This introduction almost seems deliberately baiting.
Judge O'Scannlain begins his opinion with the following paragraph: "We are asked to decide, among other things, whether an alien not lawfully in the United States may sue for monetary damages claiming constitutionally invalid detention."
To which I immediately responded -- out loud, even -- "Of course she can." The fact that someone's in the country illegally doesn't make her any less of a "person" protected by Due Process Clause. You can't run over a person with your car just because they're here illegally: they can sue you. You can't beat a person just because they're here illegally: they can still sue. You can't kidnap them either. The fact that you're here without permission doesn't deprive you of your constitutional rights or your ability to enforce them. That'd be a problem if the Constitution only protected "citizens." But it doesn't. It protects "persons." To put it in the way I'd tell my five-year-old, "Illegal aliens are people too." A fact that's both morally as well as constitutionally relevant.
I know from just the tone of the introductory paragraph as well as the lineup of the panel, however, that the opinion's going to hold that they can't sue. But I still can't believe that they're going to hold that illegal aliens can't sue because they're illegal aliens. Do I know some people feel that should be the law? Sure I do. But it's not, and I can't fathom that any intellectual respectable person is going to so hold.
It's only halfway through the opinion, however, when I start to realize that the panel's not really going to answer the "Question Presented" in the opening paragraph. We're not talking about whether illegal aliens "may sue for monetary damages claiming constitutionally invalid detention." We're instead only addressing whether they may sue for monetary damages claiming an invalid detention in immigration proceedings. So if you're going through immigration court and are detained as part of those judicial proceedings, do you have a freestanding right to sue under Bivens.
That's a completely different question than the one the opinion initially presents. Because even though the panel (predictably) says, no, we're not going to grant you a Bivens claim arising from immigration detentions, that most definitively does not mean that an illegal alien cannot "sue for monetary damages claiming constitutionally invalid detention." Take, for example, an illegally alien put into state prison in an unconstitutional manner. He can sue under Section 1983. The panel's holding doesn't change that. So he can indeed sue for monetary damages claiming constitutionally invalid detention. And even the panel concedes (in its final footnote) that even in the immigration detention context, an illegal alien can still sue the "officers who made the arrest at an operational level." Because there's a previous Ninth Circuit case that expressly so holds, and which they can't overrule. So there's another way to sue.
The question that the panel really answers is whether there should be (1) a freestanding Bivens claim (as opposed to, say, a Section 1983 claim); (2) for immigration detentions in particular. It's only in this particular context that the panel's adjudicating someone's right to sue. And that context is entirely omitted from the introductory paragraph, which mentions neither the Bivens aspect nor anything about the fact that we're only talking about immigration cases.
To be sure, the panel's decision disproportionately affects illegal aliens. They're generally the ones in immigration court and, thus, potentially illegally obtained. But the fact that they're illegally in the U.S. actually has nothing to do with the court's holding. For example, even aliens entitled to asylum (and who, as here, successfully obtain it) aren't permitted to sue. So even if you're "legally" here you still can't sue. Similarly, even aliens expressly permitted to be here -- e.g., those with tourist visas, green cards, etc. -- who are subsequently put in deportation proceedings (e.g., for committing a crime) are not entitled to sue under Bivens either. Again, it's not that they're here illegally, it's instead simply that, for whatever reason, they're in immigration court that precludes a Bivens suit. Indeed, the panel's holding extends even to natural-born U.S. citizens -- they can't sue either -- if they're ever detained in immigration proceedings. And while that's rare, it happens: the DHS occasionally seeks to remove people that they think are here illegally but who were in fact born here. Lots of cases on this. (And might even happen to President Obama if Donald Trump got his way.) Those U.S. citizens can't sue under Bivens either. Because the whole basis of the panel's holding has nothing whatsoever to do with whether someone's in the country illegally, but rather simply arises out of the fact that the remedies already available in immigration court -- hearings, judicial review, habeas petitions, etc. -- suffice by themselves (according to the panel) to provide an adequate remedy for unconstitutional detentions in those proceedings, thereby negating the need for a Bivens remedy.
Can reasonable people fight about whether that's in fact the case? Of course they can. Since none of those existing remedies provide monetary compensation for the harms of prior detention, and instead simply terminate any future detention. So you can see why some jurists might (and, I'm supremely confident, in fact do) disagree with even the panel's limited holding. Because what's the incentive not to unconstitutionally incarcerate someone in immigration court if the worse thing that can happen to you is that they eventually get let out?
But regardless of whether that limited holding is normatively correct, the point is that the opinion does not even attempt to answer the question ostensibly presented in the first paragraph. One that seems to go out of its way to touch hot-button issues: to advise the reader from the get-go that the result of its opinion will deprive "coddled" illegal aliens of illegitimately obtained rights. That's unnecessary, as well as inaccurate.
The case isn't about illegal aliens. It's about immigration court. And limited to Bivens remedies. Things nowhere mentioned in that first paragraph, and that affect illegal aliens and non-illegal aliens alike. And, with deference and respect, I think that introducing the opinion the way it does appeals -- whether deliberately or not -- to prejudice. And that ain't right.
So it's an inartfully worded introductory paragraph. It could be better. I'd have said: "We are asked to decide whether a participant in immigration proceedings has a freestanding claim under Bivens to sue for monetary damages asserting his constitutionally invalid detention." That's the real question, as well as sufficiently hints to the reader the way the panel's going to come out. Without interjecting things to which we need not appeal and which we do not, in fact, decide.