2nd Circuit: Post-9-11 Muslim-Arab Alien Detainees Have Due Process-Equal Protection Claims

In Turkmen v. Hasty, (2d Cir., June 17, 2015), the U.S. Second Circuit Court of Appeals in a 2-1 decision held that a group of "out-of-status" aliens rounded up on immigration charges and detained after the 9/11 attacks have substantive due process and equal protection claims under Bivens v. Six Unknown Agents against various defendants including former Attorney General John Ashcroft, former FBI Director Robert Mueller and former INS Commissioner James Ziglar.  The court however held that a Bivens remedy is not available  for plaintiffs' free exercise claims.  The majority concluded that plaintiffs had adequately pleaded that they were being held in punitive conditions only because they were, or were perceived to be, Arab or Muslim.  According to the majority, that policy was "built on a perception of a race and faith that has no basis in fact." AP and FDL report further on the 109-page majority opinion and 91-page dissent.