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Maria S. v. Garza

United States Court of Appeals, Fifth Circuit

January 4, 2019

MARIA S., as Next Friend for E.H.F. S.H.F. and A.S.G., Minors, Plaintiff-Appellant
RAMIRO GARZA; RUBEN GARCIA, Defendants-Appellees

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

          Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.


         Laura S., a Mexican citizen, was in the United States illegally when U.S. Customs and Border Protection ("CBP") agents detained her near Pharr, Texas. In CBP custody, Laura signed a form indicating her decision to repatriate voluntarily. Laura was killed shortly after returning to Mexico. In this lawsuit, Laura's representatives seek damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971) against Ramiro Garza, a CBP agent, and his supervisor, Ruben Garcia, for coercing Laura into signing the voluntary removal form, thereby denying her due process and causing her death.

         The district court granted summary judgment for both defendants. For two independent reasons, we affirm the district court's judgment: (1) "special factors" preclude the extension of a Bivens remedy to this "new context" and (2) the defendants were entitled to qualified immunity.


         I. Detention and Removal

         In June 2009, Laura was driving with three friends near Pharr around 2:00 a.m. Local police stopped the car for a driving infraction. A police officer asked for proof of citizenship or immigration status. One of the passengers had a visa, but Laura and two of her friends, Arturo Morales and Saray Cardiel, had no documentation. The police officer notified CBP.

         Laura allegedly began to weep and told the officer that Sergio, her ex-boyfriend and the father of two of her children, would hurt her if she returned to Mexico. Sergio had abused and threatened to kill her, and Laura had obtained a protective order against him in McAllen, Texas, though the order had expired in June 2008. Sergio had returned to Mexico and allegedly worked for a drug cartel.

         The police officer released Laura, Morales, and Cardiel to CBP Agent Ramiro Garza, who drove them to a CBP processing center in Weslaco. Cardiel testified that Laura wept and told Agent Garza that she feared returning to Mexico because of Sergio.[1]

         At the processing center, Agent Garza and another unknown CBP agent fingerprinted and interviewed Laura and Cardiel. Cardiel and Laura were not restrained or handcuffed and were not physically forced to do anything. The officers did not threaten them. Agent Garza had removed his handgun before entering the processing room, but he and the other officers on the floor each retained a taser and a baton.

         Cardiel and Morales testified that Laura explained her fears about returning to Mexico and that she was crying and frightened. Cardiel also testified that the CBP agents said they were in a hurry. Laura was able to call her children's grandmother to make "suitable arrangements for [their] care and well-being." Laura asked for an opportunity to get the expired protective order to show the agents and asked to be released. The agents allegedly ignored her comments or laughed and told Laura and Cardiel "in high volume voices" that they had to go back to Mexico.

         The agents presented Laura with Form I-826. This form included a "Notice of Rights" in Spanish. The notice stated:

You have been arrested because immigration officers believe that you are illegally in the United States. You have the right to a hearing before the Immigration Court to determine whether you may remain in the United States. If you request a hearing, you may be detained in custody or you may be eligible to be released on bond, until your hearing date. In the alternative, you may request to return to your country as soon as possible, without a hearing.
You have the right to contact an attorney or other legal representative to represent you at your hearing, or to answer any questions regarding your legal rights in the United States. Upon your request, the officer who gave you this notice will provide you with a list of legal organizations that may represent you for free or for a small fee. You have the right to communicate with the consular or diplomatic officers from your country. You may use a telephone to call a lawyer, other legal representative, or consular officer at any time prior to your departure from the United States.

         Below this language, the form included a section titled "Request for Disposition." This section offered a list of three ...

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