Presence of Probable Cause Precludes Claim That Immigration Arrest Was Retaliation for First-Amendment-Protected Speech

From Judge Terry Doughty (W.D. La.) Tuesday in Lozano v. Ladwig:

Petitioner is a Mexican national, who lives in Knoxville, Tennessee. Twenty-two years ago, while a minor, Petitioner and his family entered the United States on a B-1 visa. They, however, overstayed their visas. In 2011, the Department of Homeland Security (“DHS”) issued Petitioner a Notice to Appear, charging him removable for overstaying his visa. In 2013, an Immigration Judge administratively closed Petitioner’s removal proceedings after finding Petitioner eligible for Deferred Action for Childhood Arrivals (“DACA”). His DACA status has since lapsed.

In 2024, Petitioner was charged in Tennessee state court for drug-related charges [and apparently convicted for possession of methamphetamine -EV]. On October 14, 2025, DHS issued a Warrant for Arrest of Alien against Petitioner. The next day, U.S. Immigrations and Customs Enforcement (“ICE”) arrested Petitioner at a Tennessee state courthouse when Petitioner went there for a probation-related drug test.

Plaintiff sought habeas corpus, and a temporary restraining order against continued detention, arguing “that the government arrested him in retaliation for publicly criticizing the Trump administration’s immigration policies.” But the court rejected this claim:

The First Amendment “prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech. If an official takes adverse action against someone based on that forbidden motive, and non-retaliatory grounds are in fact insufficient to provoke the adverse consequences, the injured person may generally seek relief by bringing a First Amendment claim.” Nieves v. Bartlett (2019) (citation modified).

To prove First Amendment retaliation, Petitioner must show: (1) he engaged in constitutionally protected activity, (2) Respondents actions injured him such that a person of ordinary firmness would be chilled from engaging in that activity, and (3) Petitioner engaging in his constitutionally protected activity substantially motivated Respondents’ retaliatory actions. Under Nieves, plaintiffs must also show the defendant had no probable cause to arrest the plaintiff. Only then may courts analyze the substantial motivation prong. But Nieves exempts the “no-probable cause” requirement when “officers have probable cause to make arrests but typically exercise their discretion not to do so.” A plaintiff must present “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”

Petitioner argues—for the first time in his reply—that the Court should not require him to show Respondents had no probable cause to arrest him, following the Ninth Circuit’s approach in Bello-Reyes v. Gaynor (9th Cir. 2021). In Bello-Reyes, the Ninth Circuit ruled the plaintiff did not need to show the defendants had no probable cause for his immigration bond revocation.  The Ninth Circuit so ruled for two reasons. First, the Ninth Circuit noted that unlike Nieves, which arose from a § 1983 claim, Bello-Reyes involved a habeas petition.  And while it is necessary, in § 1983 suits, “to identify the particular state official or officials who violated the plaintiff’s constitutional rights,” not so in habeas. Since a habeas petitioner “need not identify a particular violator, only that his confinement is unconstitutional,” the Ninth Circuit deemed the “problems of causation that may counsel for a no-probable cause standard are less acute in the habeas context.”

Second, the Ninth Circuit noted that while “a probable cause requirement exists for initial immigration arrests,” there is “no equivalent benchmark” when “ICE is revoking bond rather than arresting in the first instance.”  Since there was no objective benchmark for bond revocations, which are fully discretionary, the Ninth Circuit concluded that those whose immigration bond was revoked could never be released on habeas if they were required to show no-probable cause. The Court finds Bello-Reyes unconvincing.

First, while Petitioner need not identify a particular official (who violated Petitioner’s rights) in the habeas context, he must still show that engaging in constitutionally protected activity was the but-for cause for the Respondents to arrest him. Thus, the same “problems of causation” that exists in § 1983 contexts also appear in the habeas context.

Second, unlike Bello-Reyes, involving a petitioner subject to bond revocation, this case involves Petitioner’s arrest, which involves 8 U.S.C. § 1357. And even the Bello-Reyes court noted that § 1357 has a probable cause requirement. Thus, the two factors considered by the Bello-Reyes court are unsound or inapplicable.

Third—and most importantly—Bello-Reyes is on a collision course with Nieves. Nieves lays the general framework to establish First Amendment retaliatory arrest claims. And while that suit was brought using § 1983, this Court does not see why the same claim would have a different framework solely due to a different cause of action. Nieves—and Gonzalez v. Trevino (2024)—suggest the same. In Gonzalez, the Court reiterated that Nieves “recognized a narrow exception to [the no-probable cause] rule. The existence of probable cause does not defeat a plaintiff’s claim if he produces ‘objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.'” This language does not suggest First Amendment retaliatory arrest elements differ based on the cause of action. And “when the highest court in the country has spoken clearly on a matter of federal constitutional law,” this Court “is not at liberty to disregard or parse that decision” in an inconsistent way….

To reiterate, Petitioner must show, to prevail on his retaliatory arrest claim: (1) he was engaged in constitutionally protected activity, (2) Respondents arrested him, (3) Respondents had no probable cause to arrest Petitioner or would not have arrested other similarly situated individuals who did not engage in such constitutionally protected activity, and (4) Petitioner engaging in his constitutionally protected activity was the but-for cause of his arrest….

[T]he Court’s focuses on whether Respondents had probable cause and whether Petitioner’s advocacy was the but-for cause of his arrest.

Respondents produced an immigration warrant signed a day before Petitioner’s arrest, showing DHS had “probable cause to believe that [Petitioner] is removable from the United States.” Furthermore, Respondents aver that Petitioner was arrested to place him in removal proceedings.

Petitioner provides no evidence showing Respondents had no probable cause to arrest him. Rather, as stated earlier, Petitioner only argues that Nieves probable cause requirement should not be required. Nevertheless, Petitioner could overcome Nieves general rule “if he produces ‘objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.'” But Petitioner has not done so. Even if he does, the existence of probable cause that Petitioner was unlawfully present in the United States means that Petitioner’s advocacy could not be the but-for cause of his arrest. As such, Petitioner’s retaliatory arrest claim is not likely to succeed on the merits….

Reno v. American-Arab Anti-Discrimination Committee (1999) also expressly held that, generally speaking, “an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation” (though that’s technically a separate question as to lawsuits related to allegedly selective arrests).

You can read the Ninth Circuit’s Bello-Reyes decision, which the court disagreed with, here.