FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IGNACIO LANUZA,

Plaintiff-Appellant,

v.

JONATHAN M. LOVE, Assistant Chief 

Counsel, Immigration and Customs 

Enforcement,

Defendant-Appellee.

No. 15-35408

D.C. No.

2:14-cv-01641-

MJP

OPINION

Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, Senior District Judge, Presiding

Argued and Submitted October 3, 2017

Seattle, Washington

Filed August 14, 2018

Before: Kermit Victor Lipez,

* Kim McLane Wardlaw,

and John B. Owens, Circuit Judges.

Opinion by Judge Wardlaw

 * The Honorable Kermit V. Lipez, United States Circuit Judge for 

the First Circuit, sitting by designation.
2 LANUZA V. LOVE

SUMMARY**

Bivens

The panel reversed the district court’s order declining to 

extend a Bivens v. Six Unknown Named Agents of Fed. 

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

immigrant pursuing lawful permanent resident status where 

a government immigration attorney intentionally submitted 

a forged document in an immigration proceeding to 

completely bar that immigrant from pursuing relief to which 

he was entitled. 

The panel concluded that while the Supreme Court “has 

made clear that expanding the Bivens remedy is now a 

‘disfavored’ judicial activity,” Ziglar v. Abbasi, 137 S. Ct. 

1843, 1857 (2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 

675 (2009)), a Bivens remedy was available in this narrow 

circumstance because none of the special factors outlined in 

Abbasi and other Supreme Court precedent applied. 

The panel affirmed the district court’s order denying 

qualified immunity to ICE Assistant Chief Counsel Jonathan

Love because qualified immunity was not meant to protect 

those who are “plainly incompetent or those who knowingly 

violate the law.” Taylor v. Barkes, 135 S. Ct. 2042, 2044 

(2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 

(2011)). The panel concluded that qualified immunity could 

not shield an officer from suit when he intentionally 

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

has been prepared by court staff for the convenience of the reader.
LANUZA V. LOVE 3

submitted a forged document in an immigration proceeding 

in clear violation of 8 U.S.C. § 1357(b).

COUNSEL

Matt Adams (argued) and Glenda M. Aldana Madrid,

Northwest Immigrant Rights Project, Seattle, Washington; 

Christopher Schenck and Stephanie M. Martinez, Kilpatrick 

Townsend & Stockton LLP, Seattle, Washington; for 

Plaintiff-Appellant.

Amanda E. Lee (argued), Law Office of Amanda Lee PLLC,

Seattle, Washington, for Defendant-Appellee.

H. Thomas Byron III (argued) and Barbara L. Herwig, 

Appellate Staff; Joseph H. Harrington, Acting United States 

Attorney; Chad A. Readler, Acting Assistant Attorney 

General; Civil Division, United States Department of 

Justice, Washington, D.C.; for Amicus Curiae United States.

Mary Kenney, American Immigration Council, Washington, 

D.C.; Trina Realmuto, National Immigration Project of the 

National Lawyers Guild, Boston, Massachusetts; for Amici 

Curiae American Immigration Council and National 

Immigration Project of the National Lawyers Guild.
4 LANUZA V. LOVE

OPINION

WARDLAW, Circuit Judge:

We are tasked with answering in part a question asked 

by many legal commentators in the wake of the Supreme 

Court’s decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017): 

where does Bivens stand? Bivens is the first Supreme Court

decision to recognize an implied right of action for damages 

against federal officers alleged to have violated a plaintiff’s 

constitutional rights. See Bivens v. Six Unknown Named 

Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 392–98 

(1971). Here, a U.S. Immigration and Customs Enforcement 

(ICE) Assistant Chief Counsel representing the government 

intentionally forged and submitted an ostensible government 

document in an immigration proceeding, which had the 

effect of barring Ignacio Lanuza (Lanuza) from obtaining 

lawful permanent resident status, a form of relief to which 

he was otherwise lawfully entitled. We recognize that the 

Supreme Court “has made clear that expanding the Bivens 

remedy is now a ‘disfavored’ judicial activity,” Abbasi, 

137 S. Ct. at 1857 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 

675 (2009)), but, if the principles animating Bivens stand at 

all, they must provide a remedy on these narrow and 

egregious facts. We therefore reverse the district court’s 

holding that Lanuza was not entitled to a Bivens remedy.

I.

Lanuza is a 38-year-old lawful permanent resident 

married to a U.S. citizen with two U.S. citizen children. He 

was born in Mexico and first came to the United States 

without inspection when he was seventeen years old. He 

lives and works in Seattle, Washington. In July 2008, the 

Department of Homeland Security (DHS) commenced 

removal proceedings against him before the Tacoma 
LANUZA V. LOVE 5

immigration court, which were ultimately transferred to the 

Seattle immigration court.

On May 6, 2009, Lanuza appeared before an 

immigration judge for a master calendar hearing. During 

that hearing, Lanuza notified the court of his intention to 

apply for Cancellation of Removal and Adjustment of Status 

for Certain Nonpermanent Residents (cancellation of 

removal or cancellation) under 8 U.S.C. § 1229b(b)(1). At 

the time, he was prima facie eligible to apply for cancellation 

of removal, which is a type of immigration relief that enables 

nonpermanent residents to adjust their status to that of 

permanent residents. To qualify for cancellation, a person 

must demonstrate (1) continuous physical presence in the 

United States for ten years immediately prior to being served 

with the Notice to Appear; (2) good moral character; (3) that 

he is not subject to any other bar to eligibility on account of 

having certain criminal convictions; and (4) the existence of 

a U.S. citizen or lawful permanent resident spouse, parent, 

or child who would suffer exceptional and extremely 

unusual hardship if the person were removed. See 8 U.S.C. 

§ 1229b(b)(1). As later events would confirm, Lanuza 

satisfied all these requirements: (1) he had been residing 

continuously in the United States since 1996 and thus had 

more than ten years of continuous residence; (2) he 

possessed good moral character; (3) he was not subject to 

any other bar to eligibility; and (4) his U.S. citizen wife and 

children would suffer exceptional and extremely unusual 

hardship without him.

During the master calendar hearing, ICE Assistant Chief 

Counsel Jonathan Love (“Love”) stated that Lanuza’s 

immigration file contained an I-826 form, signed by Lanuza, 

accepting voluntary departure to Mexico in 2000. The I-826 

form was critical in determining whether Lanuza would be 
6 LANUZA V. LOVE

able to remain in the United States with his family, because 

a signed I-826 form would render him ineligible for 

cancellation of removal. By signing an I-826 form, a person 

accepts an administrative voluntary departure instead of 

exercising his right to appear before an immigration judge in 

removal proceedings and thereby breaks whatever 

continuous physical presence he may have accrued. See 

Ibarra-Flores v. Gonzales, 439 F.3d 614, 618–20 (9th Cir. 

2006); see also Landin-Zavala v. Gonzales, 488 F.3d 1150, 

1152–53 (9th Cir. 2007) (“When [an individual] leaves 

pursuant to an administrative voluntary departure[ ]‘[he] 

leaves with the knowledge that he does so in lieu of being 

placed in proceedings. . . .’” (quoting Tapia v. Gonzales, 

430 F.3d 997, 1002 (9th Cir. 2005))). As a result, even 

though Lanuza met all the other elements of § 1229b(b)(1), 

if Lanuza had signed an I-826 form in 2000, he would have 

accrued continuous residence in the United States for only 

seven years, rather than the requisite ten years. See 8 U.S.C. 

§ 1229b(b)(1).

On May 11, 2009 at Lanuza’s actual immigration 

hearing, Love submitted an I-826 form agreeing to voluntary 

departure, purportedly signed by Lanuza on January 13, 

2000, making Lanuza ineligible for cancellation of removal. 

See id. Based solely on that I-826 form, the immigration 

judge issued an order of removal on January 5, 2010; the 

Board of Immigration Appeals (“BIA”) affirmed on 

November 15, 2011.

On December 9, 2011, Lanuza hired new counsel, Hilary 

Han (“Han”), who discovered, for the first time, evidence 

that the I-826 form Love submitted was forged. Han sent the 

I-826 form to a forensic examiner, who, on February 1, 2012, 

confirmed that the form was forged. While several aspects 

of the form demonstrated it was forged, most glaringly, it 
LANUZA V. LOVE 7

referred to the “U.S. Department of Homeland Security” at 

the top of the page, an agency that did not exist at the time 

Lanuza purportedly signed the form on January 13, 2000. 

Congress created DHS in response to the September 11, 

2001 terrorist attacks, and the agency did not begin formal 

operations until 2003. Therefore, it would have been 

impossible for Lanuza to sign the DHS I-826 form in January 

2000, because that form did not then exist.

Based on the forensic report, the BIA reopened and 

remanded the case, and, on remand, the immigration judge 

ultimately found that Lanuza was prima facie eligible to 

apply for cancellation of removal. The agency adjusted his 

status to lawful permanent resident on January 9, 2014.

The government did not take any action against Love 

until after this lawsuit was filed on October 24, 2014. Love 

was ultimately prosecuted and pleaded guilty to deprivation 

of rights under color of law pursuant to 18 U.S.C. § 242, 

which ICE characterized as a “deprivation of constitutional 

rights” in a press release.1 Love was sentenced to a thirtyday term of imprisonment, one year of supervised release, 

and 100 hours of community service. See United States v. 

Love, No. 2:16-cr-00005-BAT-1, ECF No. 16 (W.D. Wash. 

April 20, 2016). He was also barred from practicing law for 

ten years and was required to pay restitution to Lanuza in the 

amount of $12,000, a figure the government proposed based 

on its approximation of the legal fees Lanuza paid related to 

 1 Press Release, U.S. Immigration & Customs Enforcement, Ex-Ice 

Attorney Sentenced to Prison for Falsifying Document in Immigration 

Case (Apr. 20, 2016), https://www.ice.gov/news/releases/ex-iceattorney-sentenced-prison-falsifying-document-immigration-case.
8 LANUZA V. LOVE

his removal proceedings as a result of Love’s submission of 

the forged I-826 form. Id. at 6–7.

On October 23, 2014, Lanuza filed a complaint against 

Love and the United States alleging, among other things, that 

he was entitled to damages under Bivens for a violation of 

his Fifth Amendment right to due process. Love filed a 

motion to dismiss, which the district court hesitantly granted. 

While the district court believed Lanuza was entitled to 

relief, the court felt its hands were tied by our decision in 

Mirmehdi v. United States, 689 F.3d 975 (9th Cir. 2012), 

which declined to extend Bivens to a claim for wrongful 

detention in the course of immigration removal proceedings.

The district court further held that, if a Bivens remedy were 

available, Love was not entitled to qualified immunity. 

Lanuza timely appealed.

II.

Whether a Bivens remedy is available here turns on the 

presence of the conditions articulated in Abbasi for 

extending the Bivens remedy. See Abbasi, 137 S. Ct. at 

1856–58. In Abbasi, the Supreme Court addressed whether 

Respondents, noncitizens who were suspected of having ties 

to terrorism and detained in harsh conditions in the aftermath 

of September 11, could pursue Bivens remedies against 

various high-level federal officials responsible for the policy 

that authorized their detention and the wardens responsible 

for their treatment thereafter. Id. at 1853–54. The Court 

articulated a two-part test for determining whether Bivens

remedies should be extended. Id. at 1859–60. First, courts 

must determine whether the plaintiff is seeking a Bivens

remedy in a new context. Id. If the answer to this question 

is “no,” then no further analysis is required. Id. If the answer 

is “yes,” then the court must determine whether “special 

factors counsel[] hesitation.” Id. at 1860.
LANUZA V. LOVE 9

A case presents a new context if it “is different in a 

meaningful way from previous Bivens cases decided by [the 

Supreme Court].” Id. at 1859. The Court explained that:

[A] case might differ in a meaningful way 

because of the rank of the officers involved; 

the constitutional right at issue; the generality 

or specificity of the official action; the extent 

of judicial guidance as to how an officer 

should respond to the problem or emergency 

to be confronted; the statutory or other legal 

mandate under which the officer was 

operating; the risk of disruptive intrusion by 

the Judiciary into the functioning of other 

branches; or the presence of potential special 

factors that previous Bivens cases did not 

consider.

Id. at 1860.

Applying this framework to that suit, the Court found 

that Respondents’ challenge to the executive officials’ 

detention policy presented a new context, reasoning that:

[The challenge to] the confinement 

conditions imposed on illegal aliens pursuant 

to a high-level executive policy created in the 

wake of a major terrorist attack on American 

soil . . . [bore] little resemblance to the three 

Bivens claims the [Supreme] Court . . .

approved in the past: a claim against FBI 

agents for handcuffing a man in his own 

home without a warrant; a claim against a 

Congressman for firing his female secretary; 

and a claim against prison officials for failure 

to treat an inmate’s asthma.
10 LANUZA V. LOVE

Id. (referring to Bivens, 403 U.S. 388; Davis v. Passman, 

442 U.S. 228 (1979); and Carlson v. Green, 446 U.S. 14 

(1980), respectively).

Proceeding to the “special factors analysis,” the Court 

found those factors counseled against implying a Bivens

remedy. Id. First, a Bivens action is intended to discourage 

illegal acts by individual officers and is not “a proper vehicle 

for altering an entity’s policy.” Id. (citing Corr. Servs. Corp. 

v. Malesko, 534 U.S. 61, 74 (2001)). Second, “the burden 

and demand of litigation [against high-level officials] might 

well prevent them—or, to be more precise, future officials 

like them—from devoting the time and effort required for 

the proper discharge of their duties.” Id. (citing Cheney v. 

U.S. Dist. Ct. for D.C., 542 U.S. 367, 382 (2004)). Third, 

these claims raise serious separation-of-powers issues and 

“would require courts to interfere in an intrusive way with 

sensitive functions of the Executive Branch” and “challenge 

. . . major elements of the Government’s whole response to 

the September 11 attacks, thus of necessity requiring an 

inquiry into sensitive issues of national security.” Id. at 1861 

(citations omitted). Fourth, congressional interest in the 

response to the terrorist attacks was “frequent and intense,” 

including interest in “the conditions of confinement at 

issue[,]” and Congress chose not to create a damages 

remedy. Id. at 1862 (citation omitted). Finally, Respondents 

had alternate avenues of relief available to challenge their 

condition of confinement. Respondents could have pursued 

injunctive relief to attack the large-scale detention policy or 

perhaps a petition for a writ of habeas corpus to attack their 

own confinement. Id. at 1862–63. The Court reasoned, 

while “[t]here is . . . a balance to be struck, in situations like 

this one, between deterring constitutional violations and 

freeing high officials to make the lawful decisions necessary 

to protect the Nation in times of great peril . . . . [t]he proper 
LANUZA V. LOVE 11

balance is one for the Congress, not the Judiciary, to 

undertake.” Id. at 1863 (citation omitted).

The Court separately considered the prisoner abuse 

claim against Warden Hasty, the warden of the prison where 

Respondents were held. Addressing whether this claim 

presented a new context, the Court compared Respondents’ 

case to Carlson v. Green, 446 U.S. 14 (1980), a Supreme 

Court case where a prisoner’s estate sued federal jailers for 

failing to treat the prisoner’s asthma, ultimately leading to 

his death. Id. at 16 n.1; Abbasi, 137 S. Ct. at 1864. In 

Carlson, the Court found the failure to treat a prisoner’s 

medical needs violated his Eighth Amendment right to be 

free from cruel and unusual punishment. 446 U.S. at 17–18. 

The Abbasi Court distinguished Respondents’ case from 

Carlson, finding it meaningful that the Abbasi Respondents 

challenged violations of the Bureau of Prisons’ policy, 

unlike in Carlson where the prison’s policy was not at issue. 

Abbasi, 137 S. Ct. at 1864. The Court further noted that, 

unlike judicial guidance as to the medical treatment at issue 

in Carlson, “the judicial guidance available to this warden, 

with respect to his supervisory duties, was less developed.” 

Id. Acknowledging that there were “significant parallels” 

between the Respondents’ case and Carlson, and that the 

“allegations of injur[ies] here are just as compelling as those 

at issue in Carlson,” the Court nevertheless found 

Respondents’ claims presented a new Bivens context, 

reasoning that “a modest extension is still an extension.” Id. 

And, the Court found that “this case does seek to extend 

Carlson to a new context.” Id. The Court did not perform 

the special factors analysis, and instead remanded the claim 

against Warden Hasty to the Court of Appeals to perform a 

special factors analysis in the first instance. Id. at 1865.
12 LANUZA V. LOVE

One week after Abbasi was decided, the Supreme Court 

again had the opportunity to revisit Bivens. In Hernandez v. 

Mesa, a U.S. Border Patrol agent standing on U.S. soil shot 

and killed a fifteen-year-old Mexican boy who was playing 

with a group of friends in the cement culvert that separates 

Texas and Mexico. 137 S. Ct. 2003, 2004–06 (2017) (per 

curiam). His parents brought a claim against the officer for 

damages under Bivens. Id. at 2005. The Court declined to 

decide whether a Bivens claim existed in the first instance 

because the Court of Appeals had not had the opportunity to 

consider how the reasoning in Abbasi might bear on 

Hernandez’s case, and the parties had not briefed the issue. 

Id. at 2006–07. The Court remanded the case to the Court of 

Appeals to apply the Abbasi framework to Hernandez’s 

Fourth and Fifth Amendment claims. Id.

A.

Before addressing Abbasi’s two part test, we must first 

consider whether providing a Bivens remedy here is 

precluded by prior cases in which the Supreme Court or our 

court has declined to extend Bivens. We have found no such 

case. And, unlike the district court, we do not believe that 

our decision in Mirmehdi precludes a remedy here.

The conduct at issue—the falsification of evidence—has 

been regularly considered by the courts in actions against 

prosecutors who commit similar constitutional violations by 

falsifying evidence and suborning perjury. The Supreme 

Court has long recognized that “[t]he principle that a State 

may not knowingly use false evidence . . . to obtain a tainted 

conviction [is] implicit in any concept of ordered liberty,” 

and a violation of due process. Napue v. Illinois, 360 U.S. 

264, 269 (1959); see also Pyle v. Kansas, 317 U.S. 213, 215–

16 (1942); Mooney v. Holohan, 294 U.S. 103, 110, 112–13 

(1935) (per curiam). For this reason, in 42 U.S.C. § 1983 
LANUZA V. LOVE 13

cases,2 the Supreme Court has declined to extend absolute 

prosecutorial immunity to prosecutors who falsify evidence 

because the collection of evidence is an “investigative 

function[] normally performed by a detective or police 

officer.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).

We see no reason to distinguish the due process rights of 

a criminal defendant in a criminal proceeding from the due 

process rights of an immigrant in a deportation proceeding 

when a government attorney falsifies evidence. It is wellsettled that “the Due Process clause applies to all ‘persons’ 

within the United States, including aliens, whether their 

presence here is lawful, unlawful, temporary, or permanent.” 

Zadvydas v. Davis, 533 U.S. 678, 693 (2001); see also 

Sessions v. Dimaya, 138 S. Ct. 1204, 1209 (2018) (plurality 

 2 The Supreme Court has concluded that a prosecutor may be held 

liable for damages under Bivens, but has not extended a Bivens remedy 

to a claim of prosecutorial misconduct. Hartman v. Moore, 547 U.S. 

250, 261–66 (2006) (holding that a Bivens remedy may be available for 

malicious prosecution, but the plaintiff had to allege and prove lack of 

probable cause).

The Seventh Circuit, however, has extended Bivens remedies in the 

Brady context. Engel v. Buchan, 710 F.3d 698, 708 (7th Cir. 2013). In 

Engel v. Buchan, the Seventh Circuit provided a Bivens remedy for 

Brady violations pursuant to the Due Process Clause of the Fourteenth 

Amendment. Id. The court explained that punishing a federal officer in 

that context presents “no great problem of judicial interference with the 

work of law enforcement, certainly no greater than the Fourth 

Amendment claim in Bivens.” Id. While unlike the court in Engel, the 

Board of Immigration Appeals is not an Article III court, it conducts its 

hearings using similar procedures: parties submit evidence, question 

witnesses under oath, and the procedure is overseen by an individual 

called a “judge.” If remedies are available to punish Brady violations in 

a criminal proceeding where liberty is at stake, they should also be 

available in the context of immigration proceedings to determine 

removability—a deprivation of liberty that can be as consequential.
14 LANUZA V. LOVE

opinion) (“[T]his Court has reiterated that deportation is ‘a 

particularly severe penalty,’ which may be of greater 

concern to a convicted alien than ‘any potential jail 

sentence.’” (quoting Jae Lee v. United States, 137 S. Ct. 

1958, 1968 (2017); Padilla v. Kentucky, 559 U.S. 356, 365, 

368 (2010))); Zahedi v. INS, 222 F.3d 1157, 1164 n.6 (9th 

Cir. 2000) (stating that “immigration proceedings as a 

whole” are governed “by the Fifth Amendment’s Due 

Process Clause”).

Moreover, while Abbasi clearly limited Bivens’s scope, 

it did not preclude this case; nor is this case precluded by 

other Supreme Court precedent. The Supreme Court has 

recognized a Bivens remedy is available under the Fifth 

Amendment. In Davis v. Passman, the Court concluded that 

a U.S. Congressman’s former staff member was entitled to a 

Bivens remedy where the Congressman terminated her 

because of her gender, violating her rights under the equal 

protection component of the Fifth Amendment. 442 U.S. at 

248–49. While the Supreme Court has not extended Bivens

to a case involving the substantive and procedural clauses of 

the Fifth Amendment, Abbasi did not preclude the 

possibility of such an extension. See Abbasi, 137 S. Ct. at 

1860–64.

Nor has the Supreme Court barred extending Bivens

remedies to an immigration case. Although Abbasi could 

have stood for the broad proposition that Bivensremedies are 

not available in the context of immigration proceedings 

because of the sensitive nature of immigration policy, the 

Abbasi Court did not paint in such broad strokes; rather, it 

cabined its holding to suits against executive officials issuing 

policy responses to sensitive issues of national security. Id. 

at 1863. Abbasi made no statements about the general nature 
LANUZA V. LOVE 15

of immigration, low-level immigration officials, or the 

comprehensiveness of the INS’s remedial scheme.3

Nor is this case precluded by our precedent. The 

government argues that this action is foreclosed by 

Mirmehdi, where we declined to extend Bivens to claims 

challenging unlawful immigration detention. In that case, 

which closely mirrors the facts addressed in Abbasi,

petitioners Mohammad, Mostafa, Mohsen, and Mojtaba 

Mirmehdi (collectively the “Mirmehdis”) were originally 

detained for national security reasons and charged as 

supporters of an officially listed terrorist organization, the 

Mujahedin-e Khalq. 689 F.3d at 978–79. We concluded that 

the Mirmehdis were not entitled to Bivens damages because 

 3 In other contexts, the Supreme Court has declined to extend Bivens

remedies based on the special class of federal defendants or the 

sensitivity of government activity involved. See, e.g., Malesko, 534 U.S. 

at 63 (no Bivens action against private correctional corporation acting 

under color of federal law); F.D.I.C. v. Meyer, 510 U.S. 471, 473 (1994) 

(no Bivens action against a federal agency); United States v. Stanley, 

483 U.S. 669, 683–84 (1987) (no Bivens action for injuries arising out of 

or in the course of activity incident to military service); Chappell v. 

Wallace, 462 U.S. 296, 299–304 (1983) (same). It has also declined to 

extend Bivens if Congress has articulated a complex remedial scheme, 

even if there is no damages remedy available. See, e.g., Schweiker v. 

Chilicky, 487 U.S. 412, 414 (1988) (no Bivens action for an alleged dueprocess violation in connection with the denial of disability benefits 

because Congress did not provide for damages in its comprehensive 

remedial scheme); Bush v. Lucas, 462 U.S. 367, 368 (1983) (no Bivens

action where a federal employer commits a First Amendment violation 

because relief, even if incomplete, is available under a comprehensive 

statutory scheme). These cases do not preclude extending a Bivens 

remedy here because Love is not a member of a special class, there is no 

sensitive government information at issue, and the INA’s complex 

remedial scheme does not address the conduct at issue here. See infra

Part II.C.
16 LANUZA V. LOVE

they were able to challenge their detention through two 

different remedial systems: the immigration system and 

habeas relief. Id. at 982. We noted that “Congress’s failure 

to include monetary relief [in the INA] can hardly be said to 

be inadvertent, given that despite multiple changes to the 

structure of the [INA,] Congress never created such a 

remedy.” Id. (citing Schwieker, 487 U.S. at 423, 425). We 

also concluded that the Mirmehdis’ case implicated national 

security concerns, because allowing the Mirmehdis to pursue 

this lawsuit would result in disclosing “foreign-intelligence 

products.” Id. at 983 (citation omitted).

Without the benefit of Abbasi, the district court in this 

case agreed with the government’s argument that our 

decision in Mirmehdi precluded a Bivens remedy because it 

stood for the broad proposition that there can be no Bivens

remedy for any constitutional violation in the context of 

immigration proceedings, even while noting the obvious 

problems with such a reading.4 However, Abbasi makes 

clear that Mirmehdi does not, and cannot, stand for such a 

categorically broad proposition. Instead, we must look to the 

specific facts of this case and the claims presented. See 

Abbasi, 137 S. Ct. at 1859–60. Although Mirmehdi and this 

case both arise out of immigration generally, the similarities 

between Mirmehdi and Lanuza’s case end there. Mirmehdi 

relates to the detention of suspected terrorists, while 

 4 The district court correctly noted that “this analysis conflates the 

availability of procedures to challenge an immigration decision with the 

availability of protections to deter constitutional violations in the first 

instance.” The district court also correctly noted that under Mirmehdi, 

the simple fact that this is an immigration case does not mean that issues 

of national security, diplomacy or foreign policy are necessarily 

implicated.
LANUZA V. LOVE 17

Lanuza’s case concerns an individual attorney’s violation of 

his due process rights in a routine immigration proceeding.

Accordingly, precedent does not preclude providing a 

Bivens remedy here.

B.

Lanuza’s claim arises in the context of deportation 

proceedings where a federal immigration prosecutor 

submitted falsified evidence in order to deprive Lanuza of 

his right to apply for lawful permanent residence. We know 

of no other case that has discussed a Bivens remedy in this 

context.5 The conclusion that Lanuza’s case arises in a 

 5 We have addressed Abbasi’s new Bivens framework in five 

circumstances, including two published opinions, which are also 

distinguishable from this case. See Rodriguez v. Swartz, No. 15-16410, 

2018 WL 3733428 (9th Cir. Aug. 7, 2018) (extending a Bivens remedy 

to the mother of a child who was shot and killed on Mexican soil by an 

American agent standing on U.S. soil); see Vega v. United States, 881 

F.3d 1146 (9th Cir. 2018); see also Brunoehler v. Tarwater, No. 16-

56634, 2018 WL 3470210 (9th Cir. July 19, 2018) (unpublished) 

(declining to extend Bivens to claim for unlawful wiretapping); Zavala 

v. Rios, 721 F. App’x 720 (9th Cir. 2018) (unpublished) (declining to 

extend Bivens to claim challenging prison-wide policy regarding 

handling of unopened mail); Krug v. Pellicane, 703 F. App’x 558 (9th 

Cir. 2017) (unpublished) (dismissing Bivens action for failure to allege 

sufficient facts to prove First Amendment retaliation and not reaching 

new context analysis). In Vega, we declined to extend Bivens remedies 

to an action against private employees for alleged violations of Juan 

Vega, Jr.’s First and Fifth Amendment rights. 881 F.3d at 1147–48. 

Vega, a prisoner who was transferred to a residential reentry center to 

complete the remainder of his prison sentence, sued “federal and private 

employees [who] conspired to remove him from the halfway house . . .

ostensibly based on his race and for asserting his First Amendment 

rights, by filing a false incident report.” Id. at 1147. We concluded 

Vega’s claims would require expanding Bivens to a new context 

“because neither the Supreme Court nor we have expanded Bivens in the 
18 LANUZA V. LOVE

context meaningfully different is ineluctable. And it is likely 

for that reason that the district court, and both parties, agree.

C.

Because Lanuza’s claims arise in a new context, we must 

ask whether there are “special factors counselling hesitation 

in the absence of affirmative action by Congress.” Abbasi, 

137 S. Ct. at 1857 (quoting Carlson, 446 U.S. at 18). We 

conclude that the special factors articulated in Abbasi do not 

counsel against extending a Bivens remedy to the narrow 

claim here, where an immigration official and officer of the 

court forged and submitted evidence in a deportation 

proceeding to deprive an individual of his right to relief 

under congressionally enacted laws.

Abbasi clarifies the concept of “special factors” by 

focusing the inquiry on the separation of powers. Id. at 

1857–58. Abbasi’s special factors include: the rank of the 

officer involved; whether Bivens is being used as a vehicle 

to alter an entity’s policy; the burden on the government if 

such claims are recognized; whether litigation would reveal 

sensitive information; whether Congress has indicated that it 

does not wish to provide a remedy; whether there are 

alternate avenues of relief available; and whether there is 

adequate deterrence absent a damages remedy, among other 

factors. Id. at 1857–63. But the most important question for 

us to examine is “whether the Judiciary is well suited, absent 

congressional action or instruction, to consider and weigh 

the costs and benefits of allowing a damages action to 

proceed.” Id. at 1857–58. If “there are sound reasons to 

 context of a prisoner’s First Amendment access to court or Fifth 

Amendment procedural due process claims arising out of a prison 

disciplinary process.” Id. at 1153.
LANUZA V. LOVE 19

think Congress might doubt the efficacy or necessity of a 

damages remedy . . . the courts must refrain from creating 

the remedy in order to respect the role of Congress in 

determining the nature and extent of federal-court 

jurisdiction under Article III.” Id. at 1858. However, Abbasi 

makes clear that, though disfavored, Bivens may still be 

available in a case against an individual federal officer who 

violates a person’s constitutional rights while acting in his 

official capacity. See id. at 1857.

Applying Abbasi’s separation-of-powers principles to 

this case reveals that there are no “special factors” 

suggesting Bivens remedies should be unavailable. To 

begin, Lanuza does not challenge high-level executive 

action. The Abbasi Court stressed that “Bivens is not 

designed to hold officers responsible for acts of their 

subordinates.” Id. at 1860. “The purpose of Bivens is to 

deter the officer[,]” and thus a Bivens claim should be 

“brought against the individual official for his or her own 

acts, not the acts of others.” Id. (quoting F.D.I.C. v. Meyer, 

510 U.S. 471, 485 (1994)). Further, Bivens actions against 

high-ranking executive officers, such as the Director of the 

Federal Bureau of Investigation and the U.S. Attorney 

General in Abbasi, are disfavored because such suits “would 

call into question the formulation and implementation of a 

high-level executive policy, and the burdens of that litigation 

could prevent officials from properly discharging their 

duties.” Id. at 1849. As ICE Assistant Chief Counsel, Love 

was a low-level federal officer acting as the government’s 

attorney, not the U.S. Attorney General as in Abbasi. And 

strictly comporting with Bivens, Lanuza is suing Love for his 

own actions; he does not seek to hold anyone else, including 

high-level officials, accountable. Allowing a damages suit 

to proceed against Love therefore does not raise the same 

concerns on this score as were present in Abbasi.
20 LANUZA V. LOVE

Relatedly, Lanuza does not challenge or seek to alter the 

policy of the political branches. Cf. Abbasi, 137 S. Ct. at 

1860 (“[A] Bivens action is not ‘a proper vehicle for altering 

an entity’s policy.’” (quoting Malesko, 534 U.S. at 74)). 

While immigration officials have “broad discretion,” 

Arizona v. United States, 567 U.S. 387, 396 (2012), no one 

is arguing that the United States has a policy of allowing 

federal officers to submit forged government documents to 

thwart the integrity of immigration proceedings. To the 

contrary: when Love knowingly forged evidence, his actions 

violated the INA, which explicitly prohibits the submission 

of false evidence. See 8 U.S.C. § 1357(b) (making the 

submission of false evidence in immigration proceedings 

actionable under the federal criminal statute for perjury).

Love argues that all actions taken by immigration 

officials in the course of their duties—even criminal acts—

are necessarily intertwined with the execution of 

immigration policy. We decline to entertain such a broad 

reading of immigration law, as the illogical nature of such a 

reading is demonstrated by the absurdity of its results. If, for 

example, an immigration official physically forced himself 

on an asylum-seeker and offered to help her obtain relief if 

she kept quiet, we would have no trouble concluding that 

such criminal conduct bears no relationship to the legitimate 

execution of immigration policy. Likewise, we will not 

allow an officer of the immigration court to cloak himself in 

the government’s protection when he commits the crimes of 

forgery and perjury. Indeed, holding accountable an 

immigration official and officer of the court who engages in 

domestic criminal activity supports the enforcement of our 

immigration law in a manner consistent with the intent of the 

political branches.
LANUZA V. LOVE 21

Abbasi also advised against allowing suits against 

executive officials because “the burden and demand of 

litigation might well prevent them—or, to be more precise, 

future officials like them—from devoting the time and effort 

required for the proper discharge of their duties.” Abbasi, 

137 S. Ct. at 1860. Abbasi noted particular concern for cases 

in which discovery could reveal “the discussion and 

deliberations that led to the formation of the policy in 

question.” Id. at 1860–61 (citing Fed. Open Market Comm. 

v. Merrill, 443 U.S. 340, 360 (1979)). As this is a 

straightforward case against a single low-level federal 

officer, we are not concerned that this litigation will burden 

the Executive Branch to an unacceptable degree. Further, 

because the issues in this case involve facts the government 

itself made publicly available, this lawsuit will not require 

unnecessary inquiry or discovery into government 

deliberations or policy making. At most, allowing a lawsuit 

to proceed in this context would involve the “mere 

‘disclosure of normal domestic law-enforcement priorities 

and techniques,’” Mirmehdi, 689 F.3d at 983 (quoting Reno 

v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471, 490 

(1999))—although, since the facts are undisputed, discovery 

would likely not involve the disclosure of any sensitive 

government information at all. Indeed, Lanuza’s civil suit 

against Love will likely involve no more investigative 

intrusion than the criminal prosecution initiated against Love 

by the United States itself. Accordingly, the fact that the 

United States saw fit to prosecute Love further supports 

permitting this lawsuit to proceed.

Similarly, because this case relates only to routine 

immigration proceedings, expanding Bivens to this context 

does not threaten the political branches’ supervision of 

national security and foreign policy. Quoting our decision 

in Mirmehdi, Love argues that “immigration issues ‘have the 
22 LANUZA V. LOVE

natural tendency to affect diplomacy, foreign policy, and the 

security of the nation,’ which further ‘counsels hesitation’ in 

extending Bivens.” Mirmehdi, 689 F.3d at 982 (quoting Arar 

v. Ashcroft, 585 F.3d 559, 574 (2d Cir. 2009)). But Abbasi

and Mirmehdi involved Congressional and Executive 

Branch policy decisions in response to the biggest terrorist 

attack in our nation’s history. In contrast, the facts of this 

case show that immigration cases often do not implicate 

high-level policy decisions related to national security. 

Lanuza has no ties to terrorism and, as a run-of-the-mill 

immigration proceeding, his case is unrelated to any other 

national security decision or interest.

Nor is this a case that has garnered any executive or 

congressional attention. Compare this case with Hernandez 

v. Mesa, where, upon remand from the Supreme Court, the 

Fifth Circuit declined to provide Bivens remedies to the 

parents of a fifteen-year-old Mexican citizen who had been 

fatally shot by a federal law enforcement agent, in part 

because the United States and Mexican governments had 

engaged in “serious dialogue” regarding the events at issue 

in that case. 885 F.3d 811, 820 (5th Cir. 2018). Specifically, 

Mexico had requested the extradition of the law enforcement 

agent who shot Hernandez, and the United States had denied 

this request and refused to indict the agent. Id. The Fifth 

Circuit reasoned that “[i]t would undermine Mexico’s 

respect for the validity of the Executive’s prior 

determinations if, pursuant to a Bivens claim, a federal court 

entered a damages judgment against [the federal officer].” 

Id. Here, in contrast, there is no evidence that any executive 

official has taken an interest in Lanuza’s case, or that his 

situation has been the subject of diplomatic discussions 

between the United States and other sovereign nations. The 

constraints Lanuza seeks mirror the existing Executive 

Branch policy for federal immigration attorneys, and 
LANUZA V. LOVE 23

therefore a Bivens action in this context does not interfere 

with executive policy by “risk[ing] interference with foreign 

affairs and diplomacy more generally.” Id. at 819.

Even so, where, as here, the underlying statutory scheme 

does not provide a remedy for the injury, we must consider 

whether Congress’s failure to provide a damages remedy is 

“more than mere oversight” and that “congressional silence” 

is more than “inadvertent.” Abbasi, 137 S. Ct. at 1862

(quoting Schweiker, 487 U.S. at 423). Though the INA itself 

lacks a damages remedy, Congress was not silent. Indeed, a 

comprehensive review of the INA suggests that Congress 

intended federal criminal and civil laws outside of the Act 

itself to provide remedies for the misconduct at issue here. 

As discussed above, the subsection of the INA that addresses 

the “[p]ower of immigration officers and employees” 

specifically delegates punishment for submission of false 

evidence to 18 U.S.C. § 1621, the federal criminal statute for 

perjury. See 8 U.S.C. § 1357(b). Further, the INA addresses 

the “[p]erformance of [federal] immigration officer 

functions by [s]tate officers and employees” in 8 U.S.C. 

§ 1357(g)(8). Subsection 8 provides that any state employee 

“shall be considered to be acting under color of Federal 

authority for purposes of determining the liability, and 

immunity from suit, of the officer or employee in a civil 

action brought under Federal or State law.” Id. This 

demonstrates Congress contemplated that civil actions 

would be maintained against both federal immigration 

officers and state employees acting in the capacity of federal 

immigration officers when their actions allegedly violate the 

Constitution or other laws. In providing a Bivens remedy 

here, we are not attempting to imply “a private remedy” 

within the INA where “a cause of action does not exist.” 

Abbasi, 137 S. Ct. at 1856 (quoting Alexander v. Sandoval, 

532 U.S. 275, 286–87 (2001)) (citations omitted). Instead, 
24 LANUZA V. LOVE

we are “recogniz[ing] an implied cause of action to enforce 

a provision of the Constitution itself[,]” where “there is no 

single, specific congressional action to consider and

interpret.” Id. Congress indicated that such constitutional 

remedies may be pursued when federal immigration officials 

violate an individual’s constitutional rights.

While it is true that there has been “frequent and intense” 

congressional attention to immigration law generally, that 

congressional attention does not “suggest[] that Congress 

has provided what it considers adequate remedial 

mechanisms for constitutional violations” in this case. See 

Schweiker, 487 U.S. at 423, 425. There is no evidence that 

Congress has focused on the misconduct here—ICE 

attorneys intentionally manipulating evidence to deprive 

immigrants of rights under U.S. laws. To the contrary, 

Congress presumes that, as a general matter, federal 

employees faithfully execute federal law, and when they do 

not, Congress requires those employees be punished for such 

transgressions.6 8 U.S.C. § 1357(b).

Abbasi also counseled against allowing a Bivens remedy 

if there is an “alternative, existing process for protecting the 

 6 If Congress intended all actions taken by an officer while acting 

pursuant to the INA to be regulated by the INA itself in a separate court, 

it would have said so. Compare the INA with the Article 3(b) of the 

Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. §§ 801–946, 

codified at 10 U.S.C. § 803(b), which grants jurisdiction over certain 

criminal acts to military courts-martial. In the UCMJ, Congress 

specifically decided that the military would police itself. But when 

drafting the INA, it decided that traditional Article III jurisdiction was 

appropriate. Thus, unlike in the UCMJ, in the INA, “Congress ha[s] not 

foreclosed a damages remedy in ‘explicit’ terms.” Abbasi, 137 S. Ct. at 

1854 (quoting Bivens, 403 U.S. at 397).
LANUZA V. LOVE 25

[injured party’s] interest.” Abbasi, 137 S. Ct. at 1858 

(quoting Wilkie v. Robbins, 551 U.S. 537, 550 (2007) and 

citing Bush v. Lucas, 462 U.S. 367, 385–88 (1983); Malesko, 

534 U.S. at 73–74; and Minneci v. Pollard, 565 U.S. 118, 

127–130 (2012)).7 In Abbasi, the Court found that 

Congress’s silence, in conjunction with the plaintiffs’ ability 

to challenge the conditions of their confinement through a 

successful habeas petition, indicated that Congress intended 

for plaintiffs to use other judicially available forms of relief. 

Id. at 1862–63. But there are no such alternative remedial 

schemes available to Lanuza. The INA does not provide a 

remedy for actions by immigration officials that are designed 

to prevent individuals from accessing its lawful forms of 

relief. Lanuza was following the law, using the procedures 

Congress legislated, until his lawful pursuit of legal 

permanent resident status was criminally obstructed. Love’s 

submission of the forged I-826 form completely barred 

Lanuza from using the INA’s remedial scheme. The Act 

provides no remedial scheme for forgery if undiscovered. 

And to be sure, there are other individuals like Lanuza who 

may also be entitled to relief and who may not have obtained 

it for this very reason. While Lanuza was ultimately able to 

reopen his case, if Lanuza had not, by stroke of luck, found 

an exceptionally thorough immigration attorney, the forgery 

might never have been discovered and Lanuza would be 

 7 We note that in Vega and Rodriguez, this court viewed Wilkie’s 

test for whether there are “alternative remedial structure[s] present” as 

separate from Abbasi’s special-factors analysis. Vega, 881 F.3d at 1154; 

Rodriguez, No. 15-16410, 2018 WL 3733428, at *10 (9th Cir. Aug. 7, 

2018). We read Abbasi’s special-factors analysis as encompassing all 

circumstances that counsel against extending a Bivens remedy, including 

those addressed in Wilkie. Accordingly, we address the “alternative 

remedial structure[s]” question within our broader special-factors 

inquiry, but we emphasize that this variance is one of form, not 

substance.
26 LANUZA V. LOVE

deported and separated from his U.S. citizen wife and 

children. The system does not account for actions designed 

to circumvent it.

The government also argues that the $12,000 Love paid 

Lanuza in restitution pursuant to his criminal guilty plea is 

an alternative form of judicial relief. However, criminal 

prosecutions vindicate the government’s interests, not the 

interests of the victim. The victim does not choose whether 

to prosecute the case. As such, the criminal law is not an 

alternative remedial structure designed by Congress for 

individuals like Lanuza. When Lanuza discovered Love’s 

transgression, he had no right to force the government to 

prosecute; indeed the government declined to do so until 

Lanuza brought his Bivens action—after Lanuza’s 

immigration proceeding and long after the forgery was 

discovered. What is more, it is the judge, not the victim, who 

decides if and how much restitution is appropriate.8

With all of these factors in mind, we must now ask 

“whether the Judiciary is well suited, absent congressional 

action or instruction, to consider and weigh the costs and 

benefits of allowing a damages action to proceed.” Abbasi, 

137 S. Ct. at 1858. We recognize that “it is a significant step 

under separation-of-powers principles for a court to 

determine that it has the authority, under the judicial power, 

to create and enforce a cause of action for damages against 

federal officials in order to remedy a constitutional 

violation.” Id. at 1856. We do not take that step lightly. 

However, we conclude that doing so here is not an improper 

 8 Lanuza’s counsel represented at oral argument that he requested 

that Lanuza’s attorney’s fees and expenses be included in the restitution 

amount, but government counsel rejected the request, saying that Love 

and the government had agreed that the amount of restitution was “fair.”
LANUZA V. LOVE 27

intrusion into the decisions of other governmental branches 

where the factors discussed above all suggest that providing 

a damages remedy is consistent with congressional and 

executive policy. Although Congress is often better suited 

to finding a balance between deterrence of constitutional 

violations and the costs of allowing a lawsuit to proceed, we 

do not believe that finding “[t]he proper balance” in this case 

“is one for the Congress, not the Judiciary, to undertake.” Id. 

at 1863.

Judges are particularly well-equipped to weigh the costs 

of constitutional violations that threaten the credibility of our 

judicial system. Indeed, there are few persons better 

equipped to weigh the cost of compromised adjudicative 

proceedings than those who are entrusted with protecting 

their integrity. And, more often than not, the Judicial 

Branch, not Congress or the Executive, is responsible for 

remedying circumstances where a court’s integrity is 

compromised by the submission of false evidence. Thus, it 

falls within the natural ambit of the judiciary’s authority to 

decide whether to provide a remedy for the submission of 

false evidence in an immigration proceeding.

The consequences of allowing the submission of false 

evidence by government attorneys without repercussion 

extends beyond its effect on Lanuza. The magnitude of its 

societal injury was addressed in the government’s press 

release about Love’s conviction: “[D]efendants in 

immigration court have a ‘right to proceedings free from 

false and fabricated evidence knowingly presented against 

them. When that right is denied, a real harm is inflicted both 
28 LANUZA V. LOVE

on society, which loses faith that its government plays fair, 

and the individual who suffers directly.’”9

Accordingly, there are compelling interests that favor 

extending a Bivens remedy here, and, on balance, those 

interests outweigh the costs of allowing this narrow claim to 

proceed against federal officials. See Abbasi, 137 S. Ct. at 

1863. The legal standards for adjudicating this claim are 

well established and administrable. See Wilkie, 551 U.S. at 

555 (observing that “difficulty in defining a workable cause 

of action” may be a special factor). Lanuza’s claim for 

denial of procedural due process is a “workable cause of 

action.” Id. Whether the evidence was falsified, and 

whether it was submitted willfully, and whether the 

submission of that evidence deprived Lanuza of his right to 

due process, have definite answers, and we have “established 

methods” to come to these conclusions. Id. at 556. Indeed, 

the administration of Lanuza’s case is particularly

straightforward because it is undisputed that Love 

intentionally submitted forged documents, and therefore the 

only question remaining for the district court is determining 

the amount of damages to which Lanuza is entitled, an area 

where our courts have substantial experience.

Finally, we do not foresee a “deluge” of potential 

claimants seeking to avail themselves of this particular 

Bivens action. See Davis, 442 U.S. at 248 (rejecting 

argument that implying Bivens action would cause a deluge 

of claims). Recognizing a Bivens action here will produce 

 9 Ex-ICE Attorney Sentenced to Prison for Falsifying Document in 

Immigration Case (Apr. 20, 2016), https://www.ice.gov/news/releases/e

x-ice-attorney-sentenced-prison-falsifying-document-immigration-case

(quoting Assistant U.S. Attorney Matthew Diggs for the Western District 

of Washington).
LANUZA V. LOVE 29

widespread litigation only if ICE attorneys routinely submit 

false evidence, which no party argues is the case. And if this 

problem is indeed widespread, it demonstrates a dire need 

for deterrence, validating Bivens’s purpose. Moreover, a 

plaintiff seeking a Bivens remedy under this theory must 

allege sufficient facts to show that a federal official willfully 

submitted falsified evidence and the submission of this 

evidence resulted in a complete bar to relief to which the 

individual was otherwise entitled under congressionally 

enacted laws. Therefore, frivolous suits will not survive 

Ashcroft v. Iqbal’s heightened pleading requirements. 

556 U.S. 662, 678 (2009).

Because providing a Bivens remedy does not risk

improper intrusion by the judiciary into the functioning of 

other branches; the judiciary is well-equipped to weigh the 

costs and benefits of this case; the need for deterrence is 

substantial; and allowing a lawsuit to proceed will place little 

burden on the government, it is a proper use of our judicial 

power to allow this Bivens action to proceed.

III.

There can be no doubt that Love—who intentionally, and 

illegally, submitted falsified evidence in an immigration 

hearing—is not protected by qualified immunity, as the 

district court properly held.10 “Qualified immunity balances 

two important interests—the need to hold public officials 

accountable when they exercise power irresponsibly and the 

need to shield officials from harassment, distraction, and 

 10 The district court reasoned, “It should be obvious to any 

reasonable federal official that submitting false evidence in an 

immigration proceeding, or in any judicial or quasi-judicial proceeding 

for that matter, is unlawful and unconstitutional and would undermine 

the integrity of such a proceeding.”
30 LANUZA V. LOVE

liability when they perform their duties reasonably.” 

Pearson v. Callahan, 555 U.S. 223, 231 (2009). “The 

doctrine of qualified immunity shields officials from civil 

liability so long as their conduct ‘does not violate clearly 

established . . . constitutional rights of which a reasonable 

person would have known.’” Mullenix v. Luna, 136 S. Ct. 

305, 308 (2015) (per curiam) (quotations and citations 

omitted). Qualified immunity is not meant to protect those 

who are “plainly incompetent or those who knowingly 

violate the law.” Taylor v. Barkes, 135 S. Ct. 2042, 2044 

(2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 

(2011)). It cannot shield an officer from suit when he 

intentionally submits a forged document in an immigration 

proceeding in clear violation of 8 U.S.C. § 1357(b).11

IV.

For these reasons, we hold that a Bivens remedy is 

available here, where a government immigration attorney 

 11 Love alternatively argues Lanuza’s claim is time-barred because 

the three-year statute of limitations began to run when Lanuza first 

received the forged I-826 form in May 2009, instead of when Lanuza 

learned it may have been forged sometime in December/January 2011,

or when the forensic examiner confirmed it was forged in February 2012. 

A Bivens claim accrues when the plaintiff knows or has reason to know 

of the injury that forms the basis of his cause of action, see Wallace v. 

Kato, 549 U.S. 384, 388 (2007), or, in a case involving the submission 

of fabricated evidence, when the case is “fully and finally resolved,” 

Bradford v. Scherschligt, 803 F.3d 382, 388–89 (9th Cir. 2015). Under 

either analysis, Lanuza’s claim was timely. The argument that Lanuza 

should have known the I-826 form was forged the second he laid eyes 

on it is absurd. The form was provided by the government—a party 

normally thought to be trustworthy—which represented that it came 

from Lanuza’s A-file. Moreover, both the BIA and the immigration 

judge, who review these cases for a living, believed it was authentic. 

Lanuza should not be held to a higher standard.
LANUZA V. LOVE 31

intentionally submitted a forged document in an immigration 

proceeding to completely bar an individual from pursuing 

relief to which he was entitled. Failing to provide a narrow 

remedy for such an egregious constitutional violation would 

tempt others to do the same and would run afoul of our 

mandate to enforce the Constitution.

At its core, this case is about a lie, and all the ways it was 

used, over several years, to defraud the courts. Government 

attorneys are given great power, and with that power comes 

great responsibility. These attorneys represent the United 

States, and when they act, they speak for our government. 

“[T]he federal courts have an obligation to set their face 

against enforcement of the law by lawless means or means 

that violate rationally vindicated standards of justice, and to 

refuse to sustain such methods by effectuating them. . . .

Public confidence in the fair and honorable administration of 

justice, upon which ultimately depends the rule of law, is the 

transcending value at stake.” Sherman v. United States, 

356 U.S. 369, 380 (1958) (Frankfurter, J., concurring); see 

also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 

594 n.19 (1980) (Brennan, J., concurring) (quoting 

Sherman).

AFFIRMED IN PART, REVERSED IN PART, 

REMANDED.12

 12 Appellant’s motion for judicial notice (Docket no. 30) is 

GRANTED. Costs are awarded to Lanuza under FRACP 39(a)(4).