Mirmehdi

Opinion by Judge O’SCANNLAIN; Concurrence by Judge SILVERMAN.

OPINION

We are asked to decide, among other things, whether an alien not lawfully in the United States may sue for monetary damages claiming constitutionally invalid detention.

I

Mohammad, Mostafa (“Michael”), Mohsen, and Mojtaba Mirmehdi (collectively the “Mirmehdis”) are four citizens of Iran who came to the United States at various times, purportedly due to their long-standing opposition to that nation’s theocratic regime. In 1978, Michael arrived on a student visa. Having abandoned the degree that earned him entry into the United States, he became a real estate agent in 1985. Mohsen, Mojtaba, and Mohammad joined Michael in California in the early 1990s. Mohsen and Mohammad also became real estate agents. Unable to pass the real estate licensing exam, Mojtaba worked in construction.

In 1998, the Mirmehdis applied for political asylum with the assistance of an attorney named Bahram Tabatabai. Tabatabai falsified certain details in the Mirmehdis’ applications. After Tabatabai was arrested for immigration fraud in March 1999, he agreed to cooperate with federal authorities. As part of his plea bargain, Tabatabai…

concurring:

Although I concur in the opinion of the court, I write separately to emphasize that this case does not present the issue of whether illegal immigrants could ever bring a Bivens action. In fact, we have previously allowed an illegal immigrant to bring a Bivens action. See Papa v. United States, 281 F.3d 1004, 1010-11 (9th Cir. 2002) (holding that immigrant could bring Bivens action for alleged due process violations during immigration detention).

However, in this case, I agree with my colleagues that the plaintiffs lack an implied right of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971). As Judge O’Scannlain aptly points out, the plaintiffs had available, and indeed availed them *1083 selves of, the comprehensive immigration and habeas remedial mechanisms created by Congress, a factor that counsels against recognizing a Bivens action here. See Kotarski v. Cooper, 866 F.2d 311, 312 (9th Cir.1989). And the immigration context in which this case arose implicates sensitive issues of “diplomacy, foreign policy, and the security of the nation,” further counseling against allowing a Bivens…

Paul L. Hoffman, Schonbrun DeSimone Seplow Harris Hoffman & Harrison LLP, Venice, CA, argued the cause and filed the briefs for the plaintiffs-appellants. With him on the briefs were Michael Seplow, Adrienne Quarry, and Victoria Don, Schonbrun DeSimone Seplow Harris Hoffman & Harrison LLP, Venice, CA.

Andrew D. Silverman, United States Department of Justice, Torts Branch, Civil Division, Washington, D.C., filed the briefs for the defendants-appellees. With him on the brief were Jeremy S. Brumbelow, Tony West, Timothy P. Garren, and Andrea W. McCarthy, Department of Justice, Civil Division, Washington, D.C.

Before: ARTHUR L. ALARCON, DIARMUID F. O'SCANNLAIN, and BARRY G. SILVERMAN, Circuit Judges.

Opinion by Judge O'SCANNLAIN; Concurrence by Judge SILVERMAN.

O'SCANNLAIN, Circuit Judge:

We are asked to decide, among other things, whether an alien not lawfully in the United States may sue for monetary damages claiming constitutionally invalid detention.

Mohammad, Mostafa ("Michael"), Mohsen, and Mojtaba Mirmehdi (collectively the "Mirmehdis") are four citizens of Iran who came to the United States at various times, purportedly due to their long-standing opposition to that…