Singh v. Magee

PARMINDER SINGH; EMILY MALLHI; PARMINDER SINGH, JR., a minor; JESSICA ANN MARIE MALLHI, a minor; PREDESH KUR MALLHI, a minor, Plaintiffs-Appellees, v. ROBERT MAGEE, individually and in his official capacity as an officer of Immigration and Naturalization Service; CECLYE ANDREWS, individually and in her official capacity as an officer of Immigration and Naturalization Service; ROBERTO MORALES, individually and in his official capacity as an employee of Immigration and Naturalization Service; ANTHONY MARIAN, individually and in his official capacity as Deputy Director of Immigration and Naturalization Service, Defendants-Appellants. No. 97-15403 D.C. No.CV-94-04146-CAL United States Court of Appeals Ninth Circuit Filed July 14, 1998 Appeal from the United States District Court for the Northern District of California Charles A. Legge, District Judge, Presiding Argued and Submitted May 13, 1998-- San Francisco, California
Before: Alfred T. Goodwin, Harry Pregerson, and Warren J. Ferguson, Circuit Judges.
        Opinion by Judge Pregerson; Concurrence by Judge Ferguson

COUNSEL         Jeffrey A. Clair (argument) and Marc Richman (brief), Appellate Staff, Civil Division, Department of Justice, Washington, D.C., for the defendants-appellants.
        James Todd Bennett, El Cerrito, California, for the plaintiffsappellees.

PREGERSON, Circuit Judge:
        Defendants appeal the district court's denial of their motion to dismiss Plaintiffs' Bivens action arising out of the deportation of Parminder Singh. Defendants argue that they are entitled to quasi-judicial and qualified immunity. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part and reverse in part.

I. BACKGROUND         Singh, a citizen of India, lawfully entered the United States in 1980 as a nonimmigrant visitor. He overstayed his visa and had a deportation hearing in 1983. At the hearing, the Immigration Judge ("IJ") found Singh deportable but granted him the privilege of voluntary departure. Singh failed to depart. The Immigration and Naturalization Service ("INS") issued an order of deportation and arrest warrant against Singh, but neither Singh nor his attorney ever received the order or the warrant.         On July 4, 1992, Singh married Mallhi, a citizen of the United States. Mallhi and Singh have three United States citizen children, Parminder Jr., Jessica Ann Marie, and Predesh Kur. On November 30, 1992, Singh's new attorney filed a Freedom of Information Act ("FOIA") request with the INS requesting a copy of Singh's file. The INS responded that it could not find the file but that it would notify the attorney when the file was located.         On July 6, 1993, Mallhi filed a petition with the INS for a permanent residency visa on behalf of Singh. Concurrently, Singh filed an application for adjustment of status. The INS scheduled a hearing to hear the petition and application for December 2, 1993 at the INS office in San Francisco. Before the hearing, the Defendants obtained Singh's immigration file, but they failed to make the file available to Singh's attorney.
        Singh, Mallhi, and their children arrived at the INS office on December 2 for the hearing. At the hearing, the INS granted Mallhi's petition for permanent residency on behalf of Singh, but the INS apparently denied Singh's application for adjustment of status. While at the hearing, officers Magee and Andrews arrested Singh on the warrant. Before his arrest, neither Singh nor his attorney had ever received a copy of the warrant.
        Within three and a half hours of Singh's arrest, Magee and Andrews transported Singh to the San Francisco International Airport. At the airport, Magee and Andrews forcibly placed Singh on a United Airlines flight bound for India.         Shortly after Singh's arrest, his attorney filed a motion to reopen Singh's deportation proceedings and a request for a stay of deportation. That same afternoon, the IJ granted the motion and issued a stay of deportation. The IJ then instructed the INS representative to telephone the INS agents and tell them to stop Singh's deportation.
        The INS representative called the Defendants and informed them of the stay order. Each of the Defendants learned of the stay order at a time when each allegedly had custody of Singh. But none of the Defendants made any effort to remove Singh from the aircraft. And once Singh was in India, none of the Defendants made any effort to return Singh to this country for over two years.         After Singh's unlawful deportation to India, Singh's attorney filed a habeas corpus petition in the Northern District of California on May 4, 1994. That petition asked for an order requiring the INS to return Singh to the United States because the INS had unlawfully deported Singh. The district court dismissed the petition because the INS was administratively appealing the IJ's grant of the motion to reopen. After the INS appeal was denied, Singh's attorney filed a second habeas petition in the district court. The district court dismissed that petition on April 12, 1995 but this court, in Singh v. Waters, 87 F.3d 346 (9th Cir. 1996) ("Singh I"), reversed the district court. We directed the district court to grant the petition requiring the INS to return Singh back to the United States.
        While the habeas petition was pending, the Singhs filed this present Bivens action1 in the Northern District of California.2
        The Defendants moved under Rule 12(b)(6) to dismiss the complaint for failure to state a cause of action. The district court denied their motion. The Defendants timely appealed.

II. STANDARD OF REVIEW         We review de novo a denial of summary judgment. Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir. 1997). We limit our review of the denial of summary judgment to the contents of the complaint.3 Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996). We take all allegations of material fact as true and construe them in the light most favorable to the nonmoving party. Federation of African Amer. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996). A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Johnson, 113 F.3d at 1117.

III. DISCUSSION         I. Quasi-Judicial Immunity
        The Singhs allege that Singh's Fifth Amendment right to due process and their First Amendment right to association were violated by Singh's deportation. Defendants Magee and Andrews argue that quasi-judicial immunity shields them from liability because they were merely executing a court order to deport Singh.         Quasi-judicial immunity is properly granted to an officer who executes a valid court order. E.g., Coverdell v. Department of Soc. and Health Serv., 834 F.2d 758, 764 (9th Cir. 1987). The Singhs, however, allege that Magee and Andrews deported Singh even though they knew that the order of deportation had been stayed: "Despite being advised telephonically of the stay order, defendants, and each of them, did not remove [Singh] from the aircraft . . . while he had been in the actual and constructive custody of said defendants."
        Magee and Andrews counter this allegation by arguing that they could no longer prevent the deportation once they learned of the IJ's stay. But for purposes of reviewing a Rule 12(b)(6) order, this court accepts the factual allegations in the Singhs' complaint as true. See Federation of African Amer. Contractors, 96 F.3d at 1207. According to the complaint, Magee and Andrews had custody of Singh and deported him after learning that the deportation order was stayed.4 Quasijudicial immunity does not protect officers who act under an order that they know is no longer valid. See id. (stating that quasi-judicial immunity applies to "valid court orders").
        Moreover, even if we accepted Magee's and Andrews' characterization of the stay, quasi-judicial immunity would still not protect them. A judicial order "contains an implicit directive that the arrest and subsequent [deportation] be carried out in a lawful manner." Martin v. Board of County Comm'rs of Pueblo County, 909 F.2d 402, 405 (10th Cir. 1990) (refusing to allow immunity where plaintiff alleged that officers used excessive force in enforcing an arrest warrant). As such, quasi-judicial immunity "does not protect defendants from damage claims directed not to the conduct prescribed in the court order itself but to the manner of its execution." Id.; see also United States v. Hemmen, 51 F.3d 883, 891 (9th Cir. 1995) (holding that quasi-judicial immunity did not protect a bankruptcy trustee who failed to comply with a statutory duty to honor a tax levy even though the trustee disbursed funds pursuant to a court order).         The Singhs challenge Magee's and Andrews' manner of executing the deportation warrant by alleging that the Defendants proceeded with the deportation even though they knew that Singh's attorney had not received adequate notice of the impending deportation. "[A]n alien's counsel must be made aware of the alien's deportation in order to provide representation." Zepeda-Melendez v. INS, 741 F.2d 285, 289 (9th Cir. 1984). Deporting an alien within five hours of providing the alien's counsel with notice does not allow enough time for proper representation. Accordingly, Magee and Andrews deported Singh in contradiction of ZepedaMelendez. Thus, quasi-judicial immunity does not protect Magee and Andrews.

II. Qualified Immunity
        The Defendants also argue that they are entitled to qualified immunity because the complaint fails to allege that they violated any clearly established law. Where a law enforcement officer asserts qualified immunity, the plaintiff "bears the burden of proof that the right allegedly violated was clearly established at the time of the alleged misconduct. " Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991) (citations omitted). Singh claims that the Defendants deprived him of his Fifth Amendment right to due process, and the Singhs claim that the Defendants deprived them of their First Amendment rights to association.         "It is well-established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings." Reno v. Flores, 507 U.S. 292, 306 (1993) (citing Yamataya v. Fisher, 189 U.S. 86, 100-101 (1903)). It is also well established that the First Amendment protects the freedom of association in a marriage. See Griswold v. Connecticut, 381 U.S. 479, 483-86 (1965) (holding that marriage is protected by sev eral fundamental constitutional guarantees, including the First Amendment right to associate).
        Nevertheless, for purposes of defeating a claim of qualified immunity, "the right the official is alleged to have violated must have been `clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he [or she] is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). Although the alleged action need not have been previously found unlawful, "in the light of pre-existing law, [its] unlawfulness must be apparent." Id.
        A. Singh's Due Process Claims
        Singh claims that the Defendants deprived him of procedural due process in three ways. First, the Defendants interfered with his right to assistance of counsel by knowingly withholding Singh's file from his attorney. Second, the Defendants deported him even though an IJ had stayed his deportation. Third, the Defendants deported him without providing him and his attorney with adequate notice of the deportation.         1. Deprivation of assistance of counsel
        Under due process, an alien is entitled to the assistance of counsel. Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir. 1985). In Rios-Berrios, this court stated that it would look closely at any claim where the right to counsel of an alien was cavalierly trampled by the INS's failure to abide by its own statutes and regulations. Id. at 863-64. INS regulations provide that an alien is entitled to request and obtain the record of his or her INS proceedings under the FOIA. 8 C.F.R. § 103.10(a). "When a requested record is available, the [INS] shall notify the requester when and where the record will be available." Id. at § 103.10(d). Thus, it is clearly established that Singh should have had access to his file, as long as the file was available.         According to Singh's complaint, his attorney filed a FOIA request for Singh's file on December 9, 1992. The INS responded that it could not locate any files and that it would notify the attorney when it did so. But the Defendants had the file by December 2, 1993 and failed to inform Singh's attorney that the file was available. Thus, Defendants allegedly failed to comply with INS regulations. Moreover, because the FOIA request came from Singh's attorney, the Defendants should have been aware that the request implicated Singh's right to counsel.
        The Defendants argue that they were in no way responsible for the failure to provide Singh's file under the FOIA request. But the Defendants controlled the file sometime after the FOIA request. The Defendants, therefore, might have known about the FOIA request and intentionally withheld Singh's file. Thus, Singh's claim that his right to assistance of counsel was infringed cannot be dismissed because Singh may be able to prove a set of facts in support of his claim. See Johnson, 113 F.3d at 1117 (stating that a plaintiff's complaint should not be dismissed unless it appears beyond doubt the plaintiff cannot prove a set of facts that supports the plaintiff's claim).

        2. Deportation based on invalid order.
        Due process guarantees that a person will not forcibly be deported without an order complying with procedural due process. See Mendez v. INS, 563 F.2d 956, 958 (9th Cir. 1977) (holding that a forcibly deported alien must be readmitted to pursue judicial and administrative remedies where deportation did not comply with due process). Thus, the INS cannot forcibly deport a person without a valid order of deportation. Where an IJ stays an order of deportation, an obvious consequence is that the order is no longer valid.         The Defendants do not contest that Singh was deported in violation of his procedural due process rights. But they argue that the contours of the violated right were unclear until Singh I. They argue that it was not apparent that they had any duty to stop Singh's deportation or to subsequently return him because the stay of Singh's deportation was filed after Singh's aircraft left the terminal gate.
        As with the quasi-judicial immunity argument, however, the Defendants' challenge goes to the factual allegations in the Singhs' complaint. But in reviewing a Rule 12(b)(6) order, this court accepts the allegations in the complaint as true. According to the complaint, each of the Defendants had custody of Singh when they learned that the order had been stayed. Thus, Singh alleges that each of the Defendants played a part in his unlawful deportation.
        Moreover, even the Defendants' version of the facts shows that the IJ had stayed the order before the Defendants deported Singh. The Defendants state that an order was issued after the aircraft carrying Singh left the terminal gate but before it arrived in India. Cf. Singh I, 87 F.3d at 347 (stating that the IJ issued the stay at 2:11 p.m. and that, according to the deportation officer, the aircraft left the terminal gate at 2:09 p.m.).5 But at the time of Singh's unlawful deportation, the law was clear that a deportation is not completed until the alien lands in a foreign place. See Nakasuji v. Seager, 73 F.2d 37 (9th Cir. 1934) (holding that deportation by way of a vessel is not completed until the vessel lands in a foreign country); cf. Umanzor v. Lambert, 782 F.2d 1299, 1302 (5th Cir. 1986) ("We have little difficulty in concluding that Umanzor was under actual physical restraint by the government's agent --the airline . . . . Umanzor was imprisoned inside the air craft, against his will, until the aircraft completed the flight and he was released."). Thus, even under the Defendants' version of the facts, the deportation was not completed when the stay was issued.
        Furthermore, at the time of Singh's unlawful deportation, the law was clear that the INS had a duty to stop Singh's deportation or to return him after he arrived in India. In Mendez, this court directed the INS to return an alien to the United States because the alien had been unlawfully deported. Mendez, 563 F.2d at 959. Hence, someone was under a duty to return Singh back to the United States. Construed in the light most favorable to Singh, the allegations indicate that subsequent to the IJ's stay, each of the Defendants had the duty or authority to stop the deportation.6
        Thus, Singh had a clearly established right to not be forcibly deported unless a valid deportation order existed. He also sufficiently alleges that the Defendants violated that right.         3. Deportation without adequate notice.
        Singh argues that due process andS 243.3 of Title 8 of the Code of Federal Regulations require that the INS delay a deportation for seventy-two hours from the time that an order of deportation is served. At the time of Singh's deportation hearing, § 243.3 required that the INS delay seventy-two hours after serving an alien with the order of deportation before actually deporting the alien. Section 243.3, however, was amended in 1986. After 1986, § 243.3 only required a seventy-two hour delay of deportation after the service of the decision finding the alien deportable.
        The IJ that stayed the order of deportation believed that the pre-1986 regulation applied to Singh. The district court in the habeas proceeding believed that the post-1986 regulation applied to Singh. Singh has failed to provide any case law that establishes that the pre-1986 regulation applies. Thus, Singh has failed to show that it was clearly established that he was entitled to a seventy-two hour delay of his deportation subsequent to service of the order. Although he was entitled to at least a seventy-two hour delay after he was served by the decision finding him deportable, Singh does not contest that he was served with the decision back in 1983. See also Singh I, 87 F.3d 346, 349 (noting that Singh received notice of the decision in 1983).
        Nevertheless, this court has held that where an alien is represented by counsel, the INS must, at a minimum, provide notice to counsel of the impending deportation action so that counsel can provide proper representation. Zepeda-Melendez, 741 F.2d at 289. Failure to provide notice to counsel of an impending deportation makes Singh's "right to counsel, his right to petition for reconsideration on the basis of new facts, and his right to judicial review and procedural due process . . . meaningless." See Mendez v. INS, 563 F.2d 956, 958 n.1 (9th Cir. 1977). This notice requirement flows from the right to counsel and not from any specific INS regulation. ZepedaMelendez, 741 F.2d at 289.
        Singh alleges that the Defendants proceeded with the deportation even though they knew that Singh's attorney had not received notice of the impending deportation until Singh was arrested. It is apparent that deporting an alien within five hours of providing the alien's counsel with notice does not allow enough time for proper representation. Thus, according to the complaint, the Defendants deported Singh in contradiction of Zepeda-Melendez. Singh, therefore, sufficiently alleges that Defendants violated a specific, clearly established right
.         The Defendants also argue that even if notice was required, the district court in the habeas proceeding held that notice was given to Singh and his attorney at the end of Singh's deportation hearing on March 9, 1983. At that point, an IJ informed Singh and his previous attorney of the final decision that included a grant of voluntary departure. The grant of voluntary departure states:
        It is further ordered that if respondent fails to depart when and as required, the privilege of voluntary departure shall be withdrawn without further notice or proceedings and the following order shall thereupon become immediately effective: respondent shall be deported from the United States to India.         The district court in the habeas proceedings relied upon this grant of voluntary departure to find that Singh and his attorney had received notice of the deportation in compliance with the INS notice regulation, 8 C.F.R. § 243.3. That notice, however, does not satisfy the requirement imposed by ZepedaMelendez. The notice to counsel of an impending deportation action is required independently of the notice requirements of the INS regulations. Zepeda-Melendez, 741 F.2d at 289.
        Moreover, in Zepeda-Melendez, the INS argued that Zepeda's deportation was legal because Zepeda's attorney had constructive knowledge of the deportation. Id. at 288. The INS argued that "the immigration statutes themselves put Zepeda's counsel on constructive notice that Zepeda could be deported at any time after the Board dismissed his appeal . . . [and] nothing in the INS regulations . . . requires additional notice to counsel before the government effects deportation." Id.         The argument presented by the Defendants is very similar to the government's argument in Zepeda-Melendez . Just as the government argued that Zepeda's attorney had constructive notice of the deportation, the Defendants argue that Singh's present attorney had constructive notice that Singh could be deported because the attorney had constructive knowledge of the grant of voluntary departure authorizing Singh's deportation at any time.7 See id. Moreover, the Defendants' argument that no INS regulation required that Singh's attorney receive additional notice of the deportation parallels the government's position in Zepeda-Melendez. See id. We rejected the government's argument in Zepeda-Melendez. Id. at 289. Accordingly, we reject the Defendants' argument here.         Singh sufficiently alleged that the Defendants violated the following clearly established rights under the Due Process Clause: (1) the right to assistance of counsel, (2) the right to not be deported absent a valid order of deportation, and (3) the right to have his counsel timely notified of the existence of an order of deportation. Thus, the district court did not err in denying the Defendants' motion to dismiss Singh's claim that the Defendants violated his due process rights.         

B. The Singhs' First Amendment Claim
        The Singhs claim that Singh's unlawful deportation violated their right to associate as family members. The Defendants claim that they are entitled to qualified immunity because no such First Amendment right exists.
        In Griswold, the Supreme Court held that the marriage "relationship [lies] within the zone of privacy created by several fundamental constitutional guarantees." Griswold, 381 U.S. at 485. The Court invoked the First Amendment protection of association by describing marriage as "an association for as noble a purpose as any involved in our prior decisions." Id. at 486. Moreover, Justice Goldberg, in a concurrence, relied on Meyer v. Nebraska, 262 U.S. 390, 399 (1923) where the Court recognized that the rights "to marry, establish a home and bring up children" were protected by the Fourteenth Amendment. Griswold, 381 U.S. at 495 (Goldberg, J., concurring). Thus, the right to marry and raise a family are fundamental rights protected by the Constitution.
        The Defendants, however, rely on cases that state that the deportation of an alien does not infringe upon the constitutional rights of a spouse or child of the alien. See Bright v. Parra, 919 F.2d 31 (5th Cir. 1990); Delgado v. INS, 637 F.2d 762 (10th Cir. 1980). In Bright, the Fifth Circuit stated that "United States citizen spouses have no constitutional right to have the alien spouses remain in the United States. " Bright, 919 F.2d at 34. In Delgado, the Tenth Circuit similarly held that "the incidental impact visited upon children of deportable, illegal aliens does not raise constitutional problems." Delgado, 637 F.2d at 764.         This court could infer from Meyer and Griswold that the Singhs have a constitutional right to associate with members of their family. And both Bright and Delgado are distinguishable from the present case. Bright involved a constitutional challenge to a statute, and the statute was held to be constitutional. Bright, 919 F.2d at 33-34. Delgado involved a constitutional challenge to an order of deportation, and the order was held to be constitutional. Delgado, 637 F.2d at 764. Neither case involved the effect of an unconstitutional and illegal deportation on the constitutional rights of family members.
        Nevertheless, Bright, Delgado and similar cases broadly reject any challenge to a deportation based upon the rights of affected family members. Thus, the Singhs have not shown that Singh's deportation violated any clearly established right to associate with each other. Accordingly, the district court should have dismissed the Singhs' claim that the Defendants violated the Singhs' First Amendment right to associate.

IV. CONCLUSION         Quasi-judicial immunity does not protect the actions of Magee and Andrews in deporting Singh. Additionally, because Singh has shown that the Defendants violated clearly established due process rights when they deported him, the Defendants are not entitled to the protection of qualified immunity as to Singh's due process claim. The Singhs, however, have not shown that Singh's deportation violated any clearly established First Amendment right. Thus, the Defen dants are entitled to the protection of qualified immunity as to the Singhs' First Amendment claim.
        Accordingly, we affirm the district court's denial of the motion to dismiss as it concerns the due process claim but reverse the district court's denial of the motion to dismiss as it concerns the First Amendment claim.         AFFIRMED in part, REVERSED in part, and REMANDED. FERGUSON, Circuit Judge, concurring:

        I concur in the conclusion of the majority opinion. However, I find a discussion of several issues is necessary.         The defendants assert quasi-judicial immunity for the service of the order of deportation and the arrest warrant. The Supreme Court described judicial immunity in Imbler v. Pachtman, 424 U.S. 409, 418 n.12 (1976) in which it granted such immunity to one who was not a judge:
                "Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335 (1872). This immunity applies even when the judge is accused of acting maliciously and cor ruptly, and it `is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.' " Pierson v. Ray, 386 U.S. 547, 553-554 (1967)(citation omitted).
        Therefore, the administrative law judge who issued the orders is immune from civil damages regardless of any and all claims asserted by the plaintiffs. Officers executing judicial orders are entitled to absolute quasi-judicial immunity because such activities are closely intertwined with the judicial process. Briscoe v. LaHue, 460 U.S. 325, 335 (1983). To deny absolute immunity to officials in the position of Magee and Andrews would require them to second guess a judicial determination out of fear that a civil damages lawsuit may ensue. See McQuade v. United States, 839 F.2d 640, 643 (9th Cir. 1988), cert. denied, 493 U.S. 1072 (1990)(public officials executing facially valid court orders are not required to inquire into their validity). Just as the judge cannot be civilly liable, neither can the officers.
        With reference to the claims that: 1) the defendants failed to order United Airlines to have the plane returned to the terminal, and 2) failed to make any effort to return Singh to the United States for over two years, our case of Singh v. Waters, 87 F.3d 346 (9th Cir. 1996) is helpful, but needs precise interpretation. There we held that the evidence disclosed that the United Airlines plane with Singh aboard had left the departure gate before the immigration judge signed the order granting a stay of deportation. Id. at 347.
        However, with reference to a possible directive to force the airplane to return to the loading gate, it was stated, "[t]he captain and employees of the plane were the agents of the INS in effecting the deportation. They were, therefore, amenable to directive by the INS complying with the stay granted by the immigration judge." Id. at 349. That statement must be taken with a grain of salt. It is a legal fiction designed to meet the habeas corpus requirement of custody remaining in the INS. United Airlines, its pilot and employees were not parties in Waters, nor here. To impose upon someone the duty and responsibility of an agent of the United States by litigation in which it was not a party is at the most dictum. We must not jump from a legal fiction to a declaration affecting the rights of non-parties. 1 In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court held that a complaint alleging a violation of the Fourth Amendment stated a federal cause of action and that a federal court could grant damages for injuries resulting from the constitutional violation. A Bivens action is a claim that injury resulted from a federal agent's violation of a plaintiff's constitutional rights. 2 The complaint originally named multiple defendants. The only remaining defendants are Magee, Andrews, Morales, and Marian. 3 The Defendants request that this court take judicial notice, pursuant to Rule 201 of the Federal Rules of Evidence, of the district court's opinion in Singh's prior habeas proceeding and the IJ's opinion in Singh's motion to reopen. Judicial notice of decisions made by other courts is mandatory where a party requests it and supplies the necessary information. Fed. R. Evid. 201. The Defendants' main purpose in requesting judicial notice seems to be to rely upon the factual findings of those two opinions. The Defendants argue that Singh is collaterally estopped from contesting those factual findings. But Singh prevailed in both the habeas proceeding and the motion to reopen, and "a determination adverse to the prevailing party is not given preclusive effect." United States v. Weems, 49 F.3d 528, 532 (9th Cir. 1995). Thus, this court will limit its review to the contents of the Singhs' complaint. 4 Of course, after discovery, Magee and Andrews may be able to show that when they learned about the stay, they no longer had custody of Singh and that they lacked the authority and duty to stop the deportation. 5 As noted above, Singh alleges that the Defendants, "[d]espite being advised . . . of the stay order, . . . did not remove [Singh] from the aircraft." Construed in the light most favorable to Singh, this allegation indicates that the Defendants knew about the IJ's stay of the deportation order before the aircraft left the terminal gate. Thus, Singh implicitly disputes the facts as alleged by the Defendants. 6 For instance, the officers who actually deported Singh--Magee, Andrews, and Morales--may have had the authority to order that the plane return to the terminal if they received the stay order before the plane actually took off. And defendant Marian, as Deputy Director, may have had the authority and the obligation to order the plane back to San Francisco or to authorize the return of Singh from India. 7 Singh's present attorney could only have had constructive knowledge of the voluntary departure grant because he was not Singh's attorney in 1983 and because the INS failed to comply with his FOIA request for Singh's file. This constructive knowledge and notice distinguishes this case from Arreaza-Cruz v. INS, 39 F.3d 909 (9th Cir. 1994), which was decided after Singh's unlawful deportation. In Arreaza-Cruz, this court declined to apply Zepeda-Melendez to Arreaza-Cruz because he had been granted the privilege of voluntary departure and failed to depart. ArreazaCruz, 39 F.3d at 911. But Arreaza-Cruz's attorney had actual and sufficient notice of the impending deportation because the INS served the attorney with the deportation order at least seven weeks before his client was deported. Id.