UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 96-10383

____________

ALEXANDER TITO HUMPHRIES,

Plaintiff-Appellant,

versus

VARIOUS FEDERAL USINS EMPLOYEES,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Texas

January 21, 1999

Before EMILIO M. GARZA, STEWART, and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Alexander Tito Humphries, proceeding pro se

, appeals from the district court’s dismissal of

his various civil rights and contract claims as frivolous under 28 U.S.C. § 1915(d), now designated

28 U.S.C. § 1915(e)(2)(B)(i). We affirm in part, reverse in part, and remand.

I

The complaint presently before us consists of numerous handwritten pages, submitted along

with various attachments in the form of what purport to be original documents and photocopies of-2-

such documents. The complaint as a whole is difficult to understand, but generally appears to allege

the following facts: In March 1986, Humphries, a citizen of Kenya, entered the United States on

a nonimmigrant visa. At some point during the next several years, Humphries began working for the

United States Customs Service (the “Customs Service”) as a confidential informant , provi di ng

undercover officers with various leads as to drug-related activ i ty. In November 1991, Humphries

traveled to Kenya under the supervision of the Customs Service in order to participate in a two-week,

undercover drug-buying operation. Humphries had intended to use some of this time to renew his

visa, which had expired earlier that year, but his supervisors kept him too busy to fill out the proper

paperwork. Humphries therefore returned from his trip without a valid visa to authorize his re-entry

into the United States. Federal Bureau of Investigation (“FBI”) agent Robert Dodge solved this

problem by paroling Humphries into the country “in the public interest.”

Following the November 1991 trip to Kenya, Humphries may ha ve left t he country and

returned as many as two or three times—on each occasion being paroled back into the United States

“in the public interest.” In May 1993, Humphries’ employment with the Customs Service appears

t o have ended, but the Immigration and Naturalization Service (“INS”) made no move to revoke

Humphries’ parole. Approximately one year later, in April 1994, Humphries began working with

both the INS and the FBI in an invest igation of Sunday Ukwu, a Nigerian national suspected of

importing heroin and forging immigration documents. At some point during the investigation,

Humphries became concerned that the gover n ment’s tactics amounted to entrapment. Humphries

voiced these concerns to his supervisors, but the government proceede d wit h t he investigation,

ultimately convicting Ukwu and several associates of bribing a public o fficial, immigration document

fraud, and conspiracy.1 “Exclusion” once referred to a denial of entry, while “deportation” referred to the expulsion of an alien already

residing within the United States. S ee Sale v. Haitian Ctrs. Council, Inc.

, 509 U.S. 155, 159, 113 S. Ct. 2549, 2552,

125 L. Ed. 2d 128 (1993). Aliens paroled into the country and subsequently required to leave were nevertheless termed

“excluded” rather than “deported” under the legal fiction that parolees remained “at the border” awaiting a decision

on adm issibility

. S ee id. at n.5. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (1996) (codified as amended in scattered sections of 8 U.S.C.),

abandoned this dichotomy and now refers jointly to both decisions as “removal.” See IIRIRA § 304(a)(7). We will

use either the old term “exclusion” or the new term “removal”, as appropriate.

2 Th e record is unclear as to whether Humphries was formally excluded, agreed to voluntarily depart, or

requested that the INS exclude him in lieu of being placed in detention. For present purposes, these distinctions are

irrelevant.

3 Nothing in the record before us indicates whether any party has been formally served with Humphries’

complaint. The INS was notified of Humphries’ appeal, and that agency did appear before us at oral argument.

-3- Following Ukwu’s conviction, th e INS, under George Putnam’s signature, filed an official

charging document known as an “I-122" against Humphries. The form provided written notice that

the INS was terminating Humphries’ parole and instituting exclusion 1 proceedings against him, based

on his lack of a valid visa. Humphries sought to persuade the INS that he was actively involved with

the Customs Service in an ongoing undercover investigation, but Special Agents Alex Nick and Ken

Kates contradicted these claims. Based on t he I-122, an Immigration Judge ordered Humphries

excluded from the United States.

Separate and apart from these factual allegations, the parties currently before us agree that

Humphries did in fact receive an order of exclusion from an Immigration Judge, and that after raising

various, unsuccessful legal challenges to this decision, Humphries left the United States for his home

country of Kenya on June 18, 1997. 2 Before leaving the United States, however, Humphries filed the

present complaint pro se in federal district court, alleging generally that various government officials,

including Dodge, Putnam, Kates, and Nick, 3 had conspired to deprive him of his constitutional rights.

The exact contours of these claims are difficult to discern, but the pleadings, l iberally construed,

indicate five general complaints. First, Humphries claims that various government agents deprived-4-

Sunday Ukwu of a fair trial, init ially by entrapping Ukwu and the n by perjuring themselves on the

stand at his trial (“entrapment” claim). Second, Humphries complains that he was forced to work for

the INS under threats of deportati on in violation of the Thirtee nt h Amendment (“involuntary

servitude” claim). Third, Humphries claims that he was mistreated and subjected to various

constitutional violations while in detent io n awaiting exclusion (“mistreatment while in detention”

claim). Fourth, Humphries claims that his parole was revoked and exclusion proceedings begun in

direct retaliation for his speaking out about the agencies’ entrapment of Ukwu (“retaliatory exclusion”

claim). Fifth, Humphries claims that the government made various oral contracts with him as to how

he would be paid and what benefits he would receive at the end of the Ukwu investigation (“breach

of contract” claim). In terms of requested relief, Humphries’ complaint makes vague references to

the injustice of Humphries’ then-impending exclusion, but is explicit in seeking damages for each of

the above claims as well as specific performance for certain of the alleged contracts.

The district court assigned the case to a magistrate judge, who characterized the complaint

as a request for damages resulting from a “wrongful deportation.” Based on that characterization,

the magistrate judge recommended dismissing the c o mplaint as frivolous in light of H eck v.

Humphrey , 512 U.S. 477, 487, 114 S. Ct. 2364, 2372, 129 L. Ed. 2d 383 (1994) (holding that no

cause of action exists under § 1983 for actions that, if proven, would “necessarily imply” the invalidit y

of an underlying conviction or sentence, unless t hat conviction or sentence is first properly

invalidated, either on appeal or through habeas). The district court followed this recommendation

and adopted the opinion of the magistrate judge as its own. Following Humphries’ timely appeal, we

recognized that the question of whether we should apply the ra tionale of Heck in the context of

exclusion is an issue of first impression in this Circuit. We therefore appointed counsel to argue this4 Prior to the passage of the PLRA, § 1915(d) simply provided that a court “may dismiss [a] case [brought in

forma pauperis ] if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” 28 U.S.C.

§ 1915(d) (1988). The corresponding portion of § 1915(e) now provides:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

dismiss the case at any

time if the court determines that—

(A) the allegation of poverty is untrue; or

(B) the action or appeal—

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2). Because on remand the district court may y et determine that Humphries’ remaining claims

are frivolous, we need not address the applicability of the new § 1915(e)(2)(B)(ii) or (iii). S ee McCormick v. Stalder

, 105 F.3d 1059, 1061 (5th Cir. 1997) (reviewing the dismissal as one under § 1915(d) although the PLRA was in effect

at the time of appeal).

-5- issue on Humphries’ behalf before the court.

II

Because the district court dismissed this case as frivolous under 28 U.S.C. § 1915(d), now

designated 28 U.S.C. § 1915(e)(2)(B)(i) by § 804 of the Prison Litigation Reform Act (“PLRA”),

Pub. L. No. 104-134, 110 Stat. 1321 (1996), 4 we review the dismissal only for an abuse of discretion.

See McCormick v. Stalder , 105 F.3d 1059, 1061 (5th Cir. 1997). In determining whether a district

court abused its discretion, we consider factors such as “whether (1) the plaintiff is proceeding pro

se

, (2) the court inappropriately resolved genuine issues of disputed fact, (3) the court applied

erroneous legal conclusions, (4) the court has provided a st atement of reasons which facilitates

‘intelligent appellate review,’ and (5) any factual frivolousness could have been remedied through a

more specific pleading.” Moore v. Mabus , 976 F.2d 268, 270 (5th Cir. 1992).

Humphries urges that we find an abuse of discretion here because the distri ct court’s

application of Heck in this context is both legally inco rrect and factually irrelevant. In H eck

, the

Supreme Court held that in order to state a claim under § 1983 for a constitutional violation that, if5 We have applied Heck previously in a multitude of situations, see, e.g., Stephenson v. Reno

, 28 F.3d 26, 27

(5th Cir. 1994) ( Bivens actions); Littles v. Bd. of Pardons and Paroles Div.

, 68 F.3d 122, 123 (5th Cir. 1995) (parolerevocation proceedings); J ackson v. Vannoy

, 49 F.3d 175, 177 (5th Cir. 1995)(probation-revocation proceedings);

cf. Edwards v. Balisok

, 520 U.S. 641,

___, 117 S. Ct. 1584, 1588, 137 L. Ed. 2d 906 (1997) (disciplinary proceedings

involving the deprivation of good-time credits), although never in the context of removal.

-6- proven, would imply the invalidit y of a criminal conviction or sentence, one first must demonstrate

that some proper tribunal has held the conviction or sentence invalid. S ee Heck

, 515 U.S. at 486-87,

114 S. Ct. at 2372. Applying this rationale in the context of immigration law, the district court

determined that in order to state a cause of action for a constitutional violation that, if proven, would

imply the invalidity of an exclusion order, one first must demonstrate that some proper tribunal has

held the order invalid. Humphries claims that this holding stretches H eck beyond its underlying

principles 5 and that, in any event, most of his claims have no legal relationship to his order of

exclusion.

The government , o n the other hand, refuses to differentiate among any of Humphries’

individual claims, instead relying on the district court’s characterization of the complaint as

challenging solely the validity of Humphries’ exclusion order. On that basis, the government argues

that (1) Humphries’ claim is moot in light of the fact that he was excluded at his own request on June

18, 1997, (2) even assuming a live controversy, Congress’ recent amendments to the Immigration and

Naturalization Act (“INA”) deprive us of jurisdiction over Humphries’ claims, and (3) assuming

jurisdictio n, the di

strict court nevertheless correctly applied H eck in dismissing Humphries’ complaint.

Aft er addressing elementary issues of standing and jurisdiction, we will consider in turn the

government’s arguments regarding the re quested injunctive relief, jurisdiction under the amended

INA, and the applicability of Heck v. Humphrey

.

III-7- A

Humphries’ claim of entrapment alleges generally that various government o fficials conspired

to entrap Sunday Ukwu and deny him a fair trial. Humphries has articulated no concrete, personal

injury fairly traceable to this behavior, see Lujan v. Defenders of Wildlife

, 504 U.S. 555, 560-61, 112

S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992), and we therefore hold that the district court did not

abuse its discretion in dismissing this claim as frivolous.

B

Humphries’ claims of breach of contract allege that Agents Putnam and Dodge made various

agreements in exchange for Humphries’ services as an informant. For these alleged agreements to

prove enforceable, Agents Putnam and Dodge must have been acting in their o fficial, as opposed to

their individual, capacity. See Whiteside v. United States

, 93 U.S. 247, 257, 23 L. Ed. 882 (1876)

(noting that the government is generally not bound by the unauthorized actions of its agents) (citing

S TORY ’ S A GENCY (6th ed.) § 307(a)). A contract suit against a government agent in his official

capacity, however, is nothing more than a suit directly against the sovereign—permissible only within

the limit ed confines of the Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491. S ee Ware v. United States

,

626 F.2d 1278, 1286-87 (5th Cir. 1980) (noting that the Tucker Act constitutes a limit ed waiver of

sovereign immunit

y for contract claims against the United States government). Moreover, “[t]he law

of this circuit is clear [that] the Court of Claims has exclusive jurisdiction of a Tucker Act claim in

excess of $10,000.” I

d. at 1287. Because Humphries requested $65,000 as “money owed for his

participa t ion in the case [of Sunday Ukwu],” the district court had no jurisdiction to entertain

Humphries’ claims for breach of contract. I d. Accordingly, we find no abuse of discretion in the

district court’s dismissal of these claims as frivolous. S ee, e.g., Oltremari v. Kansas Soc. &-8-

Rehabilitative Serv.

, 871 F. Supp. 1331, 1333 (D. Kan. 1994) (“A complaint is frivolous within the

meaning of § 1915(d), if its subject matter is outside the jurisd iction of the court.”); J ohnson v.

Eastern Band Cherokee Nation

, 718 F. Supp. 6, 6 (N.D.N.Y. 1989) (“When a court does not have

jurisdiction to hear an action, the claim is considered frivolous.”).

IV

With regard to Humphries’ remaining claims of involuntary servitude, mistreatment while in

detention, and retaliatory exclusion, we agree with the INS that to the extent these claims seek

injunctive relief against Humphries’ exclusion, they are m oot. On June 18, 1997, Humphries left the

United States for Kenya, and no order of this court can reverse that event. See Marilyn T., Inc. v.

Evans , 803 F.2d 1383, 1384-85 (5th Cir. 1986) (holding an appeal from a denial of a preliminary

injunction moot because “‘[n]o order of [the court] could affect the parties’ rights with respect to the

injunction we are called upon to review’”) (quoting Honig v. Students of the Cal. Sch. for the Blind

,

471 U.S. 148, 149, 105 S. Ct. 1820, 182 1, 85 L. Ed. 2d 114, 116 (1985)). To the extent that

Humphries seeks other relief for the violations alleged in his complaint, we must address whether we

retain jurisdiction over any of these claims in light of Congress’ recent amendments to the

Immigration and Naturalization Act. C f. Henschen v. City of Houston

, 959 F.2d 584, 587 (5th Cir.

1992) (holding that the mooting of appellants’ request for injunctive relief did not necessarily moot

appellants’ claim for money damages).

V

On September 30, 1 996, after the entry of Humphries’ final order of exclusion and after

Humphries filed the present civil suit, Congress passed the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (1996), significant ly-9-

restructuring the scope of judicial review of immigra t io n decisions. Specifically, § 306(a)(2) of

IIRIRA, now codified at 8 U.S.C. § 1252, provides that aliens may obtain direct judicial review of

remo val decisions only by filing a petition for review in the relevant Circuit Court of Appeals. 8

U.S.C. § 1252(a) (“Judicial review of a final order of removal . . . is governed only by chapter 158

of Title 28 [providing generally for the review of agency action through a petition filed directly in the

court of appeals].”). Certain portions of the statute also provide limited avenues for collateral review

of such decisions. See

, e.g.

, 8 U.S.C. § 1252(b)(7) (providing that certain criminal defendants may

collaterally challenge the validity of an order of removal through a pre-trial motion). Subsection (g)

solidifies this structure by mandating that “except as provided in this section and notwithstanding any

other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of

any alien arising from the decision or ac t io n by the Attorney General to commence proceedings,

adjudicate cases, or execute removal orders against any alien und er this chapter.” 8 U.S.C. §

1252(g).

Humphries does not dispute that § 1252 applie s ret ro actively to his complaint, and indeed

Congress stated explicitly in § 306(c)(1) of IIRIRA that subsection (g) applies “without limitation to

claims arising from all past, pending, or future exclusion, deportati on or removal proceedings.” S ee

American-Arab Anti-Discrimination Comm. v. Reno

, 119 F.3d 1367, 1371 (9th Cir. 1997) (noting

that “because IIRIRA [explicitly provides for] the retroactivity of the relevant jurisdictional provision,

we need not apply the default rules elaborated in Landgraf v. USI Film Prods.

, 511 U.S. 244, 280-81,

114 S. Ct. 1483, 1505, 128 L. Ed. 2d 229 (1994)); Thomas v. INS

, 975 F. Supp. 840, 845 (W.D.

La. 1997). Humphries does dispute the relevance of this provision to his particular claims. Initially,

Humphries points us to the title of the provision, “Judicial Review of Orders of Removal,” and argues6 We express no opinion on the extent to which other federal statutes (most notably 28 U.S.C. § 2241) might

limit the application of § 1252(g). C ompare Yang v. INS

, 109 F.3d 1185, 1195 (7th Cir.), cert. denied

,

___ U.S.

___, 118 S. Ct. 624, 1 39 L. Ed. 2d 605 (1997) (holding that § 1252 “abolishes even review under section 2241"), w ith

American-Arab Anti-Discrimination Comm.

, 119 F.3d at 1374 (noting that “[s]ome form of statutory habeas relief may

remain available”).

7 Subsection (a) governs petitions for review of final orders of removal; subsection (b) sets out certain

procedural requirements applicable to the review of an order of removal under subsection (a); subsection (c) sets out

additional procedural requirements applicable to both petitions for review and petitions for habeas corpus; subsection

(d) mandates that aliens exhaust their administrative remedies before appealing a final order of removal, and attempts

to prevent repetitious litigation of the validity of such orders; subsection (e) relates to judicial review of orders under

§ 1225(b)(1), authorizing the Attorney General to grant asylum to aliens meeting certain criteria; subsection (f) places

limits on the degree to which federal courts may enjoin the operation of the present statute. 8 U.S.C. § 1252.

-10- that this section purports to govern only “direct” ju dicial review of removal orders, leaving other

actions that might collaterally attack such an order (such as a civil damages action) outside its scope.

The language of § 1252 itself belies this interpretation. Subsection (c) explicitly applies bo t h to

petitions for review—by which an alien can directly attack a rem oval

order—and to peti ti ons for

habeas corpus—by which an alien might collaterally attack such an order. See 8 U.S.C. § 1252(c)

(“A petition for review or for habeas corpus of an order of removal shall . . .”). In addit io n,

subsection (b)(7)(A) provides for a collateral challenge to a removal order through a criminal

proceeding. S ee 8 U.S.C. § 1252(b)(7)(A). In light of these provisions, we cannot say that § 1252

generally purports to regulate only direct challenges to a removal order. Any attempt to challenge

such an order, therefore, whether direct or collateral, must either find authorization in § 1252(a)-(f)

or be precluded to the extent that § 1252(g) applies. 6

Init ially, we note that nothing in subsections (a) through (f) contemplates an alien challenging

his removal through a civil damage action against the INS or its officials. 7 The question then becomes

whether Humphries’ remaining claims do in fact challenge his removal, or, more precisely, whether

those claims “aris[e] from the decision or action of the Attorney General to commence proceedings,

adjudicate cases or execute removal orders.” 8 U.S.C. § 1252(g).-11- A

In determ ining whether any of Humphries’ remaining claims—for involuntary servitude,

mistreatment while in detention, or retaliatory exclusion—“aris[e] from” certain decisions or actions,

w e find lit t le assistance in the precise language of the statute. Congress has provided no explicit

definition of the phrase “arising from,” and courts have not al ways agreed on its plain meaning.

Compare Continental Cas. Co. v. City of Richmon d , 763 F.2d 1076, 1080 (9th Ci r. 1985)

(characterizing “arising out of” as “words of much broader significa nce than ‘caused by’ [and]. . .

ordinarily understood to mean ‘originating from’ ‘having its origin in,’ ‘growing out of’ or ‘flowing

from’ or in short, ‘incident to, or having connection with’”) (quoting Red Ball Motor Freight, Inc.

v. Employers Mut. Liab. Ins. Co. , 189 F.2d 374, 378 (5th Cir. 1951)), w ith Chedid v. Boardw alk

Regency Corp.

, 756 F. Supp. 941, 943 (E.D. Va. 1991) (noting that the “plain meaning” of the phrase

“arising from” is “caused by,” requiring an e l ement of causation greater than “simple ‘but-for’

causation,” and “something [more] akin to legal or proximate causation”) (citing Pizarro v. Hoteles

Concorde Int’l C.A.

, 907 F.2d 1256, 1259 (1st Cir. 1990)). As a general matter, “arising from” does

seem to describe a nexus somewhat more tight than the also frequently used phrase “related to.” S ee

,

e.g.

, Helicopteros Nacionales de Columbia, S.A. v. Hall

, 466 U.S. 408, 104 S. Ct. 1868, 80 L. Ed.

404 (1984) (Brennan, J., dissenting) (suggesting that there is a “subst antial difference” between a

requirement that a cause of action “formally ‘arise out of’ specific activities” and a requirement that

a cause of action merely “relate to” those activities); c ompare American Guar. & Liab. Ins. Co. v.

1906 Co.

, 129 F.3d 802, 807 (5th Cir. 1997) (concluding that “the phrase ‘arising out of’ the ‘use’

of the designated premises requires that there be a causal connection between the injuries [alleged]

. . . and the designated premises”), with Shaw v. Delta Air Lines, Inc.

, 463 U.S. 85, 96-97, 103 S.-12-

Ct. 2890, 2900, 77 L. Ed. 2d 490 (1983) (holding that a law “relates to” an employee benefit plan

within the meaning of ERISA’s preemption provision “if [the law] has a connection with or reference

to such a plan”). The exact contours of the required nexus are nevertheless difficult to discern. S ee

,

e.g.

, Mid Century Ins. Co. v. Lindsey , 942 S.W.2d 140, 145 (Tex. App. 1997) (writ granted April

14, 1998) (acknowledging that the phrase “arise out of” does not require a relationship of proximate

cause, but noting that “[c]ourts have applied at least six different tests for determining whether [the

proper] causal connection” exists).

Given the nature of Humphries’ claims, however, we need not struggle here to definit ively

construe the precise meaning of the phrase “arising from” as that term is used in § 1252(g). Instead,

we focus for present purposes on the relatively unobjectionable ends of the spectrum along which a

more precise, clearly ascertainable definition of “arising from” lies. At one end of that spectrum we

find claims clearly not included within the definition of “arising from,” i.e.

, those claims with no more

t han a weak, remote, or tenuous connection to a “decision or action by the Attorney General t o

commence proceedings, adjudicate cases, or execute removal orders.” Cf. Eaglin v. United States

Dept. of Army

, 794 F.2d 981, 984 (5th Cir. 1986) (holding that plaint iff’s claim did not “arise in” the

United States for purposes of establishing subject-matter jurisdiction under the Federal Tort Claims

Act “because the nexus between her claim and any act or omission in the United States is simply too

tenuous and remote”) (f

ootnote omitted); Franchi se Tax Bd. v. Construction Laborers Vacation

Trust

, 463 U.S. 1, 27 n.32, 103 S. Ct. 2841, 2855 n.32, 77 L. Ed. 2d 420 (1983) (“The connection

between appellant’s causes of action and a . . . trust agreement [allegedly covered by § 301] is too

attenuated for us to say that [these causes of action] ‘arise[] under’ § 301.”). At the other end of the

spectrum we find claims that clearly are included within the definition of “arising from,” i.e. , those-13-

claims connected directly and immediately with a “decision or action by the A ttorney General to

commence proceedings, adjudicate cases, or execute removal or ders.” C f. Laredo Offshore

Constructors, Inc. v. Hunt Oil Co.

, 754 F.2d 1223, 1225 (5th Cir. 1985) (holding that “insofar as the

alleged breach of contract relates directly to platform construction, the controversy is one ‘arising out

of, o r in connection with’ an operation [covered by] the Outer Continental Shelf Lands Act”);

Fireman’s Fund Ins. Co. v. National Bank of Coops.

, 103 F.3d 888, 894 (9th Cir. 1996) (noting that

even when one interprets “arising out of” to require only a standard of “but for” causation, “a lawsuit

arises out of a defendant’s conta ct s wit h the forum state if a direct nexus exists between those

contacts and the cause of action”); Mantello v. Hall , 947 F. Supp. 92, 100 (S.D.N.Y. 1996) (“For

a tort claim to arise out of [the] transact io n of business in New York, the connection between the

transaction and the claim must be direct.”). Thus, by defining the ends of this spect rum, we may

dispose of the remainder of Humphries’ claims.

1

Humphries’ involuntary servitude claim alleges th at the INS and the FBI “coer[c]ed

[Humphries] on several occasions with threats of deportati on if [he] did not conti nue to work f or

them.” See United States v. Kozminski

, 487 U.S. 931, 948, 108 S. Ct. 2751, 2762, 101 L. Ed. 2d

788 (1988) (“[I]t is possible that threatening

. . . an immigrant with deportati on could constitute the

threat of legal coercion that induces involuntary servitude [as defined by the Thirteenth

Amendment]. ”). Alt ho ugh the heart of this complaint rests somewhat on Humphries status as a

discretionary parolee—in the sense that this status provided the agents with the power to back up

their alleged threats—the question of whether this claim “aris[es] from the decision or action by the

Attorney General to commence proceedings, adjudicate cases, or execute removal orders” is simpler,8 Ranging from trivial to serious, these cl aims run the gamut from allegations that Humphries’ cell was not

provided with a proper mattress to claims that prison officials intentionally placed Humphries in phy sical danger by

forcing him to share a cell with relatives and associates of the people he had helped convict. Significantly , Humphries

does not appear to challenge the fact of his confinement, separate and apart from his claims that the exclusion itself

was unconstitutionally retaliatory.

-14- perhaps, than it appears. For at the time this claim arose, i .e

., when the threats were allegedly made

and Humphries allegedly began working under coercion, the Attorney Ge neral, through her

subordinates, had yet to commence proceedings against Humphries, much less adjudicate his case or

execute a r emoval order against him. Indeed, as we discuss below in relation to Humphries

retaliatory exclusion claim, proceedings against Humphries did not commence until aft er Ukwu’s

conviction, and even then, according to Humphries, only because the agents became frustrated with

Humphries’ outspoken criticism of Ukwu’s trial—not because the agents were carrying out a threat

related to Humphries’ refusal to work. Viewed in this light, we would defy logic by holding that a

claim for relief somehow “aris[es] from ” decisio ns and actions accomplished only after the injury

allegedly occurred. Accordingly, we find that Humphries’ claim for involuntary servitude does not

“aris[e] from the decision or action of the Attorney General to commence proceedings, adjudicate

cases, or execute removal orders,” and that § 1252(g) therefore presents no bar to the adjudication

of this claim.

2

As for Humphries’ allegations of mistreatment while in detention, 8 these claims bear no more

than a remote relationship to the Attorney General’s decision to “e xecut e [Humphries’] removal

order.” Naturally, Humphries would not have been subjected to the alleged mistreatment had the

decision not been made to place Humphries in detention while awaiting exclusi on. Yet as one

Supreme Court Justice aptly noted, “[l]ife is too short to pursue every human act to its most remote9 To whatever extent future panels may interpret § 1252 to limit these other avenues of relief, this court may

find itself confronted with the precise problem raised but avoided by the Supreme Court in Webster v. Doe

, 486 U.S.

592, 603, 108 S. Ct. 2047, 2053, 100 L. Ed. 2d 632 (1988) (noting that a “‘serious constitutional question’

. . . would

-15- consequences; ‘for want of a nail, a kingdom was lost’ is a commentary on fate, not the statement

of a major cause of action against a blacksmith.” H olmes v. Securities Investor Protection Corp.

, 503

U.S. 258, 287, 112 S. Ct. 1311, 1327, 117 L. Ed. 2d 532 (1992) (Scalia, J., concurring). Similarly,

the fact that Humphries would never have suffered the alleged injuries had he never been placed in

detention tells us more about fate than the origins of Humphries’ cause of action. Thus, whatever

the precise contours of “arising from” as that phrase is used in § 1252(g), it does not encompass a

connection so remote as having been placed in a situation in which certain third parties subsequently

cause an alleged injury.

3

Humphries’ claim for retaliatory exclusion, however, proves more problematic. This claim

alleges that various INS agents conspired to exclude Humphries in retaliation for the exercise of his

First Amendment rights—particularly his vocal criticism of the government’s investigatory tactics

with regard to Sunday Ukwu. However broadly or narrowly we might interpret § 1252(g), this claim

bears more than a cursory relationship to the Attorney General’s decision to exclude Humphries.

Indeed, in addition to being a significant and important event in the chain of causation leading to

Humphries’ alleged unconstitutional exclusion, the Attorney General’s decision to place Humphries

in exclusion proceedings appears to provide the most direct, immediate, and recognizable cause of

Humphries’ injury. Pursuant to § 1252(g), we therefore have no jurisdiction to entertain Humphries’

allegations that the INS excluded him in violation of the First Amendment. Aliens wishing to raise

such challenges in the future should do so either in a petition for review or for habeas corpus. 9arise if a federal statute were construed to deny any judicia l forum for a colorable constitutional claim”). S ee also

McNary v. Haitian Refugee Ctr., Inc.

, 498 U.S. 479, 493, 111 S. Ct. 888, 896-97, 112 L. Ed. 2d 1005 (1991) (“Because

the administrative appeals process does not address the kind of procedural and constitutional claims [brought] in this

action, limiting judicial review of these claims to [a review of that administrative process] is not contemplated by the

language of [§ 210(e)(3)(A) of the amended INA].”). This issue is not before us today, and we therefore do not address

it.

10 The dissent argues that “§ 1252(g) of 8 U.S.C. may not be read to deny an alien a judicial forum for a

colorable constitutional claim for money damages under Bivens bas ed on the violation of the alien’s constitutional

rights by federal agents acting under color of federal law.” We note simply that in enacting § 1252, Congress removed

jurisdiction from the district courts and consolidated judicial review into the court of appeals. S ee Richardson v. Reno

, No. 98-4230, 1998 WL 889376, at *10-12 (11 th Cir. Dec. 22, 1998)(noting that “Congress stric tly regulated the

exclusive mode and timing of judicial review in order to remove overlapping jurisdiction and to prevent dilatory tactics

previously used to forestall departure of aliens”). Any constitutionally required judicial review of Humphries’ claims

can occur in the form of a petition for review in the court of appeals. S ee 8 U.S.C. § 1252(b); see also Massieu v.

Reno

, 91 F.3d 416, 424-26 (3d Cir. 1996)(dismissing alien’s complaint alleging irreparable selective enforcement in

retaliation for an exercise of F irst Amendment rights, noting that alien had failed to exhaust his administrative

remedies, and that “[a]lthough the immigration judge is not authorized to consider the constitutionality of the statute,

this court can hear the challenge upon completion of the administrative proceedings under INS v. Chadha ”)(citing INS

v. Chadha

, 462 U.S. 919, 938, 103 S. Ct. 2764, 2777, 77 L. Ed. 2d. 317, __ (1983)). The language of § 1252(g) is

plain and unambiguous: “Except as provided in this section and notwithstanding any other provision of law, no court

s hall have jurisdiction to hear any cause or claim on behalf of any alien arising from the decisi on or action by the

Attorney Genera l . . . .” 8 U.S.C. § 1252(g). In light of Congress’s plenary power over matters concerning

immigration, we will not ignore this statutory mandate in an effort to preserve Humphries’ constitutional claims. S ee

Reno v. Flores

, 507 U.S. 292, 305, 113 S. Ct. 1439, 1449, 121 L. Ed. 2d 1, __ (1993)(“[T]he responsibility for

regulating the relationship between the United States and our alien visitors has been committed to the political branches

of the Fede ral Government. . . . [O]ver no conceivable subject is the legislative power of Congress more

complete”)(internal citations omitted).

-16- B

In summary, we have merely delineated the outer boundaries of “arising from” as Congress

used that term in § 1252(g). We have determined that § 1252(g) permit s the adjudication of

Humphries’ claims for involuntary servitu de and mistreatment while in detention, but forbids the

exercise of jurisdiction over Humphries’ claim for retaliatory exclusion. 10

VI

Because we retain jurisdict io n over Humphries’ claims for involuntary servitude and

mistreatment while in detention, we now briefly dispose of the government’s argument that Heck v.

Humphrey provides sufficient support for an affirmance of the district court’s judgment as to these1 1 Although at first blush, it may seem that no claim surviving the gauntlet of § 1252(g) would then be precluded

by an application of Heck v. Humphrey

, we are unprepared at this juncture to make such a holding. Inspired by

Edwards v. Balisok , ___ U.S. ___, 117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997) at least one scenario comes to mind in

which Heck may bar a claim over which we retain jurisdiction under § 1252(g). An alien whose claim arises from INS

misconduct during an exclusion proceeding, for instance, may be able to invoke our jurisdiction despite § 1252(g), but

because that error may in fact impugn the validity of the underly ing proceeding, Heck may prove relevant. See id.

1 2 In its brief, however, the INS maintained that all of Humphries’ claims, with the exception of those alleging

breach of contract, were barred by Heck

.

-17- claims under § 1915(d). H eck itself provides for preclusio n o f o nly those claims that, if proven,

would necessarily imply the invalidit y of a conviction or sentence. See Heck , 512 U.S. at 487, 114

S. Ct. at 2372. Similarly, even if H eck were to apply in the context of immigration orders, it would,

by analogy, bar only those claims that “necessarily imply” the invalidit y of an INS or BIA order. I d.

Assuming arguendo that Hump h ries were to recover damages for the alleged involuntary

servitude as well as the alleged mistreatment while in detention, these judgments would in no way

imply the invalidit

y of Humphries’ detention or exclusion. S ee 8 U.S.C. § 1182(a)(7)(B)(i)(II)

(authorizing the exclusion of nonimmigrants “not in possession of a valid nonimmigrant visa . . . at

the time of application for admission”); c f. Edwards v. Balisok

, 520 U.S. 641,

___, 117 S. Ct. 1584,

1588-89, 137 L. Ed. 2d 906 (1997) (holding that Heck applies when the procedural defects alleged

to have occurred in a relevant proceeding are so severe as to “necessarily imply” the complete

invalidit y of the proceeding). Indeed, as articulated above, these remaining claims have no meaningful

relationship to those decisions or actions rele v ant to Humphries’ immigration status. 11 The INS

conceded as much at oral argument, at least with respect to Humphries’ claims for mistreatment while

in detention. 12 C

f. Hamilton v. Lyons

, 74 F.3d 99 (5th Cir. 1996) (holding that Heck does not render

a prisoner’s claim challenging the conditions of his confinement uncognizable under § 1983).

We will not examine the legal applicability of Heck v. Humphrey to immigration orders when13 But see United States v. Real Property Located at 14301 Gatew ay Blvd. West, 123 F.3d 312, 314 (5th Cir.

1997) (Garza, J., specially concurring) (indicating that Degen was ill-considered and should be overruled, particularly

in light of the ease and regularity with which residents of border communities in the southwestern United States cross

into Mexico——a journey more akin to “visiting another part of town [than] another nation”).

-18- no factual basis appears for that application. We therefore hold that the di stri ct court erred i n

determining that Heck v. Humphrey renders Humphries’ claims for involuntary servitude and

mistreatment while in detention frivolous under § 1915(d). Because the district court provided no

other basis on which to find these claims frivolous, and none appears obvious from the record, these

claims are remanded to the dis t rict co urt for further proceedings consistent with this opinion. On

remand, the district court may revisit the issue of frivolousness to the extent that its reasoning is not

explictly foreclosed by the present opinion.

VII

In summary, the district court’s dismissal of Humphries’ clai m s with regard to the alleged

entrapment of Sunday Ukwu, the government’s alleged b r each of contract, and the government’s

alleged retaliatory exclusion is AFFIRMED, although on different grounds than those articulated by

the district court; the district court’s decision to dismiss Humphries’ claims for involuntary servitude

and mistreatment while in detention is REVERSED, and these claims REMANDED for further

proceedings in accordance with this opinion. The government’s motion to strike Humphries’ appeal

b ecause of his alleged fugitive status prior to leaving for Kenya is DENIED. S ee Degen v.U nited

States , 517 U.S. 820, ___, 116 S. Ct. 1777, 1782-83, 135 L. Ed. 2d 102 (1996). 13-19-

DENNIS, Circuit Judge, concurring in part and dissenting in part:

I concur in parts I through III B of the majority opinion. I

also concur in the majority opinion’s decree insofar as it affirms

the district court’s dismissal of Humphries’ entrapment and breach

of contract claims, reverses the district court’s dismissal of his

involuntary servitude and mistreatment claims, and denies the

government’s motion to strike his appeal.

I respectfully dissent, however, from the majority opinion’s

affirmance of the district court’s dismissal of Humphries’ Bivens

action for money damages based on alleged violations of his First

Amendment rights and from the majority’s failure to reject as

unmeritorious the government’s argument that Heck v. Humphrey bars

the federal courts from considering the plaintiff’s civil actions.

1.

In Heck v. Humphrey

, 512 U.S. 477 (1994), the Supreme Court

held that when a state prisoner seeks damages in a 42 U.S.C. § 1983

suit, the complaint must be dismissed if “a judgment in favor of

the plaintiff would necessaril y imply the invalidity of his

conviction or sentence, ” unless the plaintiff can show that the

con viction or sentence has already been invalidated. H eck

, 512

U.S. at 487. “But[,the Court added, when] the plaintiff’s action,

even if successful, will not demonstrate the invalidity of any

outsta nding criminal judgment against the plaintiff, the action-20-

should be allowed to proceed, in the absence of some other bar to

the suit.” I d. In E dwards v. Balisok

, 5 20 U.S. 641, 117 S. Ct.

1584, 1586 (1997), the Court held that a prisoner’s § 1983 claim

for damages should also be dismissed even when the complaint limits

his request to damages for depriving him of good-time credits

without due process, not for depriv ing him of good-time credits

undeservedly as a substantive matter, if the nature of the

challenge to the procedures is “such as necessarily [will] imply

the invalidity of the judgment.” Id. at 1587.

In the present case, however, the Heck and Balisok holdings do

not require that the plaintiff’s Bivens civil actions for damages

be dismissed. Alexander Tito Humphries is not a state prisoner.

See

, e.g.

, Ojo v. INS

, 106 F.3d 680 (5 th Cir. 1997) (stating that

a detained alien is not a prisoner within the meaning of criminal

law). He has not been convicted of any crime or sentenced

therefor. I NS v. Lopez- Mendoza , 468 U.S. 1032, 104 S. Ct. 3479

(1984) (stating that deportation proceeding is a purely civil

action to determine an alien’s eligibility to remain in the United

States). Consequently, because “the plaintiff’s action, even if

successful, will not demonstrate the invalidity of any outstanding

criminal judgment against the plaintiff, the action should be

allowed to proceed, in the absence of some other bar to the suit.”

Heck , 512 U.S. at 487.

2.

As the majority opinion correctly holds, there are “other-21-

bars” to some, but not all, of the plaintiff’s actions. I agree

with the majority opinion that Humphries does not have standing to

assert a claim based on the alleged entrapment of Sunday Ukwu, that

the district court does not h ave jurisdiction to entertain

Humphries’ claims for breach of contract, and that Humphries’

petition to enjoin the remova l proceedings was mooted by the

definitive finality of the removal order and his actual removal to

Kenya.

3.

On the other hand, although I agree with the majority’s result

in allowing Humphries to proceed on his claims ba sed on

constitutional due process and involuntary servitude violations, I

b elieve the majority did not apply the correct analysis in

determining the contours of Humphries’ directly implied

constitutio nal rights, and consequently erred in concluding that

his First Amendment claim is barred. The majority treated the

constitutional provisions supporting Humphries’ claims as if they

were statutes to be reconciled with the Illegal Immigration Reform

and Immigrant Responsibilit y Act of 1996 (IIRIRA) and therefore

reached the incorrect result in affirming t he dismissal of

Humphries’ Bivens action for money damages ba sed on alleged

violations of his First Amendment rights. Under the analysis

required by the Supre me Court’s decisions, however, none of

Humphries’ actions for money damages based on the federal agents’

alleged violations of his constitutional rights is frivolous or-22-

falls outside the jurisdiction of the federal district court.

The federal judicial power extends to all cases, in law and

equity, arising under the Constitution, the laws of the United

States, and treaties made, or which shall be made, under their

authority. U.S. Const. art. III, § 1, cl. 2. Since 1875, Congress

has provided the federal trial cour ts with general jurisdiction

over such cases. S ee Judiciary Act of March 3, 1875, § 1, 18 Stat.

470; Schweiker v. Chilicky

, 487 U.S. 412, 420 (1988). The statute

now provides that the “district court s shall have original

jurisdiction of all civil actions arising under the Constitution,

laws, or treaties of the United States.” 28 U.S.C. § 1331.

All persons within the territory of the United States are

entitled to the protections guaranteed by the Fifth, Sixth and

F ourteenth Amendments to the Constitution. W ong Wing v. United

States

, 163 U.S. 228, 238 (1896). Aliens living within the

jurisdiction of the United States are protected from deprivation of

life, liberty or property without due process of law, despite the

fact that such presence is unlawful, involuntar y or transitory.

Mathews v. Diaz

, 426 U.S. 67, 77 (1976). In general, therefore, a

United States district court may consider the merits of a Bivens

action for money damages, asserted by a nonresident alien who is

present in this country, against federal government officials. S ee

Xiao v. Reno , 837 F. Supp. 1506 (N.D. Cal. 1993); Immigration Law

Service § 27:14 (Alan Jacobs ed., Clark Boardman Callaghan 1994).-23-

S imilarly, under 42 U.S.C. § 1983, every person who, under

color of any statute, ordinance, regulation, custom, or usage, of

any state or territory or the District of Columbia, subjects, or

causes to be subjected, any alien within the jurisdiction thereof

to the deprivation of any rights, privileges, or immunities secured

by the Constitution and laws, is liable to the alien injured in an

action at law, suit in equity, or other proceeding for redress.

Examining Board Of Engineers, Architects & Surveyors v. Flores De

Otero

, 426 U.S. 572, 599-600 (1976); Holley v. Lavine

, 529 F.2d

1294, 1295 (2d Cir.), cert. denied

, 426 U.S. 954 (1976);

Immigration Law Service § 27:29 (Al an Jacobs ed., Clark Boardman

Callaghan 1994). Section 1983, of Title 42, U.S.C., combined with

28 U.S.C. § 1343(3), affords aliens within the United States access

to federal courts to assert claims for violations of the due

process and equal protection clauses of the United States

Constitution. Bolanos v. Kiley

, 509 F.2d 1023 (2d Cir. 1975). This

Circuit has held that civil rights class actions may be brought by

aliens challenging the alleged denial of civil rights, provided the

class description is sufficiently definite and the class has some

connection with the claim being litigated. J agnandan v. Giles

, 379

F. Supp. 1178 (N.D. Miss. 1974), aff’d. in part

, 538 F.2d 1166 (5 th

Cir. 1976), cert. denied , 432 U.S. 910 (1977).

A p etition alleging that a plaintiff has been damaged by

violations of his federal constitutional rights by a federal agent

acting under color of federal authority gives rise to a federal-24-

cause of action for money damages for any injuries the plaintiff

has suffered as a result of the agent’s constitutional violation.

Bivens v. Six Unknown Fed. Narcotics Agents

, 403 U.S. 388, 396

(1971) (Four th Amendment violation); D avis v. Passman

, 442 U.S.

228, 245 (1979) (Fifth Amendment violation); Carlson v. Green

, 446

U.S. 14, 18 (1980) (Eighth Amendment violation). “[T]he decision in

Bivens established that a citizen suffering a compensable injury to

a constitutionall y protected interest could invoke the general

federal-question jurisdiction of the district courts to obtain an

award against the responsible federal official.” B utz v. Economou

,

438 U.S. 478, 504 (1978). It is clear that a district court has

jurisdiction under 28 U.S.C. § 1331(a) to consider such a

constitutional claim by a petitioner. D avis

, 442 U.S. at 236

(citing Bell v. Hood , 327 U.S. 678 (1946)).

In determining whether a cause of action may be implied

directly under a provision of the United States Constitution, it is

error to apply the criteria enunciated by the Supreme Court for

ascertaining whether a private cause of action may be implied from

a statute not expressly providing one. I d. at 240. “[T]he

question of who may enforce a statutory right is fundamentally

different from the question of who ma y enforce a right that is

protected by the Constitution.” Id. (emphasis in original). At

least in the absence of a “textua lly demonstrable constitutional

commitment of an issue to a coordinate political department,” it is-25-

presumed that justiciable constitutional rights are to be enforced

through the courts. I d. at 242. Further, the class of those

litigants who allege that their own constitutional rights have been

violated, and who at the same time have no effective means other

than the judiciary to enforce these rights, must be able to invoke

the existing jurisdiction of the courts for the protection of their

justiciable constitutional rights. Id.

The inquiry of whether money damages is an appropriate form of

relief under such a cause of action must be approached on the

basis of the estab lished principles of law. D avis

, 442 U.S. at

245. Federal courts may use any available remedy to make good the

wrong done, where legal rights have been invaded and a federal

statute provides for a general right to sue for such invasion. I d.

( citing B ell v. Hood

, 327 U.S. 678, 684 (1946)). Thus, federal

courts have the authority to provide redress for constitutional

violations in the form of an action for money damages, except that

the exercise of that authority may not be appropriate where

Congress has created another remedy that it regards as equally

effective, or where “special factors counse[l] hesitation [even]

in the absence of affirmative action by Congress.” Bivens

, 403 U.S.

at 396-97 ; s ee Schweiker

, 487 U.S. at 435 (Brennan, J.,

dissenting).

In the present case, as in B ivens

, Davis v. Passman

, and

Carlson v. Green

, it is appropriate for the federal courts to

exercise their author ity to provide redress for constitutional-26-

violations in the form of an action for money damages. Congress

has not created another remedy that it regards as equally

effective, and there are no “special factors [that] counse[l]

hesitation [even] in the absence of affirmative action by

Congress.” B ivens

, 403 U.S. at 396-97. The context of the present

case is quite dissimilar to those few instances in which the

Supreme Court has refused to recognize a Bivens action to redress

constitutional wrongs because “the design of a Government program

s uggests that Congress has provided what it considers adequat e

remedial mechanisms for constitutional violations that may occur in

the course of its administration.” Schweiker , 487 U.S. at 423.

In Chappell v. Wallace

, 462 U.S. 296, 302 (1983), the Court

declined to permit a n action for damages by enlisted military

personnel seeking redress from their superior officers for

constitutional injuries, noting that Congress, in the exercise of

its “plen ary constitutional authority over the military, has

enacted statutes regulating mil itary life, and has established a

comprehensive internal system of justice to regulate military life

. . . . The resulting system provides for the review and remedy of

complaints and grievances such as [the equal prot ection claim]

presented by respondents.” That system allowed military personnel

to raise constitutional challenges in administrative proceedings

and authorized recovery of significant consequential damages, such

as retroactive promotions. Id. at 303. In B ush v. Lucas

, 462 U.S.

367, 385 (1983), the Court concluded that, in light of the-27-

“elaborate, comprehensive scheme” governing federal employment

r elations, recognition of any supplemental judicial remedy for

constitutio nal wrongs was inappropriate. Under that scheme,

constitutional challenges are fully cognizable and prevailing

employees are entitled to full backpay, retroactive pro motions,

seniority , pay raises, and accumulated leave. I d. at 386.

Congress expres sly “intended [to] put the employee ‘in the same

position he would have been in had the unjustified or erroneous

personnel actio n not taken place.’” I d. at 388 (quoting S. Rep.

No. 1062, 89th Cong. 2d Sess., 1 (1966)). Similarly, in S chweiker

,

the Court decided that the improper denial of individuals’ Social

Security disability benefits, allegedly resulting from Fifth

Amendment due process violations by government officials

administering the program, did not give rise to an action for money

damages, no ting that the “claims are handled under ‘an unusually

protective [multi]-step process for the review and adjudication of

disputed claims,’” Schweiker , 487 U.S. at 424 (quoting Heckler v.

Day

, 467 U.S. 104, 10 6 (1984)), “[o]nce these elaborate

admin istrative remedies [are] exhausted, a claimant [may] seek

judicial review, including review of constitutional claims,” id.

,

and “the system for protecting [claimants’] rights is, if anything,

considerably mo re elaborate than the civil service system

considered in Bush.” Id. at 425.

In the present context, Congress has not created an alternate

remedy or special administrative program affording constitutional-28-

protection to aliens, as distinguished from the protection

a vailable to ordinary citizens, against injuries caused by the

violation of aliens’ constitutional rights by federal agents. Nor

can it be said that there is any government programsuggesting by

its design that Congress has provided what a reasonable legislator

wou ld consider to be adequate remedial mechanisms for

constitutional violations. Consequently, I believe that Humphries’

complaint states a cause of action for money damages under the

First, Fifth an d Thirteenth Amendments that would entitle him to

recover for any injuries that he suffered as a result of the

federal agents’ alleged violations of those Amendments.

The IIRIRA does not divest the district court of jurisdiction

of any of Humphries’ Bivens causes of action for money damages

arising from the alleged violatio n of his constitutional rights.

The Supreme Cou rt has emphatically stated “that where Congress

intends to preclude judicial review of constitutional claims its

intent to do so must be clear.” W ebster v. Doe

, 486 U.S. 592, 603

(1988) (citing Johnson v. Robinso n , 415 U.S. 361, 373-74

(1974)(“‘[C]lear and convincing’ evidence of congressional intent

[is] required by this Court before a statute will be construed to

restrict access to judicial review.”)). The Court noted that it

had reaffirmed that view in Weinberger v. Salfi

, 422 U.S. 749

(1975), and declared that “[w]e require this heightened showing in

part to avoid the ‘serious constitution al question’ that would

arise if a federal statute were construed to deny any judicial-29-

forum for a colorable constitutional claim.” W ebster

, 486 U.S. at

603 (citing Bowen v. Michigan Academy of Family Phys icians , 476

U.S. 667 (1986)).

The government’s brief in Reno v. American-Arab AntiD iscrimination Committee , No. 97-1252, in the Supreme Court

concedes that a grave constitutional question would arise if a

federal statute were construed to deny any judicial forum for a

colorable constitutional claim. Brief for Petitioners, at 36-37

(citing Webster v. Doe

, 486 U.S. 592, 603 (1988)). Accordingly,

the government also concedes that the respo ndent aliens’ First

Amendment selective enforcement challenges are not permanently

foreclosed by the IIRIRA. Rather, it is the government’s position

that such claims can be raised if and when a final order of

deportation is entered. I d. at 34. Consequently, the IIRIRA

certainly does not foreclose Humphries’ Bivens causes of action for

money damages based on alleged violations of the First, Fifth and

Thirteenth Amendments. Not only has a final order of deportation

been entered and carried out removing Humphries to Kenya; his claim

does not and could not directly challenge the validity of the

removal order or the deportation. Humphries’ money damages claim

merely seeks compensation for injuries resulting from the alleged

constitutional violations.

Accordingly, § 1252(g) of 8 U.S.C. may not be read to deny an

alien a judicial forum for a colorable constitutional claim for

money damages under Bivens based on the violation of the alien’s-30-

constitutional rights by federal agents acting under color of

federal law. The IIRIRA is designed to “enable the prompt

admission of those who are entitled to be admitted, the prompt

exclusion or removal of those who are not so entitled, and [make]

the clear distinction between these categories.” Report of the

Committee on the Judiciary, House of Representatives on H.R. 2202,

Rept. 104-469; 104 th Congress at p.111. Section 1252(g) furthers

these goals by removing from courts the jurisdiction of a cause or

claimarising from the Attorney General’s commencement or

prosecution of removal proceedings and execution of a removal order

until the order has become final. Humphries’ B ivens causes of

action for money damages arise directly from alleged violations of

the Constitution, no t from the statutorily authorized removal

proceedings against Humphries ini tiated by the Attorney General.

And the removal order deporting Humphries to Keny a has become

final, definitive, and has been carried out. Humphries’ actions

for damages based on violations of his constitutional rights are

not affected by and can have no effect upon the definitively final

removal order or Humphries’ deportation. Nothing in § 1252(g) is

persuasive that Congress clearly intended to divest federal courts

of jurisdiction of Bivens actions for money damages arising out of

the unconstitutional conduct of federal agents acting under color

of federal law.

Because Humphries’ claim of equitable relief in the form of an

injunction of his removal was rendered moot by the final removal-31-

order and his departure from the United States, there are available

no other alternative forms of judicial relief. “For [Humphries],

as for Bivens, ‘it is damages or nothing.’” D avis

, 442 U.S. at 245

(quoting Bivens

, 403 U.S. at 410 (Harlan, J., concurring in

judgment)). A different case presenting a viable claim for

injunctive or other equitable relief based directly on an alleged

constitutional violation may call for different treatment of that

particular claim. In the case of an alien subjected to the threat

or imposition o f unconstitutional custodial detention, perhaps a

Bivens action for injunctive reli ef would not be appropriate

because of an available alternative remedy of habeas corpus. The

question of t he appropriateness of habeas corpus or of equitable

relief in the form of an injunction against removal is not in this

case, however, and we consequently should intimate no final or

definitive view on those issues.

I resp ectfully disagree with the majority’s position that

Humphries’ action for money damages based on the alleged violation

of the First Amendment should reach a different fate than his Fifth

or Thirteenth Amendment claim. If Humphries can prove that the

defendant federal agents’ violations of the First Amendment caused

him injury by violating his First Amendment rights, he is entitled

to recover money damages from them, unless they are entitled to

qualified immunity under the applicable facts and law. Today we

should be more aware than ever that:

Our system of jurisprudence rests on the assumption that-32-

all individuals, whatever their position in government,

are subject to federal law: “No man in this country is

so high that he is above the law. No officer of the law

may set that law at defiance with impunity. All officers

of the government, from t he highest to the lowest, are

creatures of the law, and are bound to obey it.” U nited

States v. Lee

, 106 U.S. [196], 220, [27 L. Ed. 171, 1 S.

Ct. 240][(1882)].

Davis

, 442 U.S. at 246 (quoting Butz v. Economou

, 438 U.S. at 506).

I see no reason why the federal official defendants in the

present case have a better claim to a jurisdictional defense to a

Bivens action for money damages than a president, congressman,

cabinet member, or any other federal officer. As Justice Brennan

observed in his dissenting opinion in Schweiker , 487 U.S. at 447:

[I]n order to prevail in any Bivens action, [claimants]

must both prove a deliberate abuse of governmental power

rather than mere negligence,

. . . an d overcome the

defense of qualified immunity. []Indeed, these very

requirements are designed to protect Government officials

from liability for their “legitimate” actions; the

prospect of liability for deliberate violations of known

constitutional rights, therefore, will not dissuade wellintentioned civil servants either from accepting such

employment or from carrying out the legitimate duties

that employment imposes. (Footnote and citations-33-

omitted).

This correct observation applies fully to the protection afforded

the government officials in the present case as well.