Mirmehdi

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

ORDER

The opinion filed in this case on November 3, 2011, and reported at 662 F.3d 1073 , is hereby amended. An amended opinion is filed concurrently with this order. With this amendment, the panel has unanimously voted to deny the petition for rehearing. Judges O’Scannlain and Silverman have voted to deny the suggestion for rehearing en banc, and Judge Alarcón has so recommended. The full court has been advised of the petition for rehearing en banc, and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing and the suggestion for rehearing en banc are DENIED. No subsequent petitions for rehearing or suggestions for rehearing en banc may be filed.

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…

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.