Sissoko

ORDER

The opinion filed on June 13, 2005 and reported at 412 F.3d 1021 (9th Cir.2005) is hereby withdrawn and replaced by the concurrently-filed opinion. The pending petition for rehearing and rehearing en banc is denied as moot. Further petitions for rehearing and/or rehearing en banc may be filed.

OPINION

After Oumar Sissoko (“Sissoko”), an alien who had over-stayed his visa but had applied for legalization, returned from his father’s funeral in the spring of 1997, an immigration inspection officer, appellant Loyda R. Rocha, took him into custody as an “arriving alien” without proper admission documents. Because of Rocha’s actions, Sissoko spent nearly three months in detention. Sissoko and his wife Julie Sis-soko, a U.S. citizen, brought this action, claiming that the detention was in violation of the Fourth Amendment and seeking damages. Rocha now appeals the district court’s grant of summary adjudication to the Sissokos on the issue of the legality of the detention, and the court’s denial of Rocha’s motion for summary judgment on qualified immunity grounds.

Rocha’s initial contention is that, under 8 U.S.C. § 1252 , the courts are closed to the Sissokos. We disagree.…