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
from the United States District Court for the Southern
District of Texas
HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
H. JONES, CIRCUIT JUDGE.
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
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.
Detention and Removal
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
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.
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
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.
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.
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.
this language, the form included a section titled
"Request for Disposition." This section offered a
list of three ...