Sissoko v. Rocha

440 F.3d 1145

Oumar SISSOKO; Julie SISSOKO, Plaintiffs-Appellees, v. Loyda R. ROCHA; United States of America, Defendants-Appellants.

Oumar Sissoko, an individual; Julie Sissoko, an individual, Plaintiffs-Appellees, v. Alberto R. Gonzales,^* Attorney General, Attorney General of the United States; U.S. Immigration & Naturalization Service; Doris Meissner, Commissioner, United States Ins; Richard Nmi Rogers, District Director, United States Ins; Four Unknown Named Officers, of the United States Immigration and Naturalization Service; United States; U.S. Public Health

Services; Joseph Chen, Md; Unknown Named Employees of the United States Public Health Services, Defendants, and Loyda R. Rocha, Immigration Inspector, United States Ins, Defendant-Appellant.

No. 02-56751.

No. 03-55667.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 1, 2004.

Filed March 16, 2006.

COPYRIGHT MATERIAL OMITTED

Peter D. Keisler, Assistant Attorney General, Debra W. Yang, U.S. Attorney, Robert M. Loeb, and Richard A. Olderman, Civil Division, Appellate Staff, U.S. Department of Justice, Washington, D.C., for the defendants-appellants.

Martin Simone and Helen Wong, Frank, Greenberg, Simone & Stefanski, Los Angeles, CA, for the plaintiffs-appellees.

Appeal from the United States District Court for the Central District of California; Audrey B. Collins, District Judge, Presiding. D.C. No. CV-98-07010-ABC.

Before OTTO R. SKOPIL, JR., JOHN T. NOONAN, and MARSHA S. BERZON, Circuit Judges.

BERZON, Circuit Judge.

ORDER

The opinion filed on June 13, 2005 and reported at 412 F.3d 1021 (9th Cir.2005) is hereby withdrawn and replaced by the concurrently-filed opinion. The pending petition for rehearing and rehearing en banc is denied as moot. Further petitions for rehearing and/or rehearing en banc may be filed.

OPINION

After Oumar Sissoko ("Sissoko"), an alien who had over-stayed his visa but had applied for legalization, returned from his father's funeral in the spring of 1997, an immigration inspection officer, appellant Loyda R. Rocha, took him into custody as an "arriving alien" without proper admission documents. Because of Rocha's actions, Sissoko spent nearly three months in detention. Sissoko and his wife Julie Sissoko, a U.S. citizen, brought this action, claiming that the detention was in violation of the Fourth Amendment and seeking damages. Rocha now appeals the district court's grant of summary adjudication to the Sissokos on the issue of the legality of the detention, and the court's denial of Rocha's motion for summary judgment on qualified immunity grounds.

Rocha's initial contention is that, under 8 U.S.C. § 1252, the courts are closed to the Sissokos. We disagree. After concluding that § 1252 does not preclude jurisdiction over this case, we affirm the district court's grant of summary adjudication to the Sissokos and denial of summary judgment to Rocha on qualified immunity, and remand for further proceedings.

I. BACKGROUND

A. Facts

1. Sissoko's 1997 inspection and detention

Sissoko, a native and citizen of Senegal, first entered the United States in the early 1980s on a visitor's visa, which he overstayed. In 1990, he filed an application for legalization with the Immigration and Naturalization Service (INS),¹ pursuant to a relief order resulting from class action litigation. See Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139, 1141-45 (9th Cir.2000) (en banc) (CSS); see also Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993). The INS denied Sissoko prima facie membership in the CSS class, but allowed him to submit additional documentation to establish his eligibility.

Instead of doing so, Sissoko filed a second legalization application in 1991, containing information in some respects inconsistent with the first one. The INS, after reviewing Sissoko's 1991 application, provisionally designated him "CS-1," indicating that he was prima facie eligible for membership in a CSS sub-class and entitling him to issuance of a temporary resident card and employment authorization card. As a consequence of his dual applications, Sissoko was assigned two different alien registration numbers, one for each of his two applications.

Sissoko's father died in March 1997, while both legalization applications were pending. Sissoko, understandably, wanted to attend his father's funeral in Senegal. A temporary resident may return from a trip abroad if he obtains an advance parole document permitting him to travel and return, usually within thirty days.² Sissoko therefore asked for and received from the INS an advance parole document (Form I-512), see 8 C.F.R. § 212.5(f) (2005),³ giving him permission to travel to and remain in Senegal for up to thirty days. Within the prescribed time Sissoko returned to the United States, landing at Dulles International Airport outside Washington, D.C.

The Dulles immigration inspector did not believe Sissoko's account of his initial arrival in the United States sixteen years prior. The inspector also noticed that Sissoko had two alien registration numbers. Despite Sissoko's advance parole authorization, the inspector denied him entry and ordered him to report to the Los Angeles Deferred Inspection Unit.

On May 14, when Sissoko appeared for his scheduled appointment at the Los Angeles Deferred Inspection Unit, he was taken into custody by Rocha, an immigration inspector. Rocha indicated on Form I-275 ("Withdrawal of Application for Admission"), that the "Basis for Action" was that Sissoko was "Ordered removed (inadmissible) by INS — Section 235(b)(1)." Rocha later stated in a declaration in this case that she took Sissoko into custody after learning from someone at the INS's East Los Angeles legalization office, a separate office of the INS responsible for processing legalization applications such as Sissoko's, that Sissoko had no status permitting him to remain in the United States. Sissoko was detained for two days.

On May 16, Michael Cochran, a supervisor of the Los Angeles Deferred Inspection Unit, memorialized in Sissoko's file a conversation he had with A. Watson of the East Los Angeles legalization office. His notes read:

Telecon w/ A. Watson. Gives opportunity to obtain does needed for presentation if we defer & that is what she feels is the best route — espec. after consideration of pending CSS Lawsuit and mandates that she has by memorandum.

We'll give Def. Inspection until afternoon of June 06, 1997 = after CSS interview @ XLA.

Sissoko was released from detention on May 16, apparently to be given an opportunity to have an interview with the legalization office.

Sissoko married Julie Strommen on August 21 and filed an adjustment of status petition on August 26, based on his marriage. See 8 U.S.C. § 1255(a); see also 8 U.S.C. § 1154(a)(1) (A)(iii). On August 26, Pacita Pabilla, a legalization adjudicator, re-interviewed Sissoko at the East Los Angeles legalization office.⁴ At the conclusion of the interview, Pabilla informed Sissoko that he had not established CSS class membership.

That same day, Rocha placed Sissoko in detention, where he remained until November 17, 1997. When she took Sissoko into custody, Rocha again completed Form I-275, indicating once more that the "Basis for Action" was that Sissoko was "Ordered removed (inadmissible) by INS — Section 235(b)(1)." Rocha stated in her declaration that she took Sissoko into custody after learning from the East L.A. Legalization office that Sissoko's legalization applications had been denied. Pabilla testified, however, that she did not recall that anyone from Deferred Inspection ever called her to ask her for the results of Sissoko's interview, and that she had never spoken to Rocha, nor had she told anyone in her office that Sissoko was not eligible for legalization.

2. Proceedings before the IJ and BIA

The INS elected to pursue ordinary removal proceedings, see 8 U.S.C. § 1229a, rather than expedited removal, see 8 U.S.C. § 1225(b)(1),⁵ so Sissoko became eligible for release on bond, see 8 C.F.R. § 236.1(c), a release he obtained on November 17, 1997. In the removal proceedings, the INS contended that Sissoko was ineligible for adjustment of status based on his marriage, because he was an "arriving alien." See 8 C.F.R. § 245.1(c)(8) (deeming ineligible for adjustment of status "[a]ny arriving alien who is in removal proceedings pursuant to [8 U.S.C. § 1225(b)(1) or 8 U.S.C. § 1229a]").⁶

In a 2000 decision, the Immigration Judge (IJ) concluded that the INA, pertinent regulations, and applicable case law, protect the pre-departure status of an alien who has a pending legalization application and obtains permission to travel abroad for a period of less than thirty days. E.g., 8 U.S.C. § 1255; 8 C.F.R. § 245a.2(m)(1); Navarro-Aispura v. INS, 53 F.3d 233 (9th Cir.1995). The IJ explained that 8 C.F.R. § 245a.2(m)(1) contemplates that an alien who obtains advance parole would be "readmitted," rather than treated as a newly-arriving alien applying for admission.⁷ Also, Sissoko was not advised, the IJ noted, of the possibility that he might not be readmitted after his trip abroad. Given these circumstances, the IJ held, Sissoko was not an "arriving alien" but one who retained the status he had before he left. As Sissoko was in that status eligible for adjustment of status, see 8 C.F.R. § 245.1(a),⁸ the IJ granted his application for adjustment of status.

In March 2003, the BIA affirmed and adopted the decision of the IJ, stating:

We agree with the Immigration Judge that the respondent should not be considered an arriving alien, ineligible for adjustment of status, based on his brief exit from the United States with advanced[sic] parole while his application for legalization was pending with the Immigration and Naturalization Service. See Navarro-Aispura v. INS, 53 F.3d 233 (9th Cir.1995); Matter of S-O-S-, 22 I. & N. Dec. 107 (BIA 1998); 8 C.F.R. § 245a.2(m) (2002).

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