   Case: 13-40017    Document: 00512516764    Page: 1   Date Filed: 01/30/2014




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

                               No. 13-40017                       FILED
                                                           January 30, 2014
                                                             Lyle W. Cayce
                                                                  Clerk

LAURA NANCY CASTRO;
YULIANA TRINIDAD CASTRO, Individually and as Next Friend of C.A.G.;
JESSICA GARCIA; RODRIGO SAMPAYO; ANA ALANIS,

                                         Plaintiffs–Appellants,

TRINIDAD MURAIRA DE CASTRO,

                                         Appellant,

versus

ELISEO CABRERA,

                                         Defendant–Appellee.




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




Before STEWART, Chief Judge, JOLLY, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


     Laura Castro, Yuliana Castro (individually and as next friend of C.A.G.),
Jessica Garcia, Rodrigo Sampayo, Ana Alanis, and Trinidad de Castro
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(collectively “the detainees”) brought Bivens claims 1 against Eliseo Cabrera
alleging violations of their Fourth Amendment right to be free of unreasonable
seizures. 2 Cabrera, asserting qualified immunity, moved for dismissal under
Federal Rule of Civil Procedure 12(b)(6). The district court granted Cabrera’s
motion to dismiss, and we affirm.


                                                 I.
          There are three separate incidents of alleged misconduct and seven
detainees. We therefore address separately the facts of each incident and
group of detainees.


                                                 A.
          Trinidad de Castro is a Mexican citizen and the mother of Laura and
Yuliana Castro, each of whom has a birth certificate from the United States
and Mexico. Yuliana is the mother of the infant C.A.G. In August 2009, the
Castros applied for entry at the original Brownsville & Matamoros Interna-
tional Bridge. Laura presented the border agents with a U.S. passport, Yuli-
ana presented a Texas birth certificate, Texas identification card, the receipt
for her U.S. passport, and the Texas birth certificate of C.A.G., and Trinidad
presented her laser visa. Officer Cabrera noted that Yuliana’s birth certificate
reflected a midwife 3 birth and, finding that suspicious, took the Castros to sec-
ondary inspection, where Cabrera allegedly interrogated and threatened them



          1   See Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
        Although the detainees brief possible due-process violations under the Fifth Amend-
          2

ment, those claims were not asserted in the second amended complaint and thus are not
properly before this court.
          3   The midwife who delivered Laura and Yuliana was on a list of suspicious midwives.
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during a detention of about ten hours.
      Near the end of that time, Trinidad signed a statement that Yuliana and
Laura had been born in Mexico. The Castros allege that that amounted to a
false confession “[b]ased on threats, fear, hunger, exhaustion, and her inability
to continue listening to the cries of her infant granddaughter, C.A.G., com-
plicated by her own the [sic] delicate medical condition, and awareness of the
medical vulnerability of the others.” Based on the statement, Cabrera alleg-
edly confiscated their documentation and denied all four entry into the United
States, releasing them back to Mexico. No specific allegations were made in
the pleadings regarding what constituted the alleged threats.


                                        B.
      Sampayo has birth certificates from the United States and Mexico.
Although a midwife registered his birth in the United States several months
after it occurred, he grew up in Mexico using his Mexican birth certificate and
at one point even had a border crossing card issued by INS. In early 2009,
however, he applied for a U.S. passport and was asked for further documen-
tation because his midwife was on a list of suspicious midwives.
      In September of that year, Sampayo applied for entry at the original
Brownsville & Matamoros International Bridge. He presented his U.S. birth
certificate, Texas driver’s license, and the receipt for his U.S. passport.
Cabrera noted that his birth certificate reflected a midwife birth and that it
was filed several months after his birth. Cabrera then took Sampayo to sec-
ondary inspection where he was detained for about six hours and allegedly was
interrogated regarding his birth and was threatened “that if he did not ‘admit’
foreign birth, he would be detained.”
      After about six hours, Sampayo signed a statement prepared by Cabrera
admitting the falsity of his birth certificate. Based on that, Cabrera allegedly
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                                 No. 13-40017
confiscated Sampayo’s documentation, denied him entry, and released him
back to Mexico. In early 2010, Sampayo’s passport application was denied, in
part because of his signed statement that he had been born in Mexico.


                                       C.
      Garcia has birth certificates from the United States and Mexico. Her
U.S. birth certificate shows a “midwife birth” and that her attending midwife
was the same as both Laura and Yuliana Castro’s. Her Mexican birth certifi-
cate was registered about one month later. In early 2009, she applied for a
U.S. passport.
      In October 2009, while her application was pending, Garcia applied for
entry at the second Brownsville & Matamoros International Bridge. She pre-
sented her U.S. birth certificate, Texas identification card, and the receipt for
her U.S. passport. Cabrera noted the midwife birth and asked whether she
had a Mexican birth certificate; when Garcia answered in the negative, he took
her to secondary inspection. After Garcia had been locked in a small room for
about thirty minutes, Cabrera arrived with Garcia’s Mexican birth certificate
and allegedly stated that he believed her U.S. birth certificate to be fraudulent
and “began to hurl threats and insults at her, and make false representations.”
      Alanis, Garcia’s mother, also came to the port of entry to explain why
Garcia had two birth certificates and insisting that Garcia was born in the
United States; Alanis was allegedly subjected to “threats, insults, and false
statements” by Cabrera. No specific allegations were made in the pleadings,
however, regarding what constituted these alleged threats or insults. Eventu-
ally, when neither Garcia nor Alanis had “confessed” to Garcia’s having been
born in Mexico, Cabrera issued Garcia a notice to appear, confiscated her doc-
umentation, and released her and her mother back to Mexico.


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                                            D.
       In July 2012, the detainees filed their second amended complaint in
which they assert Bivens violations of the Fourth Amendment against Cabrera
in his individual capacity. They claim to have been “wrongfully detained” and
that Cabrera “intentionally acted unreasonable [sic] in utilizing threats, sepa-
ration, intimidation, and false representations to coerce[] Plaintiffs [sic] state-
ments.” Cabrera moved to dismiss for failure to state a claim for which relief
could be granted under Rule 12(b)(6). The district court granted the motion on
the basis of qualified immunity.


                                            II.
       We review de novo a dismissal for failure to state a claim. Causey v.
Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004). “[A] com-
plaint must contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation and internal quotation marks omitted).


                                            III.
       Before addressing qualified immunity, we decide the threshold question
whether the Fourth Amendment applies to these detainees. As a general mat-
ter, it applies to aliens within U.S. territory. 4 In Verdugo-Urquidez, however,
the Court held, 494 U.S. at 261, that it does not apply to the search and seizure




       4 See United States v. Verdugo-Urquidez, 494 U.S. 259, 271 1990 (“[A]liens receive
constitutional protections when they have come within the territory of the United States and
developed substantial connections with this country.”); Martinez-Aguero v. Gonzalez, 459
F.3d 618, 624–25 (5th Cir. 2006).
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of nonresident aliens on foreign soil. 5 Moreover, excludable aliens that have
been denied entry into the United States, even when technically within U.S.
territory, may be “treated, for constitutional purposes, as if stopped at the bor-
der.” 6 That is the doctrine of “entry fiction,” which is applied to excludable
aliens regarding the constitutionality of indefinite detention and, more specifi-
cally, the applicability of substantive and procedural due process rights under
the Fifth Amendment. 7
       There are limitations to our application of entry fiction. In Lynch, we
specifically confined it to the contexts of immigration and deportation and held
that it “does not limit the right of aliens detained within the United States
territory to humane treatment.” 8 For purposes of this exception, we have inter-
preted “humane treatment” as being denied only in those cases involving “gross




       5 See also Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“[C]ertain constitutional pro-
tections available to persons inside the United States are unavailable to aliens outside of our
geographic borders.”); Johnson v. Eisentrager, 339 U.S. 763, 781–85 (1950) (rejecting extra-
territorial application of the Fifth Amendment).
       6 Zadvydas, 533 U.S. at 693 (citation and internal quotation marks omitted); see also
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 215–16 (1953) (holding that an
excluded alien’s indefinite detention on Ellis Island did not violate constitutional law because
“he is treated as if he stopped at the border”); Gisbert v. United States Att’y Gen., 988 F.2d
1437, 1440–44 (5th Cir. 1993) (“Although aliens seeking admission into the United States
may physically be allowed within its borders pending a determination of admissibility, such
aliens are legally considered to be detained at the border and hence as never having effected
entry into this country.”).
       7 Gisbert, 988 F.2d at 1440–44 (“The Supreme Court has held that detention of aliens
pending exclusion does not violate the aliens’ constitutional rights.”) (citing Shaughnessy,
345 U.S. at 213–15); see also Lynch v. Cannatella, 810 F.2d 1363, 1370 (5th Cir. 1987);
Martinez-Aguero, 459 F.3d at 622–23; cf. Kwai Fun Wong v. United States, 373 F.3d 952,
974−75 (9th Cir. 2004) (holding that entry fiction does not preclude claims under the equal-
protection component of the Due Process Clause).
       8 Lynch, 810 F.2d at 1373−75; see also Martinez-Aguero, 459 F.3d at 623 (citing Lynch
in holding that entry fiction did not apply to Fourth Amendment claims based on gross phys-
ical abuse at the hands of federal officials).
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                                        No. 13-40017
physical abuse.” 9
       Therefore, if these detainees are excludable aliens stopped before entry
into the United States and their claims arise in the context of immigration, the
entry fiction applies and there is no violation of the Fourth Amendment. If,
however, they were subject to wanton or malicious infliction of pain or gross
physical abuse, the doctrine does not apply, and we consider whether Cabrera
was entitled to qualified immunity.


                                               A.
       The entry fiction applies to the detainees’ claims that their Fourth
Amendment rights were violated. Unlike the situation in Martinez-Aguero, in
which we held the entry fiction not to apply to an excluded alien’s false-
imprisonment claim, the detainees’ claims are in the context of immigration,
and no gross physical abuse is alleged. In Martinez-Aguero, an excluded alien
was beaten and arrested for interfering with the performance of official duties
when, after she was denied entry to the United States on an expired visa, she
made a sarcastic remark regarding the official’s foul language and began to
walk toward Mexico. Martinez-Aguero, 459 F.3d at 620–21, 625. We therefore
held that the entry fiction did not apply because the official’s actions occurred
outside the immigration context—the alien was no longer attempting to enter
the United States; her detention was not in regard to her immigration status



       9  Gisbert, 988 F.2d at 1442 (“The court [in Lynch] acknowledged that the ‘“entry fic-
tion” that excludable aliens are to be treated as if detained at the border despite their physical
presence in the United States determines the aliens’ rights with regard to immigration and
deportation proceedings,’ but stated that the fiction did not limit the right of excludable aliens
to humane treatment while detained within the United States. This Court went on to narrow
this statement: ‘We therefore hold that, whatever due process rights excludable aliens may
be denied by virtue of their status, they are entitled under the due process clauses of the fifth
and thirteenth amendments to be free of gross physical abuse at the hands of state or federal
officials.’” (quoting Lynch, 810 F.2d at 1374 (emphasis added))).
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but for the commission of a nonrelated crime—and involved gross physical
abuse. Id. at 623–25.
       The detainees, however, were detained as excluded aliens for varying
amounts of time—all ten hours or less—as their admissibility was being deter-
mined, a situation well within the immigration context. Additionally, neither
of the claims involve physical abuse, let alone “gross physical abuse” as in
Lynch or Martinez-Aguero. Therefore, these claims fall squarely within the
confines of entry fiction, and the Fourth Amendment is not applicable; the
detention did not violate constitutional rights 10; and the district court properly
dismissed these claims under Rule 12(b)(6).


                                               B.
       Lastly, we decide whether the entry fiction applies to the detainees’
Fourth Amendment claim of excessive force through the use of harsh interro-
gation techniques. Although we held in Lynch and Martinez–Aguero that the
entry fiction did not apply to the excessive-force claims under, respectively, the
Fifth and Fourth Amendments, we did so because the fiction does not apply to
“gross physical abuse at the hands of state or federal officials.” Martinez–
Aguero, 459 F.3d at 623; Lynch, 810 F.2d at 1373–74. The present detainees
do not allege any physical contact but make bare assertions of “threats, insults,
and false statements.” These accusations, without any allegation of conduct
that could be considered “gross physical abuse” or the wanton or malicious



       10 See id., 988 F.2d at 1441 (“The Supreme Court has held that detention of aliens
pending exclusion does not violate the alien’s constitutional rights.” (citing Shaughnessy, 345
U.S. at 209–13 (holding that detention of excludable alien at border entry for twenty-one
months did not violate any constitutional rights)); see also id. at 1442 (“Not only is the excep-
tion for gross physical abuse wholly inapplicable in this case, as the petitioners have not
alleged physical mistreatment, but Lynch plainly recognizes that excludable aliens may
legally be denied other due process rights, including the right to be free of detention.”).
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                                       No. 13-40017
infliction of pain, do not meet our standard for avoiding application of the entry
fiction. 11 Therefore, the fiction applies to the Fourth Amendment claim, which
was properly dismissed.


                                              IV.
       Alien     detainees—including          those     who     present      facially     valid
documentation—have no Fourth Amendment rights in the immigration con-
text. 12 Fourth Amendment protection extends, however, to all detainees who
are citizens of the United States because the doctrine of entry fiction applies
only to aliens, not U.S. citizens. Some of the detainees here—such as Laura
and Yuliana Castro, who presented facially valid documentation 13—might in
fact be U.S. citizens and certainly allege to be so.
       Even if they individuals are in fact U.S. citizens, dismissal is proper
because Cabrera enjoys qualified immunity, 14 as the district court convincingly
discussed in its order of dismissal. The detainees point to no authority clearly
establishing that Cabrera’s actions in detaining, even for as long as ten hours,
individuals who presented facially valid documentation, plus the use of
unspecified     threats     and     insults    during      interrogation,      violated     the



       11 See id. at 1442 (“[T]he exception for gross physical abuse [is] wholly inapplicable in
this case, as the petitioners have not alleged physical mistreatment.”).
       12  Any contrary understanding would impose a legal regime in which the act of fraud
itself created constitutional protection for an imposter.
       13The infant, C.A.G., also presented facially valid documentation for a child under
sixteen when a valid U.S. birth certificate was presented on her behalf, see 8 C.F.R.
§ 235.1(b)(8)(i), but—as the district court discussed—she was never legally detained even if
the practical effect of Laura’s, Yuliana’s, and her grandmother’s detention resulted in her
physical detention.
       14 “[G]overnment officials performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.” Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982).
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Constitution. 15    Instead, the caselaw of the Supreme Court 16 and of this
circuit, 17 as well as federal regulations, 18 are to the contrary. Therefore, the
claims of any of the detainees who might be U.S. citizens were properly
dismissed.
       Because the Fourth Amendment does not apply to those detainees that
are aliens, and Cabrera is entitled to qualified immunity in relation to those
detainees that are U.S. citizens, the judgment of dismissal is AFFIRMED.




       15 “Unless the plaintiff’s allegations state a claim of violation of clearly established
law, a defendant pleading qualified immunity is entitled to dismissal before the commence-
ment of discovery.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (citing Harlow, 457 U.S.
at 818).
       16  See United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985) (“Consistently,
therefore, with Congress’ power to protect the Nation by stopping and examining persons
entering this country, the Fourth Amendment’s balance of reasonableness is qualitatively
different at the international border than the interior. Routine searches of the persons and
effects of entrants are not subject to any requirement of reasonable suspicion, probable cause,
or warrant, and first class mail may be opened without a warrant on less than probable cause.
Automotive travelers may be stopped at fixed checkpoints near the border without individu-
alized suspicion even if the stop is based on ethnicity, and boats on inland waters with ready
access to the sea may be hailed and boarded with no suspicion whatever.” (citations and
footnote omitted)); United States v. Martinez-Fuerte, 428 U.S. 543, 562–63 (1976) (“[W]e hold
that the stops and questioning at issue may be made in the absence of any individualized
suspicion at reasonably located checkpoints.”).
       17Hernandez v. Cremer, 913 F.2d 230, 239–41 (5th Cir. 1990) (upholding an injunction
which allowed an inspecting officer twenty-four hours to complete an investigation into the
citizenship of a person who presented documentation evidencing citizenship at a port of
entry).
       18See 8 C.F.R. § 235.1(b) (“A person claiming U.S. citizenship must establish that fact
to the examining officer’s satisfaction and must present a U.S. passport or alternative docu-
mentation as required by 22 CFR part 53. If such applicant for admission fails to satisfy the
examining immigration officer that he or she is a U.S. citizen, he or she shall thereafter be
inspected as an alien.”).
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                                 No. 13-40017
STEWART, Chief Judge, concurring in the judgment.
      I concur in the judgment only.        The majority opinion addresses:
(1) whether the Fourth Amendment applies to these detainees because they
are not U.S. citizens; and (2) whether Cabrera enjoys qualified immunity if
some of the detainees are U.S. citizens. This case raises important issues
regarding the constitutional rights of detainees at the border. However, the
record and the briefing in this case is less than clear on the issue of the
detainees’ citizenship and how this affects the Fourth Amendment analysis. I
agree with the majority, as discussed in Part IV of the opinion, that Cabrera is
entitled to qualified immunity. Because of the lack of clarity and sharpness in
the development of the constitutional issue by the parties, I would affirm the
district court’s dismissal solely on the basis of Cabrera’s qualified immunity.




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