Full opinion text
Judge SACK concurs in part and dissents in part in a separate opinion. JOSÉ A. CABRANES, Circuit Judge: On September 26, 2002, plaintiff-appellant Maher Arar, a dual citizen of Syria and Canada, and the subject of a U.S. government “lookout,” J.A. 88, was detained by U.S. authorities at John F. Kennedy International airport in New York City (“JFK Airport”) while en route from Tunisia to Montreal. On October 7, 2002, J. Scott Blackman, then the U.S. Immigration and Naturalization Service (“INS”) Regional Director for the Eastern Region, determined, based on a review of classified and unclassified information, that Arar was a member of A1 Qaeda and therefore inadmissible to the United States. Pursuant to this determination, Blackman signed an order authorizing Arar to be removed to Syria “without further inquiry before an immigration judge, in accordance with [8 U.S.C. § 1225(c)(2)(B) and 8 C.F.R. § 235.8(b)].” Id. at 86. In February 2004, the Canadian Government convened an official commission (“the Commission”) to look into “the actions of Canadian officials in relation to” Arar’s detention in the United States, his eventual removal to Syria, and his subsequent detention by Syrian authorities. See Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Analysis and Recommendations 11-12 (2006) (“Canadian Commission, Analysis and Recommendations”) (describing the scope of the inquiry). The Commission determined that Canadian officials had “requested” that American authorities create lookouts for Arar and his wife, had described Arar to American authorities as an “Islamic Extremist individual!] suspected of being linked to the A1 Qaeda terrorist movement,” and had provided American authorities with information derived from their investigations of Arar. Id. at 13. The Commission further determined that “[i]t [wa]s very likely that, in making the decisions to detain and remove Mr. Arar, American authorities relied on information about Mr. Arar provided by the [Royal Canadian Mounted Police].” Id. at 14. Accordingly, the Commission recommended that Canadian authorities consider granting Arar’s request for compensation from the Canadian government. Id. at 369. In January 2007, the Canadian government entered into a settlement agreement with Arar, whereby he received compensation of 11.5 million Canadian dollars (approximately $9.75 million, at the time) in exchange for withdrawing a lawsuit against the Canadian government. See Ian Austen, Canada Will Pay $9.75 Million to Man Sent to Syria and Tortured, N.Y. Times, Jan. 27, 2007, at A5. On January 22, 2004, shortly before the initiation of the Canadian inquiry, Arar filed this civil action against Blackman, former U.S. Attorney General John Ashcroft, FBI Director Robert Mueller, former Acting Attorney General Larry D. Thompson, former INS Commissioner James W. Ziglar, INS District Director Edward J. McElroy, the Secretary of Homeland Security, the Regional Director of Immigration and Customs Enforcement for the New York Region, and several unnamed employees of the FBI and INS. Arar alleges that these individuals mistreated him while he was in the United States and then removed him to Syria with the knowledge or intention that he would be detained and tortured there. Count one of Arar’s complaint requests relief under the Torture Victim Protection Act, 28 U.S.C. § 1850 note (“TVPA”). Counts two and three request relief under the Fifth Amendment to the U.S. Constitution for Arar’s alleged torture (Count two) and detention (Count three) in Syria. Count four requests relief under the Fifth Amendment to the U.S. Constitution for events alleged to have occurred while Arar was detained in the United States. With respect to relief, Arar seeks a declaratory judgment that defendants’ conduct violated his “constitutional, civil, and international human rights,” as well as compensatory and punitive damages for the statutory and constitutional violations alleged in the complaint. Compl. 24. In a memorandum and order dated February 16, 2006, the United States District Court for the Eastern District of New York (David G. Trager, Judge) dismissed Counts one through three of Arar’s suit, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. See Arar v. Ashcroft, 414 F.Supp.2d 250, 287-88 (E.D.N.Y.2006). The District Court dismissed Count four without prejudice, pursuant to Rule 12(b)(2), for lack of personal jurisdiction over the individual defendants. Upon receiving notice that Arar had elected not to amend his complaint to cure the jurisdictional defects found by the District Court, the Clerk of Court entered judgment dismissing the action with prejudice on August 17, 2006. Arar now brings this appeal. Arar’s suit implicates several questions of first impression for our Court. One threshold question presented on this appeal is whether, as defendants contend, the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., deprived the District Court of subject matter jurisdiction over the claims raised in Counts two and three of Arar’s complaint. The adjudication of this question is, for the reasons set forth below, see infra at 169-73, particularly difficult in light of the record before us. However, because we are compelled to dismiss these claims on the basis of other threshold — that is, non-merits — grounds, we need not determine whether the INA did, in fact, strip the District Court of subject matter jurisdiction to hear Arar’s removal-related claims. We must therefore determine (1) whether the district court had personal jurisdiction over the individual defendants; (2) whether Arar’s allegation that U.S. officials conspired with Syrian authorities to torture him states a claim against the U.S. officials under the TVPA; (3) whether to create a judicial damages remedy, pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for Arar’s claims that U.S. officials (a) removed him to Syria with the knowledge or intention that he would be detained and tortured there and (b) mistreated him while he was detained in the United States; and finally, (4) whether Arar may seek a declaratory judgment that defendants’ actions violated his constitutional rights. For the reasons that follow, we conclude that under the precedents of the Supreme Court and our Court: (1) Arar has made a prima fade showing sufficient to establish personal jurisdiction over Thompson, Ashcroft, and Mueller at this early stage of the litigation; (2) Count one of Arar’s complaint must be dismissed because Arar’s allegations regarding his removal to Syria do not state a claim against defendants under the TVPA; (3) Counts two and three of Arar’s complaint, which envisage the judicial creation of a cause of action pursuant to the doctrine of Bivens, must also be dismissed because (a) the remedial scheme established by Congress is sufficient to cause us to refrain from creating a free standing damages remedy for Arar’s removal-related claims; and (b) assuming for the sake of the argument that the existence of a remedial scheme established by Congress was insufficient to convince us, “special factors” of the kind identified by the Supreme Court in its Bivens jurisprudence counsel against the judicial creation of a damages remedy for claims arising from Arar’s removal to Syria; (4) Count four of Arar’s complaint must be dismissed because Arar’s allegations about the mistreatment he suffered while in the United States do not state a claim against defendants under the Due Process Clause of the Fifth Amendment; and (5) Arar has not adequately established federal subject matter jurisdiction over his request for a judgment declaring that defendants acted illegally by removing him to Syria so that Syrian authorities could interrogate him under torture. In the circumstances presented, we need not consider the issues raised by the assertion of the state-secrets privilege by the United States — particularly, whether the exclusion of information pursuant to the privilege might result in the dismissal of certain of Arar’s claims. We do not doubt that if Congress were so inclined, it could exercise its powers under the Constitution to authorize a cause of action for money damages to redress the type of claims asserted by Arar in this action. The fact remains, however, that Congress has not done so. Instead, it has chosen to establish a remedial process that does not include a cause of action for damages against U.S. officials for injuries arising from the exercise of their discretionary authority to remove inadmissible aliens. We are not free to be indifferent to the determinations of Congress, or to ignore the Supreme Court’s instructions to exercise great caution when considering whether to devise new and heretofore unknown, causes of action. Judge Sack concurs in part and dissents in part. Specifically, Judge Sack agrees with the majority that (1) Arar has made a prima fade showing sufficient to establish personal jurisdiction over Thompson, Ashcroft, and Mueller; (2) Arar’s allegations regarding his removal to Syria do not state a claim against defendants under the TVPA; and (3) Arar has not adequately established federal subject matter jurisdiction over his request for a judgment declaring that defendants acted illegally by removing him to Syria so that Syrian authorities could interrogate him under torture. Unlike the majority, however, Judge Sack would accept Arar’s invitation to judicially create a new Bivens remedy and would permit Arar’s claims for monetary damages to go forward based on his view that (1) the context giving rise to Counts two and three of Arar’s complaint — -the detention and deportation of a suspected terrorist pursuant to the discretion conferred on the Attorney General' — raises no “ ‘special factors’ counseling] against the application of Bivens,” see Dissent 212; and (2) the constitutional rights that Arar’s complaint invokes are sufficiently broad and “clear” that Arar may state a Bivens claim based on the conditions of his detention within the United States, see id. at 215. The analysis by which Judge Sack reaches these conclusions is, in our view, undermined by contradictory assertions and misstatements of the law. We highlight three prominent examples here. First, Judge Sack’s opinion does not grapple with the complicated legal questions arising from the extraterritorial application of the U.S. Constitution: it casts the challenged actions “as perpetrated by U.S. agents entirely within the United States,” id. at 213-14 n. 33, but then looks to Arar’s alleged torture by Syrian anthmities in Syria as the basis for Arar’s Fifth Amendment claim, id. at 204-05 (observing that “interrogation by torture” undoubtedly “shocks the conscience” and that “whether the defendants violated Arar’s Fifth Amendment rights” does not turn on who Arar claims committed the torture or where Arar claims the torture took place). Second, despite recognizing that Arar’s Fifth Amendment claim is based on allegations that Arar was removed from the United States in order to be tortured in Syria, Judge Sack nevertheless concludes that Arar’s suit involves no “questions of law and fact ... arising from any action taken or proceeding brought to remove an alien from the United States,” 8 U.S.C. § 1252(b)(9) (emphasis added) — thereby avoiding the difficult question of whether § 1252(b)(9) stripped the District Court of subject matter jurisdiction to hear Arar’s removal-related claims. See Dissent 212 n. 31. Third, Judge Sack takes the position that “[t]he assessment of Arar’s alleged complaint must take into account the entire arc of factual allegations that Arar makes,” id. at 204, but criticizes the majority for considering, when evaluating Arar’s Bivens claim, “the fact-specific ‘context’ of Arar’s treatment,” id. at 209. Such is the freedom enjoyed by the writer of a dissenting opinion. Those charged with rendering decisions that carry the force of law have no such freedom, however. Our task is to deliver a reasoned opinion that conforms to the precedents of the Supreme Court and our Court; we have done so here. We agree, of course, with Judge Sack’s view that threats to the nation’s security do not allow us to jettison principles of “simple justice and fair dealing.” Id. at 216. But these parlous times of national challenge can no more expand the powers of the judiciary than they can contract the rights of individuals. The creation of civil damage claims is quintessentially a legislative function, and the protection of national security and the conduct of foreign affairs are primarily executive. Whatever the emotive force of the dissent’s characterization of the complaint, we cannot disfigure the judicial function to satisfy personal indignation. I. Background A. Facts alleged Arar’s complaint, which is unverified, sets forth the following relevant factual allegations. On September 26, 2002, U.S. immigration officials detained Arar at JFK Airport while he was transferring flights on his way from Tunisia to Montreal. He remained in U.S. custody for twelve days. For most of this time, he was held at the Metropolitan Detention Center (“MDC”) in Brooklyn', NY. Arar claims that on the evening of September 26, he was “placed in solitary confinement” in a room with no bed and with lights that were left on all night. Compl. ¶ 32. On the morning of September 27, he was allegedly questioned by FBI agents who ignored his requests to see a lawyer or make a telephone call. Arar alleges that his requests to see a lawyer or make a telephone call were also ignored between September 27 and October 1. On October 1, Arar was presented with a document stating that the INS had determined that he was a member of A1 Qaeda and was therefore inadmissible to the United States; he was then permitted to make a telephone call to his family, who retained a lawyer on his behalf. The complaint further alleges that Arar met his lawyer at the MDC on the evening of October 5; that, after this meeting, on the evening of Sunday, October 6, defendant McElroy left a message notifying Arar’s lawyer that the INS wished to question Arar further; that INS officials then immediately proceeded to question Arar, having falsely told him that his lawyer had chosen not to be present; that, on the following day, INS officials falsely informed Arar’s lawyer that Arar had been transferred from the MDC to an unidentified detention facility in New Jersey when, in fact, Arar was still being held at the MDC; and that on October 8, defendant Thompson signed an order authorizing Arar’s removal. The complaint further alleges that, although Arar had designated Canada as the country to which he wished to be removed, on October 8, 2002, U.S. officials caused him to be transported from the MDC to New Jersey, where he was flown to Washington D.C.; and from Washington D.C. to Amman, Jordan, where Jordanian authorities turned him over to Syrian military officials. Syrian authorities allegedly kept Arar in custody for approximately twelve months; initially subjected him to “physical and psychological torture” — including regular beatings and threats of severe physical harm; and confined him throughout this time in an underground cell six feet long, seven feet high, and three feet wide. Id. ¶¶ 51-58. Arar alleges, “[o]n information and belief,” that he was removed to Syria pursuant to the U.S. government’s “extraordinary rendition” policy, with the knowledge or intention that Syrian officials would extract information from him through torture. Id. ¶ 57. He further alleges, “[o]n information and belief,” that defendants provided Syrian authorities with information about him, suggested subjects for Syrian authorities to interrogate him about, and received “all information coerced from [him] during [these] interrogations.” Id. ¶¶ 55-56. Thompson, “as Acting Attorney General,” is alleged “[o]n information and belief’ to have signed the order authorizing Arar’s removal to Syria. Id. ¶ 48. B. Procedural history On January 24, 2005, the United States formally asserted the state-secrets privilege over information relating to Counts one through three of Arar’s complaint. Specifically, the United States explained: Litigating [Arar’s claims] would necessitate disclosure of classified information, including: (1) the basis for the decision to exclude [Arar] from [the United States] based on the finding that [he] was a member of ... al Qaeda ...; (2) the basis for the rejection of [Arar’s] designation of Canada as the country to which [he] wished to be removed ...; and (3) the considerations involved in the decision to remove [Arar] to Syria. J.A. 131-32, 135-36. Shortly thereafter, all defendants moved to dismiss Arar’s claims against them. They contended, among other things, that Counts one through three of Arar’s complaint should be dismissed because the assertion of the state-secrets privilege by the United States prevented them from introducing evidence required to present a meaningful defense. Blackman, Ziglar, McElroy, Thompson, Ashcroft, and Mueller further contended that Arar had not alleged sufficient personal involvement to state a claim against them in their individual capacities. Thompson, Ashcroft, and Mueller contended, moreover, that they were not subject to personal jurisdiction in New York. In a memorandum and order filed on February 16, 2006, the District Court, without reaching the issues raised by the assertion of the state-secrets privilege by the United States, dismissed Counts one through three of Arar’s complaint with prejudice and Count four without prejudice. With respect to Count one, the District Court concluded that Arar’s allegations did not state a claim against defendants under the TVPA. See 414 F.Supp.2d at 287. With respect to Counts two and three, it concluded that “special factors” of the kind identified by the Supreme Court counseled against the extension of a Bivens remedy, under the Fifth Amendment, for Arar’s alleged injuries. Id. at 281-83. With respect to Count four, involving Arar’s allegations about mistreatment while in U.S. custody, the District Court determined that Arar had stated a claim under the Fifth Amendment, id. at 286, that defendants were not entitled to qualified immunity, id. at 286, but that Arar had not alleged sufficient personal involvement by the defendant officials to sue them in their individual capacities — let alone to establish personal jurisdiction over those defendants domiciled outside New York, id. Arar declined to replead Count four of his complaint. Accordingly, on August 17, 2006, the Clerk of Court entered a final judgment dismissing Arar’s complaint with prejudice. This timely appeal followed. On October 23, we directed the parties to submit letter briefs on the question of “whether, and to what extent, the assertion of the state-secrets privilege by the United States could foreclose our ability to adjudicate claims arising from Counts one through three of the complaint.” The United States, in its letter brief, maintained that “[t]his Court can and should affirm the [District [CJourt’s judgment without reaching the [issues raised by the United States’s assertion of the] state-secrets privilege,” U.S. Letter Br. 8; but that, “if this Court were to reverse the dismissal of claims 1, 2, or 3, the [District [C]ourt would then be required to determine on remand whether any reinstated claim could proceed notwithstanding the assertion of the state-secrets privilege,” id. (internal quotation marks omitted). Arar, in his letter brief, “agree[d] with the United States that this Court can and should resolve the pending appeal without considering the state[-]secrets privilege,” Pi’s Letter Br. 1, on the understanding that, if he prevailed in our Court, the District Court could conduct the necessary “case-specific inquiries [regarding the state-secrets privilege] ... on remand,” id. at 5. Therefore, with the agreement of the parties, we evaluate the claims presented under applicable law before considering whether the assertion of the state-secrets privilege by the United States requires dismissal of this action. II. Discussion We review de novo a district court’s grant of a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim. See, e.g., In re NYSE Specialists Securities Litigation, 503 F.3d 89, 95 (2d Cir.2007). In doing so, we “accept[] as true the material facts alleged in the complaint and draw[ ] all reasonable inferences in [the] plaintiff[’s] favor.” See Iqbal v. Hasty, 490 F.3d 143, 152 (2d Cir.2007) (internal quotation marks omitted), cert. granted sub nom., Ashcroft v. Iqbal, — U.S. -, 128 S.Ct. 2931, — L.Ed.2d -, 76 U.S.L.W. 3417, 2008 WL 336310 (U.S. June 16, 2008) (No. 07-1015). Defendants also challenged, pursuant to Rule 12(b)(1), the District Court’s subject matter jurisdiction over Arar’s removal-related claims and, pursuant to Rule 12(b)(2), its personal jurisdiction over Ashcroft, Thompson and Mueller. We begin our analysis with a consideration of these threshold issues. A. Subject matter jurisdiction A federal court has subject matter jurisdiction over a cause of action only when it “has authority to adjudicate the cause” pressed in the complaint. Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., — U.S. -, 127 S.Ct. 1184, 1188, 167 L.Ed.2d 15 (2007). Determining the existence of subject matter jurisdiction is a threshold inquiry, see id., and a claim is “properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it,” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). When jurisdiction is challenged, the plaintiff “bears the burden of showing by a preponderance of the evidence that subject matter jurisdiction exists,” APWU v. Potter, 343 F.3d 619, 623 (2d Cir.2003) (internal quotation marks omitted); see also Aurecchione v. Schoolman Transp. Sys., 426 F.3d 635, 639 (2d Cir.2005), and the district court may examine evidence outside of the pleadings to make this determination, see Makarova, 201 F.3d at 113. Accordingly, “ ‘[j]urisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.’ ” Potter, 343 F.3d at 623 (quoting Shopping Fin. Servs. Corp v. Drakos, 140 F.3d 129, 131 (2d Cir.1998)). When considering a district court’s adjudication of such a motion, we review its factual findings for clear error and its legal conclusions de novo. See id. at 623-24; Aurecchione, 426 F.3d at 638. Defendants challenge, on statutory grounds, the District Court’s subject matter jurisdiction over Counts two and three of Arar’s complaint — the Bivens claims arising from his overseas detention and alleged torture. Specifically, they contend that Congress (1) explicitly foreclosed judicial review of the Attorney General’s discretionary decisions when carrying out removal-related duties and (2) created an alternative forum to litigate other removal-related claims, thereby excepting them from the federal question jurisdiction of the district courts. Arar responds that his attempts to avail himself of that alternative forum were thwarted by defendants and that if he is unable to litigate this action in federal district court, he will have no forum whatsoever to press his constitutional claims. The Supreme Court has observed that construing a statute to “preclude judicial consideration ... of ... an important question of law ... would raise serious constitutional questions.” INS v. St. Cyr, 533 U.S. 289, 314, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (offering this observation in the context of a petition for writ of habeas corpus); see also Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988) (noting that a “ ‘serious constitutional question’ ... would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim” (quoting Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 681 & n. 12, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986))); Calcano Martinez, 232 F.3d at 340. Accordingly, “where Congress intends to preclude judicial review of constitutional claims[,] its intent to do so must be clear.” Webster, 486 U.S. at 603, 108 S.Ct. 2047 (noting, with approval, the Court’s earlier observations to this effect in Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) and Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974)). (1) As an initial matter, defendants question whether any federal court has jurisdiction to review these Bivens claims, noting that the INA affords the Attorney General and his delegates discretion to send a removable alien to a country other than the country he has designated, 8 U.S.C. § 1231(b)(2)(C), and insulates from review actions taken pursuant to that discretionary authority, id. § 1252(a)(2)(B)(ii). See, e.g., Ashcroft Br. 23-25 (invoking 8 U.S.C. § 1231(b)(2)(C) and § 1252(a)(2)(B)(ii) in support of the proposition that “insofar as Arar complains about not being sent to his preferred designations or about the determination as to membership in a terrorist organization, Congress has foreclosed any judicial review”). Congress has indeed declined to vest the federal courts with jurisdiction to review discretionary decisions of the Attorney General other than the granting or denial of asylum. See 8 U.S.C. § 1252(a)(2)(B)(ii); Camara v. Dep’t of Homeland Sec., 497 F.3d 121, 124 (2d Cir.2007); Atsilov v. Gonzales, 468 F.3d 112, 115 (2d Cir.2006) (noting that the INA “negates our jurisdiction to review a ‘decision or action of the Attorney General ... the authority for which is specified ... to be in the discretion of the Attorney General’ ” (quoting 8 U.S.C. § 1252(a)(2)(B)(ii)) (first alteration in original)). Congress has, however, in 8 U.S.C. § 1252(a)(2)(D), authorized the “appropriate court of appeals” to consider “constitutional claims or questions of law raised upon a petition for review filed ... in accordance with [the judicial review provisions of the INA].” See, e.g., Xiao Ji Chen v. U.S. Dept. of Justice, 471 F.3d 315, 329 (2d Cir.2006). This provision indicates that Congress did not intend to preclude our consideration of removal-related claims that raise questions of law or allege constitutional violations, so long as they are properly before this Court. (2) As a secondary matter, defendants contend that, even if Arar has raised constitutional claims, such claims were not properly before the District Court; and therefore, are not properly before us on appeal. Specifically, they assert that INA places removal-related claims beyond the reach of a district court’s federal question jurisdiction by creating an alternative— and exclusive — mechanism for resolving those claims. Pursuant to 8 U.S.C. § 1252(b)(9), “all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States” are channeled into a judicial review scheme providing that “a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal,” 8 U.S.C. § 1252(a)(5). See also id. § 1231 note (providing for claims relating to the “involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture” to be brought under the judicial review scheme established by section 1252); Calcano Martinez v. INS., 232 F.3d 328, 340 (2d Cir.2000) (noting that the judicial review provisions of the INA provide for “exclusive appellate court” jurisdiction over removal-related claims). Defendants urge that Arar’s Bivens claims related to his alleged detention and torture in Syria “aris[e] from [the] action taken ... to remove [Arar] from the United States,” 8 U.S.C. § 1252(b)(9), and therefore can be reviewed only by petition to the appropriate court of appeals — not by a federal district court. Federal district courts, like other Article III courts, are “courts of limited jurisdiction ... [that] possess only that power authorized by [the] Constitution and statute.” Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) (internal quotation marks omitted). We have previously observed that “statutes ... that vest judicial review of administrative orders exclusively in the courts of appeals also preclude district courts from hearing claims that are ‘inextricably intertwined’ with review of such orders.” Merritt v. Shuttle, Inc. 245 F.3d 182, 187 (2d Cir.2001). In doing so, however, we have noted that “the test for determining whether [a statute vesting exclusive jurisdiction in the courts of appeals] precludes a district court from hearing a particular claim is ... whether the claim ‘could and should have been’ presented to and decided by a court of appeals.” Id. at 188 (quoting City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 339, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958)). Arar contends that he could not have presented his claims through the proee-dure set forth in section 1252. He alleges that defendants intentionally prevented him from pursuing the INA’s judicial review provisions by denying him access to counsel, concealing his location from his lawyer, and removing him, in secret, before his lawyer could file a petition with our Court. While we are not obliged to assume the truth of these allegations when evaluating whether a claim should be dismissed for lack of subject matter jurisdiction, see Makarova, 201 F.3d at 113, we will do so here for the sole purpose of considering whether Arar’s allegations, if true, would compel a determination that the District Court had subject matter jurisdiction. There is authority for the proposition that official obstruction similar to that alleged by Arar may (1) excuse a plaintiffs failure to comply with a filing deadline, see, e.g., Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.1994) (equitable tolling), or (2) bar a defendant from asserting certain defenses, such as failure to exhaust administrative remedies, see, e.g., Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir.2004) (equitable estoppel). However, Arar has set forth no authority — and we are aware of none — for the proposition that allegations of past interference permit a plaintiff to avoid a con-gressionally mandated remedial scheme altogether. In other words, it appears that no court has yet considered whether official misconduct of the sort alleged by Arar may vitiate Congress’s determination that a federal district court is not the appropriate forum for litigating claims arising from an order of removal. That we are asked to decide this issue on the basis of allegations set forth in an unverified complaint heightens our hesitation. While a verified complaint made “under oath about a matter within [the plaintiffs] knowledge,” Doral Produce Corp. v. Paul Steinberg Assoc., 347 F.3d 36, 39 (2d Cir.2003), constitutes evidence in support of the facts alleged in the complaint, see Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995), “[a]n ordinary or unverified complaint,” such as the one filed by Arar in this litigation, “may not constitute [such] evidence,” 11 James Wm. Moore et al., Moore’s Federal Practice § 56.14 (3d ed.2007). Permitting a plaintiff to circumvent a congressionally mandated remedial scheme by alleging in an unverified complaint — perhaps on nothing more than information and belief — that government officials blocked access to the relevant forum would permit widespread evasion of the administrative mechanisms that Congress has established for challenging agency action: mechanisms that include judicial review by the court of appeals. It is, after all, the prerogative of Congress to determine the jurisdiction of the district courts, and we are loath to permit those determinations to be so easily thwarted. (3) Because we affirm the District Court’s dismissal of Counts two and three of Arar’s complaint on the basis that a judicial damages remedy is not authorized by Bivens and its progeny, infra 180-84, we need not determine whether the INA deprived the District Court of subject matter jurisdiction over Arar’s removal-related Bivens claims. The Supreme Court has, on several occasions, recognized that “a federal court has leeway ‘to choose among threshold grounds for denying audience to a case on the merits.’ ” Sinochem Intern. Co. Ltd. v. Malaysia Intern. Shipping, — U.S. -, 127 S.Ct. 1184, 1191, 167 L.Ed.2d 15 (2007) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999)). As the Court has explained: “Jurisdiction is vital only if the court proposes to issue a judgment on the merits.” Id. at 1191-92 (internal quotation marks and brackets omitted). Accordingly, a federal court “that dismisses on ... non-merits grounds ... before finding subject-matter jurisdiction ] makes no assumption of law-declaring power that violates ... separation of powers principles.” Ruhrgas AG, 526 U.S. at 584, 119 S.Ct. 1563 (internal quotation marks omitted); see also id. at 585, 119 S.Ct. 1563 (noting that “district courts do not overstep Article III limits when they decline jurisdiction of state-law claims on discretionary grounds without determining whether those claims fall within their pendent jurisdiction, see Moor v. County of Alameda, 411 U.S. 693, [715-16], 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), or abstain under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), without deciding whether the parties present a case or controversy, see Ellis v. Dyson, 421 U.S. 426, [433-34], 95 S.Ct. 1691, 44 L.Ed.2d 274 (1975)”). In Tenet v. Doe, 544 U.S. 1, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005), the Court held that it could dismiss a suit pursuant to Totten v. United States, 92 U.S. 105, 23 L.Ed. 605 (1876) (precluding suits arising from a secret espionage agreement between the plaintiff and the United States), without first determining whether the district court had subject matter jurisdiction over the claims in question. See Tenet, 544 U.S. at 6-7 n. 4. The Court reasoned that the issue of whether to entertain the plaintiffs’ claim was, like Younger abstention or prudential standing, “the sort of ‘threshold question ... [that] may be resolved before addressing jurisdiction.’ ” Id. The Court also observed that “[i]t would be inconsistent with the unique and categorical nature of ... a rule designed not merely to defeat the asserted claims, but to preclude judicial inquiry — to first allow discovery or other proceedings in order to resolve the jurisdictional question.” Id. Whether Arar’s suit was appropriately before the District Court undeniably raises complicated questions of law. In addition, we have concluded that, in light of the Supreme Court’s Bivens jurisprudence, we are required to dismiss Counts two and three of Arar’s complaint as a threshold matter, without considering the merits of the claims raised in those counts. See infra, 180-81. Accordingly, we need not decide whether the INA 'placed Arar’s removal-related Bivens claims beyond the reach of the District Court’s general federal question jurisdiction. Cf. Sinochem, 127 S.Ct. at 1194 (“If ... a court can readily determine that it lacks jurisdiction over the cause or the defendant, the proper course would be to dismiss on that ground.... But where ... jurisdiction is difficult to determine, and [other] considerations weigh heavily in favor of dismissal, the court properly takes the less burdensome course. ”). B. Personal jurisdiction over Ashcroft, Thompson, and Mueller The requirement that federal courts have personal jurisdiction over the litigants before them arises from “an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’ ” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). “In order to survive a motion to dismiss for lack of personal jurisdiction [pursuant to Rule 12(b)(2)], a plaintiff must make a prima facie showing that jurisdiction exists.” Thomas v. Ashcroft, 470 F.3d 491, 495 (2d Cir.2006). A federal court’s jurisdiction over non-resident defendants is governed by the law of the state in which the court sits — including that state’s long-arm statute — to the extent this law comports with the requirements of due process. See Henderson v. INS, 157 F.3d 106, 123 (2d Cir.1998). Under New York’s long-arm statute, “a court may exercise jurisdiction over a non-domiciliary who ‘in person or through an agent ... commits a tortious act within the state’ so long as the cause of action arises from that act.” Iqbal, 490 F.3d at 177 (quoting N.Y. C.P.L.R. 302(a)(2)). Defendants Ashcroft, Thompson, and Mueller contend that Arar has failed to make a sufficient showing of their personal involvement in the tortious conduct he alleges. Accordingly, they urge that the claims brought against them be dismissed for lack of personal jurisdiction. As we recently observed, personal jurisdiction cannot be predicated solely on a defendant’s supervisory title; “[rjather, a plaintiff must show that a defendant personally took part in the activities giving rise to the action at issue.” Iqbal, 490 F.3d at 177 (internal citation and quotation marks omitted). In Iqbal, we considered the related questions of whether the plaintiff had pleaded sufficient personal involvement of the defendants to (1) defeat a qualified immunity defense and (2) establish personal jurisdiction over the defendants. Id. We addressed first the question of what a plaintiff must allege to overcome a supervisor’s assertion of qualified immunity on a Rule 12(b)(6) motion to dismiss, holding that the allegations must suggest that the supervisory official: (1) directly participated in the violation [of his constitutional rights], (2) failed to remedy the violation after being informed of it by report or appeal, (3) created a policy or custom under which the violation occurred, (4) was grossly negligent in supervising subordinates who committed the violation, or (5) was deliberately indifferent to the rights of others by failing to act on information that constitutional rights were being violated. Id. at 152; see also id. at 157-58 (requiring a plaintiff who seeks to establish personal involvement by a defendant official “to amplify [his] claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible”). The complaint at issue in Iqbal set forth the “time frame and place” of the acts alleged to have violated the plaintiffs constitutional rights, id. at 166; alleged that these violations arose from “policies dealing with the confinement of those arrested on federal charges in the New York City area and designated ‘of high interest’ in the aftermath of 9/11,” id. at 175-76; and further alleged that various federal officials, including Ashcroft and Mueller, had “condoned” these policies, id. at 165. We noted that the plaintiffs allegations, “although not entirely conclusory, suggest .that some of the [p]laintiffs claims are based not on facts supporting the claim but, rather, on generalized allegations of supervisory involvement.” Id. at 158. At the same time, we found it plausible to believe that senior officials of the Department of Justice would be aware of policies concerning the detention of those arrested by federal officers in the New York City area in the aftermath of 9/11 and would know about, condone, or otherwise have personal involvement in the implementation of those policies. Id. at 166. Taking into account the preliminary stage of that litigation and the Supreme Court’s recent clarification of the standard applicable to Rule 12(b)(6) motions to dismiss, see Bell Atlantic Corp. v. Twombly, — U.S. -, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), we concluded that the factual circumstances described in the plaintiffs complaint were sufficiently “plausible” to defeat the defendants’ assertion of qualified immunity for lack of personal involvement, id. at 166. Turning to the related question of whether the district court had personal jurisdiction over the defendants, we concluded in Iqbal that if a plaintiff has pleaded personal involvement sufficient to defeat a qualified immunity defense, that would also “suffice[ ] to establish personal jurisdiction.” Iqbal, 490 F.3d at 177. The plausibility standard applicable to a Rule 12(b)(6) motion to dismiss is, of course, distinct from the prima facie showing required to defeat a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction. See Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 196-98 (2d Cir.1990). However, because our inquiries into the personal involvement necessary to pierce qualified immunity and establish personal jurisdiction are unavoidably “in-tertwin[ed],” Iqbal, 490 F.3d at 177, we now consider whether, in fight of the considerations set forth in Iqbal’s qualified immunity analysis, Arar has made a prima facie showing that personal jurisdiction exists. As with the complaint in Iqbal, Arar’s complaint states the time frame and place of the acts alleged to have violated Arar’s rights; alleges that these violations arose from policies providing for the removal of non-U.S. citizens “suspected ... of terrorist activity” to countries where they could be interrogated under torture, see Compl. ¶ 24; and further alleges that defendants “directed, ordered, confirmed, [or] acquiesced” in Arar’s removal to Syria and the mistreatment he suffered there, id. ¶ 71. We therefore conclude that, like the plaintiff in Iqbal, Arar has alleged sufficient facts about the role that Ashcroft, Thompson, and Mueller played in violating his rights to make a prima facie showing that personal jurisdiction over those defendants exists under New York’s long-arm statute. Accordingly, we proceed to consider the arguments that defendants have raised in support of their motions to dismiss, for failure to state a claim upon which relief can be granted, Arar’s various causes of action. C. The Torture Victim Protection Act (Count One) The TVPA, which is appended as a statutory note to the Alien Tort Claims Act, 28 U.S.C. § 1350, creates a cause of action for damages against “[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation ... subjects an individual to torture.” Id. § 1350 note (a)(1). The District Court determined that the factual allegations set forth in Arar’s complaint did not state a claim that defendants acted “under color of foreign law.” United States Br. 54. We agree. When seeking guidance on what it means to act under “color of foreign law” for the purposes of the TVPA, we generally look to “principles of agency law and to jurisprudence under 42 U.S.C. § 1983.” Kadic v. Karadzic, 70 F.3d 232, 245 (2d Cir.1995). As the Supreme Court has noted, “[t]he traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’ ” West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941)); see also Hayut v. State Univ. of New York, 352 F.3d 733, 744 (2d Cir.2003). Applied to the present context, this proposition suggests that a defendant alleged to have violated the TVPA acts under color of foreign law when he “exercise[s] power ‘possessed by virtue of [foreign] law’ ” and commits wrongs “ ‘made possible only because the wrongdoer is clothed with the authority of [foreign] law.’ ” West, 487 U.S. at 49, 108 S.Ct. 2250. Arar contends that our prior holdings contemplate a different standard of liability under § 1983 and, by extension, the TVPA. Specifically, he asserts that “Kletschka [v. Driver, 411 F.2d 436 (2d Cir.1969) (Lumbard, C.J.)] holds that the § 1983 test is satisfied if the state or its officials played a significant role in the result,” Plaintiffs Br. 25 (internal quotation marks omitted). We disagree. In Kletschka, we stated that, “[w]hen [a] violation is the joint product of the exercise of a State power and of a non-State power[,] ... the test under the Fourteenth Amendment and § 1983 is whether the state or its officials played a ‘significant’ role in the result.” 411 F.2d at 449. We also noted, however, that, when the “non-State” actor is a federal official, we will not find that state law played a “significant role” unless the complained-of actions can be attributed to “the control or influence of the State defendants.” Id. As we explained, this “control or influence” test reflects the “evident purpose of § 1983[,] [which is] to provide a remedy when federal rights have been violated through the use or misuse of a power derived from a State.” Id. at 448-49 (emphasis added). Because federal officials cannot exercise power under foreign law without subjecting themselves to the control or influence of a foreign state, our comments in Kletschka are entirely consistent with the test for TVPA liability outlined above, which we hereby adopt in this opinion. Arar alleges that defendants removed him to Syria with the knowledge or intention that Syrian authorities would interrogate him under torture. He also alleges that, while he was in Syria, defendants provided Syrian authorities with information about him, suggested subjects for Syrian authorities to interrogate him about, and received “all information coerced from [him] during [these] interrogations.” Compl. ¶ 56. Nowhere, however, does he contend that defendants possessed any power under Syrian law, that their allegedly culpable actions resulted from the exercise of power under Syrian law, or that they would have been unable to undertake these culpable actions had they not possessed such power. Because prior precedents of the Supreme Court and our Court indicate that such allegations are necessary to state a claim under the TVPA, we affirm the District Court’s dismissal of Count one of Arar’s complaint. D. Money damages under the Fifth Amendment (Counts Two, Three, and Four) Counts two and three of Arar’s complaint allege that defendants violated Arar’s rights under the substantive due process component of the Fifth Amendment by removing him to Syria with the knowledge or intention that he would be detained and tortured there. Count four of Arar’s complaint alleges that defendants violated Arar’s rights to substantive and procedural due process under the Fifth Amendment by mistreating him while he was detained in the United States. Arar contends that both of these alleged violations are actionable pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). On the theory that, “in appropriate eircumstances[,] a federal ... court may provide relief in damages for the violation of constitutional rights if there are ‘no special factors counseling hesitation in the absence of affirmative action by Congress,’ ” Davis v. Passman, 442 U.S. 228, 245, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (quoting Bivens, 403 U.S. at 396, 91 S.Ct. 1999), Bivens permitted plaintiffs to seek money damages for violations of the Fourth Amendment. Since then, however, the Supreme Court has created such remedies on only two other occasions: the first for employment discrimination in violation of the equal protection component of the Fifth Amendment’s Due Process Clause, Davis, 442 U.S. at 234, 99 S.Ct. 2264, and the second for violations of the Eighth Amendment by federal prison officials, Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (“In 30 years of Bivens jurisprudence we have extended its holding only twice, to provide an otherwise nonexistent cause of action against individual officers alleged to have acted unconstitutionally, or to provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused by an individual officer’s unconstitutional conduct.”). Indeed, the Supreme Court has “responded cautiously to suggestions that Bivens remedies be extended into new contexts.” Schweiker v. Chilicky, 487 U.S. 412, 421, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988); see also Wilkie v. Robbins, — U.S. -, 127 S.Ct. 2588, 2597, 168 L.Ed.2d 389 (2007) (observing that, “in most instances,” the Court “ha[s] found a Bivens remedy unjustified”); Malesko, 534 U.S. at 70, 122 S.Ct. 515 (noting that, since Carlson, the Court has “consistently rejected invitations to extend Bivens ” to new contexts); FDIC v. Meyer, 510 U.S. 471, 484, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (discussing, with approval, the observations offered by the Court in Schweiker). By asking us to devise a new Bivens damages action for alleged violations of the substantive due process component of the Fifth Amendment, Arar effectively invites us to disregard the clear instructions of the Supreme Court by extending Bivens not only to a new context, but to a new context requiring the courts to intrude deeply into the national security policies and foreign relations of the United States. (1) In its most recent consideration of Bivens, the Supreme Court set out the following framework for analyzing Bivens claims: [O]n the assumption that a constitutionally recognized interest is adversely affected by the actions of federal employees, the decision whether to recognize a Bivens remedy may require two steps. [First], there is the question whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages. [Second, there is the principle that] a Bivens remedy is a subject of judgment: “the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counseling hesitation before authorizing a new kind of federal litigation.” Robbins, 127 S.Ct. at 2598 (quoting Bush v. Lucas, 462 U.S. 367, 378, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983)) (internal citation omitted). For guidance on what might constitute a “special factor,” we turn to the Supreme Court’s past considerations of Bivens. The Court’s prior precedents reveal a reluctance to create Bivens remedies where a coordinate branch of government is “in a far better position than a court,” Bush, 462 U.S. at 389, 103 S.Ct. 2404, to “decide whether ... a remedy should be provided,” id. at 380, 103 S.Ct. 2404; and, if a remedy is to be provided, to decide what form this remedy should take. For example, in Bush v. Lucas, the Court declined to create a damages remedy for alleged violations of a federal employee’s First Amendment rights upon determining that Congress was in a better position “to evaluate the impact” of damages suits “on the efficiency of the civil service.” Id. at 389, 103 S.Ct. 2404. Similarly, in Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), the Court declined to create a damages remedy for alleged violations of constitutional rights by military officers upon noting that the Constitution grants Congress “plenary control over ... regulations, procedures, and remedies related to military discipline,” id. at 301, 103 S.Ct. 2362; Congress, in exercising this authority, created a system of military justice that did not include a damages remedy for alleged violations of constitutional rights by military officers, id. at 304, 103 S.Ct. 2362; and, therefore, creation of such a remedy by the federal courts “would be plainly inconsistent with Congress’ authority in this field,” id. In Schweiker v. Chilicky, the Court, relying on the reasoning set forth in Bush and Chappell, declined to create a non-statutory damages remedy against government officials alleged to have wrongfully terminated the plaintiffs’ Social Security benefits. As the Court explained, “making the inevitable compromises required in the design” of a welfare program is the responsibility of Congress rather than the courts, 487 U.S. at 429, 108 S.Ct. 2460; Congress had “discharged that responsibility,” id., by creating “elaborate administrative remedies,”- id. at 424, 108 S.Ct. 2460, for dissatisfied Social Security claimants; in view of the fact that these remedies did not include a provision for recovery of money damages, the Court, in keeping with its prior precedents, would not create a Bivens remedy, id. at 423, 91 S.Ct. 1999 (noting that “[w]hen the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, [the Court has] not created additional Bivens remedies”). Schweiker, therefore, establishes that “the concept of special factors counseling hesitation in the absence of affirmative action by Congress has proved to include an appropriate judicial deference to indications that congressional inaction has not been inadvertent.” 487 U.S. at 423, 108 S.Ct. 2460 (internal quotation marks omitted). (2) To the best of our understanding, Arar seeks a Bivens remedy for at least two analytically distinct categories of claims. The first set of claims, described in Counts two and three of Arar’s complaint, arises from Arar’s allegation that defendants removed him to Syria with the knowledge or intention that he would be detained and tortured there. The second set of claims, described in Count four of the complaint, arises from Arar’s allegations about the way in which defendants treated him while he was detained in the United States. We consider each of these claims in turn. (a) Arar’s removal-related claims arise from the alleged violation of his substantive due process interest in not being involuntarily removed to a country where he would be detained and subjected to torture. Step one of the Bivens inquiry reveals that Congress has created alternative processes for protecting this interest. The Foreign Affairs Reform and Restructuring Act of 1988, Pub. L. 105-277, codified at 8 U.S.C. § 1231 note (“FARRA”), states that the United States “shall ... not ... effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture,” id. § 1231 note (a); and provides for an alien to raise claims based on this section “as part of the review of a final order of removal pursuant to ... the Immigration and Nationality Act,” id. § 1231 note (d). Thus, as a general matter, Bivens relief would not be available for removal-related claims such as the one that Arar raises here because the INA’s “alternative, existing” mechanism of review would normally provide “a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages,” Robbins, 127 S.Ct. at 2598, under step one of our Bivens analysis. Arar maintains, however, that because defendants intentionally prevented him from making use of the INA’s judicial review provisions, the allegations of his complaint compel a different conclusion. Assuming that Arar’s allegations are true, it would be perverse to allow defendants to escape liability by pointing to the existence of the very procedures that they allegedly obstructed and asserting that Arar’s sole remedy lay there. Accordingly, we could regard this as a situation where the presence of an alternative remedial scheme does not “amount to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages,” Robbins, 127 S.Ct. at 2598. Faced with similar allegations in Bishop v. Tice, 622 F.2d 349 (8th Cir.1980), the Court of Appeals for the Eighth Circuit held that federal officials who interfered with a plaintiffs access to an exclusive administrative remedial scheme could, pursuant to Bivens, be held liable for that interference inasmuch as it violated due process, but could not be sued for the underlying injury that the remedial scheme was designed to redress. In Bishop, the plaintiff, a federal employee, alleged, inter alia, wrongful termination, id. at 353, and charged defendants with obstructing his access to the relevant administrative remedies, id. at 353 n. 4. The Eighth Circuit observed that Congress had enacted “civil service discharge appeal procedures” in order to permit “a wrongfully dismissed employee to [obtain] reinstatement and back pay.” Id. at 356. The court noted, however, that “[t]he existence of civil service discharge appeal procedures is of little avail to [the plaintiff] ... if, as he has alleged, defendants blocked his resort to them.” Id. at 357. On this basis, the court determined that if the plaintiff “can prove [that] defendants interfered with his right to procedural due process [by obstructing access to the appeal process], he is entitled to the damages that actually resulted” pursuant to Bivens. The Eighth Circuit did not conclude, however, that the interference of federal officials permitted the plaintiff to avoid the procedures for appeal set forth by Congress by litigating his underlying claims— wrongful termination and defamation— through a Bivens action in federal district court. Id. The court explained: A Bivens style remedy for wrongfully dismissed federal employees not only is unnecessary but also would be at odds with the existing discharge appeal procedures to the extent that dismissed employees would be encouraged to bypass these procedures in order to seek direct judicial relief against either the government or individual government officers. Id. Thus, the plaintiff in Bishop could maintain a Bivens cause of action against the officials for interfering with his due process rights (a claim equivalent to the claim brought by Arar in Count four of his complaint) but not for employment-related claims subject to the relevant procedures for appealing civil service discharges — in essence, claims of an analogous sort to the claims that Arar brings in Counts two and three of his complaint. We find this reasoning compelling and, like the Eighth Circuit, are reluctant to permit litigants to avoid congressionally mandated remedial schemes on the basis of mere allegations of official interference. Accordingly, the review procedures set forth by the INA provide “a convincing reason,” Robbins, 127 S.Ct. at 2598, for us to resist recognizing a Bivens cause of action for Arar’s claims arising from his alleged detention and torture in Syria. Even if they did not, however, our analysis of the significant “special factors,” id., implicated by these claims would lead us to the same result at step two of our Bivens analysis. Step two of our Bivens analysis requires us to determine whether Arar’s suit implicates what the Supreme Court has described as “special factors” that would counsel against creation of a Bivens remedy. “The special factors counseling hesitation in the creation of a new remedy ... d[o] not concern the merits of the particular remedy that [i]s sought. Rather, they relate! ] to the question of who should decide whether such a remedy should be provided