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September 2, 2014

Mr. Lyle W. Cayce, Clerk
United States Court of Appeals
For The Fifth Circuit
600 S. Maestri Place
New Orleans, LA 70130-3408

Re: Rynearson v. United States, No. 13-51114

Dear Mr. Cayce,

Pursuant to Fed. R. App. P. 28(j), the individual federal appellees submit Castro
v. Cabrera, 742 F.3d 595, 602 (5
Cir. 2014), where this court held that, a border
patrol agent was entitled to qualified immunity in a Bivens lawsuit where a detainee,
a United States citizen who presented facially valid documentation, was detained up
to ten hours at a port of entry. The Court cited Hernandez v. Cremer, 913 F.2d 230,
239-41 (5
Cir. 1990), which upheld an injunction allowing an inspecting officer
twenty-four hours to complete an investigation into the citizenship of a person who
presented documentation evidencing citizenship at a port of entry. Id. at 602, n. 17.

Counsel for the federal appellees mentioned Castro at oral argument in the
instant action to indicate that, if a ten-hour detention at the border was not a
violation of the constitution, then a thirty-four minute detention at an immigration
checkpoint, as in this case, is also not a violation of the Fourth Amendment. Of
course Castro is distinguishable as it occurred at the border where law enforcement
officers are granted greater leeway. Nevertheless, the presence of case law
providing some parameters for a constitutional stop at the border only underscores
Case: l3-5lll4 Document: 005l2754l63 Page: l Date Filed: 09/02/20l4

the complete absence of similar case law defining the limits of detention at an
immigration checkpoint. Thus, the individual defendants in this case did not
infringe clearly established constitutional rights (see Pearson v. Callahan, 555
U.S. 223, 236 (2009); Freeman v. Gore, 483 F.3d 404, 410 (5
Cir. 2007)), and the
district courts judgment granting the individual defendants qualified immunity
should be affirmed.

T his case was argued on September 2, 2014 before Judges Elrod,
Sout h wic k, and Reavl e y. We would appreciate it if copies of this letter could
be distributed to the panel at your earliest convenience.


/s/Steve Frank
Steve Frank
Counsel for Appellees

Cc: All counsel of record (via CM/ECF)


Case: l3-5lll4 Document: 005l2754l63 Page: 2 Date Filed: 09/02/20l4
September 3, 2014
Lyle W. Cayce, Clerk
U.S. Court of Appeals for the Fifth Circuit
600 S. Maestri Place
New Orleans, LA 70130-3408
Re: Rynearson v. United States, No. 13-51114 (Argument Held on Sept. 2, 2014)
Panel: Circuit Judges Elrod, Southwick, and Reavley
Dear Mr. Cayce:
As the government acknowledges, its supplemental authority involves points of entry. It
is therefore entirely inapposite. This Court has explained that immigration checkpoints are not
the functional equivalent of the border. United States v. Machuca-Barrera, 261 F.3d 425, 431 n.
15 (5th Cir. 2001). The different border context is critical to the Bivens case cited by the
government. See Castro v. Cabrera, 742 F.3d 595, 602 n.16 (5th Cir. 2014) ([T]he Fourth
Amendments balance of reasonableness is qualitatively different at the international border than
the interior and [r]outine searches of the persons and effects of entrants are allowed without
probable cause) (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985));
compare United States v. Martinez-Fuerte, 428 U.S. 543, 567 (1976) ([S]tops for brief
questioning routinely conducted at permanent checkpoints are consistent with the Fourth
Amendment, but any further detention must be based on consent or probable cause.). The
governments citation of Hernandez v. Cramer, 913 F.2d 230 (5th Cir. 1990), is even more inapt,
as it did not involve any Fourth Amendment claim, but rather was the governments appeal in a
case addressing procedures required under the Due Process Clause before the government could
exclude an American citizen from re-entry. Id. at 237-39.
Nor is there a complete absence of similar case law addressing immigration
checkpoints, as the government contends. As Mr. Rynearson argued, see Opening Br. 43-45, this
Court held that a 6-10 minute immigration checkpoint stop was unconstitutional because it was
longer than necessary to conduct the immigration inspection, which the agent in that case
testified took 3-5 minutes. United States v. Portillo-Aguirre, 311 F.3d 647, 656 (5th Cir. 2002).
Moreover, as Mr. Rynearson also contended, Reply Br. 22, this Court has explained that it has
delineated the bounds of immigration stops by applying our long-standing jurisprudence
regarding stops based on reasonable suspicionso-called Terry stops. United States v. Ellis,
330 F.3d 677, 679-80 (5th Cir. 2003). Accordingly, the Terry cases cited by Mr. Rynearson, e.g.,
Opening Br. 24, 45-46, also provide fair warning regarding the constitutional limits on
immigration checkpoint detentions.
s/Javier N. Maldonado
Javier N. Maldonado
cc: All counsel of record (via CM/ECF)