In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 05-50472

_______________

MARIA ANTONIETA MARTINEZ-AGUERO,

Plaintiff-Appellee,

VERSUS

HUMBERTO GONZALEZ,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________

Before SMITH, WIENER, and STEWART, 

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

We must decide whether aliens stopped at

the border have a constitutionalright to be free

from false imprisonment and the use of excessive force by law enforcement personnel.

Concluding that they do, we affirm the denial

of Humberto Gonzalez’s motion for summary

judgment that he pursued on the basis of a

claim of qualified immunity, and we remand

for further proceedings.

I.

On interlocutory appeal of the denial of a

summary judgment motion seeking dismissal

for qualified immunity, we review the facts in

the light most favorable to the plaintiff. Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir.

2004) (en banc) (citing Wagner v. Bay City,

227 F.3d 316, 320 (5th Cir. 2000)). Those

facts are as follows:

Plaintiff Maria Martinez-Aguero is a fortynine-year-old citizen and resident of Mexico

United States Court of Appeals

Fifth Circuit

F I L E D

August 4, 2006

Charles R. Fulbruge III

Clerk
2

who visits the United States once a month to

accompany her aunt to the El Paso Social Security office. Though she normally enters the

country using a valid border-crossing card

(which is the same thing as a visitor visa), her

card had become invalid when the former

Immigration and Naturalization Service decided to issue biometric, machine-readable cards

for increased security. On July 3, 2001, Martinez-Aguero went with her aunt and mother

to the U.S. consular office to apply for new

cards and asked how she could legally enter

the United States while waiting for the cards

to arrive in the mail. Officials told her she

could get a stamp on her old cards that would

allow her to travel in the interim. For the next

three months she used the stamped card to

cross the border without incident.

On October 4, Martinez-Aguero and her

aunt made their usual bus trip to El Paso.

United States immigration officials stopped the

bus within the zone outside the port of entry

but within the territorial United States.

Gonzalez, an INS border patrol agent, ordered

Martinez-Aguero and her aunt off the bus and

requested to see their documents. He told

Martinez-Aguero that 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 would not help her, because he

also was Mexican. This agitated Gonzalez,

who pointed to patches on his uniform and

shouted, “Look at me! I am not a Mexican!

Look at my uniform!” He then yelled profanities at them in Spanish and threw their visas to

the ground. 

Martinez-Aguero picked her visa up and

made a sarcastic remark to her aunt about

Gonzalez’s bad language, which he apparently

overheard. She and her aunt began walking

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

Martinez-Aguero alleges in her affidavit

that Gonzalez then “grabbed [her] arms, twisted them behind [her] back, pushed her into a

concrete barrier, which hit [her] in the stomach

. . . [and] then started kicking [her] with his

knees in [her] lower back.” Another agent

then took Martinez-Aguero into an office and

handcuffed her to a chair. Gonzalez allegedly

came in and showed her scratches on his arms

and told her that he was going to claim that

she cut him with her fingernails. 

Shortly 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

officials before being permitted to leave. She

suffered another seizure after arriving home

and was taken to the hospital. She claims she

nowsuffersfromrecurrentseizures(before the

beating she had not suffered a seizure for 17

years), memory problems, back injuries, and

continual pain. She alleges she cannot walk

long distances or adequately clean her house

anymore.

II.

Martinez-Aguero sued Gonzalez for assault, battery, and false arrest under the Federal Tort Claims Act and for false arrest and

excessive use of force under the Fourth and

Fifth Amendments. Gonzalez moved for summary judgment, asserting qualified immunity.

The district court denied the motion, and Gonzalez filed an interlocutory appeal. 
3

III.

Our standard of review for interlocutory

appeals differs from the usual Federal Rule of

Civil Procedure 56 standards for summary

judgment. We lack jurisdiction to review the

district court’sfinding that no genuine issue of

material fact exists; rather, we “consider only

whetherthe district court erred in assessing the

legal significance of the conduct that the

district court deemed sufficiently supported for

purposes ofsummaryjudgment.” Kinney, 367

F.3d at 348. If the interlocutory appeal concerns summary judgment on a defense of

qualified immunity, we must view the facts in

the light most favorable to the plaintiff. See id.

(citing Wagner v. Bay City, 227 F.3d 316, 320

(5th Cir. 2000)). Our review of the legal

significance of the facts is de novo. See id. at

349.

IV.

We use a two-part test to determine whether an officer is entitled to qualified immunity:

first, do the facts alleged show that he has

violated plaintiff’s constitutional rights, see

Saucier v. Katz, 533 U.S. 194, 201 (2001);

second, were the rights clearly established at

the time of the alleged violation? See id. To

determine whether a right is clearly established, we ask “whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation he confronted.” Id.

The only claims relevant to this appeal are

Martinez-Aguero’s Bivens actions under the

Fourth and Fifth Amendments.1 Specifically,

she alleges wrongful arrest under the Fourth

Amendment and excessive force under the

Fourth and Fifth Amendments. We must

determine whether (1) Martinez-Aguero is entitled to the protection of these constitutional

guarantees, (2) the factsshe alleges would suffice to show that Gonzalez violated her rights,

and (3) the rights were clearly established at

the time of the incident.

A.

Gonzalez arguesthat Martinez-Aguero had

no constitutional rights at the time of the alleged incident because she was an alien who

attempted to enter the country illegally and

was not admitted. Gonzalez relies on United

States v. Verdugo-Urquidez, 494 U.S. 259,

274-75 (1990), which held that an alien who

has no voluntary attachment to the United

States enjoys no extraterritorial Fourth

Amendment protection.2 The Court in Verdugo-Urquidez analyzed the text and history of

the phrase “the People” in the Fourth Amendment and concluded that it “refersto 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.” Id. at 265. The

Court acknowledged that it had held that aliens enjoy certain constitutional rights, but

those cases “establish only that aliens receive

constitutional protections when they have

1

“Under Bivens a person may sue a federal

agent for money damages when the federal agent

has allegedly violated that person’s constitutional

rights.” Brown v. NationsBank Corp., 188 F.3d

579, 590 (5th Cir. 1999) (citing Bivens v. Six Un-

(continued...)

(...continued)

known Named 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 inVerdugo-Urquidez was detained in a correctional facility in

California while federal agents searched his residence in Mexico without a warrant. See VerdugoUrquidez, 494 U.S. at 262.
4

come within the territory of the United States

and developed substantial connections with the

country.”3 Gonzalez also relies on Johnson v.

Eisentrager, 339 U.S. 763, 765-66 (1950), in

which the Court rejected the extraterritorial

application of the Fifth Amendment.

The crucial distinction is “that certain constitutional protections available to persons inside the United States are unavailable to aliens

outside our geographic borders.” Zadvydas v.

Davis, 533 U.S. 678, 693 (2001). The Court

in Zadvydasreasoned that a statute that authorized the indefinite detention of removable aliens present in the U.S. would pose serious

constitutional problems. See id. at 682. The

Court distinguished Shaughnessy v. United

States ex rel. Mezei, 345 U.S. 206 (1953),

which held that a lawfully admitted alien who

left the country and was denied reentry for security reasons could be indefinitely detained at

Ellis Island. The “critical” difference for the

Court was that the alien in Mezei never reentered the United States; “[h]ence, he wastreated, for constitutional purposes, asifstopped at

the border.” See Zadvydas, 533 U.S. at 693.4

This doctrine is called the “entry fiction,”

and Gonzalez urgesits application to this case:

Because Martinez-Aguero was denied entry

into the United States, and because the fiction

requires us to treat her as if stopped at the

border (even though she was technically present in U.S. territory), and because the Fourth

and Fifth Amendments have no extraterritorial

application, Gonzalez contends he should be

entitled to qualified immunity.

We disagree. This conclusion is inconsistent with Lynch v. Cannatella, 810 F.2d 1363

(5th Cir. 1987), in which we specifically limited the application ofthe “entryfiction” to immigration and deportation matters:

The “entry fiction” that excludable aliens

are to be treated asif detained at the border

despite their physicalpresence inthe United

States determines the aliens’ rights with

regard to immigration and deportation proceedings. It does not limit the right of excludable aliens detained within United

States territory to humane treatment.

Id. at 1373. 

We reasoned in Lynch that the sovereign

should enjoy particularly broad discretion in

the immigration context, because the power to

decide which, and how many, outsiders may

join our society is critical to national self-determination. See id. There are, however, no

identifiable 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 (1982) (stating that provisions of the

Fourteenth Amendment “are universal in their application, to all persons within the territorial jurisdiction”); Kwong Hai Chewv. Colding, 344 U.S.

590, 596 (1953) (opining that “once an alien lawfully enters and resides in this country he becomes

invested with 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. 2000), this court made a

plain distinction between actual entry into the

United States and attempted entry, in the context of

interpreting a grand jury indictment: “‘[A]ctual

entry’ has been found by most courts to require

(continued...)

(...continued)

both physical presence in the country as well as

freedom from official restraint, while ‘attempted

entry’ only requiresthat the person approach a port

of entry and make a false claim of citizenship or

non-resident alien status.”). 
5

We concluded that “whatever due process

rights excludable aliens may be denied by virtue of their status, they are entitled under the

due process clauses of the fifth and fourteenth

amendments to be free of gross physical abuse

at the hands of state or federal officials.” Id.

at 1374.

Gonzalez distinguishes Lynch because the

aliens there were detained for ten days, but

Martinez-Aguero was detained for only about

six hours. This distinction fails, however, because Mezei(the alien detained at EllisIsland)

was held captive for twenty-one months. See

Mezei, 345 U.S. at 209. The operative distinction between Lynch and Mezei is that Mezei

brought a due process challenge to his exclusion proceeding, but Lynch challenged the official use of excessive force. The “entry fiction” applies to the former claim but not the

latter. Because the “entry fiction” does not

bar Martinez-Aguero’s suit, and because she

was concededly within the territorial jurisdiction ofthe U.S. (though outside the port of entry) when the alleged incident occurred, Lynch

counsels that she should 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

claimsthat law enforcement officers have used

excessive forceSSdeadly or notSSin the course

of an arrest, investigatory stop, or other

‘seizure’ of a free citizen should be analyzed

under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.” The Court

reasoned that because “the Fourth Amendment

provides an explicit textualsource of constitutional protection against this sort of physically

intrusive governmental conduct, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for

analyzing these claims.” Id.

Graham does not call into question the part

of Lynch that limits the applicability of the

“entry fiction” to the context of immigration

and deportation proceedings. Instead, it merely locates the right to be free from excessive

use of force in the express textual guarantees

of the Fourth Amendment. Graham does,

however, require us to analyze MartinezAguero’s excessive force claim, first and foremost, as a claim alleging an unreasonable seizure under that amendment.5 We turn now to

whether she has standing under the Fourth

Amendment to challenge unlawful arrest and

the excessive use of force. 

In pre-Verdugo-Urquidez cases, the Supreme Court had assumed, and we have explicitly held, that 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 own force to a case where the

protection 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 Lynch, 810 F.2d at 1373,

applies to all “excludable aliens detained within

United States territory,” Lynch may sweep more

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 entitled to Fourth Amendment protection

understatute that purportsto authorizewarrantless

searches within a reasonabledistance fromtheU.S.

border); United States v. Cortes, 588 F.2d 106,

110 (5th Cir. 1979) (“Once aliens become subject

(continued...)
6

definition of “the People” in Verdugo-Urquidez, seemingly limiting the class of aliens that

deserve protection to those with “substantial

connections” to the United States, is not binding, because Justice Kennedy, though joining

themajorityopinioninfull,speciallyconcurred

to express disagreement with the majority’s

textual analysis.

Justice Kennedy appeared to indicate that

the key factor in his decision was the extraterritorial application of the Fourth Amendment:

“If the search had occurred in a residence

within the United States, I have little doubt

that the full protections of the Fourth Amendment would apply.” Verdugo, 494 U.S. at 278

(Kennedy, J., concurring). Justice Kennedy’s

formulation would be favorable to MartinezAguero, because he appearsto believe that the

FourthAmendment’s protection is coextensive

with U.S. territorial boundaries.

If, however, we take at face value the fact

that Justice Kennedy joined the opinion of the

Court,see Verdugo, 494 U.S. at 275, there are

five votes for the proposition that “aliens receive constitutional protections when they

have come within the territory of the United

States and developed substantial connections

with the country.” Id. at 271 (emphasis added).7 We need not decide whether VerdugoUrquidez is controlling, because even under

the more demanding test, Martinez-Aguero

has “developed substantial connections with

the country” and earned the protection of the

Fourth Amendment. 

Gonzalez contends that Martinez-Aguero

lacked “substantialconnections” with the United States because, besides having an expired

visa and applying for a new one, her only

connection consisted of periodic visitsto assist

her aunt with retrieving her Social Security

check. Gonzalez cites Am. Immigration

Lawyers Ass’n v. Reno, 18 F. Supp. 2d 38, 60

& n.17 (D.D.C. 1998), which held that regular

visits to family members do not qualify as

“substantial connections.” On the contrary,

Martinez-Aguero cites language in VerdugoUrquidez, 494 U.S. at 273, suggesting that

aliens with substantial connections are those

who are in this country “voluntarily and presumably [have] accepted some societal obligations.” She argues that her regular and lawful

entry of the United States pursuant to a valid

border-crossing card8and 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

“must . . . be performed with due regard to the

Fourth Amendment to the Constitution, which

affords citizen and alien alike protection against

illegalstops, searches, and arrests”); United States

v. Cadena, 585 F.2d 1252, 1262 (5th Cir. 1978),

overruled on 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

protection 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 Verdugo 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

arrested, she reasonably relied on the statements of

officials at the U.S. consular office that her

(continued...)
7

the U.S. system of immigration constitute her

voluntary acceptance of societal obligations,

rising to the level of “substantial connections.”9

Martinez-Aguero is correct. There may be

cases in which an alien’s connection with the

United Statesisso tenuousthat he cannot reasonably expect the protection of its constitutional guarantees; the nature and duration of

Martinez-Aguero’s contacts with the United

States, however, are sufficient to confer

Fourth Amendment rights. It follows that she

may bring a Bivens claim for unlawful arrest

and the excessive use of force under the

Fourth Amendment.

B.

Because Martinez-Aguero is entitled to

Fourth Amendment protection, it is obvious

that she has alleged facts that, if true, would

establish that Gonzalez violated those rights.

Asto false arrest, Gonzalez arrested MartinezAguero pursuant to 18 U.S.C. § 111, which

reads as follows: “Whoever . . . forcibly assaults, resists, opposes, impedes, intimidates,

or interferes with any person . . . while engaged in or on account of the performance of

official duties . . . shall . . . be fined under this

title or imprisoned not more than one year, or

both[.]” 

Under the Fourth Amendment, an arrest is

reasonable if supported by probable cause.

See Atwater 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 than prima facie

proof but more than 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

that Martinez-Aguero did nothing to interfere

with Gonzalez’s official duties; rather, the arrest was entirely without provocation. As the

district court concluded, “[a]ny argument to

the contrary would be patently absurd.”

This reasoning applies with equal force to

Martinez-Aguero’s claim of excessive force.

In Graham, 490 U.S. at 396, the reasonableness of official use of force turns on “a careful

balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment

interests against the countervailing governmental interests atstake.” The relevant factors

include “the severity of the crime at issue,

whether the suspect poses an immediate threat

to the safety of the officers or others, and

whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. 

Again, Martinez-Aguero plainly prevails

under the facts she presents. She alleges that

she was entirely docile and compliant (with the

exception of one stray remark not intended for

Gonzalez to hear); therefore, there could be no

state interest in subduing her using force. In

short, she has presented facts sufficient to

survive summary judgment on both claims.

C.

Finally, we must determine whether Mar8

(...continued)

stamped, expired card would suffice. See Raley v.

Ohio, 360 U.S. 423, 426 (1959) (holding that

“convicting 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 States 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 the time of the incident. She contends that Gonzalez has waived any right to

make this argument. Indeed, the issue that

Gonzalez presents on appeal, as described and

discussed in his brief, deals exclusively with

the question whether aliens enjoy Fourth or

Fifth Amendment protection at all. The words

“clearly established” appear precisely once,

when Gonzalez statesthe test for qualified immunity. Because, however, one could read

Gonzalez’s argument that the relevant cases

do not support any constitutional protections

for Martinez-Aguero as implicitly containing

the lesser argument that the protections are

not clearly established, we therefore consider

the issue on the merits.

Gonzalez could argue that Martinez-Aguero’sFourthAmendmentrights were not clearly

established because courts have split on the

precedential value of Verdugo-Urquidez; because it is uncertain how the Court intended

the “substantial connections” test to be applied; and because the Court seemed explicitly

to reserve the question whether illegal aliens

would have Fourth Amendment rights on U.S.

soil.

10 But, decisions pre-dating VerdugoUrquidez, including cases from this circuit,

state unequivocally that aliens are entitled to

Fourth Amendment protection.11

Also, the inquiry into whether rights are

clearlyestablished “must be undertaken in light

of the specific context of the case, not as a

broad generalproposition.” 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 meritless arrests and the excessive use of force. Lynch plainly confers on aliensin disputes with border agents a right to be

free from excessive force, and no reasonable

officer would believe it proper to beat a

defenseless alienwithout provocation, as Martinez-Aguero alleges. 

The logic of Lynch applies equally to arresting an alien without cause: “Counsel has

not suggested and we cannot conceive of any

national interests that would justify [the practice] simply because that person is an excludable alien.” Lynch, 810 F.2d at 1374. This

reasoning is particularly compelling when an

alien has made a good-faith effort to comply

with federal requirements for obtaining a temporary visa and has made frequent use of a

border-crossing card to visit the country in the

past. On these facts, no officer would reasonably conclude that Martinez-Aguero lacked

protection against suspicionless arrest.

We AFFIRM the denial of summary judgment, and REMAND to the district court for

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.