FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OUMAR SISSOKO; JULIE SISSOKO, 

Plaintiffs-Appellees,

No. 02-56751

v.  D.C. No.

LOYDA R. ROCHA; UNITED STATES OF CV-98-07010-ABC

AMERICA,

Defendants-Appellants. 

OUMAR SISSOKO, an individual; JULIE 

SISSOKO, an individual,

Plaintiffs-Appellees,

v.

MICHAEL B. MUKASEY, Attorney

General of the United States; U.S. No. 03-55667

IMMIGRATION & NATURALIZATION D.C. No.

SERVICE; DORIS MEISSNER, formerly  CV-98-07010-ABC

Commissioner, United States INS; ORDER AND RICHARD ROGERS, District Director, OPINION United States INS; FOUR UNKNOWN

NAMED OFFICERS, of the United

States Immigration and

Naturalization Service; UNITED

STATES; U.S. PUBLIC HEALTH

SERVICES; JOSEPH CHEN, MD; 

14945
UNKNOWN NAMED EMPLOYEES OF THE 

UNITED STATES PUBLIC HEALTH

SERVICES,

Defendants,  and

LOYDA R. ROCHA, Immigration

Inspector, United States INS,

Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Audrey B. Collins, District Judge, Presiding

Argued and Submitted

March 1, 2004—Pasadena, California

Filed November 15, 2007

Before: Otto R. Skopil, Jr., John T. Noonan, and

Marsha S. Berzon, Circuit Judges.

Order;

Opinion by Judge Berzon;

Partial Concurrence and Partial Dissent by Judge Skopil

14946 SISSOKO v. ROCHA
COUNSEL

Robert M. Loeb, Richard A. Olderman and Anne Murphy,

Civil Division, Appellate Staff, U.S. Department of Justice,

Washington, D.C., for the defendants-appellants. 

Martin Simone, Leonard M. Roos and Helen Wong, Frank,

Greenberg, Simone & Stefanski, Los Angeles, California, for

the plaintiffs-appellees. 

ORDER

The opinion filed on March 16, 2006 is hereby withdrawn

and replaced by this concurrently filed opinion. The petition

for rehearing en banc is denied as moot. 

OPINION

BERZON, Circuit Judge: 

The factual and procedural background of these appeals is

set out in our now-withdrawn opinion. See Sissoko v. Rocha,

14948 SISSOKO v. ROCHA
440 F.3d 1145, 1149-53 (9th Cir. 2006). We adopt the “scope

of review” section of our prior opinion, id. at 1153-54, and

affirm the district court’s denial of Rocha’s motion under Fed.

R. Civ. P. 59(e) with respect to her newly raised legal issue

concerning Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971). 

Rocha contends that the district court lacked subject-matter

jurisdiction over the Sissokos’ Fourth Amendment-based

damages claim for false arrest. See 8 U.S.C. § 1252(g)

(“Exclusive jurisdiction. Except as provided in this section

and notwithstanding any other provision of law (statutory or

nonstatutory), including section 2241 of title 28, United States

Code, or any other habeas corpus provision, and sections

1361 and 1651 of such title, no court shall have jurisdiction

to hear any cause or claim by or on behalf of any alien arising

from the decision or action by the Attorney General to commence proceedings . . . against any alien under this Act.”).

Appended to Rocha’s second petition for rehearing is a Form

I-860 “Notice and Order of Expedited Removal.” Rocha filled

out the top half of the Form I-860, “Determination of Inadmissibility,” but not the bottom half, “Order of Removal

under Section 235(b)(1) of the Act.” Why this happened is

now evident: Sissoko indicated at his August 1997 inspection

that he had a fear of persecution if returned to Senegal.

Accordingly, Rocha was required to refer him for an interview by an asylum officer. See 8 C.F.R. § 235.3(b)(4) (“If an

alien subject to the expedited removal provisions indicates an

intention to apply for asylum, or expresses a fear of persecution or torture, or a fear of return to his or her country, the

inspecting officer shall not proceed further with removal of

the alien until the alien has been referred for an interview by

an asylum officer . . . .”). At this juncture, the mandatory

detention provision contained in 8 U.S.C. § 1225(b)(1)(B)

(iii)(IV) applied: “Any alien subject to the procedures under

this clause shall be detained pending a final determination of

credible fear of persecution and, if found not to have such a

SISSOKO v. ROCHA 14949
fear, until removed.”

1

 Ultimately, Sissoko never had a credible fear interview because he was issued a Notice to Appear

and placed in regular removal proceedings. 

[1] Considering these circumstances, particularly the existence in the record of a half-completed Form I-860, we conclude that Sissoko’s detention arose from Rocha’s decision to

commence expedited removal proceedings. As a result, 8

U.S.C. § 1252(g) applies to the Sissokos’ claim. Compare

Wong v. U.S. INS, 373 F.3d 952, 964 (9th Cir. 2004) (“Wong

. . . disclaims any challenge to the execution of the removal

itself, but rather asserts that her claims implicate only actions

other than that removal, or the commencement of proceedings, if any, leading to that removal.”). Moreover, we are not

persuaded by the Sissokos’ contention that 8 U.S.C. § 1252(g)

must nevertheless be read to allow them a Bivens damages

remedy for false arrest. 

The Supreme Court has emphasized that “any freestanding

damages remedy for a claimed constitutional violation has to

represent a judgment about the best way to implement a constitutional guarantee; it is not an automatic entitlement no

matter what other means there may be to vindicate a protected

interest, and in most instances we have found a Bivens remedy unjustified.” Wilkie v. Robbins, 127 S. Ct. 2588, 2597

(2007); see also AFGE Local 1 v. Stone, No. 05-15206, 2007

WL 2482144, *8 (9th Cir. Sept. 5, 2007) (noting “the courts’

general reluctance to allow damages as a judicially created

remedy for constitutional torts”). Wilkie instructs us to examine “whether any alternative, existing process for protecting

the interest amounts to a convincing reason for the Judicial

1Rocha repeatedly cites 8 U.S.C. § 1225(b)(2)(A) as the basis for Sissoko’s detention, but that provision is irrelevant. Its plain language

requires a regular, not expedited, removal proceeding, including a hearing

before an immigration judge: “[I]f the examining immigration officer

determines that an alien seeking admission is not clearly and beyond a

doubt entitled to be admitted, the alien shall be detained for a proceeding

under section 240.” 

14950 SISSOKO v. ROCHA
Branch to refrain from providing a new and freestanding remedy in damages.” 127 S. Ct. at 2598. 

[2] In this case, because Sissoko was never issued an expedited removal order, a habeas petition under 8 U.S.C.

§ 1252(e)(2) could have been successful in remedying his

allegedly false arrest.2 In 1997, as now, that provision limited

the remedies available to an alien in Sissoko’s expedited

removal situation to a habeas petition challenging: 

(A) whether the petitioner is an alien, 

(B) whether the petitioner was ordered removed

under [the expedited removal] section, and 

(C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien

lawfully admitted for permanent residence, has been

admitted as a refugee . . . , or has been granted asylum . . . . 

8 U.S.C. § 1252(e)(2) (emphasis added); see also id.

§ 1252(e)(5) (“In determining whether an alien has been

ordered removed under [the expedited removal section], the

court’s inquiry shall be limited to whether such an order in

fact was issued and whether it relates to the petitioner.”).3 If

the district court had determined in such a habeas action that

Sissoko was not “ordered removed” under the expedited

removal section — as he was not, despite his being detained

under those provisions — the statutory remedy would have

been for the district court “to require that the petitioner be

provided a [regular removal] hearing.” Id. § 1252(e)(4).4 Such

2Sissoko did file a habeas petition on September 18, 1997. Because the

government then chose to place him in regular removal proceedings, however, the petition was dismissed. 

3We express no opinion on the constitutionality of these limitations. 

4We do not decide whether 8 U.S.C. § 1252(g) would apply if Sissoko

had been ordered removed after an adverse credible fear determination,

thereby eliminating his habeas avenue of relief. 

SISSOKO v. ROCHA 14951
a hearing, as Sissoko’s experience bears out, is the first step

of full administrative and judicial review of an alien’s inadmissibility determination, which was the underlying cause of

Sissoko’s being placed in expedited removal proceedings and

detained. See id. (“Any alien who is provided a [regular

removal] hearing pursuant to this paragraph may thereafter

obtain judicial review of any resulting final order of removal

. . . .”). Compare id. § 1252(e)(5) (stating that in a habeas

petition regarding expedited removal proceedings “[t]here

shall be no review of whether the alien is actually inadmissible”). 

[3] In this limited context, we hold that 8 U.S.C.

§ 1252(g)’s jurisdiction-stripping language covers the Sissokos’ false arrest claim. The claim directly challenges

Rocha’s decision to commence expedited removal proceedings, and an alternative habeas remedy directly addressing the

claimed injury was available through 8 U.S.C. § 1252(e)(2).

The only other circuit to have addressed the interaction of

§ 1252(g) and Bivens similarly stressed the importance of

alternative remedies in precluding a damages action. See

Humphries v. Various Federal USINS Employees, 164 F.3d

936, 945 (5th Cir. 1999) (“Aliens wishing to raise [constitutional] challenges in the future should do so either in a petition for review or for habeas corpus.”); see also Khorrami v.

Rolince, 493 F. Supp. 2d 1061, 1068-69 (N. D. Ill. 2007) (following Humphries, while commenting that “I am not at all

certain that this [Fourth Amendment cause of action] is the

type of claim Congress sought to bar when it enacted

§ 1252(g),” and noting that “Dr. Khorrami had a remedy

available to him: he could have raised his challenges in a petition for habeas corpus.”).5 But see Medina v. United States, 92

5We recognize that Foster v. Townsley, 243 F.3d 210, 214-15 (5th Cir.

2001), in holding that § 1252(g) precluded jurisdiction over an alien’s

Bivens action, did not address Humphries’ concern about the availability

of some remedy other than a Bivens action. There is no indication from

Foster that the issue was raised in that case, however. 

14952 SISSOKO v. ROCHA
F. Supp. 2d 545, 554 (E. D. Va. 2000) (rejecting Humphries’

reasoning). 

Our reading of 8 U.S.C. § 1252(g) is also consistent with

Reno v. American-Arab Anti-Discrimination Committee, 525

U.S. 471 (1999) (“AADC”). The plaintiffs in that case filed

an action alleging constitutional violations based on the government’s targeted deportations of members of the Popular

Front for the Liberation of Palestine. A damages remedy was

not sought. Id. at 474 n.3. After concluding that the claims fell

within the ambit of § 1252(g), the Court did not end its

inquiry, but proceeded to address whether the particular constitutional harms alleged justified reading the statute to allow

the lawsuit. In holding that the AADC plaintiffs had not

established that such a reading was required by the Constitution, the Court emphasized that “[w]hen an alien’s continuing

presence in this country is in violation of the immigration

laws, the Government does not offend the Constitution by

deporting him for the additional reason that it believes him to

be a member of an organization that supports terrorist activity.” Id. at 491-92. Nevertheless, the Court refused to “rule out

the possibility of a rare case in which the alleged basis of discrimination is so outrageous” that its conclusion should be

revisited. Id. at 490.6 Most importantly for our purposes, the

6An instructive subsequent example of a court limiting the reach of

§ 1252(g) is Arar v. Ashcroft, 414 F. Supp. 2d 250 (E.D.N.Y. 2006),

which refused to apply § 1252(g) to preclude a Fifth Amendment due

process-based Bivens remedy because “Arar challenges, on constitutional

grounds, the decision to send him abroad for torture, pursuant to a purported policy of extraordinary rendition for individuals suspected of terrorist involvement. That goes far beyond a mere challenge to the ‘decision

or action’ to ‘commence proceedings, adjudicate cases, or execute

removal orders.’ ” Id. at 270-71 (quoting 8 U.S.C. § 1252(g)). Arar

stressed in its jurisdictional analysis that “defendants have failed to demonstrate that ‘Congress has provided an alternative remedy [in the form of

the INA],’ or to identify an alternative venue through which Arar could

have satisfactorily preserved ‘some avenue for judicial relief.’ ” Id. at 281

(citations omitted); see also id. at 279 n.12 (“Precisely what, if any, remedy might have been available to Arar via habeas is uncertain.”). 

SISSOKO v. ROCHA 14953
plaintiffs in AADC had administrative and judicial avenues of

review and potential redress for the deportation proceedings

that were, at least in largest part, the harm resulting from the

claimed violations.7

[4] Accordingly, we conclude that the district court lacked

jurisdiction over the Sissokos’ claim because it “aris[es] from

the decision or action by the Attorney General to commence

[removal] proceedings.” 8 U.S.C. § 1252(g). The parties shall

bear their own costs.8

AFFIRMED in part; VACATED in part; REMANDED.

SKOPIL, Senior Circuit Judge, concurring in part; dissenting

in part: 

I concur in the decision to withdraw our prior opinion, Sissoko v. Rocha, 440 F.3d 1145 (9th Cir. 2006), and to file a

revised one. I do not agree, however, with footnote 8 of the

revised opinion and, accordingly, I dissent from the majority’s

decision to include the footnote. 

7

Indeed, two of the plaintiffs “were subsequently granted legalization

and are no longer deportable based on the original status violations.” Id.

at 473 n.1. 

8We end by noting our disappointment with the parties’ performance in

this litigation. At oral argument, we asked the parties repeatedly whether

the record contains an expedited removal order and, if not, to explain any

documented basis for Sissoko’s detention. The parties maintained until

Rocha’s second petition for rehearing that the record contains no such

order and that we should focus on the Form I-275 “Withdrawal of Application for Admission.” Both counsels’ representations about the record at

oral argument, as well as the absence of any reference to the Form I-860

in Rocha’s initial petition for rehearing, after our first opinion relied significantly on the record’s omission of that form, fall below the standard

of advocacy we expect. 

14954 SISSOKO v. ROCHA