries seeks other relief for the violations alleged in his complaint, we must address whether we
retain jurisdiction over any of these claims in light of Congress’ recent amendments to the
Immigration and Naturalization Act. Cf. Henschen v. City of Houston, 959 F.2d 584, 587 (5th Cir.
1992) (holding that the mooting of appellants’ request for injunctive relief did not necessarily moot
appellants’ claim for money damages).
V
On September 30, 1996, after the entry of Humphries’ final order of exclusion and after
Humphries filed the present civil suit, Congress passed the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (1996), significantly
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restructuring the scope of judicial review of immigration decisions. Specifically, § 306(a)(2) of
IIRIRA, now codified at 8 U.S.C. § 1252, provides that aliens may obtain direct judicial review of
removal decisions only by filing a petition for review in the relevant Circuit Court of Appeals. 8
U.S.C. § 1252(a) (“Judicial review of a final order of removal . . . is governed only by chapter 158
of Title 28 [providing generally for the review of agency action through a petition filed directly in the
court of appeals].”). Certain portions of the statute also provide limited avenues for collateral review
of such decisions. See, e.g., 8 U.S.C. § 1252(b)(7) (providing that certain criminal defendants may
collaterally challenge the validity of an order of removal through a pre-trial motion). Subsection (g)
solidifies this structure by mandating that “except as provided in this section and notwithstanding any
other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of
any alien arising from the decision or action by the Attorney General to commence proceedings,
adjudicate cases, or execute removal orders against any alien under this chapter.” 8 U.S.C. §
1252(g).
Humphries does not dispute that § 1252 applies ret roactively to his complaint, and indeed
Congress stated explicitly in § 306(c)(1) of IIRIRA that subsection (g) applies “without limitation to
claims arising from all past, pending, or future exclusion, deportation or removal proceedings.” See
American-Arab Anti-Discrimination Comm. v. Reno, 119 F.3d 1367, 1371 (9th Cir. 1997) (noting
that “because IIRIRA [explicitly provides for] the retroactivity of the relevant jurisdictional provision,
we need not apply the default rules elaborated in Landgraf v. USI Film Prods., 511 U.S. 244, 280-81,
114 S. Ct. 1483, 1505, 128 L. Ed. 2d 229 (1994)); Thomas v. INS, 975 F. Supp. 840, 845 (W.D.
La. 1997). Humphries does dispute the relevance of this provision to his particular claims. Initially,
Humphries points us to the title of the provision, “Judicial Review of Orders of Removal,” and argues
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that this section purports to govern only “direct” judicial review of removal orders, leaving other
actions that might collaterally attack such an order (such as a civil damages action) outside its scope.
The language of § 1252 itself belies this interpretation. Subsection (c) explicitly applies both to
petitions for review—by which an alien can directly attack a rem oval order—and to petitions for
habeas corpus—by which an alien might collaterally attack such an order. See 8 U.S.C. § 1252(c)
(“A petition for review or for habeas corpus of an order of removal shall . . .”). In addition,
subsection (b)(7)(A) provides for a collateral challenge to a removal order through a criminal
proceeding. See 8 U.S.C. § 1252(b)(7)(A). In light of these provisions, we cannot say that § 1252
generally purports to regulate only direct challenges to a removal order. Any attempt to challenge
such an order, therefore, whether direct or collateral, must either find authorization in § 1252(a)-(f)
or be precluded to the extent that § 1252(g) applies.6
Initially, we note that nothing in subsections (a) through (f) contemplates an alien challenging
his removal through a civil damage action against the INS or its officials.7 The question then becomes
whether Humphries’ remaining claims do in fact challenge his removal, or, more precisely, whether
those claims “aris[e] from the decision or action of the Attorney General to commence proceedings,
adjudicate cases or execute removal orders.” 8 U.S.C. § 1252(g).
6
We express no opinion on the extent to which other federal statutes (most notably 28 U.S.C. § 2241) might
limit the application of § 1252(g). Compare Yang v. INS, 109 F.3d 1185, 1195 (7th Cir.), cert. denied, ___ U.S. ___,
118 S. Ct. 624, 139 L. Ed. 2d 605 (1997) (holding that § 1252 “abolishes even review under section 2241"), with
American-Arab Anti-Discrimination Comm., 119 F.3d at 1374 (noting that “[s]ome form of statutory habeas relief may
remain available”).
7
Subsection (a) governs petitions for review of final orders of removal; subsection (b) sets out certain
procedural requirements applicable to the review of an order of removal under subsection (a); subsection (c) sets out
additional procedural requirements applicable to both petitions for review and petitions for habeas corpus; subsection
(d) mandates that aliens exhaust their administrative remedies before appealing a final order of removal, and attempts
to prevent repetitious litigation of the validity of such orders; subsection (e) relates to judicial review of orders under
§ 1225(b)(1), authorizing the Attorney General to grant asylum to aliens meeting certain criteria; subsection (f) places
limits on the degree to which federal courts may enjoin the operation of the present statute. 8 U.S.C. § 1252.
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A
In determining whether any of Humphries’ remaining claims—for involuntary servitude,
mistreatment while in detention, or retaliatory exclusion—“aris[e] from” certain decisions or actions,
we find little assistance in the precise language of the statute. Congress has provided no explicit
definition of the phrase “arising from,” and courts have not always agreed on its plain meaning.
Compare Continental Cas. Co. v. City of Richmond, 763 F.2d 1076, 1080 (9th Cir. 1985)
(characterizing “arising out of” as “words of much broader significance than ‘caused by’ [and]. . .
ordinarily understood to mean ‘originating from’ ‘having its origin in,’ ‘growing out of’ or ‘flowing
from’ or in short, ‘incident to, or having connection with’”) (quoting Red Ball Motor Freight, Inc.
v. Employers Mut. Liab. Ins. Co., 189 F.2d 374, 378 (5th Cir. 1951)), with Chedid v. Boardwalk
Regency Corp., 756 F. Supp. 941, 943 (E.D. Va. 1991) (noting that the “plain meaning” of the phrase
“arising from” is “caused by,” requiring an element of causation greater than “simple ‘but-for’
causation,” and “something [more] akin to legal or proximate causation”) (citing Pizarro v. Hoteles
Concorde Int’l C.A., 907 F.2d 1256, 1259 (1st Cir. 1990)). As a general matter, “arising from” does
seem to describe a nexus somewhat more tight than the also frequently used phrase “related to.” See,
e.g., Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 104 S. Ct. 1868, 80 L. Ed.
404 (1984) (Brennan, J., dissenting) (suggesting that there is a “subst antial difference” between a
requirement that a cause of action “formally ‘arise out of’ specific activities” and a requirement that
a cause of action merely “relate to” those activities); compare American Guar. & Liab. Ins. Co. v.
1906 Co., 129 F.3d 802, 807 (5th Cir. 1997) (concluding that “the phrase ‘arising out of’ the ‘use’
of the designated premises requires that there be a causal connection between the injuries [alleged]
. . . and the designated premises”), with Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.
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Ct. 2890, 2900, 77 L. Ed. 2d 490 (1983) (holding that a law “relates to” an employee benefit plan
within the meaning of ERISA’s preemption provision “if [the law] has a connection with or reference
to such a plan”). The exact contours of the required nexus are nevertheless difficult to discern. See,
e.g., Mid Century Ins. Co. v. Lindsey, 942 S.W.2d 140, 145 (Tex. App. 1997) (writ granted April
14, 1998) (acknowledging that the phrase “arise out of” does not require a relationship of proximate
cause, but noting that “[c]ourts have applied at least six different tests for determining whether [the
proper] causal connection” exists).
Given the nature of Humphries’ claims, however, we need not struggle here to definitively
construe the precise meaning of the phrase “arising from” as that term is used in § 1252(g). Instead,
we focus for present purposes on the relatively unobjectionable ends of the spectrum along which a
more precise, clearly ascertainable definition of “arising from” lies. At one end of that spectrum we
find claims clearly not included within the definition of “arising from,” i.e., those claims with no more
than a weak, remote, or tenuous connection to a “decision or action by the Attorney General to
commence proceedings, adjudicate cases, or execute removal orders.” Cf. Eaglin v. United States
Dept. of Army, 794 F.2d 981, 984 (5th Cir. 1986) (holding that plaintiff’s claim did not “arise in” the
United States for purposes of establishing subject-matter jurisdiction under the Federal Tort Claims
Act “because the nexus between her claim and any act or omission in the United States is simply too
tenuous and remote”) (footnote omitted); Franchise Tax Bd. v. Construction Laborers Vacation
Trust, 463 U.S. 1, 27 n.32, 103 S. Ct. 2841, 2855 n.32, 77 L. Ed. 2d 420 (1983) (“The connection
between appellant’s causes of action and a . . . trust agreement [allegedly covered by § 301] is too
attenuated for us to say that [these causes of action] ‘arise[] under’ § 301.”). At the other end of the
spectrum we find claims that clearly are included within the definition of “arising from,” i.e., those
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claims connected directly and immediately with a “decision or action by the Attorney General to
commence proceedings, adjudicate cases, or execute removal orders.” Cf. Laredo Offshore
Constructors, Inc. v. Hunt Oil Co., 754 F.2d 1223, 1225 (5th Cir. 1985) (holding that “insofar as the
alleged breach of contract relates directly to platform construction, the controversy is one ‘arising out
of, or in connection with’ an operation [covered by] the Outer Continental Shelf Lands Act”);
Fireman’s Fund Ins. Co. v. National Bank of Coops., 103 F.3d 888, 894 (9th Cir. 1996) (noting that
even when one interprets “arising out of” to require only a standard of “but for” causation, “a lawsuit
arises out of a defendant’s contacts with the forum state if a direct nexus exists between those
contacts and the cause of action”); Mantello v. Hall, 947 F. Supp. 92, 100 (S.D.N.Y. 1996) (“For
a tort claim to arise out of [the] transaction of business in New York, the connection between the
transaction and the claim must be direct.”). Thus, by defining the ends of this spectrum, we may
dispose of the remainder of Humphries’ claims.
1
Humphries’ involuntary servitude claim alleges that the INS and the FBI “coer[c]ed
[Humphries] on several occasions with threats of deportation if [he] did not continue to work for
them.” See United States v. Kozminski, 487 U.S. 931, 948, 108 S. Ct. 2751, 2762, 101 L. Ed. 2d
788 (1988) (“[I]t is possible that threatening . . . an immigrant with deportation could constitute the
threat of legal coercion that induces involuntary servitude [as defined by the Thirteenth
Amendment].”). Alt hough the heart of this complaint rests somewhat on Humphries status as a
discretionary parolee—in the sense that this status provided the agents with the power to back up
their alleged threats—the question of whether this claim “aris[es] from the decision or action by the
Attorney General to commence proceedings, adjudicate cases, or execute removal orders” is simpler,
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perhaps, than it appears. For at the time this claim arose, i.e., when the threats were allegedly made
and Humphries allegedly began working under coercion, the Attorney General, through her
subordinates, had yet to commence proceedings against Humphries, much less adjudicate his case or
execute a removal order against him. Indeed, as we discuss below in relation to Humphries
retaliatory exclusion claim, proceedings against Humphries did not commence until after Ukwu’s
conviction, and even then, according to Humphries, only because the agents became frustrated with
Humphries’ outspoken criticism of Ukwu’s trial—not because the agents were carrying out a threat
related to Humphries’ refusal to work. Viewed in this light, we would defy logic by holding that a
claim for relief somehow “aris[es] from” decisio ns and actions accomplished only after the injury
allegedly occurred. Accordingly, we find that Humphries’ claim for involuntary servitude does not
“aris[e] from the decision or action of the Attorney General to commence proceedings, adjudicate
cases, or execute removal orders,” and that § 1252(g) therefore presents no bar to the adjudication
of this claim.
2
As for Humphries’ allegations of mistreatment while in detention,8 these claims bear no more
than a remote relationship to the Attorney General’s decision to “execute [Humphries’] removal
order.” Naturally, Humphries would not have been subjected to the alleged mistreatment had the
decision not been made to place Humphries in detention while awaiting exclusion. Yet as one
Supreme Court Justice aptly noted, “[l]ife is too short to pursue every human act to its most remote
8
Ranging from trivial to serious, these claims run the gamut from allegations that Humphries’ cell was not
provided with a proper mattress to claims that prison officials intentionally placed Humphries in physical danger by
forcing him to share a cell with relatives and associates of the people he had helped convict. Significantly, Humphries
does not appear to challenge the fact of his confinement, separate and apart from his claims that the exclusion itself
was unconstitutionally retaliatory.
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consequences; ‘for want of a nail, a kingdom was lost’ is a commentary on fate, not the statement
of a major cause of action against a blacksmith.” Holmes v. Securities Investor Protection Corp., 503
U.S. 258, 287, 112 S. Ct. 1311, 1327, 117 L. Ed. 2d 532 (1992) (Scalia, J., concurring). Similarly,
the fact that Humphries would never have suffered the alleged injuries had he never been placed in
detention tells us more about fate than the origins of Humphries’ cause of action. Thus, whatever
the precise contours of “arising from” as that phrase is used in § 1252(g), it does not encompass a
connection so remote as having been placed in a situation in which certain third parties subsequently
cause an alleged injury.
3
Humphries’ claim for retaliatory exclusion, however, proves more problematic. This claim
alleges that various INS agents conspired to exclude Humphries in retaliation for the exercise of his
First Amendment rights—particularly his vocal criticism of the government’s investigatory tactics
with regard to Sunday Ukwu. However broadly or narrowly we might interpret § 1252(g), this claim
bears more than a cursory relationship to the Attorney General’s decision to exclude Humphries.
Indeed, in addition to being a significant and important event in the chain of causation leading to
Humphries’ alleged unconstitutional exclusion, the Attorney General’s decision to place Humphries
in exclusion proceedings appears to provide the most direct, immediate, and recognizable cause of
Humphries’ injury. Pursuant to § 1252(g), we therefore have no jurisdiction to entertain Humphries’
allegations that the INS excluded him in violation of the First Amendment. Aliens wishing to raise
such challenges in the future should do so either in a petition for review or for habeas corpus.9
9
To whatever extent future panels may interpret § 1252 to limit these other avenues of relief, this court may
find itself confronted with the precise problem raised but avoided by the Supreme Court in Webster v. Doe, 486 U.S.
592, 603, 108 S. Ct. 2047, 2053, 100 L. Ed. 2d 632 (1988) (noting that a “‘serious constitutional question’ . . . would
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B
In summary, we have merely delineated the outer boundaries of “arising from” as Congress
used that term in § 1252(g). We have determined that § 1252(g) permits the adjudication of
Humphries’ claims for involuntary servitude and mistreatment while in detention, but forbids the
exercise of jurisdiction over Humphries’ claim for retaliatory exclusion.10
VI
Because we retain jurisdiction over Humphries’ claims for involuntary servitude and
mistreatment while in detention, we now briefly dispose of the government’s argument that Heck v.
Humphrey provides sufficient support for an affirmance of the district court’s judgment as to these
arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim”). See also
McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 493, 111 S. Ct. 888, 896-97, 112 L. Ed. 2d 1005 (1991) (“Because
the administrative appeals process does not address the kind of procedural and constitutional claims [brought] in this
action, limiting judicial review of these claims to [a review of that administrative process] is not contemplated by the
language of [§ 210(e)(3)(A) of the amended INA].”). This issue is not before us today, and we therefore do not address
it.
10
The dissent argues that Ҥ 1252(g) of 8 U.S.C. may not be read to deny an alien a judicial forum for a
colorable constitutional claim for money damages under Bivens based on the violation of the alien’s constitutional
rights by federal agents acting under color of federal law.” We note simply that in enacting § 1252, Congress removed
jurisdiction from the district courts and consolidated judicial review into the court of appeals. See Richardson v. Reno,
No. 98-4230, 1998 WL 889376, at *10-12 (11th Cir. Dec. 22, 1998)(noting that “Congress strictly regulated the
exclusive mode and timing of judicial review in order to remove overlapping jurisdiction and to prevent dilatory tactics
previously used to forestall departure of aliens”). Any constitutionally required judicial review of Humphries’ claims
can occur in the form of a petition for review in the court of appeals. See 8 U.S.C. § 1252(b); see also Massieu v.
Reno, 91 F.3d 416, 424-26 (3d Cir. 1996)(dismissing alien’s complaint alleging irreparable selective enforcement in
retaliation for an exercise of First Amendment rights, noting that alien had failed to exhaust his administrative
remedies, and that “[a]lthough the immigration judge is not authorized to consider the constitutionality of the statute,
this court can hear the challenge upon completion of the administrative proceedings under INS v. Chadha”)(citing INS
v. Chadha, 462 U.S. 919, 938, 103 S. Ct. 2764, 2777, 77 L. Ed. 2d. 317, __ (1983)). The language of § 1252(g) is
plain and unambiguous: “Except as provided in this section and notwithstanding any other provision of law, no court
shall have jurisdiction to hear any cause or claim on behalf of any alien arising from the decision or action by the
Attorney General . . . .” 8 U.S.C. § 1252(g). In light of Congress’s plenary power over matters concerning
immigration, we will not ignore this statutory mandate in an effort to preserve Humphries’ constitutional claims. See
Reno v. Flores, 507 U.S. 292, 305, 113 S. Ct. 1439, 1449, 121 L. Ed. 2d 1, __ (1993)(“[T]he responsibility for
regulating the relationship between the United States and our alien visitors has been committed to the political branches
of the Federal Government. . . . [O]ver no conceivable subject is the legislative power of Congress more
complete”)(internal citations omitted).
-16-
claims under § 1915(d). Heck itself provides for preclusion of only those claims that, if proven,
would necessarily imply the invalidity of a conviction or sentence. See Heck, 512 U.S. at 487, 114
S. Ct. at 2372. Similarly, even if Heck were to apply in the context of immigration orders, it would,
by analogy, bar only those claims that “necessarily imply” the invalidity of an INS or BIA order. Id.
Assuming arguendo that Humphries were to recover damages for the alleged involuntary
servitude as well as the alleged mistreatment while in detention, these judgments would in no way
imply the invalidity of Humphries’ detention or exclusion. See 8 U.S.C. § 1182(a)(7)(B)(i)(II)
(authorizing the exclusion of nonimmigrants “not in possession of a valid nonimmigrant visa . . . at
the time of application for admission”); cf. Edwards v. Balisok, 520 U.S. 641, ___, 117 S. Ct. 1584,
1588-89, 137 L. Ed. 2d 906 (1997) (holding that Heck applies when the procedural defects alleged
to have occurred in a relevant proceeding are so severe as to “necessarily imply” the complete
invalidity of the proceeding). Indeed, as articulated above, these remaining claims have no meaningful
relationship to those decisions or actions relevant to Humphries’ immigration status.11 The INS
conceded as much at oral argument, at least with respect to Humphries’ claims for mistreatment while
in detention.12 Cf. Hamilton v. Lyons, 74 F.3d 99 (5th Cir. 1996) (holding that Heck does not render
a prisoner’s claim challenging the conditions of his confinement uncognizable under § 1983).
We will not examine the legal applicability of Heck v. Humphrey to immigration orders when
11
Although at first blush, it may seem that no claim surviving the gauntlet of § 1252(g) would then be precluded
by an application of Heck v. Humphrey, we are unprepared at this juncture to make such a holding. Inspired by
Edwards v. Balisok, ___ U.S. ___, 117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997) at least one scenario comes to mind in
which Heck may bar a claim over which we retain jurisdiction under § 1252(g). An alien whose claim arises from INS
misconduct during an exclusion proceeding, for instance, may be able to invoke our jurisdiction despite § 1252(g), but
because that error may in fact impugn the validity of the underlying proceeding, Heck may prove relevant. See id.
12
In its brief, however, the INS maintained that all of Humphries’ claims, with the exception of those alleging
breach of contract, were barred by Heck.
-17-
no factual basis appears for that application. We therefore hold that the district court erred in
determining that Heck v. Humphrey renders Humphries’ claims for involuntary servitude and
mistreatment while in detention frivolous under § 1915(d). Because the district court provided no
other basis on which to find these claims frivolous, and none appears obvious from the record, these
claims are remanded to the district court for further proceedings consistent with this opinion. On
remand, the district court may revisit the issue of frivolousness to the extent that its reasoning is not
explictly foreclosed by the present opinion.
VII
In summary, the district court’s dismissal of Humphries’ claims with regard to the alleged
entrapment of Sunday Ukwu, the government’s alleged breach of contract, and the government’s
alleged retaliatory exclusion is AFFIRMED, although on different grounds than those articulated by
the district court; the district court’s decision to dismiss Humphries’ claims for involuntary servitude
and mistreatment while in detention is REVERSED, and these claims REMANDED for further
proceedings in accordance with this opinion. The government’s motion to strike Humphries’ appeal
because of his alleged fugitive status prior to leaving for Kenya is DENIED. See Degen v.United
States, 517 U.S. 820, ___, 116 S. Ct. 1777, 1782-83, 135 L. Ed. 2d 102 (1996).13
13
But see United States v. Real Property Located at 14301 Gateway Blvd. West, 123 F.3d 312, 314 (5th Cir.
1997) (Garza, J., specially concurring) (indicating that Degen was ill-considered and should be overruled, particularly
in light of the ease and regularity with which residents of border communities in the southwestern United States cross
into Mexico——a journey more akin to “visiting another part of town [than] another nation”).
-18-
DENNIS, Circuit Judge, concurring in part and dissenting in part:
I concur in parts I through III B of the majority opinion. I
also concur in the majority opinion’s decree insofar as it affirms
the district court’s dismissal of Humphries’ entrapment and breach
of contract claims, reverses the district court’s dismissal of his
involuntary servitude and mistreatment claims, and denies the
government’s motion to strike his appeal.
I respectfully dissent, however, from the majority opinion’s
affirmance of the district court’s dismissal of Humphries’ Bivens
action for money damages based on alleged violations of his First
Amendment rights and from the majority’s failure to reject as
unmeritorious the government’s argument that Heck v. Humphrey bars
the federal courts from considering the plaintiff’s civil actions.
1.
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court
held that when a state prisoner seeks damages in a 42 U.S.C. § 1983
suit, the complaint must be dismissed if “a judgment in favor of
the plaintiff would necessarily imply the invalidity of his
conviction or sentence,” unless the plaintiff can show that the
conviction or sentence has already been invalidated. Heck, 512
U.S. at 487. “But[,the Court added, when] the plaintiff’s action,
even if successful, will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff, the action
-19-
should be allowed to proceed, in the absence of some other bar to
the suit.” Id. In Edwards v. Balisok, 520 U.S. 641, 117 S. Ct.
1584, 1586 (1997), the Court held that a prisoner’s § 1983 claim
for damages should also be dismissed even when the complaint limits
his request to damages for depriving him of good-time credits
without due process, not for depriving him of good-time credits
undeservedly as a substantive matter, if the nature of the
challenge to the procedures is “such as necessarily [will] imply
the invalidity of the judgment.” Id. at 1587.
In the present case, however, the Heck and Balisok holdings do
not require that the plaintiff’s Bivens civil actions for damages
be dismissed. Alexander Tito Humphries is not a state prisoner.
See, e.g., Ojo v. INS, 106 F.3d 680 (5th Cir. 1997) (stating that
a detained alien is not a prisoner within the meaning of criminal
law). He has not been convicted of any crime or sentenced
therefor. INS v. Lopez-Mendoza, 468 U.S. 1032, 104 S. Ct. 3479
(1984) (stating that deportation proceeding is a purely civil
action to determine an alien’s eligibility to remain in the United
States). Consequently, because “the plaintiff’s action, even if
successful, will not demonstrate the invalidity of any outstanding
criminal judgment against the plaintiff, the action should be
allowed to proceed, in the absence of some other bar to the suit.”
Heck, 512 U.S. at 487.
2.
As the majority opinion correctly holds, there are “other
-20-
bars” to some, but not all, of the plaintiff’s actions. I agree
with the majority opinion that Humphries does not have standing to
assert a claim based on the alleged entrapment of Sunday Ukwu, that
the district court does not have jurisdiction to entertain
Humphries’ claims for breach of contract, and that Humphries’
petition to enjoin the removal proceedings was mooted by the
definitive finality of the removal order and his actual removal to
Kenya.
3.
On the other hand, although I agree with the majority’s result
in allowing Humphries to proceed on his claims based on
constitutional due process and involuntary servitude violations, I
believe the majority did not apply the correct analysis in
determining the contours of Humphries’ directly implied
constitutional rights, and consequently erred in concluding that
his First Amendment claim is barred. The majority treated the
constitutional provisions supporting Humphries’ claims as if they
were statutes to be reconciled with the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA) and therefore
reached the incorrect result in affirming the dismissal of
Humphries’ Bivens action for money damages based on alleged
violations of his First Amendment rights. Under the analysis
required by the Supreme Court’s decisions, however, none of
Humphries’ actions for money damages based on the federal agents’
alleged violations of his constitutional rights is frivolous or
-21-
falls outside the jurisdiction of the federal district court.
The federal judicial power extends to all cases, in law and
equity, arising under the Constitution, the laws of the United
States, and treaties made, or which shall be made, under their
authority. U.S. Const. art. III, § 1, cl. 2. Since 1875, Congress
has provided the federal trial courts with general jurisdiction
over such cases. See Judiciary Act of March 3, 1875, § 1, 18 Stat.
470; Schweiker v. Chilicky, 487 U.S. 412, 420 (1988). The statute
now provides that the “district courts shall have original
jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States.” 28 U.S.C. § 1331.
All persons within the territory of the United States are
entitled to the protections guaranteed by the Fifth, Sixth and
Fourteenth Amendments to the Constitution. Wong Wing v. United
States, 163 U.S. 228, 238 (1896). Aliens living within the
jurisdiction of the United States are protected from deprivation of
life, liberty or property without due process of law, despite the
fact that such presence is unlawful, involuntary or transitory.
Mathews v. Diaz, 426 U.S. 67, 77 (1976). In general, therefore, a
United States district court may consider the merits of a Bivens
action for money damages, asserted by a nonresident alien who is
present in this country, against federal government officials. See
Xiao v. Reno, 837 F. Supp. 1506 (N.D. Cal. 1993); Immigration Law
Service § 27:14 (Alan Jacobs ed., Clark Boardman Callaghan 1994).
-22-
Similarly, under 42 U.S.C. § 1983, every person who, under
color of any statute, ordinance, regulation, custom, or usage, of
any state or territory or the District of Columbia, subjects, or
causes to be subjected, any alien within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, is liable to the alien injured in an
action at law, suit in equity, or other proceeding for redress.
Examining Board Of Engineers, Architects & Surveyors v. Flores De
Otero, 426 U.S. 572, 599-600 (1976); Holley v. Lavine, 529 F.2d
1294, 1295 (2d Cir.), cert. denied, 426 U.S. 954 (1976);
Immigration Law Service § 27:29 (Alan Jacobs ed., Clark Boardman
Callaghan 1994). Section 1983, of Title 42, U.S.C., combined with
28 U.S.C. § 1343(3), affords aliens within the United States access
to federal courts to assert claims for violations of the due
process and equal protection clauses of the United States
Constitution. Bolanos v. Kiley, 509 F.2d 1023 (2d Cir. 1975). This
Circuit has held that civil rights class actions may be brought by
aliens challenging the alleged denial of civil rights, provided the
class description is sufficiently definite and the class has some
connection with the claim being litigated. Jagnandan v. Giles, 379
F. Supp. 1178 (N.D. Miss. 1974), aff’d. in part, 538 F.2d 1166 (5th
Cir. 1976), cert. denied, 432 U.S. 910 (1977).
A petition alleging that a plaintiff has been damaged by
violations of his federal constitutional rights by a federal agent
acting under color of federal authority gives rise to a federal
-23-
cause of action for money damages for any injuries the plaintiff
has suffered as a result of the agent’s constitutional violation.
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 396
(1971) (Fourth Amendment violation); Davis v. Passman, 442 U.S.
228, 245 (1979) (Fifth Amendment violation); Carlson v. Green, 446
U.S. 14, 18 (1980) (Eighth Amendment violation). “[T]he decision in
Bivens established that a citizen suffering a compensable injury to
a constitutionally protected interest could invoke the general
federal-question jurisdiction of the district courts to obtain an
award against the responsible federal official.” Butz v. Economou,
438 U.S. 478, 504 (1978). It is clear that a district court has
jurisdiction under 28 U.S.C. § 1331(a) to consider such a
constitutional claim by a petitioner. Davis, 442 U.S. at 236
(citing Bell v. Hood, 327 U.S. 678 (1946)).
In determining whether a cause of action may be implied
directly under a provision of the United States Constitution, it is
error to apply the criteria enunciated by the Supreme Court for
ascertaining whether a private cause of action may be implied from
a statute not expressly providing one. Id. at 240. “[T]he
question of who may enforce a statutory right is fundamentally
different from the question of who may enforce a right that is
protected by the Constitution.” Id. (emphasis in original). At
least in the absence of a “textually demonstrable constitutional
commitment of an issue to a coordinate political department,” it is
-24-
presumed that justiciable constitutional rights are to be enforced
through the courts. Id. at 242. Further, the class of those
litigants who allege that their own constitutional rights have been
violated, and who at the same time have no effective means other
than the judiciary to enforce these rights, must be able to invoke
the existing jurisdiction of the courts for the protection of their
justiciable constitutional rights. Id.
The inquiry of whether money damages is an appropriate form of
relief under such a cause of action must be approached on the
basis of the established principles of law. Davis, 442 U.S. at
245. Federal courts may use any available remedy to make good the
wrong done, where legal rights have been invaded and a federal
statute provides for a general right to sue for such invasion. Id.
(citing Bell v. Hood, 327 U.S. 678, 684 (1946)). Thus, federal
courts have the authority to provide redress for constitutional
violations in the form of an action for money damages, except that
the exercise of that authority may not be appropriate where
Congress has created another remedy that it regards as equally
effective, or where “special factors counse[l] hesitation [even]
in the absence of affirmative action by Congress.” Bivens, 403 U.S.
at 396-97; see Schweiker, 487 U.S. at 435 (Brennan, J.,
dissenting).
In the present case, as in Bivens, Davis v. Passman, and
Carlson v. Green, it is appropriate for the federal courts to
exercise their authority to provide redress for constitutional
-25-
violations in the form of an action for money damages. Congress
has not created another remedy that it regards as equally
effective, and there are no “special factors [that] counse[l]
hesitation [even] in the absence of affirmative action by
Congress.” Bivens, 403 U.S. at 396-97. The context of the present
case is quite dissimilar to those few instances in which the
Supreme Court has refused to recognize a Bivens action to redress
constitutional wrongs because “the design of a Government program
suggests that Congress has provided what it considers adequate
remedial mechanisms for constitutional violations that may occur in
the course of its administration.” Schweiker, 487 U.S. at 423.
In Chappell v. Wallace, 462 U.S. 296, 302 (1983), the Court
declined to permit an action for damages by enlisted military
personnel seeking redress from their superior officers for
constitutional injuries, noting that Congress, in the exercise of
its “plenary constitutional authority over the military, has
enacted statutes regulating military life, and has established a
comprehensive internal system of justice to regulate military life
. . . . The resulting system provides for the review and remedy of
complaints and grievances such as [the equal protection claim]
presented by respondents.” That system allowed military personnel
to raise constitutional challenges in administrative proceedings
and authorized recovery of significant consequential damages, such
as retroactive promotions. Id. at 303. In Bush v. Lucas, 462 U.S.
367, 385 (1983), the Court concluded that, in light of the
-26-
“elaborate, comprehensive scheme” governing federal employment
relations, recognition of any supplemental judicial remedy for
constitutional wrongs was inappropriate. Under that scheme,
constitutional challenges are fully cognizable and prevailing
employees are entitled to full backpay, retroactive promotions,
seniority, pay raises, and accumulated leave. Id. at 386.
Congress expressly “intended [to] put the employee ‘in the same
position he would have been in had the unjustified or erroneous
personnel action not taken place.’” Id. at 388 (quoting S. Rep.
No. 1062, 89th Cong. 2d Sess., 1 (1966)). Similarly, in Schweiker,
the Court decided that the improper denial of individuals’ Social
Security disability benefits, allegedly resulting from Fifth
Amendment due process violations by government officials
administering the program, did not give rise to an action for money
damages, noting that the “claims are handled under ‘an unusually
protective [multi]-step process for the review and adjudication of
disputed claims,’” Schweiker, 487 U.S. at 424 (quoting Heckler v.
Day, 467 U.S. 104, 106 (1984)), “[o]nce these elaborate
administrative remedies [are] exhausted, a claimant [may] seek
judicial review, including review of constitutional claims,” id.,
and “the system for protecting [claimants’] rights is, if anything,
considerably more elaborate than the civil service system
considered in Bush.” Id. at 425.
In the present context, Congress has not created an alternate
remedy or special administrative program affording constitutional
-27-
protection to aliens, as distinguished from the protection
available to ordinary citizens, against injuries caused by the
violation of aliens’ constitutional rights by federal agents. Nor
can it be said that there is any government program suggesting by
its design that Congress has provided what a reasonable legislator
would consider to be adequate remedial mechanisms for
constitutional violations. Consequently, I believe that Humphries’
complaint states a cause of action for money damages under the
First, Fifth and Thirteenth Amendments that would entitle him to
recover for any injuries that he suffered as a result of the
federal agents’ alleged violations of those Amendments.
The IIRIRA does not divest the district court of jurisdiction
of any of Humphries’ Bivens causes of action for money damages
arising from the alleged violation of his constitutional rights.
The Supreme Court has emphatically stated “that where Congress
intends to preclude judicial review of constitutional claims its
intent to do so must be clear.” Webster v. Doe, 486 U.S. 592, 603
(1988) (citing Johnson v. Robinson, 415 U.S. 361, 373-74
(1974)(“‘[C]lear and convincing’ evidence of congressional intent
[is] required by this Court before a statute will be construed to
restrict access to judicial review.”)). The Court noted that it
had reaffirmed that view in Weinberger v. Salfi, 422 U.S. 749
(1975), and declared that “[w]e require this heightened showing in
part to avoid the ‘serious constitutional question’ that would
arise if a federal statute were construed to deny any judicial
-28-
forum for a colorable constitutional claim.” Webster, 486 U.S. at
603 (citing Bowen v. Michigan Academy of Family Physicians, 476
U.S. 667 (1986)).
The government’s brief in Reno v. American-Arab Anti-
Discrimination Committee, No. 97-1252, in the Supreme Court
concedes that a grave constitutional question would arise if a
federal statute were construed to deny any judicial forum for a
colorable constitutional claim. Brief for Petitioners, at 36-37
(citing Webster v. Doe, 486 U.S. 592, 603 (1988)). Accordingly,
the government also concedes that the respondent aliens’ First
Amendment selective enforcement challenges are not permanently
foreclosed by the IIRIRA. Rather, it is the government’s position
that such claims can be raised if and when a final order of
deportation is entered. Id. at 34. Consequently, the IIRIRA
certainly does not foreclose Humphries’ Bivens causes of action for
money damages based on alleged violations of the First, Fifth and
Thirteenth Amendments. Not only has a final order of deportation
been entered and carried out removing Humphries to Kenya; his claim
does not and could not directly challenge the validity of the
removal order or the deportation. Humphries’ money damages claim
merely seeks compensation for injuries resulting from the alleged
constitutional violations.
Accordingly, § 1252(g) of 8 U.S.C. may not be read to deny an
alien a judicial forum for a colorable constitutional claim for
money damages under Bivens based on the violation of the alien’s
-29-
constitutional rights by federal agents acting under color of
federal law. The IIRIRA is designed to “enable the prompt
admission of those who are entitled to be admitted, the prompt
exclusion or removal of those who are not so entitled, and [make]
the clear distinction between these categories.” Report of the
Committee on the Judiciary, House of Representatives on H.R. 2202,
Rept. 104-469; 104th Congress at p.111. Section 1252(g) furthers
these goals by removing from courts the jurisdiction of a cause or
claim arising from the Attorney General’s commencement or
prosecution of removal proceedings and execution of a removal order
until the order has become final. Humphries’ Bivens causes of
action for money damages arise directly from alleged violations of
the Constitution, not from the statutorily authorized removal
proceedings against Humphries initiated by the Attorney General.
And the removal order deporting Humphries to Kenya has become
final, definitive, and has been carried out. Humphries’ actions
for damages based on violations of his constitutional rights are
not affected by and can have no effect upon the definitively final
removal order or Humphries’ deportation. Nothing in § 1252(g) is
persuasive that Congress clearly intended to divest federal courts
of jurisdiction of Bivens actions for money damages arising out of
the unconstitutional conduct of federal agents acting under color
of federal law.
Because Humphries’ claim of equitable relief in the form of an
injunction of his removal was rendered moot by the final removal
-30-
order and his departure from the United States, there are available
no other alternative forms of judicial relief. “For [Humphries],
as for Bivens, ‘it is damages or nothing.’” Davis, 442 U.S. at 245
(quoting Bivens, 403 U.S. at 410 (Harlan, J., concurring in
judgment)). A different case presenting a viable claim for
injunctive or other equitable relief based directly on an alleged
constitutional violation may call for different treatment of that
particular claim. In the case of an alien subjected to the threat
or imposition of unconstitutional custodial detention, perhaps a
Bivens action for injunctive relief would not be appropriate
because of an available alternative remedy of habeas corpus. The
question of the appropriateness of habeas corpus or of equitable
relief in the form of an injunction against removal is not in this
case, however, and we consequently should intimate no final or
definitive view on those issues.
I respectfully disagree with the majority’s position that
Humphries’ action for money damages based on the alleged violation
of the First Amendment should reach a different fate than his Fifth
or Thirteenth Amendment claim. If Humphries can prove that the
defendant federal agents’ violations of the First Amendment caused
him injury by violating his First Amendment rights, he is entitled
to recover money damages from them, unless they are entitled to
qualified immunity under the applicable facts and law. Today we
should be more aware than ever that:
Our system of jurisprudence rests on the assumption that
-31-
all individuals, whatever their position in government,
are subject to federal law: “No man in this country is
so high that he is above the law. No officer of the law
may set that law at defiance with impunity. All officers
of the government, from the highest to the lowest, are
creatures of the law, and are bound to obey it.” United
States v. Lee, 106 U.S. [196], 220, [27 L. Ed. 171, 1 S.
Ct. 240][(1882)].
Davis, 442 U.S. at 246 (quoting Butz v. Economou, 438 U.S. at 506).
I see no reason why the federal official defendants in the
present case have a better claim to a jurisdictional defense to a
Bivens action for money damages than a president, congressman,
cabinet member, or any other federal officer. As Justice Brennan
observed in his dissenting opinion in Schweiker, 487 U.S. at 447:
[I]n order to prevail in any Bivens action, [claimants]
must both prove a deliberate abuse of governmental power
rather than mere negligence, . . . and overcome the
defense of qualified immunity. []Indeed, these very
requirements are designed to protect Government officials
from liability for their “legitimate” actions; the
prospect of liability for deliberate violations of known
constitutional rights, therefore, will not dissuade well-
intentioned civil servants either from accepting such
employment or from carrying out the legitimate duties
that employment imposes. (Footnote and citations
-32-
omitted).
This correct observation applies fully to the protection afforded
the government officials in the present case as well.
-33-
Humphries v. Various Federal Usins Employees
Court: Court of Appeals for the Fifth Circuit
Date filed: 1999-01-21
Citations: 164 F.3d 936
Copy CitationsCombined Opinion