FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BERNARDO MENDIA,

Plaintiff-Appellant,

v.

JOHN M. GARCIA; U.S. DEPARTMENT

OF HOMELAND SECURITY; CHING

CHANG,

Defendants-Appellees.

No. 12-16220

D.C. No.

3:10-cv-03910-

MEJ

OPINION

Appeal from the United States District Court

for the Northern District of California

Maria-Elena James, Magistrate Judge, Presiding

Argued and Submitted

April 8, 2014—San Francisco, California

Filed September 29, 2014

Before: John T. Noonan, Jacqueline H. Nguyen,

and Paul J. Watford, Circuit Judges.

Opinion by Judge Watford
2 MENDIA V. GARCIA

SUMMARY*

Civil Rights

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

of standing, and remanded in an action brought against two

agents of the United States Immigration and Customs

Enforcement seeking damages for the time plaintiff spent in

pre-trial detention on state criminal charges allegedly as a

result of the agents wrongfully lodging an immigration

detainer against him even though he was United States

citizen. 

The panel held that plaintiff adequately pled causation for

Article III purposes because he sufficiently alleged that his

inability to utilize the services of a bail bondsman caused him

to remain in pre-trial detention unnecessarily, at least during

the period in which the bail condition remained in effect. The

panel determined that plaintiff plausibly alleged that the

immigration detainer was at least a substantial factor

motivating the bail bondsmen’s refusal to do business with

him. 

COUNSEL

Purvi G. Patel (argued), Benjamin J. Fox, and Michael T.

Baldock, Morrison & Foerster LLP, Los Angeles, California,

for Plaintiff-Appellant.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
MENDIA V. GARCIA 3

Lana L. Vahab (argued), Trial Attorney; Stuart F. Delery,

Acting Assistant Attorney General; and Colin A. Kisor,

Deputy Director, United States Department of Justice, Civil

Division, Washington, D.C., for Defendants-Appellees.

OPINION

WATFORD, Circuit Judge:

Bernardo Mendia sued two agents of the United States

Immigration and Customs Enforcement (ICE), seeking

damages for the time he spent in pre-trial detention on state

criminal charges allegedly as a result of the agents’ wrongful

acts. The district court granted the government’s motion to

dismiss Mendia’s lawsuit on the ground that he lacks Article

IIIstanding to pursue his claims. We conclude that Mendia’s

standing allegations are adequate to survive a motion to

dismiss.

According to Mendia’s pro se complaint, the State of

California arrested him in May 2007 and charged him with

“various alleged financial crimes.” A state court granted

Mendia bail, but he lacked the means to post it without the

assistance of a bail bondsman. In June 2007, before Mendia

could post the required bail, the defendant ICE agents

interviewed him at the county jail. Mendia told them he is a

United States citizen. To back that assertion up, he gave the

agents his Social Security number and informed them he had

a valid United States passport. Mendia then invoked his Fifth

Amendment right to remain silent, directing the agents to

contact his lawyer at the county Public Defender’s office if

they had additional questions or wanted to verify the

information he had given them. One of the agents became
4 MENDIA V. GARCIA

irate, stating something to the effect of, “Oh! You don’t want

to talk to me? We’ll see if you want to talk when we’re

deporting your ass!”

The ICE agents lodged an immigration detainer against

Mendia that same day. The purpose of such detainers is to

notify other law enforcement agencies that the Department of

Homeland Security “seeks custody of an alien . . . for the

purpose of arresting and removing the alien.” 8 C.F.R.

§ 287.7(a). Mendia’s detainer stated that he was an alien of

Mexican nationality and that ICE had initiated an

investigation to determine whether he was subject to removal

from the United States. Mendia alleges that the agents issued

the detainer with malice, knowing or in reckless disregard of

the fact that he is a United States citizen not subject to

removal.

According to Mendia’s complaint, the immigration

detainer precluded him from securing pre-trial release. When

Mendia contacted various bail bondsmen for assistance in

posting bail, all of them “refused to even consider posting a

bail for the Plaintiff because of the immigration detainer.” 

The bail bondsmen told Mendia that “no bail bond would be

afforded to the Plaintiff on account of the fact that there was

an immigration detainer placed on the Plaintiff.” Mendia

alleges that, but for the immigration detainer, he would have

posted bail with the assistance of a bail bondsman, as he had

been able to do following prior arrests.

Approximately six months after lodging the detainer

against Mendia, the ICE agents cancelled it, although Mendia

alleges he didn’t learn of that fact until much later. In the

interim, on an unspecified date, the state court removed the

bail condition and granted Mendia release on his own
MENDIA V. GARCIA 5

recognizance. Mendia alleges that, because he believed the

immigration detainer was still in place, he refused to accept

release, even though he no longer needed the assistance of a

bail bondsman to get out. Mendia’s explanation is that he

feared ICE agents would re-arrest and deport him, thereby

jeopardizing his defense of the pending state criminal

charges. (He doesn’t explain why he apparently lacked that

fear when attempting to engage the services of a bail

bondsman earlier.) Mendia alleges that he accepted release

on his own recognizance in July 2009, after finally learning

that the detainer had been cancelled.

Mendia sued the ICE agents under Bivens v. Six Unknown

Federal Narcotics Agents, 403 U.S. 388 (1971), and the

Federal Tort Claims Act, 28 U.S.C. § 1346(b), asserting

various constitutional and common-law tort claims. The

government moved to dismiss the action under Federal Rule

of Civil Procedure 12(b)(1), arguing that, on their face,

Mendia’s allegations don’t establish Article IIIstanding. The

district court dismissed the action on that basis, and therefore

did not address the government’s alternative motion to

dismiss under Rule 12(b)(6) for failure to state a claim.

Of the three elements required to establish Article III

standing—injury, causation, and redressability—injury and

redressability are easily met here. If we take Mendia’s wellpleaded allegations as true, as we must on this facial attack,

see Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014),

he spent two years in pre-trial detention that he should not

have endured. He thus claims as his injury loss of liberty,

which satisfies Article III because it’s “an injury that affects

him in a ‘personal and individual way.’” Hollingsworth v.

Perry, 133 S. Ct. 2652, 2662 (2013) (quoting Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992)). In fact,
6 MENDIA V. GARCIA

it’s difficult to imagine an injury that could affect one more

personally and individually than a deprivation of one’s

liberty. That’s presumably why no one questions the

existence of Article IIIinjury when a civil rights plaintiff sues

on the theory that the actions of the defendants (say, the

police) resulted in wrongful confinement on criminal charges,

whether before or after trial. See, e.g., Wallace v. Kato,

549 U.S. 384 (2007); Tatum v. Moody, — F.3d —, 2014 WL

4627967 (9th Cir. Sept. 17, 2014). And it’s clear that the

relief Mendia seeks—an award of monetarydamages—would

redress the injury he has alleged.

The ICE agents argued, and the district court concluded,

that Mendia could not have suffered Article IIIinjury because

ICE never took him into custody. Whether ICE had custody

has some bearing on the element of causation, to which we

will turn in a moment, but it has no bearing on the element of

injury. Remaining confined in jail when one should

otherwise be free is an Article III injury, plain and simple;

who or what caused that injury is of course a separate

question. The case on which the district court relied, Garcia

v. Taylor, 40 F.3d 299 (9th Cir. 1994), doesn’t apply here. 

We held there that a prisoner already serving a sentence on

federal criminal charges could not use the habeas corpus

statute to challenge an immigration detainer lodged against

him. Id. at 303. The detainer did not place the prisoner in

“custody” for purposes of habeas jurisdiction, we concluded,

because a detainer standing alone does not restrain liberty. 

Id. Even if Garcia applies outside the habeas context, it’s not

on point because Mendia does not allege injury on the theory

that the detainer independently restrained him.

The question that remains is whether Mendia has

adequately alleged causation, which for Article III purposes
MENDIA V. GARCIA 7

requires a showing that his injury is “fairly traceable to the

challenged action of the defendant, and not the result of the

independent action of some third party not before the court.” 

Bennett v. Spear, 520 U.S. 154, 167 (1997).

It’s true, as just noted, that ICE never had custody of

Mendia, and he therefore cannot allege that the ICE detainer

directly caused his confinement. But the fact that “the harm

to [the plaintiff] may have resulted indirectly does not in

itself preclude standing.” Warth v. Seldin, 422 U.S. 490, 504

(1975). Causation may be found even if there are multiple

links in the chain connecting the defendant’s unlawful

conduct to the plaintiff’s injury, and there’s no requirement

that the defendant’s conduct comprise the last link in the

chain. Bennett, 520 U.S. at 168–69. As we’ve said before,

“what matters is not the ‘length of the chain of 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. Regan, 731 F.2d 25, 31

(D.C. Cir. 1984)).

Mendia relies on a causal chain with multiple links—the

state court’s decision to impose bail, his inability to post bail

without the assistance of a bail bondsman, the ICE agents’

imposition of the immigration 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 alleges

that the bail bondsmen’s refusal to do business with him is

attributable to the immigration detainer lodged against him. 

Mendia’s causation theory is that the government’s unlawful

conduct, while not directly causing his injury, nonetheless led

third parties to act in a way that injured him.
8 MENDIA V. GARCIA

That is a perfectly viable theory. See Lujan, 504 U.S. at

562. But when a plaintiff alleges that government action

caused injury by influencing the conduct of third parties,

we’ve held that “more particular facts are needed to show

standing.” Nat’l Audubon Soc’y, 307 F.3d at 849. That’s so

because the third parties may well have engaged in their

injury-inflicting actions even in the absence of the

government’s challenged conduct. Americans for Safe Access

v. DEA, 706 F.3d 438, 448 (D.C. Cir. 2013). To plausibly

allege that the injury was “not the result of the independent

action of some third party,” Bennett, 520 U.S. at 167

(emphasis added), the plaintiff must offer facts showing that

the government’s unlawful conduct “is at least a substantial

factor motivating the third parties’ actions.” Tozzi v. U.S.

Dep’t of Health & Human Servs., 271 F.3d 301, 308 (D.C.

Cir. 2001) (internal quotation marks omitted); accord San

Luis & Delta-Mendota Water Auth. v. Salazar, 638 F.3d

1163, 1171 (9th Cir. 2011). So long as the plaintiff can make

that showing without relying on “speculation” or

“guesswork” about the third parties’ motivations, Clapper v.

Amnesty Int’l USA, 133 S. Ct. 1138, 1150 (2013), she has

adequately alleged Article III causation.

When we apply these principles here, we have little

difficulty concluding that Mendia’s allegations are adequate. 

None of the links in Mendia’s causal chain relies on

speculation or guesswork. For example, we aren’t left to

speculate whether the bail bondsmen’s refusal to do business

with Mendia left him unable to post bail. He specifically

alleges that he needed the assistance of a bail bondsman to

post the required bail and that he unsuccessfully tried to

secure such assistance. Those allegations are plausible in

light of the fact that, according to Mendia’s complaint, he

never did post bail. Instead, he spent two years in pre-trial
MENDIA V. GARCIA 9

detention, obtaining release only after the state court

eliminated the bail condition. Mendia has adequately alleged

that his inability to utilize the services of a bail bondsman

caused him to remain in pre-trial detention unnecessarily, at

least during the period in which the bail condition remained

in effect.1

Nor are we left to speculate as to why Mendia was unable

to utilize the services of a bail bondsman. Mendia’s

complaint expressly alleges that every bail bondsman he

contacted told him why: “because of the immigration

detainer.” This is not a case in which the existence of a

cause-and-effect relationship between the government’s

allegedly unlawful conduct and the third parties’ injuryinflicting actions is “purely speculative.” Simon v. Eastern

Ky. Welfare Rights Org., 426 U.S. 26, 42 (1976). Indeed, it’s

unclear how Mendia could have alleged the causal connection

between the detainer and the actions of the bail bondsmen any

more concretely. His complaint relies on words directly from

 

1

 As noted earlier, Mendia alleges that after the state court granted him

release on his own recognizance, he refused to accept it because he feared

ICE would re-arrest and then deport him, thereby prejudicing his defense

of the pending state criminal charges. Mendia lacks standing to seek

damages for any period of pre-trial detention he suffered after the state

court granted him release on his own recognizance. Given that he chose

to remain in state custody rather than accept release, his injury can’t be

deemed fairly traceable to the actions of the ICE agents unless it was

reasonably incurred “to mitigate or avoid” the future harm he claimed to

fear. Clapper, 133 S. Ct. at 1151 n.5. But to establish standing to seek

redress for this injury, Mendia must be able to allege a “substantial risk”

that the future harm would occur, id., and here he can’t. His alleged fear

that if he left state custody ICE would somehow manage to seize and

deport him, notwithstanding his status as a U.S. citizen, is entirely

speculative. The loss of liberty he experienced after being granted release

on his own recognizance is thus a self-inflicted injury. See id. at 1151–52.
10 MENDIA V. GARCIA

the mouths of the relevant third parties explaining why they

took the actions that caused Mendia’s injury.

Contraryto the ICE agents’ argument, Mendia’s causation

theory—that the detainer led the bail bondsmen to refuse to

do business with him—isn’t facially implausible. When ICE

announces that it “seeks custody of an alien . . . for the

purpose of arresting and removing the alien,” 8 C.F.R.

§ 287.7(a), there’s certainly a higher risk that, if released on

bail from state custody, the alien might not be around to make

his court dates. See State v. Fajardo-Santos, 973 A.2d 933,

934 (N.J. 2009) (lodging of detainer increased risk of nonappearance at trial, warranting increase in defendant’s bail). 

Whether that heightened risk was enough to lead bail

bondsmen to refuse Mendia’s business altogether, rather than

simply to demand an increased fee, strikes us as the sort of

factual issue that can’t be resolved in the context of a facial

attack on the sufficiency of a complaint’s allegations.

Mendia’s causation allegations do not rely on speculation

or guesswork any more than those we upheld as sufficient in

Barnum Timber Co. v. EPA, 633 F.3d 894 (9th Cir. 2011). 

There, the Environmental Protection Agency designated a

stream running through the plaintiff’s timber lands as an

“impaired” water body under the Clean Water Act. Id. at

895–96. The plaintiff’s injury consisted of the decrease in the

value of its property, which it alleged was caused by the

EPA’s impairment listing. Id. at 896. The plaintiff supported

its causation allegation with an affidavit from a licensed

professional forester, who explained that “‘[w]hen a listing

occurs, the public perceives—whether accuratelyor not—that

the subject property will be subject to additional and onerous

regulation.’” Id. at 899. The forester opined that “‘the

market reaction is such as to deem Barnum’s property to be
MENDIA V. GARCIA 11

devalued because of the § 303(d) listing.’” Id. We held that

“Barnum has alleged specific facts plausibly explaining

causality,” rejecting the government’s factual attack on the

complaint’s allegations. Id. If anything, Mendia’s causation

allegations are even less speculative than those in Barnum

Timber, because rather than relying on an expert’s opinion

about “the market reaction” to the government’s challenged

conduct, Mendia included allegations straight from the

relevant third parties’ mouths stating that they declined to do

business with Mendia “because of” the immigration detainer.

The ICE agents contend this case is more analogous to

San Diego County Gun Rights Committee v. Reno, 98 F.3d

1121 (9th Cir. 1996), than to Barnum Timber. We don’t

share their view. The plaintiffs in San Diego County were

prospective purchasers of certain weapons banned by the

Crime Control Act of 1994. Id. at 1124. They sought to

challenge the constitutionality of the Act and predicated

Article III standing on the bare allegation—bereft of any

supporting facts—that prices for the banned weapons had

increased by 40 to 100 percent as a direct result of the Act. 

Id. at 1130. We held that the plaintiffs’ allegation of a causal

connection between the increase in prices and the Crime

Control Act rested on “sheer speculation.” Id. We pointed

out that the higher prices were imposed by third-party gun

dealers and manufacturers, not by the Crime Control Act

itself, and that an obvious alternative explanation appeared to

exist for the increase in prices: California had enacted its

own ban of the same types of weapons covered by the federal

Act. Id. In those circumstances, the plaintiffs were required

to allege “more particular facts” to substantiate their theory

of causation, see Nat’l Audubon Soc’y, 307 F.3d at 849, but

they alleged no facts at all. Here, in contrast, Mendia’s chain

of causation does not rest on speculation, and he has
12 MENDIA V. GARCIA

supported each link in the chain with specific factual

allegations.

We must reject the ICE agents’ remaining arguments. 

They assert that the immigration detainer can’t support

causation because ICE didn’t “control” the actions of the bail

bondsmen. That’s not the relevant test. While such “control”

would certainly suffice to establish causation, see Bennett,

520 U.S. at 169, it’s not a requirement. What Mendia needed

to allege is that the immigration detainer was at least a

substantial factor motivating the bail bondsmen’s refusal to

do business with him, see Tozzi, 271 F.3d at 308, and he’s

done that. The ICE agents also assert that Mendia’s

indigency—not the imposition of the detainer—was the real

reason he couldn’t utilize the services of a bail bondsman. 

That, too, is a factual dispute that can’t be resolved in the

context of a facial attack on the sufficiency of the complaint’s

allegations. Its resolution, if necessary, must be left for later

stages of the litigation.

We reverse the district court’s dismissal of Mendia’s

complaint and remand for further proceedings. The parties’

requests for judicial notice are GRANTED. Defendants’

motion to supplement the record is DENIED.

REVERSED AND REMANDED.