Arar v. Ashcroft

532 F.3d 157

Maher ARAR, Plaintiff-Appellant, v. John ASHCROFT, formerly Attorney General of the United States; Larry D. Thompson, formerly Deputy Attorney General; Tom Ridge, as Secretary of State of Homeland Security; J. Scott Blackman, as Regional Director of the Regional Office of Immigration and Naturalization Services; Paula Corrigan, Regional Director of Immigration and Customs Enforcement; Edward J. McElroy, formerly District Director of Immigration and Naturalization Services for New York District, and now Customs Enforcement; Robert Mueller, Director of the Federal Bureau of Investigation; John Doe 1-10, Federal Bureau of Investigation and/or Immigration and Naturalization Service Agents; James W. Ziglar, formerly Commissioner for Immigration and Naturalization Services; United States Of America, Defendants-Appellees.

Docket No. 06-4216-cv.

United States Court of Appeals, Second Circuit.

Argued: November 9, 2007.

Decided: June 30, 2008.

David Cole, Center for Constitutional Rights, New York, N.Y. (Katherine Gallagher, William Goodman, Maria Couri LaHood, Jules Lobel, Barbara Olshansky, Center for Constitutional Rights, New York, NY, Joshua S. Sohn. Robert Fink, Stanley McDermott III, Sarah J. Sterken, DLA Piper U.S. LLP, New York, NY, on the brief), for Plaintiff-Appellant Maher Arar.

Jamie Kilberg (John J. Cassidy, Stephen L. Braga, Jeffrey A. Lamken, Allyson N. Ho, Stephanie R. Dourado, on the brief), Baker Botts LLP, Washington, DC, for Defendant-Appellee Larry Thompson.

Jeffrey Bucholtz, Principal Deputy Assistant Attorney General, (Peter J. Keisler, Assistant Attorney General, Rosylnn R. Mauskopf, United States Attorney, Eastern District of New York, Barbara L. Herwig, Robert M. Loeb, Mary Hampton Mason, Jeremy S. Brumbelow, on the brief), United States Department of Justice, Washington, DC, for Official Capacity Defendants-Appellees and for Amicus Curiae the United States of America.

Shveta Kakar, (Jeremy Maltby, Margaret L. Carter, George James Bagnall V), O'Melveny & Myers LLP, Los Angeles, CA and New York, NY, for Defendant-Appellee Robert S. Mueller III.

Thomas G. Roth, West Orange, NJ, for Defendant-Appellee J. Scott Blackman.

Thomas M. Sullivan (Debra L. Roth on the brief), Shaw, Bransford, Veilleux & Roth, P.C., Washington, DC, for Defendant-Appellee Edward J. McElroy.

William A. McDaniel, Jr. (Bassel Bakhos, on the brief), Baltimore, Maryland, for Defendant-Appellee James W. Ziglar.

Sidney S. Rosdeitcher, Paul, Weiss, Rifkind, Wharton & Garrison LLP (Jonathan Hafetz, Brennan Center for Justice at New York University School of Law, on the brief), New York, NY, for Amicus Curiae Retired Federal Judges, supporting Plaintiff-Appellant.

Nancy Morawetz, New York University School of Law, New York, NY, for Amicus Curiae U.S. and Canadian Scholars, supporting Plaintiff-Appellant.

Bridget Arimond, Center for International Human Rights, Northwestern University School of Law, Chicago, IL, for Amicus Curiae Center for International Human Rights of Northwestern University School of Law, supporting Plaintiff-Appellant.

Kristina A. Huskey (Akbar Siddiqui, Sabrina Balgamwalla, of counsel)^*, International Human Rights Law Clinic, American

University Washington College of Law, for Amicus Curiae Center for Justice and Accountability, International Federation for Human Rights, Minnesota Advocates for Human Rights, World Organization Against Torture, supporting Plaintiff-Appellant.

Baher Azmy (Jenny-Brooke Condon, Meetali Jain, Scott Michelman, of counsel), Center for Social Justice, Seton Hall Law School, for Amicus Curiae Scholars of American Constitutional Law, supporting Plaintiff-Appellant.

Before: McLAUGHLIN, CABRANES, and SACK, Circuit Judges.

Judge SACK concurs in part and dissents in part in a separate opinion.

JOSÉ A. CABRANES, Circuit Judge:

On September 26, 2002, plaintiff-appellant Maher Arar, a dual citizen of Syria and Canada, and the subject of a U.S. government "lookout," J.A. 88, was detained by U.S. authorities at John F. Kennedy International airport in New York City ("JFK Airport") while en route from Tunisia to Montreal. On October 7, 2002, J. Scott Blackman, then the U.S. Immigration and Naturalization Service ("INS") Regional Director for the Eastern Region, determined, based on a review of classified and unclassified information, that Arar was a member of Al Qaeda and therefore inadmissible to the United States. Pursuant to this determination, Blackman signed an order authorizing Arar to be removed to Syria "without further inquiry before an immigration judge, in accordance with [8 U.S.C. § 1225(c)(2)(B) and 8 C.F.R. § 235.8(b)]." Id. at 86.

In February 2004, the Canadian Government convened an official commission ("the Commission") to look into "the actions of Canadian officials in relation to" Arar's detention in the United States, his eventual removal to Syria, and his subsequent detention by Syrian authorities. See Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Analysis and Recommendations 11-12 (2006) ("Canadian Commission, Analysis and Recommendations") (describing the scope of the inquiry). The Commission determined that Canadian officials had "requested" that American authorities create lookouts for Arar and his wife, had described Arar to American authorities as an "Islamic Extremist individual[ ] suspected of being linked to the Al Qaeda terrorist movement," and had provided American authorities with information derived from their investigations of Arar. Id. at 13. The Commission further determined that "[i]t [wa]s very likely that, in making the decisions to detain and remove Mr. Arar, American authorities relied on information about Mr. Arar provided by the [Royal Canadian Mounted Police]." Id. at 14. Accordingly, the Commission recommended that Canadian authorities consider granting Arar's request for compensation from the Canadian government. Id. at 369. In January 2007, the Canadian government entered into a settlement agreement with Arar, whereby he received compensation of 11.5 million Canadian dollars (approximately $9.75 million, at the time) in exchange for withdrawing a lawsuit against the Canadian government. See Ian Austen, Canada Will Pay $9.75 Million to Man Sent to Syria and Tortured, N.Y. Times, Jan. 27, 2007, at A5.¹

On January 22, 2004, shortly before the initiation of the Canadian inquiry, Arar filed this civil action against Blackman, former U.S. Attorney General John Ashcroft, FBI Director Robert Mueller, former Acting Attorney General Larry D. Thompson, former INS Commissioner James W. Ziglar, INS District Director Edward J. McElroy, the Secretary of Homeland Security, the Regional Director of Immigration and Customs Enforcement for the New York Region, and several unnamed employees of the FBI and INS.² Arar alleges that these individuals mistreated him while he was in the United States and then removed him to Syria with the knowledge or intention that he would be detained and tortured there.

Count one of Arar's complaint requests relief under the Torture Victim Protection Act, 28 U.S.C. § 1350 note ("TVPA"). Counts two and three request relief under the Fifth Amendment to the U.S. Constitution for Arar's alleged torture (Count two) and detention (Count three) in Syria. Count four requests relief under the Fifth Amendment of the U.S. Constitution for events alleged to have occurred while Arar was detained in the United States. With respect to relief, Arar seeks a declaratory judgment that defendants' conduct violated his "constitutional, civil, and international human rights," as well as compensatory and punitive damages for the statutory and constitutional violations alleged in the complaint. Compl. 24.

In a memorandum and order dated February 16, 2006, the United States District Court for the Eastern District of New York (David G. Trager, Judge) dismissed Counts one through three of Arar's suit, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. See Arar v. Ashcroft, 414 F.Supp.2d 250, 287-88 (E.D.N.Y.2006). The District Court dismissed Count four without prejudice, pursuant to Rule 12(b)(2), for lack of personal jurisdiction over the individual defendants. Upon receiving notice that Arar had elected not to amend his complaint to cure the jurisdictional defects found by the District Court, the Clerk of Court entered judgment dismissing the action with prejudice on August 17, 2006. Arar now brings this appeal.

Arar's suit implicates several questions of first impression for our Court. One threshold question presented on this appeal is whether, as defendants contend, the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq., deprived the District Court of subject matter jurisdiction over the claims raised in Counts two and three of Arar's complaint. The adjudication of this question is, for the reasons set forth below, see infra at 169-72, particularly difficult in light of the record before us. However, because we are compelled to dismiss these claims on the basis of other threshold—that is, non-merits—grounds, we need not determine whether the INA did, in fact, strip the District Court of subject matter jurisdiction to hear Arar's removal-related claims.

We must therefore determine (1) whether the district court had personal jurisdiction over the individual defendants; (2) whether Arar's allegation that U.S. officials conspired with Syrian authorities to torture him states a claim against the U.S. officials under the TVPA; (3) whether to create a judicial damages remedy, pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for Arar's claims that U.S. officials (a) removed him to Syria with the knowledge or intention that he would be detained and tortured there and (b) mistreated him while he was detained in the United States; and...