Arar v. Ashcroft

SACK, Circuit Judge, joined by Judges CALABRESI, POOLER, and PARKER, concurring in part and dissenting in part.

The opinion of the en banc majority1 departs from the opinion of the panel majority in two important and salutary respects.

First, the Court now explicitly acknowledges that “this is not a typical immigration case.” Supra at 570. We would prefer that the Court concede that this is not an immigration case at all — it is about the alleged unconstitutional treatment of an alien suspected of terrorism — but we welcome the resulting decision not to dismiss Arar’s claims as jurisdictionally…