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06-4216-Cv Arar v. Ashcroft

06-4216-Cv Arar v. Ashcroft

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Published by Aaron Wiener

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Published by: Aaron Wiener on Nov 03, 2009
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01/02/2013

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06-4216-cvArar v. Ashcroft
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UNITED STATES COURT OF APPEALS
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FOR THE SECOND CIRCUIT
45August Term, 2008678(In Banc Rehearing: December 9, 2008 Decided: November 2, 2009)9Docket No. 06-4216-cv101112- - - - - - - - - - - - - - - - - - - - - -x13MAHER ARAR,141516Plaintiff-Appellant,1718- v.-1920JOHN ASHCROFT, Attorney General of the21United States, LARRY D. THOMPSON,22formerly Acting Deputy Attorney General,23TOM RIDGE, Secretary of Homeland Security,24J. SCOTT BLACKMAN, formerly Regional25Director of the Regional Office of26Immigration and Naturalization Services,27PAULA CORRIGAN, Regional Director of28Immigration and Customs Enforcement,29EDWARD J. MCELROY, formerly District30Director of Immigration and Naturalization31Services for New York District, and now32Customs Enforcement, ROBERT MUELLER,33Director of the Federal Bureau of34Investigation, John Doe 1-10, Federal35Bureau of Investigation and/or Immigration36and Naturalization Service Agents, and JAMES37W. ZIGLAR, formerly Commissioner for38Immigration and Naturalization Services,39United States,4041Defendants-Appellees.4243- - - - - - - - - - - - - - - - - - - -x
 
Senior Circuit Judge McLaughlin was a member of the
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initial three-judge panel that heard this appeal and istherefore eligible to participate in in banc rehearing. See28 U.S.C. § 46(c)(1).Senior Circuit Judges Calabresi, Sack, and Parker,
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who assumed senior status during the course of in bancproceedings, are entitled to participate pursuant to 28U.S.C. § 46(c)(2).The Honorable Sonia Sotomayor, who was originally a
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member of the in banc panel and who participated in oralargument, was elevated to the Supreme Court on August 8,2009.
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Before:JACOBS, Chief Judge, McLAUGHLIN, CALABRESI,
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12CABRANES, POOLER, SACK, SOTOMAYOR, PARKER,
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3RAGGI, WESLEY, HALL, and LIVINGSTON, Circuit4Judges. KATZMANN, Circuit Judge, took no part in5the consideration or decision of the case.67JACOBS, C.J., filed the majority opinion in which MCLAUGHLIN,8CABRANES, RAGGI, WESLEY, HALL, and LIVINGSTON, JJ., joined.910CALABRESI, J., filed a dissenting opinion in which POOLER, SACK,11and PARKER, JJ., joined.1213POOLER, J., filed a dissenting opinion in which CALABRESI, SACK,14and PARKER, JJ., joined.1516SACK, J., filed a dissenting opinion in which CALABRESI, POOLER,17and PARKER, JJ., joined.1819PARKER, J., filed a dissenting opinion in which CALABRESI,20POOLER, and SACK, JJ., joined.212223Appeal from a judgment of the United States District Court24for the Eastern District of New York (Trager, J.) dismissing25Plaintiff-Appellant Maher Arar’s complaint against John
 
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1Ashcroft, the Attorney General of the United States; Tom Ridge,2the Secretary of Homeland Security; Robert Mueller, the Director3of the Federal Bureau of Investigation; and others. Arar v.4Ashcroft, 414 F. Supp. 2d 250 (E.D.N.Y. 2006). Arar alleges5that he was detained while changing planes at Kennedy Airport in6New York (based on a warning from Canadian authorities that he7was a member of Al Qaeda), mistreated for twelve days while in8United States custody, and then removed to Syria via Jordan9pursuant to an inter-governmental understanding that he would be10detained and interrogated under torture by Syrian officials.1112Arars complaint alleges violations of the Torture Victim13Protection Act (“TVPA”) and the Fifth Amendment. The District14Court dismissed the complaint. Id. at 287-88. A three-judge15panel of this Court unanimously held that: (1) the District16Court had personal jurisdiction over Thompson, Ashcroft, and17Mueller; (2) Arar failed to state a claim under the TVPA; and18(3) Arar failed to establish subject matter jurisdiction over19his request for a declaratory judgment. Arar v. Ashcroft, 53220F.3d 157 (2d Cir. 2008). A majority of the panel also dismissed21Arar’s Bivens claims, with one member of the panel dissenting.22Id. After in banc rehearing, the panel opinion is vacated and

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