F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

B E R N A R D O M E N D I A , Plaintiff-Appellant
,

v

.

J O H N M. G A

R C I A ; U.S. D E P A R

T M E N T
O F H O M E L

A N D S E C U

R I T Y ; C H I N G C H A N G , Defendants-Appellees

. N o. 12-16220

D.C. No. 3:10-cv-03910- MEJ

OPI NI ON

A ppeal from the United States District Court for the Northern District of California Maria-Elena J ames, Mag istrate J udg e, Presiding

Arg ued and Submitted April 8, 2014—San F r ancisco, California

F iled September 29, 2014

B efore: J ohn T. Noonan, J acqueline H. Ng uy en, and Paul J . W atford, Circuit J udg es.

Opinion by

J u dg e W atfordM E N D I A V

. G A R

C I A 2

SUMMARY *

Civil Rights

The panel reversed the district court’s dismissal, for lack

o f s t a nding
, and remanded in an action broug ht ag ainst two ag ents of the United States I mmig ration a n d Customs Enforcement seeking damag es for the time plaintiff spent in pre-trial detention on state criminal ch arg es alleg e dly as a result of the ag ents w rong fully lodg ing an immig rati o n detainer a g ainst him e v en thoug h h e was United States citiz en.

The panel held that plaintiff a dequately pled causation for Article I I I purposes b e c ause he sufficiently alleg ed that his inability to utiliz e the services of a b ail bondsman c aused him to remain in pre-trial detention unnecessarily
, at least during the period in which the bail condition remained in effect. The panel d etermined that p laintiff plausibly all e ge d that the immig ration de t ainer was at least a substantial factor motivating the bail bondsmen’s refusal to d o b u s iness with him.

COUNSEL

Purvi G. Patel (arg

ued), B e njamin J

. F ox , and Michael T. B aldock, Morrison & F oerster L L P, L os Ang eles, California, for Plaintiff-Appellant.

* T h is s u m

m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.M E N D I A V

. G A R

C I A 3

L ana L

. Vahab (arg

ued), T r ial Attorney ; Stuart F

. Delery
, Acting Assistant Attorney G eneral; a n d C o lin A. K isor, Deputy Director, United States De p ar tment of J ustice, Civil Division, W ashing ton, D.C., for Defendants-Appellees.

OP INION

W A TF ORD, Circuit J udg e:

B e rnardo Mendia sued two ag ents of the United States I mmig r a tion a

nd Customs Enforcement (I C E )
, seeking damag es for the time he spent in pre-trial d e t e n tion on state criminal charg es alleg edly as a result o f the ag ents’ wrong f ul
acts. The district court g ranted the g overnment’s motion to dismiss Mendia’s lawsuit on the g r ound that he lacks Article I I I standing to pursue his c laims. W e conclude that Mendia’s standing alleg ations are a dequate to surviv e a motion to dismiss.

According to Mendia’s pro se complaint, t h e State o f C a l ifornia arrested him in May 2007 and charg ed him wit h “various a lleg ed financial crimes.” A sta t e c ourt g ranted Mendia bail, but he lacked the mea n s to post it without the assistance of a bail bondsman. I n J une 2007, b efore Mendia

c ould post the required bail, the d efendant I CE a ge n t s interviewed him at the county jail. Mendia told them he is a United States citiz en. To back that a ssertion up, he g a ve the
ag ents his Social Security number and informed them he h ad

a valid United States p assport. Mendia then invoked his F ifth Amendment rig ht to r emain silent, directing the ag ents to contact his lawy er at the county Public Defender’ s office if they had additional question s o r w anted to verify the information he had g iven them. One o f the ag e nts becameM E N D I A V

. G A R

C I A 4

irate, stating something to the effect of, “Oh! You don’t want to talk to me? W e’ll see if y ou want to tal k wh en we’re deporting y o ur ass!”

The I CE ag ents lodg ed an immig rati o n detainer ag ainst Mendia that same day

. T he purpose of such detainers is to notify other law enforcement ag encies that the Department o f Homeland Security “seeks c ustody of an alien

. . . f o r the
purpose of arresting and removing the alien.” 8 C

. F .R. § 287.7(a). Mendia’s detainer stated that he w as an ali e n o f Mex ican nationa l i t y and that I CE had initiated an investig ation to determine whether he was subject to removal from the United States. Mendia alleg e s that the ag ents issued the detainer w ith malice, knowing or in reckless disreg a rd o f the fact that he is a United States citiz en not subject to removal.

Acco r d i ng to Mendia’s complaint, the immig r ation detainer p recluded him from securing pre-trial release. W h en Mendia contacted various bail bondsmen for a s s i stance in posting b ail, all of them “refused to ev e n c o n s i der posting a bail for the Plaintiff because of the immig r ation detainer.” The bail bondsmen told Mendia that “no bail bond would be afforded to the Plaintiff on account o f the fact that there was

an immig ration detainer placed on the Plaint i f f.” Mendia alleg es that, but for the immig ration detainer, he would have posted bail with the assistance of a bail bondsman, as h e h ad been able to do following prior arrests.

Approx imately s i x months after lodg ing the detainer
ag ainst Mendia, the I CE ag ents cancelled it, althoug h Mendia alleg es h e didn’t learn of that fact until much later. I n the interim, on a

n unspecified date, the s t a t e c ourt removed the bail condition and gr a n ted Mendia r elease on h is o wnM E N D I A V

. G A R

C I A 5

recog niz ance. Mendia alleg es that, b ecause he believed the immig ration detainer was still in p lace, he refused t o accept release, even thoug h he no long e r needed the assistance of a bail bondsman to g et out. Mendia’s ex planation is tha t he feared I CE ag e nts would r e-arrest a nd deport him, thereby jeopardiz i n g his defense of the pending state criminal charg es. (He doesn’t ex plain w hy he apparently lacked that fear whe n a ttempting to eng ag e the services of a bail bondsman earl i e r .) Mendia alleg es that he accepted release

on his own recog niz ance in J uly 2009, a fter finally learning that the detainer had been cancelled.

Mendia sued the I CE ag ents under Bivens v. Six U nknown Federal Narc o t ics Agents
, 4 03 U.S. 388 (1971), and the F ederal Tort Claims A c t , 28 U.S.C. § 1346(b), asserting various c onstitutional and c ommon-law tort claims. The
g overnment moved to dismiss the action under F e deral Rule of Civil Procedure 12(b)(1), arg uing t h a t, on their face, Mendia’s a lleg ations don’t establish Article I I I standing

. The district c ourt d ismissed the action on that basis, and therefore did not address the g overnment’s alternative motion to dismiss under Rule 12(b)(6) for failure to state a claim.

Of the three e lements r equired to establish Article I I I standing

— injury

, c ausation, and redressability —injury a

nd redressability are easily met here. I f we take Mendia’s wellpleaded alleg ations as true, as we must on this facia l attack,

see Leite v

. Crane Co.
, 749 F .3d 1117, 1121 (9th Cir. 2014), h e s p ent two y ears in pre-trial detention that he should n o t have endured. He thus claims a s his injury loss of liberty
, which satisfies Article I I I because it’s “an injury that affects him in a ‘personal and individual way .’” Hollingsworth v

. Perry
, 133 S. Ct. 2 65 2
, 2 6 6 2 (2013) (quoting Lujan v

. Defenders of W

ildlife
, 504 U .S. 555, 560 n.1 (1992)). I n fact,M E N D I A V

. G A R

C I A 6

it’s difficult to imag ine a

n injury tha t c ould affect one more personally and individually than a deprivation of one’s liberty

. That’s presumably why no one ques t i o n s the

ex istence of Article I I I injury when a civil rig hts plaintiff sues

on the theory that the actions of the defendants (say
, t he police) r esulted in wro ng f ul confinement on criminal charg es, whether before o r a f

t e r t r ial. See, e.g. , W

allace v. Kato
, 549 U.S. 3 84 (2007); Tatum v. Moody
, — F

. 3d —, 2014 W L 4627967 (9th Cir. Sept. 17, 2014). And it’s clear that the relief Mendia seeks—an award of moneta r y d a m a g e s

— w o uld redress the injury

he has alleg ed.

The I CE ag ents arg ued, and the district court concluded, that Mendia could not have suffered Article I I I injury because I CE never took him into custody

. W hether I CE had c ustody has some bearing on the element of c a u s a t ion, to which we will turn in a moment, b ut it has n o bearing on the e lement o f injury

. R e m a i n i ng confined in jail when one should otherwise be free is an Article I I I injury

, plain and s i mple;

w h o or what caused that injury is of course a separate question. The case on which the district court r elied, Garcia

v. Taylor
, 40 F .3d 299 (9th Cir. 1 9 9 4 )
, doesn’t apply h ere. W e held there that a prisoner a l r e a d y serving a sentence on federal criminal charg e s could not u se the habeas corp u s statute to c halleng e an immig ration detainer lodg e d ag ainst him. I d

. at 303. T he detainer d id not place the prisoner in “custody ” for purposes of h abeas jurisdiction, we concluded, be c a use a detainer standing alone does not restrain liberty

. Id. Even if Garcia applies o utside the habeas contex t, it’s not

on point because Mendia does n ot a lleg e injury on the theory that the detainer independently restrained him.

The quest i on that remains is whether Mendia has adequately alleg ed causation, wh ich for Article I I I purposesM E N D I A V

. G A R

C I A 7

requires a showing that his injury is “ fairly traceable to the challeng ed action of the defendant, and not the res ult o f the independent action of some third party not before the court.” Bennett v. Spear , 520 U.S. 154, 167 (1997).

I t’s true, as just noted, that I C E n e v e r had custody o f Mendia, and h e therefore cannot alleg e that the I CE detainer directly caused his confinement. B ut the fact that “the harm
to [ the plain t i f

f ] m ay have resulted indirectly does not in itself preclude standing .” W arth v. Seldin
, 422 U.S. 4 90, 504 (1975). Causation may be f ound even if there are multiple l i nks in the chain connecting the defendant’s unlawf u l conduct to the plaintiff’s injury

, and there’s no r equirement that the defendant’s conduct comprise the la s t link in the chain. B ennett , 520 U .S. a t 168–69. As we’ve said be fore, “what matters is not the ‘leng th of the c hain o f causation,’ but rather the ‘plausibility of the links that comprise the chain.’” Nat’l Audubon Soc’y, Inc. v. Davis
, 307 F.3d 835, 849 (9th Cir. 2002) (quoting Autolog Corp. v. R egan , 731 F .2d 2 5, 31 (D.C. Cir. 1984)).

Mendia relies on a causal c hain with multiple links—the
state court’s decision to impose b ail, his inability to post bail without the assistance of a b ail b o n d sman, the I CE ag ents’ imposition of the i m mig ration detainer, and finally the bail bondsmen’s refusal to do business with him. The last link in the chain is the critical one for our purposes. Mendia alleg e s that the b ail b o n d s m en’s refusal to d o business with him is attributable to the immig ration detainer lodg ed ag ainst him. Mendia’s causation theory is that the g overnment’s unlawful conduct, while not directly causing his injury

, nonetheless led third parties to act in a way that injured him.M E N D I A V

. G A R

C I A 8

That is a p erfectly viable theory

. See Lujan
, 504 U.S. at 562. B ut when a plai n tiff alleg es that g overnment action

c a used injury by influencing the conduct of third p arti e s , we’ve held that “more particular facts are needed to show standing

. ” Nat’l Audubon Soc’y
, 3 07 F .3d at 849. That’s so because the third parties may w ell have eng ag ed in their injury -inflicting actions even in the absence of the
g overnment’s c ha l l e n g e d c o n d uct. Americans

for Safe A ccess

v. DEA
, 706 F .3d 438, 448 (D

. C

. C i r. 2013). To plausibly alleg e that the injury was “not the result of the indepe ndent action of some third p arty ,” Bennett
, 520 U.S. at 167 (emphasis added), the p laintiff must offer facts showing that the g overnment’s u n l a w ful conduct “is at least a substantial factor motivating the third p a r t ies’ actions.” Tozzi v. U .S. Dep’t of H

ealth & Huma n S

ervs. , 271 F .3d 301, 308 (D.C. Cir. 2001) (internal quotation mark s omitted); accord San Luis & Delta-Mendota W ater Auth. v. S

a l a zar , 638 F .3d 1163, 1 171 (9th Cir. 2011). So long as the plaintiff can make that showing without re ly ing on “speculation” o r “g uesswork” about the third parties’ motivations, Clapper v

. Amnesty I

nt’l USA
, 133 S. Ct. 1138, 1150 (201 3 )
, s h e has adequately

alleg ed Article I I I causation.

W h en we apply these principles here, we h ave little difficulty concluding that Mendia’s a lleg ations are adequate. None of the links in Mendia’s causal ch a i n relies on speculation or g uesswork. F o r ex ample, we are n ’ t l ef t to speculate whether the bail bondsmen’s refusal to do business with Mendia left him unable t o p o s t b ail. He specifically alleg es t hat h e needed the assistance of a bail b ondsman to post the required bail and t h a t h e unsuccessfully tried to

sec u r e s u ch assistance. Those alleg ations are plausible in l i gh t of the fact that, according to Mendia’s complaint, he

never d id post bail. I nstead, h e spent two y ears in p r e -t rialM E N D I A V

. G A R

C I A 9

detention, obtaining release o nly a fter the state court eliminated the bail c ondition. Mendia has adequately alleg ed that his inability to utiliz e the services o f a b ail b ondsman caused h im to remain in p re-trial det e ntion unnecessarily
, at least during the period in which the bail condition remai n e d in effect. 1

Nor a re we left to speculate as to why Mendia was unable
to utiliz e the se r v i ce s o f a bail bondsman. Mendia’s

c omplaint e x pressly alleg es that every bail bondsman h e contacted told him wh y : “because of the immig r ation detainer.” This is not a case in which the ex i s t e n ce o f a

cause

- and-effect relationship b etween the g overnment’s alleg edly unlawful conduct and th e third parties’ injury

inflicting actions is “purely speculative.” Simon v. Eastern Ky. W elfare Rights Org.
, 426 U.S. 26, 42 (1976). I n deed, it’s unclear how Mendia could have alleg ed the causal connection between the detainer and the actions of the bail b ondsmen any

more concretely

. His complaint relies on words directly from

1 A s n o ted earlier, Men d ia alleg es t h at af ter th e state co u rt g ran ted h im release o n h is o w

n reco g n izan ce, h e ref

u sed to accep t it becau se h e f eared ICE w o u ld re- arrest an d t

h en dep ort h im
, th ereb y p rej u d icin g h is d ef en s e

o f t h e p en d in g state crim in al ch arg es. Men d ia lack s stan din g to seek d am ag es f

o r an y p e r i o d o f p re- t

rial d eten tio n h e su f

f ered af ter th e state

co u rt g ran t ed h im

release o n

h is o w n reco g n izan ce. Giv en

th at h e ch ose to re m a i n i n state cu sto d y rath er th an accep t release, h is in j u ry can ’ t b e d eem ed f airly traceab le to th e actio n s o f th e ICE a g e n t s u n less it w as

reaso n ab ly

in cu rred “ to m itig ate o r av o id ” th e f u tu re h arm

h e claim ed to fe a r

. C l a p per , 1 3 3 S. Ct. at 1 1 51 n .5

. B u t to estab lish stan din g to s e e k red ress f o r th is in j u ry , Men d ia m

u s t b e ab le to alleg e a “ su

b s tan tial risk ” th at th e f u tu re h arm w o u ld o ccu r, id

. , an d h ere h e can ’ t

. His alleg ed f ear th at i f h e lef

t s tate cu sto d y ICE w o u ld so m e h o w m an ag e t o seize an d d ep o rt h i m , n o t

w ith stan d in g h is statu s as a U.S. citizen
, is en tirely
sp ecu l ativ e. T h e l o ss o f lib erty h e ex p erien ced af ter b ein g g ran ted release

o n h i s o w n reco g n izan ce is th u s a self

- in f licted in j u ry

. S ee id

. at 1 1 5 1

– 5 2

.M E N D I A V

. G A R

C I A 10

the mouths of the re l e v a nt third parties ex plaining why they took the actions that caused Mendia’s injury

.

C o ntrary to the I CE ag ents’ arg ument, Mendia’s cau s a t i o n theory —that the detainer l e d t h e b ail bondsmen to refuse to do business with him—isn’t facially implausible. W hen I CE

announces that it “seeks custody of an alien

. . . f o r the
purpose of arresting and r e moving the alien,” 8 C.F .R. § 287.7(a), there’s certa i n ly a hig her r isk that, if released on bail from state custody
, the alien mig ht not be a round to make his court dates. See State v

. F a jardo-Santos
, 973 A.2d 933, 934 (N.J

. 2009) (lodg ing o f detainer increased risk o f nonappearance at trial, warranting increase in defendant’s b a i l). W h ether t h a t heig htened risk was enoug h to lead bail bondsmen to refuse Mendia’s business altog ether, rather than si m ply to demand an increased fee, strikes us as the sort o f factual issue that can’t be resol v e d i n the contex t of a facial attack on the sufficiency

of a complaint’s alleg ations.

Mendia’s c ausation a lleg a tions d o not rely on speculation

or g uesswork a

ny more than those we upheld as sufficient in Ba r n u m T

i mber Co. v. EPA
, 633 F .3d 894 (9th Cir. 2011). There, the Environmental Protection Ag ency desig nated a stream running throug h the plaintiff’s timb e r l ands a s an

“ i m p aired” water body under the Clean W ater A ct. Id. at 895–96. The plaintiff’s injury c o n sisted of the decrease in the value o f its p roperty , which it alleg ed was ca u s e d by the EPA’s impairment listing

. Id. at 896. The plaintiff supported its causation alleg ation with an affidavit from a licensed professional forester, who ex p lained that “‘[ w] hen a listing

occurs , t h e p u b l i c perceives—whether a ccurately or not—that the subject p roperty will be subject to additional and onerous reg ulation.’” Id. at 899

. T h e forester opined that “‘the market r eaction is such as t o deem B arnum’s property to beM E N D I A V

. G A R

C I A 11

devalued because of the § 303(d) listing .’” Id. W e h eld that “B arnum h a s alleg e d specific facts p lausibly ex plaining causali t y , ” rejecting the g overnment’s factual attack on the complaint’s alleg ations. Id. I f any thing
, Mendia’s causation alleg ations are even less speculative than those in B a r n u m Timber
, because rather than r ely ing o n an ex pert’s o p inion about “the market reaction” to the g overnment’s cha l leng ed conduct, Mendia included a lleg ations straig ht from the relevant third parties’ mouths stating that they declined to do business with Mendia “because o f” the immig ration d etainer.

The I CE ag ents c ontend this c ase is more ana l o go u s to San D i e g o C ounty Gun Rights Committee v. Reno
, 98 F .3d 1121 (9th Ci r

. 1996), than to Barnum Timber

. W e don’t share their view. The plaintiffs in San Di e g o C o u n ty were prospective purchasers of c e r tain weapons banned by the Crime Control Act of 1994. Id. a t 1 1 2 4

. They soug ht to challeng e the constitutionality of th e A c t a nd predicated Article I I I standing on the bare allega t i o n —bereft of any supporting facts—that prices for the banned wea p o n s h ad increased by 40 to 100 percent as a dire c t r e s u lt of the Act. Id. at 1 130. We held that the plaintiffs’ a lleg ation of a causal
connect i o n b etween the increase in prices and the Crime Control Act rested on “shee r s p ec ulation.” Id

. W e pointed
out that the hig her p r ices were imposed by third-party g un dealers and manufactur e r s , not by the Crime Control A ct itself, and that an obvious alternative ex planation appeared to

ex ist for the increase in prices: California had en a ct ed its

own ban of the same ty

pes of weapons covered by the federal Act. I d. I n those circumstances, the plaintiffs were r equired
to alleg e “ more p a r t i cular facts” to substantiate their theory of causation, see Nat’l Audubon Soc’y
, 307 F .3d at 849, but they alleg ed no facts a t all. Here, in contrast, Mendia’s chain of c ausation does not rest on s p eculation, and he hasM E N D I A V

. G A R

C I A 12

supported each link in the ch ai n with specific f actual alleg ations.

W e must r eject the I CE ag ents’ r e m aining arg uments. They a ssert that the immig r a tion detainer can’t support causation because I CE didn’t “control” the actions of the bail bondsmen. That’s not the relevant test. W hile such “control” would certainly suffice to establish causa tion, see Bennett
, 520 U .S. at 169, it’s not a requirement. W hat Mendia needed
to alleg e is that the immig ra t i o n d etainer w as at least a substantial factor motivating the bail bondsmen’s refusal to do business with him, see Tozzi
, 271 F .3d at 3 0 8
, an d h e’s d o n e that. The I CE ag ents also assert that Mendi a ’s indig ency —not the imposition of the detainer—was the real

reason he couldn’t utiliz e the services of a bail bondsman. That, too, is a factual dispute that can’t be resolved in the
contex t of a f

acial a ttack o n the sufficiency of the complaint’s alleg ations. I ts resolution, if necessary , must be left for later stag es of the litig ation.

W e reverse the dist ri ct court’s dismissal of Mendia’s complaint and remand for further p roceeding s. The parties’ requests for judicial notice are GRANTED. Defendants’ motion to supplement the record is DENI ED.

REVERSED AND REMANDED.