Martinez-Aguero v. Gonzalez

In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-50472
_______________
MARIA ANTONIETA MARTINEZ-AGUERO,
Plaintiff-Appellee,
VERSUS
HUMBERTO GONZALEZ,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
Before SMITH, WIENER, and STEWART,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
We must decide whether aliens stopped at
the border have a constitutional right to be free
from false imprisonment and the use of ex-
cessive force by law enforcement personnel.
Concluding that they do, we affirm the denial
of Humberto Gonzalez’s motion for summary
judgment that he pursued on the basis of a
claim of qualified immunity, and we remand
for further proceedings.
I.
On interlocutory appeal of the denial of a
summary judgment motion seeking dismissal
for qualified immunity, we review the facts in
the light most favorable to the plaintiff. Kin-
ney v. Weaver, 367 F.3d 337, 348 (5th Cir.
2004) (en banc) (citing Wagner v. Bay City,
227 F.3d 316, 320 (5th Cir. 2000)). Those
facts are as follows:
Plaintiff Maria Martinez-Aguero is a forty-
nine-year-old citizen and resident of Mexico
United States Court of Appeals
Fifth Circuit
F I L E D
August 4, 2006
Charles R. Fulbruge III
Clerk

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2
who visits the United States once a month to
accompany her aunt to the El Paso Social Se-
curity office. Though she normally enters the
country using a valid border-crossing card
(which is the same thing as a visitor visa), her
card had become invalid when the former
Immigration and Naturalization Service decid-
ed to issue biometric, machine-readable cards
for increased security. On July 3, 2001, Mar-
tinez-Aguero went with her aunt and mother
to the U.S. consular office to apply for new
cards and asked how she could legally enter
the United States while waiting for the cards
to arrive in the mail. Officials told her she
could get a stamp on her old cards that would
allow her to travel in the interim. For the next
three months she used the stamped card to
cross the border without incident.
On October 4, Martinez-Aguero and her
aunt made their usual bus trip to El Paso.
United States immigration officials stopped the
bus within the zone outside the port of entry
but within the territorial United States.
Gonzalez, an INS border patrol agent, ordered
Martinez-Aguero and her aunt off the bus and
requested to see their documents. He told
Martinez-Aguero that her visa had expired, so
she could not enter the country.
Martinez-Aguero asked to speak to some-
one in authority, and Gonzalez replied in Span-
ish, “I am in charge!” Martinez-Aguero asked
him why he would not help her, because he
also was Mexican. This agitated Gonzalez,
who pointed to patches on his uniform and
shouted, “Look at me! I am not a Mexican!
Look at my uniform!” He then yelled profani-
ties at them in Spanish and threw their visas to
the ground.
Martinez-Aguero picked her visa up and
made a sarcastic remark to her aunt about
Gonzalez’s bad language, which he apparently
overheard. She and her aunt began walking
back in the direction of Mexico when Gon-
zalez yelled, “Stop in the name of the law!”
Martinez-Aguero alleges in her affidavit
that Gonzalez then “grabbed [her] arms, twist-
ed them behind [her] back, pushed her into a
concrete barrier, which hit [her] in the stomach
. . . [and] then started kicking [her] with his
knees in [her] lower back.” Another agent
then took Martinez-Aguero into an office and
handcuffed her to a chair. Gonzalez allegedly
came in and showed her scratches on his arms
and told her that he was going to claim that
she cut him with her fingernails.
Shortly thereafter, Martinez-Aguero, who
is epileptic, suffered a seizure while still hand-
cuffed to the chair. She was given oxygen,
and when she recovered she was questioned by
officials before being permitted to leave. She
suffered another seizure after arriving home
and was taken to the hospital. She claims she
now suffers from recurrent seizures (before the
beating she had not suffered a seizure for 17
years), memory problems, back injuries, and
continual pain. She alleges she cannot walk
long distances or adequately clean her house
anymore.
II.
Martinez-Aguero sued Gonzalez for as-
sault, battery, and false arrest under the Fed-
eral Tort Claims Act and for false arrest and
excessive use of force under the Fourth and
Fifth Amendments. Gonzalez moved for sum-
mary judgment, asserting qualified immunity.
The district court denied the motion, and Gon-
zalez filed an interlocutory appeal.

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3
III.
Our standard of review for interlocutory
appeals differs from the usual Federal Rule of
Civil Procedure 56 standards for summary
judgment. We lack jurisdiction to review the
district court’s finding that no genuine issue of
material fact exists; rather, we “consider only
whether the district court erred in assessing the
legal significance of the conduct that the
district court deemed sufficiently supported for
purposes of summary judgment.” Kinney, 367
F.3d at 348. If the interlocutory appeal con-
cerns summary judgment on a defense of
qualified immunity, we must view the facts in
the light most favorable to the plaintiff. See id.
(citing Wagner v. Bay City, 227 F.3d 316, 320
(5th Cir. 2000)). Our review of the legal
significance of the facts is de novo. See id. at
349.
IV.
We use a two-part test to determine wheth-
er an officer is entitled to qualified immunity:
first, do the facts alleged show that he has
violated plaintiff’s constitutional rights, see
Saucier v. Katz, 533 U.S. 194, 201 (2001);
second, were the rights clearly established at
the time of the alleged violation? See id. To
determine whether a right is clearly estab-
lished, we ask “whether it would be clear to a
reasonable officer that his conduct was unlaw-
ful in the situation he confronted.” Id.
The only claims relevant to this appeal are
Martinez-Aguero’s Bivens actions under the
Fourth and Fifth Amendments.1 Specifically,
she alleges wrongful arrest under the Fourth
Amendment and excessive force under the
Fourth and Fifth Amendments. We must
determine whether (1) Martinez-Aguero is en-
titled to the protection of these constitutional
guarantees, (2) the facts she alleges would suf-
fice to show that Gonzalez violated her rights,
and (3) the rights were clearly established at
the time of the incident.
A.
Gonzalez argues that Martinez-Aguero had
no constitutional rights at the time of the al-
leged incident because she was an alien who
attempted to enter the country illegally and
was not admitted. Gonzalez relies on United
States v. Verdugo-Urquidez, 494 U.S. 259,
274-75 (1990), which held that an alien who
has no voluntary attachment to the United
States enjoys no extraterritorial Fourth
Amendment protection.2 The Court in Verdu-
go-Urquidez analyzed the text and history of
the phrase “the People” in the Fourth Amend-
ment and concluded that it “refers to a class of
persons who are part of a national community
or who have otherwise developed sufficient
connection with this country to be considered
part of that community.” Id. at 265. The
Court acknowledged that it had held that ali-
ens enjoy certain constitutional rights, but
those cases “establish only that aliens receive
constitutional protections when they have
1 “Under Bivens a person may sue a federal
agent for money damages when the federal agent
has allegedly violated that person’s constitutional
rights.” Brown v. NationsBank Corp., 188 F.3d
579, 590 (5th Cir. 1999) (citing Bivens v. Six Un-
(continued...)
(...continued)
known Named Agents of Fed. Bur. of Narcotics,
403 U.S. 388 (1971)). Martinez-Aguero also sued
the United States under the Federal Tort Claims
Act.
2 Specifically, the defendant in Verdugo-Urqui-
dez was detained in a correctional facility in
California while federal agents searched his resi-
dence in Mexico without a warrant. See Verdugo-
Urquidez, 494 U.S. at 262.

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4
come within the territory of the United States
and developed substantial connections with the
country.”3 Gonzalez also relies on Johnson v.
Eisentrager, 339 U.S. 763, 765-66 (1950), in
which the Court rejected the extraterritorial
application of the Fifth Amendment.
The crucial distinction is “that certain con-
stitutional protections available to persons in-
side the United States are unavailable to aliens
outside our geographic borders.” Zadvydas v.
Davis, 533 U.S. 678, 693 (2001). The Court
in Zadvydas reasoned that a statute that autho-
rized the indefinite detention of removable ali-
ens present in the U.S. would pose serious
constitutional problems. See id. at 682. The
Court distinguished Shaughnessy v. United
States ex rel. Mezei, 345 U.S. 206 (1953),
which held that a lawfully admitted alien who
left the country and was denied reentry for se-
curity reasons could be indefinitely detained at
Ellis Island. The “critical” difference for the
Court was that the alien in Mezei never reen-
tered the United States; “[h]ence, he was treat-
ed, for constitutional purposes, as if stopped at
the border.” See Zadvydas, 533 U.S. at 693.4
This doctrine is called the “entry fiction,”
and Gonzalez urges its application to this case:
Because Martinez-Aguero was denied entry
into the United States, and because the fiction
requires us to treat her as if stopped at the
border (even though she was technically pres-
ent in U.S. territory), and because the Fourth
and Fifth Amendments have no extraterritorial
application, Gonzalez contends he should be
entitled to qualified immunity.
We disagree. This conclusion is inconsis-
tent with Lynch v. Cannatella, 810 F.2d 1363
(5th Cir. 1987), in which we specifically lim-
ited the application of the “entry fiction” to im-
migration and deportation matters:
The “entry fiction” that excludable aliens
are to be treated as if detained at the border
despite their physical presence in the United
States determines the aliens’ rights with
regard to immigration and deportation pro-
ceedings. It does not limit the right of ex-
cludable aliens detained within United
States territory to humane treatment.
Id. at 1373.
We reasoned in Lynch that the sovereign
should enjoy particularly broad discretion in
the immigration context, because the power to
decide which, and how many, outsiders may
join our society is critical to national self-de-
termination. See id. There are, however, no
identifiable national interests that justify the
wanton infliction of pain. See id. at 1373-74.
3 Id. at 271 (citing Plyler v. Doe, 457 U.S. 202,
212 (1982) (stating that provisions of the
Fourteenth Amendment “are universal in their ap-
plication, to all persons within the territorial jur-
isdiction”); Kwong Hai Chew v. Colding, 344 U.S.
590, 596 (1953) (opining that “once an alien law-
fully enters and resides in this country he becomes
invested with the rights guaranteed by the Con-
stitution to all people within our borders”).
4 In United States v. Angeles-Mascote, 206
F.3d 529, 531 (5th Cir. 2000), this court made a
plain distinction between actual entry into the
United States and attempted entry, in the context of
interpreting a grand jury indictment: “‘[A]ctual
entry’ has been found by most courts to require
(continued...)
(...continued)
both physical presence in the country as well as
freedom from official restraint, while ‘attempted
entry’ only requires that the person approach a port
of entry and make a false claim of citizenship or
non-resident alien status.”).

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5
We concluded that “whatever due process
rights excludable aliens may be denied by vir-
tue of their status, they are entitled under the
due process clauses of the fifth and fourteenth
amendments to be free of gross physical abuse
at the hands of state or federal officials.” Id.
at 1374.
Gonzalez distinguishes Lynch because the
aliens there were detained for ten days, but
Martinez-Aguero was detained for only about
six hours. This distinction fails, however, be-
cause Mezei (the alien detained at Ellis Island)
was held captive for twenty-one months. See
Mezei, 345 U.S. at 209. The operative distinc-
tion between Lynch and Mezei is that Mezei
brought a due process challenge to his exclu-
sion proceeding, but Lynch challenged the of-
ficial use of excessive force. The “entry fic-
tion” applies to the former claim but not the
latter. Because the “entry fiction” does not
bar Martinez-Aguero’s suit, and because she
was concededly within the territorial jurisdic-
tion of the U.S. (though outside the port of en-
try) when the alleged incident occurred, Lynch
counsels that she should receive the Fifth
Amendment’s protection against the use of
excessive force.
In Graham v. Connor, 490 U.S. 386, 395
(1989), however, the Court held that “all
claims that law enforcement officers have used
excessive forceSSdeadly or notSSin the course
of an arrest, investigatory stop, or other
‘seizure’ of a free citizen should be analyzed
under the Fourth Amendment and its ‘reason-
ableness’ standard, rather than under a ‘sub-
stantive due process’ approach.” The Court
reasoned that because “the Fourth Amendment
provides an explicit textual source of constitu-
tional protection against this sort of physically
intrusive governmental conduct, that Amend-
ment, not the more generalized notion of ‘sub-
stantive due process,’ must be the guide for
analyzing these claims.” Id.
Graham does not call into question the part
of Lynch that limits the applicability of the
“entry fiction” to the context of immigration
and deportation proceedings. Instead, it mere-
ly locates the right to be free from excessive
use of force in the express textual guarantees
of the Fourth Amendment. Graham does,
however, require us to analyze Martinez-
Aguero’s excessive force claim, first and fore-
most, as a claim alleging an unreasonable seiz-
ure under that amendment.5 We turn now to
whether she has standing under the Fourth
Amendment to challenge unlawful arrest and
the excessive use of force.
In pre-Verdugo-Urquidez cases, the Su-
preme Court had assumed, and we have expli-
citly held, that the Fourth Amendment applies
to aliens.6 Martinez-Aguero argues that the
5 Because the Fourth Amendment applies to
Martinez-Aguero, we need not decide whether the
due process protection embodied in Lynch contin-
ues to apply of its own force to a case where the
protection of the Fourth Amendment is unavailable.
We note, however, that because Graham by its
own terms, 490 U.S. at 395, applies only to “free
citizens,” whereas Lynch, 810 F.2d at 1373,
applies to all “excludable aliens detained within
United States territory,” Lynch may sweep more
broadly than does the Fourth Amendment
guarantee.
6 See, e.g., Almeida-Sanchez v. United States,
413 U.S. 266 (1973) (stating that a Mexican citi-
zen was entitled to Fourth Amendment protection
under statute that purports to authorize warrantless
searches within a reasonable distance from the U.S.
border); United States v. Cortes, 588 F.2d 106,
110 (5th Cir. 1979) (“Once aliens become subject
(continued...)

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6
definition of “the People” in Verdugo-Urqui-
dez, seemingly limiting the class of aliens that
deserve protection to those with “substantial
connections” to the United States, is not bind-
ing, because Justice Kennedy, though joining
the majorityopinion in full, specially concurred
to express disagreement with the majority’s
textual analysis.
Justice Kennedy appeared to indicate that
the key factor in his decision was the extrater-
ritorial application of the Fourth Amendment:
“If the search had occurred in a residence
within the United States, I have little doubt
that the full protections of the Fourth Amend-
ment would apply.” Verdugo, 494 U.S. at 278
(Kennedy, J., concurring). Justice Kennedy’s
formulation would be favorable to Martinez-
Aguero, because he appears to believe that the
Fourth Amendment’s protection is coextensive
with U.S. territorial boundaries.
If, however, we take at face value the fact
that Justice Kennedy joined the opinion of the
Court, see Verdugo, 494 U.S. at 275, there are
five votes for the proposition that “aliens re-
ceive constitutional protections when they
have come within the territory of the United
States and developed substantial connections
with the country.” Id. at 271 (emphasis add-
ed).7 We need not decide whether Verdugo-
Urquidez is controlling, because even under
the more demanding test, Martinez-Aguero
has “developed substantial connections with
the country” and earned the protection of the
Fourth Amendment.
Gonzalez contends that Martinez-Aguero
lacked “substantialconnections” with the Unit-
ed States because, besides having an expired
visa and applying for a new one, her only
connection consisted of periodic visits to assist
her aunt with retrieving her Social Security
check. Gonzalez cites Am. Immigration
Lawyers Ass’n v. Reno, 18 F. Supp. 2d 38, 60
& n.17 (D.D.C. 1998), which held that regular
visits to family members do not qualify as
“substantial connections.” On the contrary,
Martinez-Aguero cites language in Verdugo-
Urquidez, 494 U.S. at 273, suggesting that
aliens with substantial connections are those
who are in this country “voluntarily and pre-
sumably [have] accepted some societal obliga-
tions.” She argues that her regular and lawful
entry of the United States pursuant to a valid
border-crossing card8 and her acquiescence in
6(...continued)
to liability under United States law, they also have
the right to benefit from [Fourth Amendment]
protection.”); United States v. Cruz, 581 F.2d 535,
537 (5th Cir. 1978) (en banc), overruled on other
grounds by United States v. Causey, 834 F.2d
1179 (5th Cir. 1987) (stating that law enforcement
“must . . . be performed with due regard to the
Fourth Amendment to the Constitution, which
affords citizen and alien alike protection against
illegal stops, searches, and arrests”); United States
v. Cadena, 585 F.2d 1252, 1262 (5th Cir. 1978),
overruled on other grounds by United States v.
Michelena-Orovio, 719 F.2d 738 (5th Cir. 1983)
(observing that “once we subject . . . aliens to
criminal prosecution, they are entitled to the equal
protection of all our laws, including the Fourth
Amendment”).
7 See also United States v. Emerson, 270 F.3d
203, 228 (5th Cir. 2001) (citing favorably the de-
finition of the principal Verdugo opinion in the
course of holding that the phrase “the people” as
used in the Second Amendment confers a personal
right to bear arms).
8 Though Martinez-Aguero arguably did not
have a valid border-crossing card the day she was
arrested, she reasonably relied on the statements of
officials at the U.S. consular office that her
(continued...)

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7
the U.S. system of immigration constitute her
voluntary acceptance of societal obligations,
rising to the level of “substantial connec-
tions.”9
Martinez-Aguero is correct. There may be
cases in which an alien’s connection with the
United States is so tenuous that he cannot rea-
sonably expect the protection of its constitu-
tional guarantees; the nature and duration of
Martinez-Aguero’s contacts with the United
States, however, are sufficient to confer
Fourth Amendment rights. It follows that she
may bring a Bivens claim for unlawful arrest
and the excessive use of force under the
Fourth Amendment.
B.
Because Martinez-Aguero is entitled to
Fourth Amendment protection, it is obvious
that she has alleged facts that, if true, would
establish that Gonzalez violated those rights.
As to false arrest, Gonzalez arrested Martinez-
Aguero pursuant to 18 U.S.C. § 111, which
reads as follows: “Whoever . . . forcibly as-
saults, resists, opposes, impedes, intimidates,
or interferes with any person . . . while en-
gaged in or on account of the performance of
official duties . . . shall . . . be fined under this
title or imprisoned not more than one year, or
both[.]”
Under the Fourth Amendment, an arrest is
reasonable if supported by probable cause.
See Atwater v. City of Lago Vista, 195 F.3d
242, 244 (5th Cir. 1999) (en banc). We define
probable cause as “reasonable ground for be-
lief . . . supported by less than prima facie
proof but more than mere suspicion.” United
States v. One 1978 Chevrolet Impala, 614
F.2d 983, 984 (5th Cir. 1980). Taking her
version of the facts as true, we must conclude
that Martinez-Aguero did nothing to interfere
with Gonzalez’s official duties; rather, the ar-
rest was entirely without provocation. As the
district court concluded, “[a]ny argument to
the contrary would be patently absurd.”
This reasoning applies with equal force to
Martinez-Aguero’s claim of excessive force.
In Graham, 490 U.S. at 396, the reasonable-
ness of official use of force turns on “a careful
balancing of the nature and quality of the in-
trusion on the individual’s Fourth Amendment
interests against the countervailing govern-
mental interests at stake.” The relevant factors
include “the severity of the crime at issue,
whether the suspect poses an immediate threat
to the safety of the officers or others, and
whether he is actively resisting arrest or at-
tempting to evade arrest by flight.” Id.
Again, Martinez-Aguero plainly prevails
under the facts she presents. She alleges that
she was entirely docile and compliant (with the
exception of one stray remark not intended for
Gonzalez to hear); therefore, there could be no
state interest in subduing her using force. In
short, she has presented facts sufficient to
survive summary judgment on both claims.
C.
Finally, we must determine whether Mar-
8(...continued)
stamped, expired card would suffice. See Raley v.
Ohio, 360 U.S. 423, 426 (1959) (holding that
“convicting a citizen for exercising a privilege
which the State had clearly told him was available
to him” would be “to sanction an indefensible sort
of entrapment by the State”).
9 Cf. United States v. Tehrani, 826 F. Supp.
789, 793 n.1 (D. Vt. 1993) (holding that defen-
dants voluntarily gaining admission to the United
States for a temporary visit as tourists qualified as
“substantial connections”).

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8
tinez-Aguero’s rights were “clearly estab-
lished” at the time of the incident. She con-
tends that Gonzalez has waived any right to
make this argument. Indeed, the issue that
Gonzalez presents on appeal, as described and
discussed in his brief, deals exclusively with
the question whether aliens enjoy Fourth or
Fifth Amendment protection at all. The words
“clearly established” appear precisely once,
when Gonzalez states the test for qualified im-
munity. Because, however, one could read
Gonzalez’s argument that the relevant cases
do not support any constitutional protections
for Martinez-Aguero as implicitly containing
the lesser argument that the protections are
not clearly established, we therefore consider
the issue on the merits.
Gonzalez could argue that Martinez-Ague-
ro’s Fourth Amendment rights were not clearly
established because courts have split on the
precedential value of Verdugo-Urquidez; be-
cause it is uncertain how the Court intended
the “substantial connections” test to be ap-
plied; and because the Court seemed explicitly
to reserve the question whether illegal aliens
would have Fourth Amendment rights on U.S.
soil.10 But, decisions pre-dating Verdugo-
Urquidez, including cases from this circuit,
state unequivocally that aliens are entitled to
Fourth Amendment protection.11
Also, the inquiry into whether rights are
clearly established “must be undertaken in light
of the specific context of the case, not as a
broad general proposition.” Saucier, 533 U.S.
at 201. If Martinez-Aguero deserves any
Fourth Amendment or due process protection
at all, it surely must extend to the right to be
free of entirely meritless arrests and the exces-
sive use of force. Lynch plainly confers on ali-
ens in disputes with border agents a right to be
free from excessive force, and no reasonable
officer would believe it proper to beat a
defenseless alien without provocation, as Mar-
tinez-Aguero alleges.
The logic of Lynch applies equally to ar-
resting an alien without cause: “Counsel has
not suggested and we cannot conceive of any
national interests that would justify [the prac-
tice] simply because that person is an exclud-
able alien.” Lynch, 810 F.2d at 1374. This
reasoning is particularly compelling when an
alien has made a good-faith effort to comply
with federal requirements for obtaining a tem-
porary visa and has made frequent use of a
border-crossing card to visit the country in the
past. On these facts, no officer would reason-
ably conclude that Martinez-Aguero lacked
protection against suspicionless arrest.
We AFFIRM the denial of summary judg-
ment, and REMAND to the district court for
further proceedings.
10 Verdugo-Urquidez, 494 U.S. at 272 (stating
that dicta in a previous case are “not dispositive of
how the Court would rule on a Fourth Amendment
claim by illegal aliens in the United States if such
a claim were squarely before us”).
11 See supra n.6 and accompanying text.

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