## In the



# United States Court of Appeals for the Fifth Circuit

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### m 05-50472

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### M ARIA 

### ANTONIETA 

### M ARTINEZ 

### -A GUERO 

### , Plaintiff-Appellee,

VERSUS



### H UMBERTO 

### G ONZALEZ 

### ,

Defendant-Appellant.



### _________________________ Appeal from the United States District Court fo r the Western District of Texas

_________________________

Before S MITH , WIENER , and S TEWART , Circuit Judges.

J ERRY E. S MITH , Circuit Judge:

We must decide whether aliens stopped at th e border have a constitutional right to be free from false imprisonment and the use of excessive fo rc e by law enforcement personnel. Concluding that th ey do, we affirm t he denial of Humberto Gonzalez’s mo tion fo r summary judgment th at he pursued on the basis of a claim of qualified immunit y, and we remand fo r further proceedings.

I. On int erlocutory appeal of the denial o f a summary judgment mo tion seeking dismissal fo r qualified immunit y, we review the facts in the light mo st fav orab le t o th e plaintiff. Kinney v. Weaver , 367 F.3d 337, 348 (5th Ci r. 2004) (en banc) (citing Wagner v. Bay City , 227 F.3d 316, 3 20 (5th Ci r. 2000)). Those facts are as follows: Pl aint iff Maria Martinez-Aguero is a fo rty

nine-year-old cit izen and resident of Mexico United States Court of Appeals

Fifth Circuit 

## F I L E D August 4, 2006 Charles R. Fulbruge III Clerk2

who visit s the Unit ed States on ce a m onth to accompany her aunt to th e El Paso Soci al Security office. Though she normally ent ers the country using a valid bord er-crossing card (which is th e same thing as a visitor visa), her card h ad becom

e invalid when the former Im migration and Natural

ization Service decided to i ssue biometric, machine-readable cards fo r increased security. On July 3, 2001, Martinez-Aguero went with her aunt and mother to th e U.S. consul ar of

fice t o appl

y fo r new cards and asked how she could legally enter th e U nit ed States while waiting for the cards to arrive in th e mail. Officials t old her she could get a stam

p on her old cards th at would allo w her to travel in th e int erim. For the next th ree mo nt hs she used th e stam ped card to cross the border without incident.

On October 4, Martinez-Aguero and her aunt made th eir usual bus tri p to El Paso. Unit ed States immigration officials stopped the bus wit hin th e zone outside the port of entry but wit hin th e territori al Unit ed St ates. Gonzalez, an INS border patrol agent, ordered Martinez-Aguero and her aunt of f th e bus and
r equested to see th eir docum ents. He told Martinez-Aguero th at her visa had expired, so she could not enter the country.

Martinez-Aguero asked to speak to someone in authority , and Gonzalez replied in Spanish, “I am in charge!” Martinez-Aguero asked him why he woul d not help her, because he also wa s Mexican. This agitated Gonzalez, who po int ed to patches on his uniform and shouted, “ Look at m

e! I am not a Mexican! Look at my unifo rm !” He then yelled profanities at th em in Spanish and th rew th eir visas to th e ground.

Martinez-Aguero picked her visa up and made a sarcasti c remark to her aunt about Gonzalez’s bad language, which he apparently overheard. She and her aunt began walking back in the di

rection of Mexico when Gonzalez yelled, “Stop in the name of the law!”

Martinez-Aguero alleges in her affidavit th at Gonzalez then “grabbed [her] arms, twi sted them behind [her] back, pushed her into a concrete barrier, which hit [her] in the stomach

. . . [and] then st arted ki cking [her] with his knees in [her] lo we r back.” Another agent then took Martinez-Aguero int o an of fice and handcuffed her to a chair. Gonzalez allegedly
came in and showed her scratches on his arms and told her th at he was going to claim that she cut him with her fingernails.

Shortl y thereafter, Martinez-Aguero, who is epileptic, suffered a seizure while still handcuffed to the chair. She was given oxygen, and when she recovered she was questioned by of ficials befo re being permitted to leave. She suf fered another seizure after arriving home and was taken to the hospital. She claims she
now suffers from recurrent seizures (before the beating she had not su ffered a seizure for 17 years), memo ry problems, back injuries, and continual pain. She alleges she cannot walk lo ng distances or adequately clean her house anymo re.
II. Martinez-Aguero sued Gonzalez fo r assault, battery , and false arrest under the Federal Tort Clai ms Act and fo r false arrest and excessive use of fo rce under the Fourth and Fift h Amendment s. Gonzalez moved for summary judgment, asserting qualified immunit y. The district court denied the mo tion, and Gonzalez filed an interlocutory appeal.3 III. Our standard of review fo r int erlocutory appeals differs from th e usual Federal Rule of Civil Procedure 56 stand ards f or sum mary judgment. We lack jurisdiction to review the district court’s finding th at no genuine issue of mat erial fact exists; rather, we “consider only whether th e district court erred in assessing the legal significance of th e c onduct that the district court deemed suff

icie nt ly supported for purposes of summary judgment.” K inney , 367 F.3d at 348. If th e int erlocutory appeal concerns summary judgment on a defense of qualified immunit y, we must view the facts in th e light mo st favorable to th e plaint iff. S ee id. (citing Wagner v. Bay City , 227 F.3d 316, 320 (5th Cir. 2000)). Our review of the legal significance of th e facts is de novo

. See id. at 349.

IV. We use a two-part test to determ ine whether an of ficer is entitled to qualified immunit y: fir st, do th e facts alle ged show that he has vio lat ed plaint iff’s constitutional rights , s ee Saucier v. Katz , 533 U

. S. 194, 201 (2001); second, were th e rights clearly established at th e time of th e alleged vio lat io n? S ee id. To determ ine whether a ri ght i s clearly established, we ask “whether it would be clear to a reasonable of

ficer th at his conduct was unlawful in t he situation he confronted.” Id.

The only claims relevant to this appeal are Martine z -Aguero’s Bivens actions under the Fourth and Fift h Amendment s. 1 Specifically, she alleges wrongful arre st under the Fourth Amendment and excessive fo rce under the Fo urth and Fift h Amendment s. We must determ ine whether (1) Martinez-Aguero is enti tled to the protection of these constitutional guarantees, (2) the facts she alleges would suffice to show th at Gonzalez vio lat ed her rights, and (3) the rights were clearly establis hed at the time o f t he incident.

A. Gonzalez argues th at Martinez-Aguero had
no const it utional rights at the time of the alleged incident b ecause she was an alien who attem pted to enter the country illegally and
was not admit ted. Gonzalez relies on U nited States v. Verdugo -Urquidez , 494 U.S. 259, 274-75 (1990), which held th at an alien who has no voluntary attachment to the United States enjo ys no e xt raterritori al Fourth Amendment protection. 2 The Court in Verdugo-Urquidez analyzed the text an d history of the phrase “t he People” in the Fourth Amendment and concluded th at it “refers to a class of persons who are part of a national com munit y or who have otherwise developed sufficient connection wit h this country to be considered part of th at c ommunit y. ” I d. at 265. The Court acknowledged th at i t h ad held that aliens enjo y certain co n stitutional rights, but th ose cases “establish only th at aliens receive con sti tutional protections when they have

1 “Unde r Bivens a person ma y sue a federal agent for money damages when the federal agent has al legedly violated that person’s constitutional rights.” B rown v. NationsBank Cor p. , 188 F.3d 579, 590 (5th Cir. 1999) (citing Bivens v. Six Un- (continued...) (...continued)

known Nam ed Agents of Fed. Bur. of Narcotics , 403 U.S. 388 (1971)). Martinez-Aguero also sued the United States under the Federal Tort Claims Act.

2 Specifically, the defendant in Verdugo-Urquidez was detained in a correctional facility in California while federal agents searched his re sidence in Mexico without a warrant. S ee VerdugoUrquidez , 494 U.S. at 262.4

com e within the territory of th e Unit ed States and developed su bst antial connections with the country .” 3 Gonzalez also relies on J ohnson v. Eisentrager , 339 U.S. 763, 765-66 (1950), in which th e Court rejected th e extraterri tori al application of the Fifth Amendment.

The crucial distinction is “that certain constitutional protections available t o persons inside th e Unit ed States are unavailable to aliens outside our geographic borders.” Z advydas v. Davis , 533 U.S. 678, 693 (2001). The Court in Zadvydas reasoned th at a statute th at authorized th e indefinit e detention of removable aliens present in th e U.S. would pose serious constitutional problems. S ee id. at 682. The Court distinguished Shaughnessy v . United States ex re l. Mezei , 345 U.S. 206 (1953), which held th at a lawfully admit ted al ien who left th e country and was denied reentry fo r security reasons could be indefinit ely detained at Ellis Island. The “critical” difference for the Court was th at th e alien in Mezei never reentered th e Unit ed States; “[h]ence, he was treated, fo r constitutional purposes, as if stopped at th e border.” S ee Zadvydas , 533 U.S. at 693. 4 This doctrine is called t he “entry fict io n,” and Gonzalez urges it s application to this case: Because Martine z-A guero was denied entry int o the Unit ed States, and because the fict io n requires us to treat her as if st opped at the border (even th ough she was technically present in U.S. territory), and because the Fourth and Fift h Amendment s have no extraterri tori al application, Gonzalez contends he should be entitled to qualified immunity.

We disagree. This conclusion is inco nsistent wit h Lynch v. Cannatella , 810 F.2d 1363 (5th Cir. 1987), in which we specifically limit ed the application of the “entry fict io n” to immigration and deportation matters:

The “entry f

i ction” th at excludable aliens
are to be treated as if detained at the border despite their physical presence in the Unit ed States determ

ines the alie ns’ rights with regard to immigrat io n and deportation proceedings. It does not limit the right of excludable aliens detained wit hin Unit e d States terri

tory to humane treatment.
Id. at 1373.

We reasoned in Lynch th at the sove r eign should enjo y particularly broad d iscretion in the immigrat io n context, because the power to d ecide which, and how many, outsiders may jo in our society is critical to national self-determ inat io n. S ee id. There are, however, no identif iable national interests that justify the wanton infliction of pain. See id. at 1373-74. 3 Id. at 271 (citing Plyler v. Doe , 457 U.S. 202, 212 (198 2) (stating that provisions of the Fourteenth Amendment “are universal in their application, to all persons within the territorial jurisdiction”); Kwong Hai Chew v. Colding , 344 U.S.590, 596 (1953) (opining that “once an alien lawfully enters and re sides in this country he becomes invested wi th the rights guaranteed by the Constitution to all people within our borders”).

4 In United States v. Angeles-Mascote , 206 F.3d 529, 531 (5th Cir. 2 000), this court made a plain distinction between actual entry into the United States and attempted entry, in the context of interpreting a grand jury indict ment: “‘[A]ctual entry’ has been found b y most courts to require (continued...) (...continued)

both physical presence in the country as well as fr e edom from official re straint, while ‘attempted entry’ only requires that the person approach a port of entry and make a false claim of citizenship or non-resident alien status.”).5

We concluded th at “what ever due process rights excludable aliens may be denied by virtue of th eir status, th ey are entitled under the due process clauses of th e fift h and fo urteenth amendments to be free of gross physical abuse at th e hand s of state or f

ederal officials.” I

d. at 1374.

G onzalez distinguishes Lynch because the aliens th ere were detained fo r ten days, but Martinez-Aguero was detained fo r only about six hours. This distinction fails, however, because Mezei (the alien detained at Ellis Island)
was held captive for twenty-one months. See Mezei , 345 U.S. at 209. The operative distinction between Lynch and Mezei i s th at Mezei brought a due process challenge to his exclusio n proceeding, but Lynch challenged the of

ficial use of exc essive force. The “entry fiction” applies to th e former claim but not the lat ter. Because the “entry fict io n” does not bar Martinez-Aguero’s suit, and becau s e she
was concededly wit hin th e terri tori al jurisdiction of th e U.S. (though outside th e port of entry) when the alleged incident occurred, Lynch counsels th at she shou ld receive the Fifth Amendment’s protection against the use of excessive force.

In Graham v. Connor , 490 U.S. 386, 395 (1989), however, the Court held that “ all claims th at law enforcement of ficers have used excessive fo rce 

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deadly or not 

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in th e course of an arrest, invest igatory stop , or other ‘seizure’ of a free cit izen should be analyzed under th e Fourth Amendment and it s ‘reasonableness’ standard, rather th an under a ‘substantive due process’ approach.” The Court reasoned that because “the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically int rusive governmental conduct, that Amendment , not the mo re generalized notion of ‘substantive due process,’ must be the guide fo r analyzing t hese claims.” Id.

Graham does not call int o question the part of Lynch t hat limit s the applicabilit y of t h e “entry fict ion” to the context of immigration and deportation proceedings. Instead, it merely lo cates the right to be free from exc e ssive
use of fo rce in the express textual guarantees of the Fourth Amendment

. G raham does, however , requi

re us to analyze MartinezAguero’s excessive fo rce claim, fir st and fo remo st, as a claim alleging an unreasonable seizure under th at amendment. 5 We turn now to whether she has standing under the Fourth Amendment to challen ge unl awful arrest and the excessive use of force.

In pre- Verdugo-Urquidez cases, the Supreme Court had assumed, and we have explicit ly held, th at the Fourth Amendment applies to aliens. 6 Martinez-Aguero argues that the

5 Because the Fourth Amendment applies to Martinez-Aguero, we need not decide whether the due process protection embodied in Lynch continues to apply of its o wn force to a case where the protectio n of the Fourth Amendment is unavailable. We note, however, that because Graham by its
own terms, 490 U.S. at 395, applies only to “free citizens,” whereas L

ynch , 810 F.2d at 137 3 , ap plies to all “excludable aliens detained within United States territory,” L ynch ma y sweep mor e broadly than does the Fourth Amendment guarantee.

6 See, e.g. , Almeida-Sanchez v. United States , 413 U.S. 266 (1973) (stating that a Mexican citizen was ent itled to Fourth Amendment protection under statute that purports to authorize warrantless searches within a re asonable distance from the U.S. border); United States v. Cortes , 588 F.2d 106, 110 (5th Cir. 1979) (“Once aliens become subject (continued...)6

definit io n of “t he People” in Verdugo-Urquidez , seemingly limit ing t he class of aliens th at d eserve protection to th ose wit h “substantial connections” to th e Unit ed States, is not binding , because Justice Kennedy, though joining th e majo rity opinio n in full, specially concurred to express d isagreement with the majority’s textual analysis.

Justice Kennedy appeared to indicate th at th e key factor in his decision was th e extraterritori al application of th e Fourth Amendment : “If th e search had occurred in a residence wit hin th e Unit ed S tates, I have l it tle doubt th at th e full protections of th e Fourth Amendment would apply.” V

erdugo , 494 U.S. at 278 (Kennedy, J., concurring). Justice Kennedy’s fo rm ulation would be f

avorable to MartinezAguero, because he appears to believe th at the Fourth Amendment ’s protection is coextensive wit h U.S. territori al bo undaries.
If, however, we take at face value the fact th at Justice Kennedy jo ined th e opinio n of the Court, see Verdugo , 494 U.S. at 275, there are five votes f or the proposition that “aliens receive constitutional protections when they have com e w it hin the territory of the United States and developed substantial connections wit h the country .” I

d. at 271 (emphasis added). 7 We need not decide whether VerdugoUrquidez is controlling, because even under the mo re demanding test, Martinez-Aguero has “developed subs tanti al connections with the country” and earned the protection of the Fourth Amendment.

Gonzalez co nt ends that Martinez-Aguero lacked “substantial connections” with the United States because, besides having an expired visa and applying for a new one, her only connection consisted of periodic visit s to assist her aunt wit h re tri eving her Social Security check. Gonzalez cites A m. Immigration Law yers Ass’n v. Reno , 18 F. Supp. 2d 38, 60 & n.17 (D.D.C. 1998), which held th at regular visit s to family members do not qualify as “su bstanti al connections.” On the contrary, Martinez-Aguero cit es language in VerdugoUrqui dez , 494 U.S. at 273, suggesting that aliens wit h substantial connections are th ose who are in this country “vo lunt arily and presumably [have] accepted som e societal obligations.” She argues that her regular and lawful entry of the Unit ed States pursuant to a valid border-crossing card 8 and her acquiescence in 6 (...continued) to liability under United States law, they also have the right to benefit from [ Fourth Amendment] protection.”); United States v. Cruz , 581 F.2d 535, 537 (5th Cir. 1978) (en banc), overruled on other grounds by United States v. Causey , 834 F.2d 1179 (5th Cir. 1987) (stating that law enforcement “m ust . . . be performed with due regard to the Fourth Amendment to the Constitution, which affords citizen and alien alike protection a gainst illegal stops, searches, and arre sts”); United States
v. Cadena , 585 F.2d 1252, 1262 (5th Cir. 1978), overruled o n other grounds by United States v. Michelena-Orovio , 719 F.2d 738 (5th Cir. 1983) (observing that “once we subject

. . . aliens to criminal prosecution, they are entitled to the equal protectio n of all our laws, including the Fourth Amendment”). 7 See also United States v. Emerson , 270 F.3d 203, 228 (5th Cir. 2001) (citing favorably the definition of the principal V erdugo opinion in the
course of holding that the phrase “the people” as used in the Second Amendment confers a personal right to bear arms).

8 Though Martinez-Aguero arguably did not have a valid border-crossing card the day she was
arre sted, she re asonably relied on the statements of officials at the U.S. consular office that her (continued...)7

th e U.S. sy stem of immigrat io n constitute her voluntary acceptance of societal obligations, ri sing to th e level of “substantial connections.” 9

Martinez-Aguero is correct. There may be
cases in which an alien’s connection with the Unit ed States is so tenuous th at he cannot reasonably expect th e protection of its constitutional g uarantees; the nature and duration of Martinez-Aguero’s c o nt acts wit h th e Unit ed States, however, are suff icient to confer Fourth Amendment rights. It f ollo ws that she may br ing a B ivens claim fo r unlawful arrest and th e excessive use of fo rce un der th e Fourth Amendment.

B. Because Martinez-Aguero is entitled to Four th Amendment protection, it is obvious th at she has alleged facts th at, if true, would establish th at Gonzalez vio lat ed th ose rights. As to false arrest, Gonzalez arrested MartinezAguero pursuant to 18 U.S.C. § 111, which reads as fo llo ws: “Who ever . . . forcibly assaults, resists, opposes, impedes, int imidat es, or int erferes wit h any person . . . while engaged in or on account of the performance of of ficial dut ies . . . shall . .

. be fined under this ti tle or imprisoned not mo re than one year, or both[.]”
Under the Fourth Amendment, an arrest is reasonable if supported by probable cause. See Atw ater v. City of Lago Vista , 195 F.3d 242, 244 (5th Cir. 1999) (en banc). We define probable cause as “reasonable ground for belief

. . . supported by less th an prima facie proof but mo re th an mere suspicion.” United States v. One 1978 Chevrolet Impala , 614 F.2d 983, 984 (5th Cir. 1980). Taking her version of the facts as true, we must conclude th at Martinez-Aguero did nothing to int erfere wit h Gonzalez’s official duties; rather, the arrest was entirely wit hout provocation. As the district court concluded, “[a]ny argument to the contrary would be patently absurd.”

This reasoning applies wit h equal fo rce to Martinez-Aguero’s claim of excessive fo rce. I n Graham , 490 U.S. at 396, the reasonableness of of ficial use of fo rce turns on “a careful balan cing of the nature and quality of the intrusion on the individual’s Fourth Amendment int erests against the countervailing government al int erests at stake.” The relevant factors include “t he severi

ty of the crime at issue, whether the suspect poses an immediat e th reat to the safety of the of

ficers or others, and whet her he i s actively resisting arrest or attem pting to evade arrest by flight.” Id. Again, Martinez-Aguero plainly prevails under the facts she presents. She alleges that she was entirely docile and com pliant (with the exception of one stray remark not int ended fo r Gonzalez to hear); therefore, there could be no state int erest in subduing her using force. In short, she has presented facts sufficient to survive summary judgment on both claims.

C. Finally, we must determ

ine whether Mar8 (...continued) stam ped, expired card would suffice. S ee Raley v. Ohio , 360 U.S. 423, 426 (1959) (holding tha t “convi c ting a citizen for exercising a privilege which the State had clearly told him was available to him” would be “to sanction an indefensible sort of entrapment by the State”).

9 Cf. United Sta tes v. Tehrani , 826 F. Supp. 789, 793 n. 1 (D. Vt. 1993) (holding that defendants voluntarily gaining admission to the United States for a temporary visit as tourists qualified as “substantial connections”).8

tinez-Aguero’s rights were “clearly established” at th e t ime of the incident. She contends th at Gonzalez has waived any ri ght to make this argument. Indeed, the issue that Gonzalez presents on appeal, as described and discussed in his brief, deals exclusively wit h th e question whether aliens enjoy Fourth or Fift h Amendment protection at all. The words “clearly establishe d ” appear precisely once, when Gonzalez states th e test fo r qualified immunit y. Because, however, one could read Gonzalez’s argum

ent that the relevant cases do not support any constitutional protections fo r Martinez-Aguero as implicit ly containing th e lesser argument th at th e protections are not clearly es t ablished, we th erefore consider th e issue on the merits.

Gonzalez could argue th at Martinez-Aguero’s Fourth Amendment rights were not clearly established because cou rts h ave split on the precedential value of Verdugo-Urquide z ; because it is uncertain how the Court intended th e “substantial connect io ns” test to be applied; and because th e Court seemed explicit ly to res erve the question whether illegal aliens would have Fourth Amendment rights on U.S. soil

. 10 But, deci sio ns pre-dating VerdugoUrquidez , including cases from this circuit, state un e quivocally th at aliens are entitled to Fourth Amendment protection. 11

Also , th e inquiry int o whether rights are clearly established “must be undertaken in light
o f th e specific context of th e case, not as a broad general proposition.” Saucier , 533 U.S. at 201. If Martinez-Aguero deserves any Fourth Amendment or due process protection at all, it surely must extend to the right to be free of entirely merit less arrests and the excessive use of fo rce. L

ynch plainly confers on aliens in disputes wit h border agents a right to be free from excessive fo rce, and no reasonab l e of ficer would believe it proper to be a t a defenseless alien wit hout provocation, as Martinez-Aguero alleges.

The lo gic of Lynch applies equally t o arresting an alien wit hout cause: “Co unsel has not suggested and we cannot conceive of any national interests that would justify [the practice] simply because th at person is an excludable alien.” L

y nch , 810 F.2d at 1374. Thi s reasoning is particularly com pelling when an alien has made a good-f

ait h effo rt to com

ply wit h federal requirements fo r obtaining a tem

porary visa and has made frequent use o f a border-crossing card to visit the country in the past. On these facts, no officer would reasonably conclude th at Martinez-Aguero lacked protection against suspicionless arrest.

We AFFIRM the denial of summary ju dgment , and REMAND to the distric t court f or further proceedings.

10 Verdugo-Urquidez , 494 U.S. at 272 (stating that dicta in a previous case are “not dispositive of how the Court would rule on a Fourth Amendment claim by illegal aliens in the United States if such a claim were squarely before us”).

11 See supra n.6 and accompanying text.