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Click here for the full text of this decision FACTS:Plaintiff Maria Martinez-Aguero is a forty-nine-year-old citizen and resident of Mexico who visits the United States once a month to accompany her aunt to the El Paso Social Security office. Martinez-Aguero and her aunt were making a visit to El Paso in a bus, when the bus was stopped by U.S. immigration officials. Humberto Gonzalez, an INS border patrol agent, ordered Martinez-Aguero and her aunt off the bus and requested to see their documents. He told Martinez-Aguero that her visa had expired, so she could not enter the country. Martinez-Aguero asked to speak to someone in authority, and Gonzalez replied in Spanish, “I am in charge!” Martinez-Aguero asked him why he would not help her, because he also was Mexican. This agitated Gonzalez, who pointed to patches on his uniform and shouted, “Look at me! I am not a Mexican! Look at my uniform!” He then yelled profanities at them in Spanish and threw their visas to the ground. Martinez-Aguero picked her visa up and made a sarcastic remark to her aunt about Gonzalez’s bad language, which he apparently overheard. She and her aunt began walking back in the direction of Mexico when Gonzalez yelled, “Stop in the name of the law!” Martinez-Aguero alleges in her affidavit that Gonzalez then “grabbed [her] arms, twisted them behind [her] back, pushed her into a concrete barrier, which hit [her] in the stomach . . . [and] then started kicking [her] with his knees in [her] lower back.” Another agent then took Martinez-Aguero into an office and handcuffed her to a chair. Gonzalez allegedly came in and showed her scratches on his arms and told her that he was going to claim that she cut him with her fingernails. Shortly thereafter, Martinez-Aguero, who is epileptic, suffered a seizure while still handcuffed to the chair. She was given oxygen, and when she recovered she was questioned by officials before being permitted to leave. She suffered another seizure after arriving home and was taken to the hospital. She claims she now suffers fromrecurrent seizures (before the beating she had not suffered a seizure for 17 years), memory problems, back injuries, and continual pain. She alleges she cannot walk long distances or adequately clean her house anymore. Martinez-Aguero sued Gonzalez for assault, battery, and false arrest under the Federal Tort Claims Act and for false arrest and excessive use of force under the Fourth and Fifth Amendments. Gonzalez moved for summary judgment, asserting qualified immunity. The district court denied the motion, and Gonzalez filed an interlocutory appeal. HOLDING:The court affirma the denial of Humberto Gonzalez’s motion for summary judgment that he pursued on the basis of a claim of qualified immunity, and remands for further proceedings. Gonzalez argues that Martinez-Aguero had no constitutional rights at the time of the alleged incident because she was an alien who attempted to enter the country illegally and was not admitted. Gonzalez relies on United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), which held that an alien who has no voluntary attachment to the United States enjoys no extraterritorial Fourth Amendment protection. The court in Verdugo-Urquidezanalyzed the text and history of the phrase “the People” in the Fourth Amendment and concluded that it “refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” The entry fiction that excludable aliens are to be treated as if detained at the border despite their physical presence in the United States determines the aliens’ rights with regard to immigration and deportation proceedings. Because the “entry fiction” does not bar Martinez-Aguero’s suit, and because she was concededly within the territorial jurisdiction of the U.S. (though outside the port of entry) when the alleged incident occurred, Lynch counsels that she should receive the Fifth Amendment’s protection against the use of excessive force. There may be cases in which an alien’s connection with the United States is so tenuous that he cannot reasonably expect the protection of its constitutional guarantees; the nature and duration of Martinez-Aguero’s contacts with the United States, however, are sufficient to confer Fourth Amendment rights. It follows that she may bring a Bivens claim for unlawful arrest and the excessive use of force under the Fourth Amendment. “Because Martinez-Aguero is entitled to Fourth Amendment protection, it is obvious that she has alleged facts that, if true, would establish that Gonzalez violated those rights.” Gonzalez could argue that Martinez-Aguero’s Fourth Amendment rights were not clearly established because courts have split on the precedential value of Verdugo-Urquidez; because it is uncertain how the Court intended the “substantial connections” test to be applied; and because the Court seemed explicitly to reserve the question whether illegal aliens would have Fourth Amendment rights on U.S. soil. But, decisions pre-dating Verdugo-Urquidez, including cases from this circuit, state unequivocally that aliens are entitled to Fourth Amendment protection. On these facts, no officer would reasonably conclude that Martinez-Aguero lacked protection against suspicionless arrest, the court concludes. OPINION:Jerry E. Smith, J.; Smith, Wiener and Stewart, JJ.

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