       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals

                                No. 13-50768
                                                                        Fifth Circuit

                                                                      FILED
                                                               October 14, 2015

ALEJANDRO GARCIA DE LA PAZ,                                      Lyle W. Cayce
                                                                      Clerk
                                        Plaintiff - Appellee

v.

JASON COY, United States Customs and Border Protection Officer;
MARIO VEGA, United States Customs and Border Protection Officer,

                                        Defendants - Appellants

_____________________________

                            Cons w/ 14-10018


DANIEL FRIAS,

                                        Plaintiff - Appellee

v.

ARTURO TORREZ, United States Customs and Border Protection Officer,
formerly known as John Doe,

                                        Defendant - Appellant



               Appeal from the United States District Court
                    for the Western District of Texas
                            No. 13-50768 cons/w No. 14-10018


                     Appeal from the United States District Court
                          for the Northern District of Texas


                     ON PETITION FOR REHEARING EN BANC
                      (Opinion May 14, 2015, 2015, 786 F.3d 367)

Before JOLLY and JONES, Circuit Judges, and GODBEY, District Judge. ∗
PER CURIAM:

      Treating the petition for rehearing en banc as a petition for panel
rehearing, the petition for panel rehearing is DENIED. The court having been
polled at the request of one of its members, and a majority of the judges who
are in regular active service and not disqualified not having voted in favor
(FED. R. APP. P. 35 and 5TH CIR. R. 35), the petition for rehearing en banc is
DENIED.

      In the en banc poll, 4 judges voted in favor of rehearing (Judges Dennis,
Prado, Graves, and Costa), and 11 judges voted against rehearing (Chief Judge
Stewart and Judges Jolly, Davis, Jones, Smith, Clement, Owen, Elrod,
Southwick, Haynes, and Higginson).
ENTERED FOR THE COURT:




_________________________________
EDITH H. JONES
United States Circuit Judge




      ∗
          United States District Judge of the Northern District of Texas, sitting by designation.
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PRADO, Circuit Judge, joined by DENNIS and GRAVES, Circuit Judges,
dissenting from Denial of Rehearing En Banc,


       Plaintiffs allege that U.S. border patrol agents violated the Fourth
Amendment by stopping them solely because of their Hispanic appearance.
The respective district courts denied the border patrol agents’ motions to
dismiss, holding in part that Plaintiffs could assert a claim for damages under
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971). On appeal, the panel reversed, asserting that undocumented
immigrants 1 may not, as a matter of law, assert Bivens claims against border
patrol agents for illegally stopping and arresting them. De La Paz v. Coy, 786
F.3d 367, 369 (5th Cir. 2015). Because I believe that the issue raised in this
case is an important one, and I disagree with the panel’s reading of the relevant
case law, I dissent from this Court’s denial of rehearing en banc.

       As the panel’s opinion points out, the first step in assessing whether a
Bivens remedy is available is to determine whether allowing a Bivens action to
proceed would extend Bivens to a “new context.” Ashcroft v. Iqbal, 556 U.S.
662, 675 (2009) (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)).
Where the legal and factual components of a case fall within the “core holding
of Bivens,” Malesko, 534 U.S. at 67, the context is not “new” and a Bivens action
may proceed. Turkmen v. Hasty, 789 F.3d 218, 234 (2d Cir. 2015); Malesko, 534
U.S. at 67.

       The claims asserted by Plaintiffs here are squarely within the holding of
Bivens. In Bivens, the Supreme Court permitted a suit for damages by a


       1The panel’s opinion refers to foreign nationals present in the United States without
lawful immigration status as “illegal aliens”; I choose to refer to these individuals as
“undocumented immigrants” instead.
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plaintiff who alleged that federal law enforcement officers violated the Fourth
Amendment when they entered his residence, searched through his
belongings, and detained him. Bivens, 403 U.S. at 389–90. Without
qualification, the Supreme Court stated that “damages may be obtained for
injuries consequent upon a violation of the Fourth Amendment by federal
officials” and that, “[h]istorically, damages have been regarded as the ordinary
remedy for an invasion of personal interests in liberty.” Id. at 395. The claims
at issue here—which stem from routine stops, searches, and arrests by federal
law enforcement officers—fit well within this holding.

       In an effort to distinguish the case at hand from Bivens, the panel’s
opinion errs by defining the “context” too narrowly. Namely, the opinion makes
much of the fact that Plaintiffs are undocumented immigrants rather than U.S.
citizens or legal residents and that they were stopped by border patrol agents
rather than some other law enforcement agency. I believe these distinctions
are not only erroneous, but are at odds with existing case law from this Court 2
and others. 3



       2     See Martinez-Aguero v. Gonzalez, 459 F.3d 618, 620–21, 625 (5th Cir. 2006) (holding
that a Mexican national who alleged that she had been illegally arrested and beaten by a
border patrol agent “may bring a Bivens claim for unlawful arrest and the excessive use of
force under the Fourth Amendment”). The panel’s justification for ignoring Fifth Circuit
law—that the Bivens issue was not directly raised before this Court in Martinez-Aguero—is
unpersuasive. As this Court has stated, “[w]hen confronting decisions of prior panels . . . we
are bound by ‘not only the result but also those portions of the opinion necessary to that result
. . . .’” Gochicoa v. Johnson, 238 F.3d 278, 286 n.11 (5th Cir. 2000) (quoting Seminole Tribe v.
Florida, 517 U.S. 44, 67 (1996)). Because we affirmed the denial of qualified immunity in
Martinez-Aguero and allowed the case to proceed to trial, the availability of a Bivens remedy
was necessary to the decision and is binding Fifth Circuit law.
           3 See, e.g., Escobar v. Gaines, No. 3-11-0994, 2014 WL 4384389, at *4 (M.D. Tenn.

Sept. 4, 2014) (“The Court does not have to ‘imply’ a damages remedy [for undocumented
immigrants challenging a raid by immigration officials]—one already exists under Bivens
for damages against federal officers who violate a person’s Fourth Amendment rights.”);
Morales v. Chadbourne, 996 F. Supp. 2d 19, 30–34 (D.R.I. 2014) (same); Vazquez-Mentado
v. Buitron, 995 F. Supp. 2d 93, 97–102 (N.D.N.Y. 2014) (recognizing aliens’ Bivens claim for
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       Nor do the Second Circuit’s decision in Arar v. Ashcroft, 585 F.3d 559 (2d
Cir. 2009) (en banc), or the Ninth Circuit’s decision in Mirmehdi v. United
States, 689 F.3d 975 (9th Cir. 2011), support the panel’s conclusion as the
material facts in those cases are much different than the ones at issue here
and in Bivens. In Mirmehdi, the plaintiffs’ Bivens claims did not arise from a
routine stop; rather, they were based on the allegation that federal agents had
knowingly lied to the immigration judge about the plaintiffs’ involvement in a
terrorist organization in order to convince the judge to withhold bond.
Mirmehdi, 689 F.3d at 979–80. The Second Circuit’s decision in Arar is even
further afield from the case at hand. In Arar, the court addressed only the
availability of a Bivens remedy arising from the plaintiff’s “extraordinary
rendition”—i.e., “[t]he transfer, without formal charges, trial, or court
approval, of a person suspected of being a terrorist or supporter of a terrorist
group to a foreign nation for imprisonment and interrogation on behalf of the
transferring nation.” Arar, 585 F.3d at 563–64, 564 n.1 (quoting Black’s Law
Dictionary 1410 (9th ed. 2009)). This understanding is supported by the Second
Circuit’s recent decision in Turkmen v. Hasty, in which the court stated that
its Bivens-related holding in Arar was limited to “the acts of federal officials in
carrying out Arar’s extraordinary rendition[.]” 789 F.3d at 234. The fact that
the courts in Arar and Mirmehdi held that these were new contexts for the
purposes of allowing a Bivens claim is not surprising given their particular


damages under the Fourth Amendment against the Chief Border Patrol Agent arising from
the U.S. Border Patrol, Buffalo Sector’s, policy “which reward[ed] USBP Buffalo Sector
agents with cash, vacation time, and gift cards for high arrest numbers but not for the
legality of arrests”); Diaz-Bernal v. Myers, 758 F. Supp. 2d 106, 111, 128–29 (D. Conn. 2010)
(recognizing a Bivens remedy for undocumented immigrants who were subjects of a raid by
federal immigration officials, reasoning that “[i]f a Bivens remedy were precluded, the
present plaintiffs would have no forum in which to seek a remedy for the defendants’
alleged constitutional violations”).



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facts. Nor is it relevant to the case presently before this Court as neither Arar
nor Mirmehdi involved the type of routine domestic searches, seizures, and
arrests by federal law enforcement officers at issue in this case and Bivens.

      Finally, the panel’s opinion unnecessarily puts us in conflict with
another Circuit. In Turkmen, the Second Circuit allowed a group of
undocumented immigrants to bring Bivens claims against federal officials,
stating that “a Bivens remedy is available for Plaintiffs’ . . . Fourth Amendment
unreasonable and punitive [] search[] claims.” 789 F.3d at 237. The court
reasoned that “the Fourth Amendment is at the core of the Bivens
jurisprudence, as Bivens itself concerned a Fourth Amendment claim . . . for
the defendants’ use of unreasonable force without probable cause, resulting in
the plaintiff’s unlawful arrest.” Id. The panel’s opinion in our case, however,
reaches the opposite conclusion—holding that a Bivens remedy is unavailable
to undocumented immigrants challenging stops and arrests in violation of the
Fourth Amendment.

      Because I disagree with the panel’s analysis and believe that the decision
to take the extraordinary step of denying Bivens remedies for routine traffic
stops and arrests to an entire class of people warrants review by the entire
court, I respectfully dissent from the denial of rehearing en banc.




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