United States Court of Appeals

For the First Circuit

No. 14-1425

ADA MORALES,

Plaintiff, Appellee,

v.

BRUCE CHADBOURNE, DAVID RICCIO, and EDWARD DONAGHY,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. John J. McConnell, Jr., U.S. District Judge]

Before

Howard, Chief Judge,

Lipez and Barron, Circuit Judges.

Stuart F. Delery, Assistant Attorney General, with whom J. Max

Weintraub, Aaron S. Goldsmith, and William C. Peachey were on

brief, for appellants.

Katherine Desormeau, with whom R. Orion Danjuma, Omar C.

Jadwat, Mark W. Freel, Mackenzie Mango, and Lena Graber were on

brief, for appellee.

July 17, 2015
LIPEZ, Circuit Judge. Ada Morales is a naturalized

United States citizen who was born in Guatemala. In May 2009,

Morales was imprisoned for 24 hours pursuant to an immigration

detainer so agents from the U.S. Immigration and Customs

Enforcement ("ICE") could investigate her immigration status. She

brought this action alleging, inter alia, that the ICE agents --

defendants Edward Donaghy, Bruce Chadbourne, and David Riccio --

unlawfully detained her in violation of her Fourth and Fifth

Amendment rights.

Donaghy, the ICE agent who issued the detainer, moved for

summary judgment on the basis of qualified immunity. Chadbourne

and Riccio, Donaghy's supervisors, moved to dismiss, also on the

basis of qualified immunity. The district court denied the

defendants' motions, and they filed this interlocutory appeal. 

Donaghy argues that he is entitled to qualified immunity

on Morales's Fourth Amendment claim because the law was not clearly

established in 2009 that an ICE agent was required to have probable

cause before issuing a detainer. In the alternative, he contends

that, if probable cause was required, the law was not clearly

established in 2009 that the issuance of the detainer under the

applicable circumstances did not constitute probable cause. With

regard to Morales's Fifth Amendment equal protection claim, Donaghy

argues that he did not violate her clearly established Fifth

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Amendment rights because he did not detain Morales solely on the

basis of her race, ethnicity, or national origin.

Chadbourne and Riccio contend that they are entitled to

qualified immunity because Morales failed to allege sufficient

facts to plausibly state a supervisory liability claim holding them

responsible for allowing their subordinates to issue detainers

against U.S. citizens without probable cause in violation of the

Fourth Amendment. They further argue that, even if Morales's

allegations were sufficient, they did not violate a clearly

established Fourth Amendment right.

After review, we agree with Morales that the law was

clearly established in 2009 that, under the Fourth Amendment, an

ICE agent required probable cause to issue an immigration detainer. 

We, therefore, affirm the district court's denial of qualified

immunity on Morales's Fourth Amendment claim against Donaghy on

that issue. Because Donaghy's Fourth Amendment argument regarding

the circumstances surrounding the detainer that he issued against

Morales and his Fifth Amendment equal protection argument do not

present pure issues of law, his appeal on these grounds must be

dismissed for lack of appellate jurisdiction. These arguments rely

on facts asserted in Donaghy's declarations, and those facts were

not among the ones that the district court relied upon in denying

Donaghy's motion. Finally, because Morales has sufficiently

alleged that supervisors Chadbourne and Riccio violated a clearly

-3-
established Fourth Amendment right, we also affirm the district

court's denial of qualified immunity on Morales's Fourth Amendment

supervisory liability claim against them. We remand for

proceedings consistent with this opinion.

I.

This appeal addresses both Donaghy's motion for summary

judgment as well as Chadbourne and Riccio's motion to dismiss. 

Because the appeal is interlocutory, the summary judgment standard

requires that we "take, as given, the facts that the district court

assumed when it denied summary judgment." Johnson v. Jones, 515

U.S. 304, 319 (1995). The motion to dismiss standard requires that

we draw the facts from Morales's complaint and documents

incorporated into the complaint. Hernandez-Cuevas v. Taylor, 723

F.3d 91, 94 (1st Cir. 2013). For this appeal, however, the facts

are the same regardless of which standard we use. Because the

district court took Morales's allegations as true in deciding both

motions, and did not rely on any contrary assertions by the

defendants, the pertinent facts for our review are those alleged in

Morales's complaint.

Morales is a United States citizen and long-time resident

of Rhode Island. Born in Guatemala, she immigrated to the United

States in the 1980s and naturalized in 1995. Since then, on at

least two occasions, she has been detained by government officials

pursuant to an immigration detainer, which is a request from ICE to

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another law enforcement agency to detain a non-citizen up to 48

hours so that ICE may investigate whether the non-citizen is

subject to deportation. See 8 C.F.R. § 287.7(a), (d).

The first incident took place in July 2004. Morales had

been arrested by the Cranston, Rhode Island, Police Department at

a local K-Mart on charges that were ultimately dismissed. Even

though she was a U.S. citizen, ICE issued a detainer against

Morales indicating that she was a non-citizen subject to removal. 

Morales was detained overnight pursuant to the detainer. Her

extended detention caused her to miss a flight she had scheduled to

visit relatives in Guatemala and to forfeit the $3,000 airfare.

The second incident, and the basis for this action,

occurred in May 2009. On May 1, 2009, Morales was arrested while

playing with her children in her front yard by the Rhode Island

State Police on a warrant for criminal charges relating to alleged

misrepresentations in a state benefits application.1 She was

transported to the police station, where a state police officer

asked her where she was born and whether she was "legal." Morales

responded that she was born in Guatemala and that she was a U.S.

citizen. Morales was then transported to the Rhode Island Adult

Correctional Institutions ("ACI"), where she was booked into

custody.

1

 According to the complaint, Morales's criminal charges have

been resolved and she remains on probation.

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On May 4, 2009, ICE faxed an immigration detainer form to

the ACI. The detainer incorrectly identified Morales as an alien

whose nationality was Guatemalan, and stated that an

"[i]nvestigation has been initiated to determine whether [Morales]

is subject to removal from the United States." The detainer

further informed the ACI that "[f]ederal regulations (8 C.F.R.

§ 287.7) require that you detain the alien for a period not to

exceed 48 hours . . . to provide adequate time for DHS to assume

custody of the alien." The detainer was issued by Donaghy, an ICE

agent based in ICE's Rhode Island Office. Donaghy was supervised

by Riccio, the Resident-Agent-in-Charge of the Rhode Island office,

and Chadbourne, the Field Office Director of the Boston Field

Office, which has responsibility over ICE operations in Rhode

Island.

Before the detainer was issued, no ICE official

interviewed Morales to ask whether she was a U.S. citizen, nor did

anyone request documentation from her relating to her citizenship. 

ICE officials also failed to search federal immigration databases2

to obtain a copy of her citizenship application or certificate of

naturalization.

2 Donaghy claims in declarations attached to his motion for

summary judgment and reply brief filed in the district court that

he did search federal government databases when investigating

Morales's immigration status. The district court, however, did not

rely on those declarations in deciding Donaghy's motion. We,

therefore, recite Morales's version of the facts. See Johnson, 515

U.S. at 319. 

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The same day that ICE sent the immigration detainer to

the ACI, a state court ordered Morales released from criminal

custody on personal recognizance. Instead of being released,

however, Morales was re-booked into ACI custody, strip searched,

and kept in jail for 24 more hours based solely on the ICE

detainer. When she was notified that her continued detention was

based on the detainer, Morales told multiple ACI employees that the

detainer was issued in error because she is a U.S. citizen. The

ACI employees disregarded her pleas, and she was kept in detention. 

On May 5, 2009, ICE agents arrived at the ACI and drove

Morales to an ICE office in Warwick, Rhode Island. There, the ICE

agents interviewed her, confirmed that she was a U.S. citizen, and

released her to her family. Upon releasing her, an ICE agent

apologized to Morales, but told her "it could happen again in the

future."

On April 24, 2012, Morales filed a civil damages action

against defendants Donaghy, Riccio, and Chadbourne, as well as

other federal and state defendants who are not parties to this

appeal. Morales alleged, inter alia, that, by issuing the detainer

against her, Donaghy violated her Fourth Amendment right to be free

from unreasonable seizures and her Fifth Amendment equal protection

right to be free from discrimination on the basis of race,

ethnicity, and national origin. She alleged that Chadbourne and

Riccio knew or were deliberately indifferent to the fact that their

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subordinates routinely issued ICE detainers without probable cause,

and formulated or condoned policies permitting the issuance of

detainers without probable cause in violation of the Fourth

Amendment. Morales sought damages for these constitutional

violations under Bivens v. Six Unknown Named Agents of the Federal

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

relief to prevent defendants from subjecting her to unlawful

immigration detention again in the future.

In lieu of answering the complaint, defendants filed

various motions to dismiss and for summary judgment. As relevant

here, Donaghy moved for summary judgment on the basis of qualified

immunity on the Fourth and Fifth Amendment claims. Chadbourne and

Riccio moved to dismiss Morales’s Fourth Amendment supervisory

liability claim against them, also on the basis of qualified

immunity. On February 12, 2014, the district court denied

defendants' motions, and defendants timely filed interlocutory

appeals.

II.

A. Claims Against Donaghy

1. Fourth Amendment Claim

We begin by addressing Donaghy's contention that he is

entitled to qualified immunity on Morales's Fourth Amendment claim. 

We review de novo a district court's denial of a federal officer's

qualified immunity defense. See Hernandez-Cuevas v. Taylor, 723

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F.3d 91, 97 (1st Cir. 2013). To determine whether a defendant is

entitled to qualified immunity, we generally proceed through a

two-part analysis, considering whether "(1) the facts alleged show

the defendant[']s conduct violated a constitutional right, and (2)

the contours of this right are 'clearly established' under

then-existing law so that a reasonable officer would have known

that his conduct was unlawful." Santana v. Calderón, 342 F.3d 18,

23 (1st Cir. 2003). 

Donaghy makes two arguments with regard to Morales's

Fourth Amendment claim. His first argument implicates only the

second prong of the qualified immunity analysis. He contends that

the law was not clearly established in 2009 that an ICE agent

needed probable cause when issuing a detainer. His second argument

implicates both prongs of the qualified immunity analysis. He

argues that, if probable cause was required, the undisputed facts

of this case demonstrate that he had probable cause, and, moreover,

the law was not clearly established in 2009 that these facts fell

short of probable cause. We address each argument in turn.

a. Whether Probable Cause Was Required

A government official's conduct violates clearly

established law when, "at the time of the challenged conduct, [t]he

contours of [a] right [are] sufficiently clear that every

reasonable official would . . . underst[and] that what he is doing

violates that right." Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083

-9-
(2011) (internal quotation marks omitted). There does not need to

be a case exactly on point, "but existing precedent must have

placed the statutory or constitutional question beyond debate." 

Id.; see also Hope v. Pelzer, 536 U.S. 730, 741 (2002)

("[O]fficials can still be on notice that their conduct violates

established law even in novel factual circumstances.").

Donaghy issued the immigration detainer against Morales

pursuant to 8 C.F.R. § 287.7. That regulation authorizes an ICE

official to issue a detainer to another law enforcement agency to

"seek[] custody of an alien presently in custody of that agency,

for the purpose of arresting and removing the alien." 8 C.F.R.

§ 287.7(a). Once the alien has completed her criminal custody and

is "not otherwise detained by a criminal justice agency," the

detainer instructs the agency to "maintain custody of the alien for

a period not to exceed 48 hours, excluding Saturdays, Sundays, and

holidays[,] in order to permit assumption of custody by [ICE]." 

Id. § 287.7(d); see also id. § 287.7(a) (noting that a "detainer is

a request that [another law enforcement] agency advise [ICE], prior

to release of the alien, in order for [ICE] to arrange to assume

custody" of the alien). Thus, the sole purpose of a detainer is to

request the continued detention of an alien so that ICE officials

may assume custody of that alien and investigate whether to

initiate removal proceedings against her.

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Longstanding precedent establishes that "[t]he Fourth

Amendment applies to all seizures of the person, including seizures

that involve only a brief detention short of traditional arrest." 

United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975) (citing

Davis v. Mississippi, 394 U.S. 721 (1969); Terry v. Ohio, 392 U.S.

1, 16-19 (1968)); see also Dunaway v. New York, 442 U.S. 200, 216

(1979) ("[D]etention for custodial interrogation -- regardless of

its label -- intrudes so severely on interests protected by the

Fourth Amendment as necessarily to trigger the traditional

safeguards against illegal arrest.").

In Brignoni-Ponce, the Supreme Court applied this wellestablished principle to determine what standard of proof, if any,

an immigration officer must apply to stop and detain individuals to

investigate their immigration status. See 422 U.S. at 880-82. In

that case, the government argued that, within 100 miles of the

border, it had "authority to stop moving vehicles and question the

occupants about their citizenship, even when its officers have no

reason to believe that the occupants are aliens or that other

aliens may be concealed in the vehicle." Id. at 877. The Supreme

Court rejected the government's argument. The Court stated that,

just as in the criminal context, an immigration officer "must have

a reasonable suspicion" to justify briefly stopping individuals to

question them "about their citizenship and immigration status . . .

but any further detention . . . must be based on . . . probable

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cause." Id. at 881-82 (emphasis added) (citing Terry, 392 U.S. at

29); see also id. at 884 ("[T]he Fourth Amendment . . . forbids

stopping or detaining persons for questioning about their

citizenship on less than a reasonable suspicion that they may be

aliens.").

Guided by this Supreme Court precedent, we have also

required that immigration officers have reasonable suspicion to

briefly stop individuals to question them regarding their

immigration status and probable cause for any further arrest and

detention. See, e.g., United States v. Mendez-de Jesus, 85 F.3d 1,

3 (1st Cir. 1996) (recognizing that Brignoni-Ponce stands for "the

principle that an individual may not be [briefly] detained for

questioning about citizenship absent reasonable suspicion that the

person is an illegal alien"); Lopez v. Garriga, 917 F.2d 63, 69

(1st Cir. 1990) (noting that detention to inquire about an

individual's immigration status is "a seizure and implicate[s] the

[F]ourth [A]mendment" (citing Immigration & Naturalization Serv. v.

Delgado, 466 U.S. 210, 216-17 (1984); Terry, 392 U.S. at 21));

Navia-Duran v. Immigration & Naturalization Serv., 568 F.2d 803,

809 n.7 (1st Cir. 1977) (recognizing that an immigration arrest and

detention needs to be "supported by probable cause or reasonable

suspicion").

It was thus clearly established well before Morales was

detained in 2009 that immigration stops and arrests were subject to

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the same Fourth Amendment requirements that apply to other stops

and arrests -- reasonable suspicion for a brief stop, and probable

cause for any further arrest and detention. Moreover, there could

be no question in 2009 that detention authorized by an immigration

detainer would require more than just reasonable suspicion. 

Although the line between an arrest that requires probable cause

and a temporary detention for interrogation which does not is not

always clear, pre-2009 cases did clearly show that 48 hours of

imprisonment -- which is what the detainer requests, see 8 C.F.R.

§ 287.7(d) -- falls well on the arrest side of the divide. See,

e.g., United States v. Place, 462 U.S. 696, 709 (1983) (emphasizing

that the Supreme Court had "never approved a seizure of the person

for the prolonged 90-minute period involved here" based solely on

reasonable suspicion, and "cannot do so on the facts presented by

this case"); Manzanarez v. Higdon, 575 F.3d 1135, 1148 (10th Cir.

2009) (explaining that it was unable to find any case in any

circuit upholding a detention of longer than 90 minutes based on

reasonable suspicion); see also Au Yi Lau v. Immigration &

Naturalization Serv., 445 F.2d 217, 222 (D.C. Cir. 1971) (whether

an immigration stop of "several minutes" could be justified based

solely on reasonable suspicion was a "difficult[]" question, but

upholding the stop as it was "minutes rather than hours").

This clear law establishing that the Constitution

requires probable cause for the immigration detention that a

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detainer requests is further reinforced by cases interpreting the

statute authorizing immigration detainers. Under federal law,

immigration officers may arrest and detain an alien "pending a

decision on whether the alien is to be removed from the United

States" if a "warrant [is] issued by the Attorney General." 8

U.S.C. § 1226(a). Statutory authority for warrantless enforcement

actions, including the issuance of detainers, is provided in 8

U.S.C. § 1357. Without a warrant, immigration officers are

authorized to arrest an alien only if they have "reason to believe

that the alien so arrested is in the United States in violation of

any [immigration] law or regulation and is likely to escape before

a warrant can be obtained for his arrest." Id. § 1357(a)(2)

(emphasis added); see also 8 C.F.R. § 287.8(c)(2)(i) ("An arrest

shall be made only when the designated immigration officer has

reason to believe that the person to be arrested has committed an

offense against the United States or is an alien illegally in the

United States." (emphasis added)). The provision specifies that in

order to issue a detainer for aliens who have violated controlled

substances laws, immigration officers require a "reason to believe

that the alien may not have been lawfully admitted to the United

States or otherwise is not lawfully present in the United States." 

8 U.S.C. § 1357(d)(1) (emphasis added).

Courts have consistently held that the "reason to

believe" phrase in § 1357 "must be read in light of constitutional

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standards, so that 'reason to believe' must be considered the

equivalent of probable cause." Au Yi Lau, 445 F.2d at 222; see,

e.g., Tejeda-Mata v. Immigration & Naturalization Serv., 626 F.2d

721, 725 (9th Cir. 1980) ("The phrase 'has reason to believe' [in

§ 1357] has been equated with the constitutional requirement of

probable cause."); United States v. Cantu, 519 F.2d 494, 496 (7th

Cir. 1975) ("The words [in § 1357] of the statute 'reason to

believe' are properly taken to signify probable cause."); see also

United States v. Quintana, 623 F.3d 1237, 1239 (8th Cir. 2010)

("Because the Fourth Amendment applies to arrests of illegal

aliens, the term 'reason to believe' in § 1357(a)(2) means

constitutionally required probable cause.").

Based on the "robust consensus of cases [and] persuasive

authority" discussed above, al-Kidd, 131 S. Ct. at 2084, it is

beyond debate that an immigration officer in 2009 would need

probable cause to arrest and detain individuals for the purpose of

investigating their immigration status.

Nevertheless, Donaghy contends that he is entitled to

qualified immunity because there were no cases in 2009 that

specifically held that law enforcement officials required probable

cause in the "difficult and unique circumstance" of issuing a

detainer. In his view, the issuance of a detainer is factually

distinct from other immigration detentions because "[a]n

immigration detainer does not itself constitute an arrest," and he

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was "not himself in a position to control" what happened to Morales

after he issued the detainer. Appellants' Br. at 27, 28. 

First, we pause to note the reason why there were likely

no cases in 2009 directly addressing immigration detainers. The

government had conceded for years that a detainer must be supported

by probable cause. For example, in 1985, the Immigration and

Naturalization Service stipulated that a detainer "may only be

authorized . . . when the officer has determined that there is

probable cause . . . ." Cervantez v. Whitfield, 776 F.2d 556, 560

(5th Cir. 1985). Because the government had agreed that the

issuance of a detainer required probable cause, there was never any

case or controversy requiring a court to make a determination on

this issue. See Cnty. Motors, Inc. v. Gen. Motors Corp., 278 F.3d

40, 43 (1st Cir. 2002) ("The Constitution grants federal courts

jurisdiction only over live cases or controversies." (citing U.S.

Const., art. III, § 2, cl. 1.)). A ruling in favor of Donaghy

would create a perverse incentive that would allow the government

to avoid liability by conceding an issue for decades and

subsequently arguing that the law was not clearly established on

that issue because there were no cases directly on point.3

3

 In recent years, the government has begun contesting whether

a detainer needs probable cause, and courts have uniformly held

that probable cause is required. See, e.g., Mendoza v. Osterberg,

No. 8:13CV65, 2014 WL 3784141, at *6 (D. Neb. July 31, 2014);

Gonzales v. ICE, No. 13-04416, Dkt. 42, at *12 (C.D. Cal. July 28,

2014); Miranda-Olivares v. Clackamas Cnty., No. 3:12–cv–02317–ST,

2014 WL 1414305, at *9-11 (D. Or. Apr. 11, 2014); Uroza v. Salt

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As to Donaghy's latter point, while a detainer is

distinct from an arrest, it nevertheless results in the detention

of an individual. See 8 C.F.R. § 287.7. Morales alleges that

after her criminal custody had terminated, she was detained for 24

additional hours based solely on the detainer issued by Donaghy. 

Because Morales was kept in custody for a new purpose after she was

entitled to release, she was subjected to a new seizure for Fourth

Amendment purposes —- one that must be supported by a new probable

cause justification. See Illinois v. Caballes, 543 U.S. 405,

407-08 (2005); Arizona v. United States, 132 S. Ct. 2492, 2509

(2012) ("[D]elay[ing] the release of some detainees for no reason

other than to verify their immigration status . . . would raise

constitutional concerns.").

Moreover, although Morales continued to be detained by

ACI officials, and not by Donaghy himself, it was also clearly

established that a law enforcement officer is "responsible for the

natural consequences of his actions." Malley v. Briggs, 475 U.S.

335, 344 n.7 (1986) (quoting Monroe v. Pape, 365 U.S. 167, 187

(1961)); see also id. at 344-45 (holding that "an officer whose

request for a warrant allegedly caused an unconstitutional arrest"

can be held liable for the arrest where "the warrant application is

Lake Cnty., No. 2:11CV713DAK, 2013 WL 653968, at *6 (D. Utah Feb.

21, 2013); Galarza v. Szalczyk, No. 10–cv–06815, 2012 WL 1080020,

at *10, *13 (E.D. Pa. Mar. 30, 2012) rev'd on other grounds, 745

F.3d 634 (3d Cir. 2014).

-17-
so lacking in indicia of probable cause as to render official

belief in its existence unreasonable"); Torres Ramirez v. Bermudez

Garcia, 898 F.2d 224, 228 (1st Cir. 1990) (holding that an officer

who knowingly processed an invalid warrant could be held liable for

the subsequent unlawful arrest). The natural consequence of

Donaghy issuing the detainer was that Morales would be detained for

up to 48 hours. Donaghy cannot argue otherwise. The detainer he

issued, on its face, instructed ACI officials to "detain the alien

for a period not to exceed 48 hours."

Donaghy also never explains why detainers present such

"difficult and unique" circumstances as to allow him to circumvent

the Fourth Amendment's probable cause requirement. Indeed, we do

not understand why it would be more difficult to obtain the facts

necessary to establish probable cause for an individual who was

detained in criminal custody than for an individual who was walking

freely in the community. Arguably, it would be easier to establish

probable cause in the case of detainers, because immigration

officers would have easier access to interview and obtain records

from an individual detained in criminal custody. Here, although

federal regulations permit an immigration officer "to ask questions

of anyone as long as the immigration officer does not restrain the

freedom of an individual," 8 C.F.R. § 287.8(b)(1), Donaghy admits

that he "never met or even talked to Ms. Morales before issuing an

ICE detainer" against her. Appellants' Br. at 33.

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Donaghy's argument implies that a reasonable officer in

2009 could have issued an immigration detainer against an

individual for any reason -- or no reason whatsoever. Notably,

Donaghy does not argue that reasonable suspicion or some other

lower evidentiary standard applied to detainers in 2009. Instead,

he contends that it was not clearly established that the Fourth

Amendment would apply at all. Donaghy states that "a reasonable

officer in 2009 could have thought that the constitutional

standards . . . were not applicable to the issuance of the

detainer." Id. at 27. This unprecedented proposition is

contradicted by longstanding Fourth Amendment jurisprudence. See,

e.g., Dunaway, 442 U.S. at 214-15 ("Nothing is more clear than that

the Fourth Amendment was meant to prevent wholesale intrusions upon

the personal security of our citizenry, whether these intrusions be

termed 'arrests' or 'investigatory detentions.'"). Donaghy's

contention simply has no support in our case law. To the contrary,

the law was clearly established that Donaghy required probable

cause to detain Morales pursuant to an immigration detainer. Cf.

Suboh v. Dist. Attorney's Office of Suffolk Dist., 298 F.3d 81, 94

(1st Cir. 2002) ("We have no doubt that there is a clearly

established constitutional right at stake, although we have found

no case exactly on all fours with the facts of this case.").

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b. Whether Donaghy Had Probable Cause

Donaghy contends that, even if probable cause was

required, he is entitled to qualified immunity because he had

probable cause when issuing the detainer against Morales, or, at

the very least, the law was not clearly established in 2009 that

the circumstances applicable to the issuance of the detainer did

not constitute probable cause. Donaghy's argument relies on sworn

declarations that he attached to his motion for summary judgment

and reply brief in the district court. In those declarations,

Donaghy contends that he made the decision to issue the detainer

after reviewing various state and federal computer databases and

determining that Morales was a non-citizen who had "entered the

United States without inspection and [was] present in the United

States without authorization." Donaghy Decl., Dkt. 20-3 at 2, No.

1:12-cv-00301-M-DLM (D.R.I. filed Sept. 4, 2012). In particular,

Donaghy asserts that he analyzed the ACI's database and two federal

databases, the Central Index System and the National Crime

Information Center databases. After reviewing these databases, he 

"concluded that Morales was born in Guatemala, that she had made no

claim of being a United States citizen, and that there was probable

cause to issue an ICE detainer against her." Second Donaghy Decl.,

Dkt. 47-1 at 2, No. 1:12-cv-00301-M-DLM (D.R.I. filed Jan. 19,

2013).

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As we have said time and again, "[w]e have jurisdiction

over an interlocutory appeal of a denial of summary judgment on

qualified immunity only insofar as the appeal rests on legal,

rather than factual grounds." Cady, 753 F.3d at 350 (citing

Johnson v. Jones, 515 U.S. 304, 313 (1995)); Goguen v. Allen, 780

F.3d 437, 438 (1st Cir. 2015) (dismissing interlocutory appeal for

want of appellate jurisdiction because defendants' arguments "take

issue with the district court's factual assessments and do not

present a pure issue of law for this court's consideration"); Penn

v. Escorsio, 764 F.3d 102, 111 (1st Cir. 2014) (holding that

jurisdiction for interlocutory appeal was lacking where defendants'

arguments rested on factual, not legal, grounds).

In this case, Morales disputes that Donaghy and his

fellow ICE agents conducted a sufficient database search with

regard to her citizenship status. The complaint alleges that

"federal immigration authorities maintain records of naturalization

applications in their databases," and "ICE could easily have

accessed the information in its possession and confirmed that Ms.

Morales was a U.S. citizen before subjecting her to a detainer in

2009." Compl. ¶ 40. She specifically alleges that Donaghy "failed

to sufficiently investigate Ms. Morales’s immigration status before

issuing the detainer." Id. ¶ 38. She adds that Donaghy "could

have easily conducted further research to verify whether Ms.

Morales was a U.S. citizen, but he failed to do so." Id. ¶ 39. 

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Also, Morales has not had the opportunity to conduct any discovery

to assess the credibility of the assertions that Donaghy made in

his declarations.

Therefore, Donaghy would like us to grant him qualified

immunity based on his own version of the facts, even though the

district court did not accept Donaghy's version of the facts. He

fails to understand that in exercising our interlocutory appellate

jurisdiction, we are required to "take, as given, the facts that

the district court assumed when it denied summary judgment." 

Johnson, 515 U.S. at 319.

Because Donaghy's argument clearly rests on factual

grounds and does not present a pure issue of law, his appeal on

this ground "must be dismissed for want of appellate

jurisdiction."4 Goguen, 780 F.3d at 438; see also Johnson, 515

U.S. at 317 (stating that "an interlocutory appeal . . . makes

unwise use of appellate courts' time" when it "forc[es] them to

decide in the context of a less developed record, an issue very

similar to one they may well decide anyway later, on a record that

will permit a better decision").

2. Fifth Amendment Claim

Donaghy also argues that he is entitled to qualified

immunity on Morales's Fifth Amendment equal protection claim. 

4 Donaghy does not make any argument that probable cause

existed even on the facts that the district court assumed to be

true.

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Morales alleges that Donaghy based his decision to issue a detainer

against her solely on her Guatemalan origin and/or her Spanish

surname, which violated her Fifth Amendment equal protection right

to be free from discrimination on the basis of race, ethnicity, and

national origin. Donaghy contends that he is entitled to qualified

immunity because, on the facts of this case, he did not detain

Morales solely on the basis of these protected traits, and,

therefore, did not violate her clearly established Fifth Amendment

rights.

Relying once again on the declarations he attached to his

motion for summary judgment and reply brief in the district court,

Donaghy argues that he issued the detainer against Morales based

primarily on the database searches that he conducted. He stated

that he issued the detainer after determining she was born in

Guatemala "[b]ecause there was no record [that Morales had] any

prior encounter with ICE, no record of Morales applying for

immigration benefits, including naturalization, and evidence of at

least one alias with multiple social security numbers." Donaghy

Decl., Dkt. 20-3 at 2. Donaghy added that he "did not issue the

detainer to discriminate against Morales on the basis of race,

ethnicity, or national origin, or on any other basis." Id. He

contends that "this appeal involves solely a question of law"

regarding "whether an officer may constitutionally rely, in part,

on an individual's birth in a foreign country in determining

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whether to issue a detainer." Appellants' Reply Br. at 25

(emphasis added).

Donaghy's contention misses the point. His argument that

he only relied "in part" on Morales's foreign birth is based

entirely on his self-serving declarations. Donaghy requests that

we reject the district court's "finding that he issued the ICE

detainer solely because Ms. Morales was born in a foreign country,"

Appellants' Br. at 33, based on his declarations even though the

district court did not credit those declarations in denying

Donaghy's motion for summary judgment. We simply do not have

appellate jurisdiction to entertain Donaghy's argument at this

time. See Escorio, 764 F.3d at 111 (stating that "we have no basis

on which to exercise jurisdiction" because "nowhere in the

defendants' brief does there appear any developed argument that the

defendants are entitled to summary judgment even if the district

court's conclusions about the record were correct" (internal

quotation marks omitted)).

B. Claim Against Chadbourne and Riccio

Chadbourne and Riccio contend that they are entitled to

qualified immunity on Morales's Fourth Amendment supervisory

liability claim against them. In reviewing the district court's

denial of their motion to dismiss, we analyze, first, whether the

facts alleged in the complaint "show the defendants' conduct

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violated a constitutional right," and second, whether that right

was "clearly established" in 2009. Santana, 342 F.3d at 23.

Morales alleges that ICE supervisors Chadbourne and

Riccio violated her Fourth Amendment rights because they knew or

were deliberately indifferent to the fact that their subordinates

routinely issued immigration detainers against naturalized U.S.

citizens without probable cause, and formulated or condoned

policies permitting the issuance of detainers without probable

cause. Defendants argue that Morales has failed to allege

sufficient facts to plausibly state a supervisory liability claim.

 A supervisor may be held liable for the constitutional

violations committed by his subordinates where "an affirmative link

between the behavior of a subordinate and the action or inaction of

his supervisor exists such that the supervisor's conduct led

inexorably to the constitutional violation." Maldonado v.

Fontanes, 568 F.3d 263, 275 (1st Cir. 2009) (internal quotation

marks omitted). A plaintiff can establish that "affirmative link"

by alleging that the supervisor was "a primary violator or direct

participant in the rights-violating incident," or that "a

responsible official supervises, trains or hires a subordinate with

deliberate indifference toward the possibility that deficient

performance of the task eventually may contribute to a civil rights

deprivation." Sanchez v. Pereira-Castillo, 590 F.3d 31, 49 (1st

Cir. 2009) (internal quotation marks omitted). 

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Morales alleges that ICE agents in Rhode Island

maintained a practice of "routinely collaborat[ing]" with state law

enforcement authorities "to issue and enforce detainers against

U.S. citizens, particularly naturalized U.S. citizens, . . .

without sufficient investigation into their citizenship or

immigration status and without probable cause to believe that they

are non-citizens subject to removal and detention." Compl. ¶ 67. 

The complaint further alleges that when an individual is arrested

at the ACI and "provide[s] a foreign country of birth, has a

foreign-sounding last name, speaks English with an accent, and/or

appears to be Hispanic," ICE agents "often fail sufficiently to

investigate the arrestee’s citizenship or immigration background

before issuing an immigration detainer . . . without probable cause

to believe that the individual is a noncitizen subject to detention

and removal by ICE." Id. ¶¶ 69-70.

The complaint further alleges that Chadbourne and Riccio,

as the heads of the ICE Boston Field Office and Rhode Island

sub-office, "knew or should have known that their subordinates,

including Defendant Donaghy, regularly . . . issued immigration

detainers against individuals such as Ms. Morales, without

conducting sufficient investigation and without probable cause to

believe that the subject of the immigration detainer was a

non-citizen subject to removal and detention." Id. ¶ 81. The

complaint adds that Chadbourne and Riccio "formulated, implemented,

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encouraged, or willfully ignored [ICE's] policies and customs [in

Rhode Island] with deliberate indifference to the high risk of

violating Ms. Morales’s constitutional rights" and failed to

"change[] these harmful policies and customs" although they "had

the power and the authority to change [them] by, for instance,

training officers such as Defendant Donaghy to perform an adequate

investigation into individuals' citizenship and immigration status

before issuing detainers." Id. ¶¶ 84-85.

Relying on the Supreme Court's decision in Ashcroft v.

Iqbal, 556 U.S. 662 (2009), Chadbourne and Riccio contend that

Morales's allegations are conclusory and fail to establish an

affirmative link between Donaghy's behavior and their action or

inaction. In Iqbal, the Supreme Court held that the plaintiff,

Javaid Iqbal, had not alleged a plausible supervisory liability

claim against Attorney General John Ashcroft and FBI Director

Robert Mueller under Federal Rule of Civil Procedure 8. See 556

U.S. at 680-82. Iqbal alleged that Ashcroft and Mueller "knew of,

condoned, and willfully and maliciously agreed to subject" him to

harsh conditions of confinement "as a matter of policy, solely on

account of [his] religion, race, and/or national origin and for no

legitimate penological interest." Id. at 680 (internal quotation

marks omitted). The Supreme Court rejected "[t]hese bare

assertions" as conclusory because they "amount to nothing more than

'a formulaic recitation of the elements' of a constitutional

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discrimination claim." Id. at 681 (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007)).

We reject Chadbourne and Riccio's argument because,

unlike the conclusory allegations in Iqbal, the allegations in

Morales's complaint are based on factual assertions that establish

the affirmative link necessary to sufficiently plead a supervisory

liability claim. Morales alleges that, as a U.S. citizen, she has

been detained pursuant to an immigration detainer "on at least two

separate occasions" in July 2004 and May 2009. Compl. ¶¶ 11-13. 

Furthermore, during the second encounter, Morales informed ICE

agents that "she had been erroneously detained by ICE on a previous

occasion . . . and that she was afraid that it may happen again." 

Id. ¶ 61. The ICE agents "reinforced [her] fear, stating that it

could happen again in the future" even though they had just

verified she was a U.S. citizen. Id. The agents "never told

Morales that ICE would correct the problem or take any steps to

ensure that she would not be subject to wrongful detention again in

the future." Id. Finally, after Morales's release, Joan Mathieu,

an immigration attorney, contacted ICE's Rhode Island office to

learn more about why an immigration detainer had been issued

against Morales. Id. ¶ 66. An ICE agent told Mathieu that "the

erroneous detention of U.S. citizens" pursuant to immigration

detainers "happens not infrequently." Id. The agent added that

"ICE routinely issues detainers" against naturalized U.S. citizens

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and that "if Ms. Morales is arrested again, ICE will likely put a

detainer on her." Id.

Based on these detailed allegations -- combined with the

previously highlighted allegations discussing Chadbourne and

Riccio's specific roles -- and drawing all reasonable inferences in

favor of Morales (which we must do at the motion to dismiss stage),

it is plausible that Chadbourne and Riccio either formulated and

implemented a policy of issuing detainers against naturalized U.S.

citizens without probable cause or were deliberately indifferent to

the fact that their subordinates were issuing detainers against

naturalized U.S. citizens without probable cause. Thus, Morales

has sufficiently alleged that Chadbourne and Riccio, through their

action or inaction, permitted their subordinates, including

Donaghy, to issue detainers without probable cause in violation of

the Fourth Amendment.5

5 We also find that this Fourth Amendment right was "clearly

established" in 2009. Santana, 342 F.3d at 23. As explained

above, the law was clearly established in 2009 that an immigration

officer needed probable cause to issue a detainer. Furthermore,

the law was also clearly established that a supervisor may be held

liable for unconstitutional actions of a subordinate if he

"supervises, trains, or hires a subordinate with deliberate

indifference toward the possibility that deficient performance of

the task eventually may contribute to a civil rights deprivation." 

Camilo-Robles v. Zapata, 175 F.3d 41, 44 (1st Cir. 1999). A

supervisor may also be held liable for "formulating a policy, or

engaging in a custom, that leads to the challenged occurrence." 

Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir.

1994). Although there were no specific cases in 2009 directly

addressing a supervisor's liability with regard to the issuance of

immigration detainers, it is beyond debate that a supervisor who

either authorized or was deliberately indifferent to his

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III.

For the reasons stated above, we affirm the district

court's denial of qualified immunity on Morales's Fourth Amendment

claim against Donaghy on the ground that the law was clearly

established in 2009 that an ICE agent required probable cause to

issue an immigration detainer. We dismiss Donaghy's appeal on his

Fourth Amendment argument regarding the circumstances surrounding

the issuance of the detainer and his Fifth Amendment equal

protection argument for want of jurisdiction. We also affirm the

district court's denial of qualified immunity on Morales's Fourth

Amendment supervisory liability claim against Chadbourne and

Riccio. We remand for proceedings consistent with this opinion. 

So ordered.

subordinate's issuance of a detainer without probable cause could

be held liable for violating the Fourth Amendment. See Hall, 817

F.2d at 925 ("The fact that no court had put these pieces together

in the precise manner we do today does not absolve defendants of

liability.").

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