United States District Court, N.D. California
October 13, 2005.
TSUNGAI TUNGWARARA, Plaintiff,
United States of America, Defendant.
The opinion of the court was delivered by: ELIZABETH LAPORTE, Magistrate Judge
ORDER GRANTING DEFENDANT ALFERT LUDWIGS' MOTION FOR SUMMARY
Plaintiff Tsungai Tungwarara, an eighteen year old Zimbabwean
citizen coming to the United States for the first time, arrived
at San Francisco International Airport ("SFO") on January 9, 2002
with a tourist visa. She stated that she planned to visit her
mother and sister in the Bay Area. After her initial immigration
inspection, she was selected for a secondary inspection, which
was conducted by defendant Alfert Ludwigs, an Immigration and
Naturalization Services ("INS") agent.*fn1
contends that during this secondary inspection, Ludwigs
threatened and intimidated her, eventually coercing her into
signing a false statement and withdrawing her application for
entry into the United States. After being detained in an INS
waiting room at SFO for more than ten hours, she was handcuffed
and transferred to the Oakland City Jail, where she was
strip-searched pursuant to jail policy, and placed in the general
jail population overnight. She was forcibly removed to Zimbabwe
the next day, via Paris. Defendants claim that they excluded
Plaintiff because she planned to stay in the United States to
study and therefore could not enter the country on a tourist
visa. Plaintiff disputes this, and her mother testified that
Ludwigs made racially offensive remarks to her about aliens from
African countries. Based on these events, Tungwarara filed claims against the
United States for intentional infliction of emotional distress,
false arrest and imprisonment, negligence, assault, battery,
violation of the California Constitution, and violation of
California Civil Code section 52.1(b). She also sued the United
States and Ludwigs for violating her Fourth and Fifth Amendments
rights. Ludwigs then filed this motion for summary judgment on
the Fourth and Fifth Amendment claims asserted against him, based
on qualified immunity.
A. Qualified Immunity Standard.
The defense of qualified immunity protects "government
officials . . . from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To
determine whether Ludwigs is entitled to qualified immunity, the
Court must examine "(1) whether `taken in the light most
favorable to the party asserting the injury, . . . the facts
alleged show the officer's conduct violated a constitutional
right'; and, if a violation of a constitutional right is found,
(2) `whether the right was clearly established.'" Wong v. United
States, 373 F.3d 952, 966 (9th Cir. 2004) (quoting Saucier v.
Katz, 533 U.S. 194, 201 (2001)). The rule of qualified immunity
"`provides ample protection to all but the plainly incompetent or
those who knowingly violate the law[.]'" Saucier,
533 U.S. at 202 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
"Therefore, regardless of whether the constitutional violation
occurred, the [official] should prevail if the right asserted by
the plaintiff was not `clearly established' or the [official]
could have reasonably believed that his particular conduct was
lawful." Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir.
1991). If Defendant had a reasonable but mistaken belief that his
conduct was lawful, qualified immunity applies. Saucier,
533 U.S. at 205-6.
In determining whether a legal proposition is "clearly
established," the Court first looks to the Supreme Court, the
Ninth Circuit, and local district courts. Procunier v.
Navarette, 434 U.S. 555, 565 (1978); Capoeman v. Reed,
754 F.2d 1512, 1514 (9th Cir. 1995). In the absence of such binding
precedent, the Ninth Circuit allows district courts to examine
"whatever decisional law is available to ascertain whether the
law is clearly established," including law from state courts,
other circuits and other district courts. Capoeman,
754 F.2d at 1514; Drummond v. City of Anaheim, 343 F.3d 1052, 1060 (9th
Cir. 2003) (quoting Malik v. Brown, 71 F.3d 724, 727 (9th Cir.
1995)). B. Plaintiff's Fourth Amendment Right Was Not Clearly
Established In 2002.
The Fourth Amendment proscribes "unreasonable searches and
seizures." Allen v. City of Portland, 73 F.3d 232, 235 (9th
Cir. 1995). The test of reasonableness requires courts to balance
the governmental interest that justifies the intrusion and the
level of intrusion into the privacy of the individual.
Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1496
(9th Cir. 1996). Plaintiff argues that the strip search at the
Oakland City Jail violated her Fourth Amendment rights because
the severe level of intrusion into her privacy was not balanced
by any governmental interest. Defendants deny that this
"non-intrusive" search violated Plaintiff's rights. Even if the
search did violate her rights, however, Ludwigs argues that he
cannot be liable because (1) he did not personally conduct or
order the strip search, or even make the decision to detain her
at the Oakland City Jail; and (2) he is entitled to qualified
1. Plaintiff has raised a triable issue of fact that Ludwigs
set in motion events that foreseeably caused the strip search to
It is undisputed that Ludwigs knew that all aliens sent to the
Oakland City Jail pending repatriation were routinely strip
searched. It is also undisputed that the INS' policies strongly
discourage holding non-admitted aliens in jail "absent
extraordinary circumstances." See Declaration of Patrice Harper
("Harper Decl."), Ex. 11 at 2. Ludwigs argues, however, that he
cannot be liable because his supervisor, Assistant Port Director
Frederick Ho, made the decision to detain Tungwarara and caused
her to be sent to the Oakland Jail. See Harper Decl., Ex. 5 at
154:17-155:10. It is undisputed that Ludwigs was not involved in
the decision to detain Tungwarara and was not consulted about
where to detain her. See Declaration of Andrew Cheng ("Cheng
Decl."), Ex. F at 185:16-186:9; Reply Declaration of Andrew Cheng
("Cheng Reply Decl."), Ex. C at 22:4-23:25, 85:6-11. Nonetheless,
Tungwarara asserts that Ludwigs' falsification of her sworn
statement set events in motion that foreseeably led to Mr. Ho's
decision to detain her in jail rather than parole her pending
removal, and thus to the strip search.
On summary judgment, the Court cannot resolve disputed issues
of fact, but only determine whether, viewing all the disputed
facts in the light most favorable to Tungwarara, she has raised a
disputed issue sufficient to withstand summary judgment. At her
deposition, Tungwarara testified that the only purpose of her
trip was to visit her mother. See Cheng Decl., Ex. E at 13:4-8,
22:5. During her secondary interview, she told Ludwigs that she
had traveled to San Francisco to visit her mother. Id. at
21:3-14, 25:15-19. She denied ever telling him that the intended to study
at City College in San Francisco. Id. at 25:20-26:1. Although
at one point Tungwarara testified that she may have mentioned to
Ludwigs that she intended to study journalism and broadcasting,
she did not say that she intended to do so in the United States.
Id. at 85:15-21. (She is currently studying at University of
Fort Hare in South Africa. See Cheng Reply Decl., Ex. A at
206:20-22.) She admitted that it was possible that, during her
secondary interview, she might have told Ludwigs that she was
coming to San Francisco to go to college and get a degree, but
she does not recall actually telling him this. Id., Ex. A at
Plaintiff claims that Ludwigs refused to write down the answers
she gave him during the secondary interview, raised his voice and
"made implied verbal threats" when she insisted on telling him
that the purpose of her trip was to visit her mother. Cheng
Decl., Ex. E at 27:3-28:8, 33:9-34:15. Ludwigs does not even
allude to this purpose in the sworn statement that he completed
for her. See id., Ex. D. On the contrary, the sworn statement
unequivocally contends that she had come to the United States to
"go to college and get a degree." Id., Ex. D at 3. Tungwarara
claims that she was not allowed to review the statement before
certifying it, and only signed it because Ludwigs told her that
she would be able to see her mother if she signed the document.
Harper Decl., Ex. 5 at 55:8-16, 57:6-23.
Based on the contents of that sworn statement, Tungwarara was
excluded from the United States because she held a visitor visa,
not a student visa. Even if she was excludable, Tungwarara could
have been paroled while awaiting her return flight to Zimbabwe.
However, at least in part because of the alleged misinformation
in the sworn statement, Assistant Port Director Frederick Ho
determined that Tungwarara was a flight risk and should not be
paroled into her mother's care while awaiting removal. Cheng
Reply Decl., Ex. C at 86:15-87:23. Mr. Ho testified that he
decided to detain Plaintiff because she had no return ticket, had
no assets in Zimbabwe, carried only thirty dollars, had a mother
who already lived in the United States, and admitted in her
written statement that she was coming to the United States to
study and live and work; she therefore appeared to Mr. Ho to be
an "intending immigrant." Cheng Reply Decl., Ex. C at
86:15-87:23. While the written statement was only one factor in
his decision, Defendant did not offer any testimony on whether
Mr. Ho would have made the same decision to detain Plaintiff
overnight without that statement. In the absence of such
evidence, the Court cannot presume on summary judgment that Mr.
Ho would have made the same decision. It is undisputed that
Ludwigs knew that, if Mr. Ho decided to detain Tungwarara overnight, she would be sent to the Oakland City Jail
because SFO lacked proper detention facilities. Harper Decl., Ex.
5 at 177:11-178:25; Ex. 8 at 15:5-11. He also knew that, if this
happened, Plaintiff would be strip searched. Id., Ex. 5 at
187:3-21; Ex. 8 at 32:22-33:7. This appears to be a sufficient
causal link to at least raise a triable issue of fact for
purposes of summary judgment, see Wong v. United States,
373 F.3d 952, 966 (9th Cir. 2004), although it may or may not suffice
at trial.*fn2 The Court therefore must engage in the
qualified immunity analysis.
2. The strip search was unconstitutional.
It is undisputed that the strip search here was not based on
any suspicion, reasonable or otherwise, that Tungwarara was
carrying hidden weapons or contraband, but rather on the policy
of the Oakland City Jail to conduct routine strip searches of all
detainees. In these circumstances, even "non-invasive" strip
searches like the one to which Plaintiff was subjected would be
plainly unconstitutional if she were a citizen or admitted alien.
See Giles v. Ackerman, 746 F.2d 614, 615 (9th Cir. 1984) (per
curiam) (Fourth Amendment prohibits blanket policy of strip
searching individuals charged with minor offenses absent
reasonable suspicion that detainee is concealing contraband)
(overruled on other grounds by Hodgers-Durgin v. De La Vina,
199 F.3d 1037, 1040 n. 1 (9th Cir. 1999) (en banc)); Fuller v.
M.G. Jewelry, 950 F.2d 1437, 1445-50 (9th Cir. 1991) (to
determine whether search policy is constitutional, courts must
balance need for the search against personal rights affected).
The question is whether Plaintiff's status as a non-admitted
alien changes the outcome of the Fourth Amendment analysis.
Rights under the Fourth Amendment fall along a continuum, with
United States citizens and resident aliens afforded the most
protection, aliens living in the United States without permission
but who have developed ties to the community somewhat less, and
non-admitted aliens the least. Non-resident aliens who seek
admission into the United States are subject to the "entry
fiction: "`[A]lthough aliens seeking admission into the United
States may physically be allowed within its borders pending a
determination of admissibility, such aliens are legally
considered to be detained at the border and hence as never having effected entry into this country.'" Alvarez-Garcia
v. Ashcroft, 378 F.3d 1094, 1099 (9th Cir. 2004) (quoting
Barrera-Echavarria v. Rison, 44 F.3d 1441, 1450 (9th Cir. 1995)
(en banc) (superceded by statute on other grounds)); see also
Wong, 373 F.3d at 970-71 ("The Supreme Court has long
recognized a distinction between the constitutional rights
afforded those who have effected an entry into the U.S., whether
legally or otherwise, and those considered never to have
entered. . . . Aliens inside the U.S., regardless of whether
their presence here is temporary or unlawful, are entitled to
certain constitutional protections unavailable to those outside
our borders. . . . At the same time, under the "entry fiction"
. . . an alien seeking admission has not "entered" the United
States, even if the alien is in fact physically present").
"Noncitizens who are outside U.S. territories enjoy very limited
protections under the Constitution." Barrera-Echavarria,
44 F.3d at 1448.
The Constitution does confer some fundamental rights to
non-admitted aliens. For example, in Lynch v. Cannatella,
810 F.2d 1363, 1372-3 (5th Cir. 1987), the Fifth Circuit held that
while excludable aliens have fewer rights than illegal aliens who
have entered the United States and integrated to some degree into
the population, and significantly less rights than legal
residents and citizens, they still have the fundamental right to
be free from inhumane detention, including beating and drugging
by United States officials. The Ninth Circuit quoted Lynch with
approval for its determination that the entry fiction "`does not
limit the right of excludable aliens detained within United
States territory to humane treatment.'" Wong, 373 F.3d at 972
(entry fiction pertains mostly to narrow question of scope of
procedural rights available in admission process, and does not
apply to certain other constitutional rights); see also Papa
v. United States, 281 F.3d 1004, 1010 (9th Cir. 2002) (citing
Lynch and explaining that "[l]imited rights under the Due
Process Clause extend to detained aliens. Officials may not, for
example, consciously disregard or act with deliberate
indifference toward a detainee's safety by knowingly placing that
person in harm's way"); Zadvydas v. Davis, 533 U.S. 678, 704
(2000) (Scalia, J., dissenting) (removable aliens cannot be
The Supreme Court has left open two distinct, but often
related, questions regarding strip searches of non-admitted adult
aliens at the border, the first relating to the search's location
at the border, regardless of the immigration status of the person
being searched, and the second to the impact, if any, of that
person's immigration status: It is also important to note what we do not hold.
Because the issues are not presented today we suggest
no view on what level of suspicion, if any, is
required for nonroutine border searches such as
strip, body-cavity, or involuntary x-ray searches.
Both parties would have us decide the issue of
whether aliens possess lesser Fourth Amendment rights
at the border; that question was not raised in either
court below and we do not consider it today.
United States v. Montoya de Hernandez, 473 U.S. 531, 541 n. 4
(1984). The Ninth Circuit has addressed the first question
squarely, finding that "our precedents clearly hold that a strip
search involves more than a routine invasion of the traveler's
personal privacy and therefore requires at least an
individualized `real suspicion.'" United States v. Handy,
788 F.2d 1419, 1420 (9th Cir. 1986) (quoting United States v. Aman,
624 F.2d 911, 912 (9th Cir. 1980)); see also United States v.
Tsai, 282 F.3d 690, 694 (9th Cir. 2002) (quoting Handy in case
involving permanent resident alien, and agreeing that strip
search requires individualized suspicion).
A number of cases strongly indicate that some level of
objective reason for suspicion is also required to strip search
non-admitted aliens at the border. For example, in Flores v.
Meese, a district court held that INS officers could not strip
search juvenile illegal aliens at the border absent a reasonable
suspicion that the search would yield weapons or contraband.
681 F. Supp. 665 (C.D. Cal. 1988). Without this reasonable suspicion,
strip searching a juvenile alien would be unconstitutional. Id.
at 669. The Flores decision balanced a number of factors that
weighed against the constitutionality of routine strip searches,
only one of which was age. All the other factors applied equally
to adults. In reviewing a number of cases, including cases from
the Ninth Circuit, the Flores Court noted that:
[i]n all of these cases, policies authorizing routine
strip searches of adults charged with minor offenses
were found to be constitutionally repugnant.
Certainly, application of such policies to children,
who have not been charged with any criminal offense,
is even more so. Children confined by the INS are not
charged with any criminal offense, let alone an
offense that might indicate a propensity to conceal
weapons or contraband on their persons.
681 F. Supp. at 668; see also United States v. Rodriguez,
592 F.2d 553
, 556 (9th Cir. 1979) ("While anyone at a border may be
stopped for questioning and subject to an inspection of luggage,
handbags, pockets, wallets, without any suspicion at all on the
part of customs officials, `real suspicion' is required before a
strip search may be conducted"); Kirkpatrick v. Los Angeles,
803 F.2d 485
, 489 (9th Cir. 1986) (government interest in
preventing entry of contraband into country justifies searches at
border that would otherwise not be constitutional, but border
officials nonetheless must have "real suspicion" that contraband will be discovered before ordering strip search);*fn3
United States v. Oyekan, 786 F.2d 832
(8th Cir. 1986)
(reversing district court's implicit holding that two Nigerian
citizens' "fourth amendment rights were in fact violated when
they were detained and subjected to a strip search and x-ray on
less than probable cause" because the customs officials had
reasonable suspicion to strip search and x-ray the defendants");
United States v. Gonzalez-Rincon, 36 F.3d 859
(9th Cir. 1994)
(in case involving non-resident alien adults, Ninth Circuit held
that border officials needed reasonable suspicion that person
smuggled drugs in order to strip search them). Although none of
these cases explicitly addresses whether the same rule applies to
strip searching non-admitted adult aliens at the border, Oyekan
and Gonzales-Rincon involve non-resident aliens. Moreover,
Defendants have cited no case that supports a different
The purpose of border inspections is to determine whether an
alien is admissible or carrying contraband or weapons. See
United States v. Tsai, 282 F.3d 690, 699 (9th Cir. 2002)
(Berzon, J., concurring) ("The authority to search at the border
has always been justified as `necessary to prevent smuggling and
to prevent prohibited articles from entry,' . . . and to
determine whether the individual presenting himself at the border
is `entitled to come in'") (internal citations omitted);
Kirkpatrick, 803 F.2d at 489 ("The government has an interest
in preventing the entry of contraband into the country which
justifies some searches at the border that would not otherwise be
constitutional") (citing Montoya, 473 U.S. 531 (1985)). Strip
searches therefore should be tailored to serve these purposes.
As the Supreme Court observed in United States v.
Flores-Montano, intrusive searches of the person implicate
important dignity and privacy interests. These interests are
fundamental to all human beings, not just admitted aliens and
citizens. 541 U.S. 149, 152 (2004); see also Thompson v. City
of Los Angeles, 885 F.2d 1439, 1446 (9th Cir. 1989). The Ninth
Circuit has pointed out the need not to interpret the entry
fiction so expansively that it "would allow any number of abuses
to be deemed constitutionally permissible merely by labeling
certain `persons' as non-persons.'" Wong, 373 F.3d at 974. The
court also observed that denying any rights to non-admitted
aliens who properly present themselves for inspection at the
border would provide a perverse incentive for aliens to enter the
country secretly and live here unlawfully, yet enjoy greater Constitutional protections. Id.
at 973-74. These same considerations apply with equal force to
bar the routine strip searches of non-admitted aliens at the
The Court therefore concludes that some level of suspicion is
required under the Fourth Amendment to conduct strip searches of
non-admitted aliens.*fn4 Indeed, this Court concludes that
this right is now clearly established in light of the reasoning
employed by the Ninth Circuit in Wong, which applies
analogously to the right to be free from non-routine searches
absent some level of suspicion.
3. This right was not clearly established in 2002.
The more difficult issue is whether Tungwarara's Fourth
Amendment right to be free from a strip search absent suspicion
that she was concealing weapons or contraband was clearly
established in 2002. As the court in Wong recognized, prior to
its decision in that case the law was unsettled regarding the
extent to which non-admitted aliens enjoyed substantive
constitutional rights. 373 F.3d at 976. As Barrera-Echavarria
observed, "the law is not settled with regard to nonprocedural
rights. Some of the cases involving excludable aliens suggest
that they do enjoy certain substantive constitutional rights."
44 F.3d at 1449 (citations omitted). In fact, in Papa, the Ninth
Circuit affirmed the district court's dismissal of claims of
unreasonable search and seizure and discrimination by an alien
seeking admission into United States on the ground that such
aliens are not afforded due process protections.
282 F.3d at 1010. And the Supreme Court observed in United States v.
Verdugo-Urquidez that the Fourth Amendment's use of the term
"the People of the United States," rather than "persons,"
"[w]hile . . . by no means conclusive . . . suggests that `the
people' protected by the Fourth Amendment . . . refers to a class
of persons who are part of a national community or who have
otherwise developed sufficient connection with this country to be
considered part of that community." 494 U.S. 259, 265 (1990).
The strip search here was an unwarranted and painful affront to
Plaintiff's privacy and dignity, and this Court has concluded
that it was unconstitutional. At the same time, the pat-down
search here did not constitute the kind of "gross physical
abuse," "reckless indifference to safety," or "torture" that was
more clearly forbidden by the case law as of 2002. Plaintiff testified
that she underwent a pat-down search, conducted by a female
officer in private. The officer was not mean to her, did not
raise her voice, and did not touch her genitals. See Harper
Decl., Ex. 1 at 168:21-169:9; Cheng Reply Decl., Ex. A at
147:20-149:17; cf. Cheng Reply Decl., Ex. A at 154:3-154:25
(describing strip search at Paris airport, where Plaintiff
underwent a body cavity search). This is not a case where the
official's actions were so egregious that the Court can conclude
that Tungwarara's right was clearly established absent clearly
applicable contemporaneous decisional law. Cf. Brosseau v.
Haugen, 125 S. Ct. 596, 599 (2004) (per curiam) ("in an obvious
case, these standards [of reasonableness under the Fourth
Amendment] can `clearly establish' the answer, even without a
body of relevant case law") (citing Hope, 536 U.S. at 738).
The case that most strongly supports Plaintiff's attempt to
show that her right was clearly established in 2002 is United
States v. Gonzales-Rincon, 36 F.3d 859 (9th Cir. 1994). There,
in a case involving a non-resident adult alien, the court noted
that strip searches "of course . . . must be supported by
reasonable suspicion." 36 F.3d at 864. However, the court there
did not explicitly consider the issue of the relative rights of
an alien subject to the entry fiction left open in Montoya. One
could argue that the right was so obvious that the court did not
need to do so. That argument falters, however, in the face of the
Ninth Circuit's decision en banc one year later in
Barrera-Echavarria, characterizing the state of the law with
regard to nonprocedural rights of non-admitted aliens as
"unsettled." See also Wong, 373 F.3d at 976 (citing same for
proposition that Fifth Amendment protection for aliens was not
The cases on which Tungwarara relies are distinguishable
because none involves a non-admitted adult alien at the border
like Plaintiff where the court squarely addresses the implication
of the alien's non-admitted status. The defendant in United
States v. Handy, 788 F.2d 1419 (9th Cir. 1986), was returning
from a trip to Thailand, and appears to have been either a U.S.
citizen or resident. The defendant in United States v. Aman,
624 F.2d 911, 912 (9th Cir. 1980), also appears to have been
returning to the United States from a trip to Thailand. While the
nationality of the defendant in United States v. Rodriguez,
592 F.2d 553 (9th Cir. 1979), is never mentioned, the fact that he
held an "alien reentry permit" suggests that he was a lawful
permanent resident returning to the United States, rather than a
non-admitted alien seeking to enter the United States for the
first time. Although this Court has concluded that Flores,
681 F. Supp. 665, which struck down a policy requiring the routine
strip searching of all juvenile non-admitted aliens, supports the unconstitutionality of the strip search here of Plaintiff,
who was eighteen, the case could mistakenly but perhaps
reasonably be distinguished because of the age difference. Id.
Accordingly, although this Court concludes that a non-invasive
strip search of a non-admitted adult alien at the border without
any suspicion of any kind is unconstitutional, the Court cannot
conclude that this right was clearly established at the time of
the incident. If the same search had occurred later after the
Ninth Circuit's decision in Wong, or had been more invasive or
abusive at the time, the Plaintiff's "clearly established" rights
would likely have been violated. On the uncontested facts of the
search here, however, Ludwigs is entitled to qualified immunity.
C. Plaintiff's Fifth Amendment Right To Equal Protection Was
Not Clearly Established In 2002.
Tungwarara argues that Ludwigs violated her Fifth Amendment
right to be free from racial discrimination when he coercively
interrogated her, separated her from her family, and sent her to
the Oakland jail as punishment, all because of her race. Although
the Fifth Amendment does not contain an explicit equal protection
clause, the Supreme Court has held that discrimination may be so
unjustifiable as to violate due process. See Bolling v.
Sharpe, 347 U.S. 497, 499 (1954); United States v.
Rodriguez-Lara, No. 04-10113, 2005 U.S. App. Lexis 18427, at *6
n. 2 (9th Cir. Aug. 26, 2005) (noting that while plaintiff
brought an equal protection claim under the Fourteen Amendment,
"a claim of discrimination by the federal government implicates
the equivalent equal protection guarantee inherent in the Due
Process Clause of the Fifth Amendment").
As evidence of Ludwigs' racial animus, Tungwarara offers the
deposition of her mother, who testified that Ludwigs told her
that Plaintiff should "go back to the jungle" and that "these
people from Africa" were a "problem" and were not allowed into
the country "after September 11th." Cheng Decl., Ex. A at
94:11-17; Ex. B at 59:23-60:14. For purposes of summary judgment,
Tungwarara therefore has created a triable issue of fact as to
whether Ludwigs violated her Fifth Amendment rights by
discriminating against her on the basis of her race:
The entry fiction does not preclude non-admitted
aliens . . . from coming within the ambit of the
equal protection component of the Due Process Clause.
We cannot countenance that the Constitution would
permit immigration officials to engage in such
behavior as rounding up all immigration parolees of a
particular race solely because of a consideration such as skin color. . . . We can
imagine no proper governmental interest furthered by
the purely invidious discrimination alleged to have
been carried out by individual INS officers in this
Wong, 373 F.3d at 974-75. Plaintiff therefore satisfies the
first step of the qualified immunity analysis.
To establish that this constitutional right was clearly
established in 2002, Plaintiff argues that INS handbooks at the
time unequivocally instructed inspectors that immigration laws
were intended to be non-discriminatory and should be administered
"fairly and equitably." See Harper Decl., Exs. 12-13. However,
in 2004 two years after the incident the Ninth Circuit
stated that previously it had "never squarely held that
[non-admitted aliens] are entitled to equal protection
guarantees, nor [had] the Supreme Court." Wong, 373 F.3d 952.
In fact, in 2002, the Ninth Circuit noted that an alien's
Bivens claim that INS officials discriminated against him upon
entry was correctly dismissed because "[a]liens are not afforded
due process protections when they seek admission to the United
States." See Papa, 281 F.3d at 1010 (but noting that detained
aliens did have "[l]imited rights under the Due Process Clause"
not to be treated with deliberate indifference or placed in
harm's way by officials). INS field manuals are not "decisional
law" for purposes of qualified immunity; Ninth Circuit cases like
Wong and Papa are.
Moreover, Tungwarara's attempt to limit Wong based on that
plaintiff's atypical immigration status fails because the
plaintiff in Wong, if anything, would have been entitled to
greater Fifth Amendment protections that the Plaintiff here. In
Wong, the plaintiff entered the United States legally in 1985,
resided here for fourteen years, and applied for permanent
residence status before leaving the country in 1999. Upon reentry
eighteen days later, she was found excludable because she had
failed to secure advanced parole and thus was deemed to have
abandoned her application for permanent residence. The court
therefore noted that if there were any doubt as to whether
non-admitted aliens were entitled to some level of equal
protection, the balance was tipped in Wong's favor by her
particular circumstances, including her allegation that her
failure to get advance parole was due to illegal discrimination
against her while she was still lawfully residing in the United
States. See Wong, 373 F.3d at 976. In contrast, Plaintiff
here was attempting to enter the country for the first time in
2002 on a tourist visa and had no prior ties to the United
States. The constitutional right that Tungwarara seeks to
vindicate therefore was not clearly established until the Ninth
Circuit's decision in Wong in 2004. Accordingly, Ludwigs is
also entitled to qualified immunity on Plaintiff's Fifth
Amendment claim. III. CONCLUSION
For the reasons stated here, Ludwigs' motion for summary
judgment on Tungwarara's Eighth claim for violation of the Fourth
Amendment and Ninth claim for violation of the Fifth Amendment is
IT IS SO ORDERED.
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