Vetcher v. Immigration and Customs Enforcement (ICE)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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IVAN ALEXANDROVICH VETCHER,

Plaintiff, MEMORANDUM & ORDER

18-CV-6798(EK)(TAM)

-against-

IMMIGRATION CUSTOMS ENFORCEMENT

AGENTS (ICE) GROUP 1 (AGENTS A-H,

INCLUDING DO ANTHANASIOS KARAKOSTAS,

SUPERVISORY DETENTION AND DEPORTATION

OFFICE (SDDO) IRVING AGUILERA, SDDO

THOMAS WEIDLEIN), et al.

Defendants.

------------------------------------x

ERIC KOMITEE, United States District Judge:

Plaintiff Ivan Vetcher brings this suit against

various officers of U.S. Immigration and Customs Enforcement

(“ICE”), alleging that they violated his rights when they

attempted to effectuate his removal from the country in 2015.

Vetcher’s amended complaint asserts, among other things, that

ICE officers tightly handcuffed, dragged, and suffocated him in

an effort to force him to board a plane for his removal.

Vetcher also suggests (perhaps obliquely) that the officers

violated a command from the U.S. Court of Appeals for the Fifth

Circuit by attempting to remove him without prior notice to that

court.

Construing his pro se complaint liberally, I read

Vetcher to allege the excessive use of force under the Fourth

Amendment and the denial of due process under the Fifth

Amendment. Vetcher asserts these claims pursuant to Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971), and 42 U.S.C. § 1983, invoking both of these

vehicles by name. He sued defendant ICE officers Irving

Aguilera, Thomas Weidlein, Trevor Goriah, and Anthanasios

Karakostas, among other named and unnamed ICE employee

defendants. These defendants now move to dismiss the complaint

for lack of subject-matter jurisdiction and failure to state a

claim. For the reasons set forth below, that motion is granted,

and the action is dismissed.1

Background

A. Procedural History of Vetcher’s Removal Proceedings2

On July 2, 2014, Vetcher received a Notice to Appear,

alleging that he was removable for having committed an

1 The only other identified officer, Steven Galic, is deceased. See ECF

No. 95. As ordered by the Court on December 6, 2018, see ECF No. 61, the

government made various efforts to identify the unnamed individual defendants

pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997). See, e.g., ECF

Nos. 70, 79, 86, 95. Notwithstanding the Court’s order that his amended

complaint “name[e] individual defendants,” see Docket Order dated June 29,

2021, Vetcher still includes various unidentified agents. In any event, any

claims against these unnamed agents are dismissed for the same reasons as

those brought against the named defendants.

2 The defendants’ memorandum of law and accompanying exhibits detail the

relevant history of Vetcher’s years-long removal proceedings. The Court

takes judicial notice of administrative and prior judicial decisions

“aggravated felony” in violation of Section 237(a)(2)(A)(iii) of

the Immigration and Nationality Act. See Decl. of David A.

Cooper (“Cooper Decl.”) Ex. A, ECF No. 115-3. On August 6,

2014, an Immigration Judge (“IJ”) found that Vetcher was

ineligible for asylum or withholding of removal, and ordered him

removed. See Cooper Decl. Ex. B, ECF No. 115-4. Vetcher

appealed the IJ’s decision to the Board of Immigration Appeals

(“BIA”), which dismissed the appeal on December 22, 2014,

rendering the order of removal final. See Cooper Decl. Ex. C,

ECF No. 115-5; see 8 U.S.C. § 1101(a)(47)(B).

On January 20, 2015, Vetcher filed a petition for

review with the Fifth Circuit. See Pet. for Review, Vetcher v.

Lynch, No. 15-60047 (5th Cir. Jan. 20, 2015), ECF No. 1. The

following month, on February 27, 2015, Vetcher filed a motion to

“place the case on pending status” because he was “in the

process of reopening his case with the Immigration Court and the

Board of Immigration Appeals.” Mot., Vetcher v. Lynch, No. 15-

60047 (5th Cir. Feb. 27, 2015), ECF No. 25. On March 3, 2015,

the Fifth Circuit denied the motion to “stay further

proceedings.” See Order, Vetcher v. Lynch, No. 15-60047 (5th

regarding these proceedings. See, e.g., Akran v. United States, 997 F. Supp.

2d 197, 204 n.5 (E.D.N.Y. 2014) (taking judicial notice of documents from

administrative immigration proceedings), aff’d, 581 Fed. App’x 46 (2d Cir.

2014).

Cir. Mar. 3, 2015), ECF No. 33. Thus, as of March 3 — the day

the defendants attempted to remove Vetcher, as set out in

greater detail below — the Fifth Circuit had not stayed

Vetcher’s removal. Cf. 8 U.S.C. § 1252(b)(3)(B) (“Service of

the petition . . . does not stay the removal of an alien pending

the court’s decision on the petition, unless the court orders

otherwise.”).

Only on April 9, 2015, did the Fifth Circuit grant a

stay of the removal order, in light of a potential error in the

IJ’s determination that Vetcher’s conviction constituted an

“aggravated felony.” See Vetcher v. Lynch, No. 15-60047 (slip

op.) (5th Cir. Apr. 9, 2015), ECF No. 43. Following several

years of additional proceedings, Vetcher was removed in 2018.

See Cooper Decl. Ex. E, ECF No. 115-7. This removal was later

effectively affirmed by the Fifth Circuit. Vetcher v. Barr, 953

F.3d 361, 366–70 (5th Cir. 2020); see also id. at 365–66

(summarizing Vetcher’s removal proceedings).

B. Amended Complaint Allegations

The following facts are taken from Vetcher’s amended

complaint and presumed to be true for purposes of this motion.

1. March 3, 2015 Attempted Removal

On March 3, 2015, a group of eight ICE agents —

Officers Karakostas, Aguilera, and Weidlein and others unknown —

attempted to remove Vetcher through John F. Kennedy

International Airport (“JFK”). Am. Compl. 1, ECF No. 102. At

the airport, Vetcher informed the agents that he refused to

board the airplane because his request for a stay of removal was

still pending. Id. at 6. In response, several agents “forced

[his] hands behind his back, handcuffed him, picked him up by

the elbows and dragged him . . . into the airplane” as another

agent “stood guard at the gate.” Id. Once aboard, another

agent (identified as “ICE Group 1 Agent A”) “covered Vetcher’s

mouth and nose with his gloved hand,” so that he “could not

breathe” and “began to lose consciousness.” Id. at 7. “Agent

A” moved his hand away from Vetcher’s face “when he realized

[he] was losing consciousness,” and Vetcher “went into a fit of

coughing spasm.” Id. The agents then led Vetcher off the

airplane and back through the airport, forcing him to carry his

personal bags on his own. Id. at 7–8. At this time, his wrists

were bleeding, and he “felt the pain from his . . . injuries

more acutely as he dragged” his bags through the airport. Id.

Vetcher alleges that Agent A violated his Fourth

Amendment rights by using excessive force against him, and that

the remaining seven agents should be held liable for failing to

intervene to prevent that use of force.

2. March 4, 2015 Transport

On the following day, March 4, 2015, Officers Goriah

and Galic transported Vetcher by van to a facility in Batavia,

New York. Id. at 8. Vetcher alleges that his handcuffs were

“tighter than usual” during this trip and were “chafing and

digging into [his] injured wrists,” but the agents ignored

multiple requests that the cuffs be loosened. Id. at 8-9. The

pain was “excruciating.” Id. at 8. The agents eventually

checked on his handcuffs during a break halfway through the

eight-hour drive. Id. at 8–9. Galic “forced his thumb between

Vetcher’s injured inner wrists and twisted it with painful

pressure,” “forcing the handcuffs to dig into” his wrists. Id.

at 9. Galic concluded that the cuffs were “not too tight” and

did not adjust them. Id. Vetcher received medical treatment

for his wrists once he arrived in Batavia. Id.

Vetcher alleges that Goriah witnessed Galic’s

treatment of him, but “failed to intervene” to uphold his right

“to be protected from excessive force.” Id. at 2.

3. Failure to Notify Fifth Circuit of Removal

Finally, Vetcher alleges that defendants Aguilera and

Weidlein violated a Fifth Circuit “directive” to notify the

court of any scheduled removal. See id. at 9-10. Shortly after

Vetcher filed for a stay of removal, he received a notice from

the Fifth Circuit Clerk, addressed to a non-party deportation

officer, indicating that Vetcher’s stay of removal petition was

pending and that the court should be notified if and when

Vetcher’s removal was scheduled. Id. at 10. According to

Vetcher, Aguilera and Weidlein knew in advance about his

scheduled removal from JFK, but did not inform either the Fifth

Circuit or the Office of Immigration as directed. Id. at 9-10.

Vetcher alleges that this denied him “due process to have his

motion for stay of removal adjudicated prior to his removal” on

March 3, 2015. Id. at 10.

Legal Standards

At the pleading stage, “all well-pleaded,

nonconclusory factual allegations in the complaint” are assumed

to be true. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111,

124 (2d Cir. 2010).3 Pro se complaints are held to less

stringent standards than pleadings drafted by attorneys, and the

Court will read a pro se complaint liberally and interpret it as

raising the strongest arguments it suggests. Erickson v.

Pardus, 551 U.S. 89, 94 (2007); Sealed Plaintiff v. Sealed

Defendant, 537 F.3d 185, 191 (2d Cir. 2008).

Still, a pro se plaintiff is not exempt from

“compliance with relevant rules of procedural and substantive

law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). Thus,

dismissal is appropriate where the Court lacks subject matter

jurisdiction over the action. Fed. R. Civ. P. 12(b)(1). And to

3 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

survive a motion to dismiss on Rule 12(b)(6) grounds, the

complaint must plead sufficient “facts to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). “A claim is plausible when

the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57,

63 (2d Cir. 2011). Courts “are not bound to accept as true a

legal conclusion couched as a factual allegation,” and

“[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Discussion

The defendants move to dismiss the amended complaint

on two grounds that are relevant here. First, they assert, 8

U.S.C. § 1252(g) strips the Court of jurisdiction to hear

Vetcher’s claims. Second, they argue that even if this Court

has jurisdiction, Vetcher cannot pursue any Bivens action on the

facts alleged.4

4 Vetcher styles the amended complaint as a “42 U.S.C. § 1983 and Bivens

Action.” See Am. Compl. 1. Because they are federal officials, however, the

defendants cannot be liable under § 1983. Dotson v. Griesa, 398 F.3d 156,

162 (2d Cir. 2005) (“[Section 1983] appl[ies] only to state actors, not

federal officials.”). This makes little difference here: “§ 1983 claims

improperly filed against federal employees are routinely interpreted as

properly pleaded under Bivens . . ., the federal counterpart to § 1983.”

E.g., Aikman v. Cnty. of Westchester, 691 F. Supp. 2d 496, 498-99 (S.D.N.Y.

2010) (collecting cases).

A. Section 1252(g) Partially Bars Vetcher’s Claims

In 1996, Congress acted to limit the federal courts’

jurisdiction to hear challenges to certain removal-related

actions, by passing the Illegal Immigration Reform and Immigrant

Responsibility Act (“IIRIRA”). One provision adopted at that

time — 8 U.S.C. § 1252(g) — states that “no court shall have

jurisdiction to hear any cause or claim by . . . any alien

arising from the decision or action by the Attorney General to

commence proceedings, adjudicate cases, or execute removal

orders against any alien under this chapter.” 8 U.S.C. §

1252(g) (emphases added).

Broadly speaking, such language would appear to bar

jurisdiction here, given that Vetcher complains of actions that

the agents took in the course of effectuating his removal. But

the Supreme Court has given this language a “narrow reading,”

holding that such a construction was necessary to “make[] sense

of [IIRIRA’s] statutory scheme as a whole.” Reno v. American–

Arab Anti–Discrimination Committee (“AADC”), 525 U.S. 471, 487

(1999). In AADC, the Court held that Section 1252(g) spoke to

discretionary acts at “three discrete events along the road to

deportation,” rather than “referring to all claims arising from

deportation proceedings.” Id. at 482. The jurisdictional bar’s

aim was protecting the Executive’s broad discretion to proceed —

or not — at the three stages listed: commencement of

proceedings, adjudication of removal petitions, and execution of

removal orders. Id. at 483-84. In other words, Section 1252(g)

does not “sweep in any claim that can technically be said to

‘arise from’ the[se] three listed actions,” but instead

“refer[s] to just those three specific actions themselves.”

Jennings v. Rodriguez, 138 S. Ct. 830, 841 (2018).

Neither the Supreme Court nor the Second Circuit has

considered whether excessive force in this context falls within

the definition of “execut[ing] removal orders.”5 But given its

prescribed narrow interpretation, Section 1252(g) does not

preclude this Court’s review of Vetcher’s excessive-force

claims. As the Jennings Court explained, “when confronted with

capacious phrases like ‘arising from,’ we have eschewed

uncritical literalism . . . .” Id. at 840.

Section 1252 thus “empower[s] [ICE agents] to remove

[an individual] at their discretion, but “they cannot do so in

5 Last year, the Second Circuit declined to decide this jurisdictional

question. See Reeves v. United States, No. 20-4095, 2022 WL 2812881, at *2

(2d Cir. July 19, 2022). In that case, the pro se plaintiff Reeves brought

claims for false arrest and excessive force under the Federal Tort Claims Act

(“FTCA”), in connection with his arrest by ICE agents. The district court

dismissed the complaint, concluding that it lacked subject-matter

jurisdiction under Section 1252(g) because the agents were enforcing a final

order of removal when they arrested the plaintiff. Id. at *1. On appeal,

Reeves obtained counsel and argued, for the first time, that Section 1252(g)

does not strip federal courts of jurisdiction to consider his FTCA claim for

excessive force, regardless of whether the ICE officers were executing a

final order of removal. Id. at *2. The Second Circuit remanded the case for

the district court to consider the jurisdictional issue in the first

instance. Id.

any manner they please” — as alleged here, suffocating Vetcher

and dragging him onto the airplane. See You, Xiu Qing v.

Nielsen, 321 F. Supp. 3d 451, 457–58 (S.D.N.Y. 2018). Thus, in

You, Xiu Qing, Judge Torres concluded — correctly, in my view —

that Section 1252(g) did not strip courts of jurisdiction to

hear all challenges to the manner of deportation, including the

hypothetical (and admittedly “far-fetched”) scenario in which

ICE officials “drop[] [an individual] on a life raft in the

middle of the Atlantic Ocean.” Id. at 457. Accordingly, the

Court proceeds to the merits of the excessive force claims.

Section 1252(g)’s jurisdictional bar does, however,

apply to Vetcher’s due process claims. Where the government

“unquestionably had statutory authority to execute [a] final

order of removal,” the district court may not review the

exercise of discretion to effectuate that decision — at least

not by dressing a legal challenge up as a due-process violation.

See Ragbir v. Homan, 923 F.3d 53, 64 (2d Cir. 2019), cert.

granted, judgment vacated sub nom. Pham v. Ragbir, 141 S.Ct. 227

(2020); You, 321 F. Supp. 3d at 457. Notwithstanding the Fifth

Circuit’s alleged directive that it be notified when Vetcher’s

removal was scheduled, the defendant ICE agents unquestionably

maintained the discretion to remove him. Indeed, there was no

stay of removal in effect at the time of Vetcher’s attempted

removal, and the Fifth Circuit did not grant one until the

following month in April 2015. Thus, as to this aspect of his

attempted removal, Vetcher effectively challenges the agents’

exercise of discretion in deciding how and when to execute a

valid removal order.

His due process claim thus falls within the ambit of

Section 1252(g)’s jurisdictional bar. See Sadhvani v. Chertoff,

460 F. Supp. 2d 114, 122 (D.D.C. 2006), aff’d, 279 F. App’x 9

(D.C. Cir. 2008) (Section 1252(g) bars review of a “decision to

execute [petitioner’s] removal order without notifying the BIA

or the [DOJ] and while his motion to reopen the removal

proceedings was still pending”); Johnson v. Gonzalez, No. 5-CV-

04774, 2007 WL 9719055, at *3 (E.D.N.Y. Mar. 29, 2007) (Section

1252(g) bars jurisdiction over suit arising from execution of

removal order despite the pendency of plaintiff’s habeas

petition).

B. Vetcher Fails to State A Claim Under Bivens

In any case, and even assuming the Court has

jurisdiction to hear all of Vetcher’s claims, none survive a

motion to dismiss under Rule 12(b)(6) because they fail to state

any cognizable cause of action under Bivens.6

6 The Court evaluates Vetcher’s due process claims under Bivens in the

alternative. See Butcher v. Wendt, 975 F.3d 236, 242–43 (2d Cir. 2020) (“If,

as here, the jurisdictional constraints are imposed by statute, not the

Constitution, we have found it particularly prudent to assume hypothetical

1. Bivens Claims Post-Egbert

In deciding Bivens in 1971, the Supreme Court

recognized an implied cause of action for damages for an alleged

violation of the Fourth Amendment against agents of the Federal

Bureau of Narcotics. 403 U.S. at 389. Over the following

decade, the Court recognized two additional causes of action

under the Constitution: first, a Fifth Amendment sex-

discrimination claim by a former congressional staffer, see

Davis v. Passman, 442 U.S. 228 (1979); and second, an Eighth

Amendment inadequate-care claim by a federal prisoner. See

Carlson v. Green, 446 U.S. 14 (1980).

Since Carlson, however, the Supreme Court has found no

new implied cause of action in the Constitution, despite having

considered the question at least twelve times. See, e.g.,

Egbert v. Boule, 142 S. Ct. 1793, 1799-1800 (2022). Recently,

the Court stated that if it were “called to decide Bivens

today,” it “would decline to discover any implied causes of

action in the Constitution.” Id. at 1809. Although it has so

far declined to “dispense with Bivens altogether,” the Supreme

Court now emphasizes that “recognizing a cause of action under

Bivens is a disfavored judicial activity.” Id. at 1803. “Even

a single sound reason to defer to Congress is enough to require

jurisdiction where the jurisdictional issues are complex and the substance of

the claim is plainly without merit.”).

a court to refrain from creating such a remedy.” Id. The

message is clear: “in all but the most unusual circumstances,”

Congress, not the courts, is the proper forum for creating a new

private right of action. Id. at 1800.

Prior to Egbert, the Supreme Court had prescribed a

two-step process for evaluating requests to imply new

constitutional causes of action. Id. A court first must

determine whether the case presents “a new Bivens context” — in

other words, whether the case differs in “meaningful” ways from

the three cases in which the Supreme Court has implied a cause

of action. Id. at 1803. A new context may arise, for example,

when a case involves a “new category of defendants.” Id. When

a claim presents a new context, the court then must consider

whether any “special factors” counsel against implying a new

cause of action. Id. Although the Supreme Court has not

defined with precision what makes a factor “special,” it has

instructed that the key inquiry is whether “there is any reason

to think that judicial intrusion into a given field might be

harmful or inappropriate.” Id. at 1805. “If so, or even if

there is the potential for such consequences, a court cannot

afford a plaintiff a Bivens remedy.” Id.

In Egbert, the Supreme Court recognized that this two-

step analysis “often resolve[s] to a single question: whether

there is any reason to think that Congress might be better

equipped to create a damages remedy.” Id. at 1803. A “new

context,” for example, arises anytime “there are potential

special factors that previous Bivens cases did not consider.”

Id. And new contexts, like cases involving a new category of

defendants, often entail “situations in which a court is not

undoubtedly better positioned than Congress to create a damages

action.” Id. “Even in a particular case, a court likely cannot

predict the systemwide consequences of recognizing a cause of

action under Bivens. That uncertainty alone is a special factor

that forecloses relief.” Id. at 1803-04. In other words, the

“newness” of a claim “should alone require dismissal.” Id. at

1804.

Thus, the bar for concluding that a claim falls

outside the existing Bivens contexts is very low. A claim may

arise in a new context even when — compared with a previously

recognized Bivens claim — the claim is based on the same

constitutional provision, presents “almost parallel

circumstances,” and involves a “similar mechanism of injury.”

Id. at 1805. Accordingly, the only permissible contexts under

Bivens are not Fourth, Fifth, and Eighth Amendment claims,

respectively, but rather “a claim against FBI agents for

handcuffing a man in his own home without a warrant; a [sex-

discrimination] claim against a Congressman for firing his

female secretary; and a claim against prison officials for

failure to treat an inmate’s asthma.” Ziglar v. Abbasi, 582

U.S. 120, 140 (2017).

These principles foreclose the recognition of a Bivens

cause of action for Vetcher’s Fourth Amendment excessive force

and failure to intervene claims, as well as his Fifth Amendment

due process claim.

2. Vetcher’s Fourth Amendment Claims

Vetcher alleges that the defendant ICE agents,

including Officers Aguilera, Weidlein, and Karakatos, failed to

intervene as Agent A tightly handcuffed and suffocated him at

JFK, while attempting to execute the removal order. See Am.

Compl. 1-2. He similarly alleges that, during a separate

incident on the following day, Officer Goriah was aware that

Galic had tightly handcuffed him, but nevertheless failed to

intervene. See id. at 2. Under the Supreme Court’s restrictive

rubric, such allegations plainly present a new context.

First, Vetcher’s theory of liability as to all

defendants (except unidentified Agent A) is premised on their

alleged failures to intervene, rather than an underlying

excessive force violation. This presents a new context. See,

e.g., Johnson v. Santiago, 624 F. Supp. 3d 295, 300 (E.D.N.Y.

2022) (“[A] claim for failure to protect based on the allegation

that [Defendant] was present during the attack on Plaintiff but

did not help Plaintiff or intervene presents a new Bivens

context.”); Cannenier v. Skipper-Scott, No. 18-CV-2383, 2019 WL

764795, at *5 (S.D.N.Y. Feb. 20, 2019) (“The Supreme Court has

recognized only three Bivens contexts, none of which include

failure to protect . . . .”); Martinez v. D’Agata, No. 16-CV-44,

2019 WL 6895436, at *7 (S.D.N.Y. Dec. 18, 2019) (declining to

find Bivens remedy for claim against federal defendants for

“failure to intervene”).

Additionally, the defendants here are ICE agents, not

federal narcotics officers as in Bivens. See Tun-Cos v.

Perrotte, 922 F.3d 514, 525 (4th Cir. 2019) (Bivens claims

presented new context because, among other reasons, the

defendants were ICE agents, not federal narcotics agents); see

also Lewis v. Westfield, 640 F. Supp. 3d 249, 253 (E.D.N.Y.

2022) (new context in part because the defendants were members

of the U.S. Marshals Service). And, as ICE officers, the

defendant officers here were operating under a different “legal

mandate” — immigration law — than the narcotics officers in

Bivens: whereas Bivens involved narcotics agents sued “for

handcuffing a man in his own home without a warrant” while

investigating drug violations, Abbasi, 582 U.S. at 140, the

defendant officers here were attempting to effectuate a valid

order of removal and then transporting Vetcher after that failed

attempt. See, e.g., Tun-Cos, 922 F.3d at 524 (ICE agents

operated under a “distinct” legal mandate, as compared with the

narcotics officers in Bivens).

Special factors counsel against extending Bivens to

Vetcher’s claims. His claims arise in the context of

immigration enforcement. “Because matters intimately related to

foreign policy and national security are rarely proper subjects

for judicial intervention,” the Supreme Court has explained, “a

Bivens cause of action may not lie where . . . national security

is at issue.” Egbert, 142 S. Ct. at 1804-05. Although Egbert

involved incidents at the border, the Supreme Court’s reasoning

suggests that immigration enforcement in general implicates

national security and foreign policy concerns. See id. at 1806

(explaining that “immigration investigations in this country are

perhaps more likely to impact the national security of the

United States” than such investigations occurring outside the

United States). Indeed, in a recent case following Egbert, the

identity of the defendants’ employers — ICE and the Department

of Homeland Security (“DHS”) — was dispositive for this reason.

See Muzumala v. Mayorkas, No. 22-CV-3789, 2022 WL 2916610, at *5

(S.D.N.Y. July 22, 2022).

As another special factor, the existence of

alternative remedial structures likewise favors dismissal in

this case. Courts “may not fashion a Bivens remedy if Congress

already has provided, or has authorized the Executive to

provide, an alternative remedial structure.” Egbert, 142 S. Ct.

at 1804. If any such structure is in place, “that alone” is

sufficient “to limit the power of the Judiciary to infer a new

Bivens cause of action” — even if “existing remedies do not

provide complete relief.” Id. Put another way, “[s]o long as

Congress or the Executive has created a remedial process that it

finds sufficient to secure an adequate level of deterrence, the

courts cannot second-guess that calibration by superimposing a

Bivens remedy.” Id. at 1807.

The Court in Egbert found alternative remedies

“independently foreclose[ing] a Bivens action” based on the

Secretary of DHS’s “statutor[y] obligat[ion] to ‘control,

direct, and supervise all employees,’” id. at 1806 (quoting 8

U.S.C. § 1103(a)(2)), and DHS’s regulatory obligation to

“investigate ‘alleged violations of the standards for

enforcement activities’ and accept grievances from ‘any persons

wishing to lodge a complaint,” id. (quoting 8 C.F.R. §

287.10(a)-(b)). While Egbert examined these provisions as

relevant to the Customs and Border Patrol specifically, they

reflect broadly the powers and responsibilities of the DHS

Secretary — who oversees component agencies including the ICE —

and thus apply with equal force here.

The defendants point to additional alternative

remedies created by Congress and the Executive branch. For

example, Offices of Inspector General (“OIG”) across the

Executive Branch are authorized to investigate and report abuses

by federal law-enforcement officers, including ICE officials.

See 5 U.S.C. § 403; 6 U.S.C. § 113(b); see also 5 U.S.C. § 417.

Congress also separately established the Office of Civil Rights

and Civil Liberties, 6 U.S.C. §§ 113(d)(3), 345, which may, upon

the OIG’s referral, investigate alleged abuses of civil rights

and civil liberties by DHS employees. 5 U.S.C. § 417(f)(2)(E)–

(G). Taken altogether, these grievance and investigation

processes give the Court “no warrant to doubt” that the

consideration of any complaint filed by Vetcher with these

offices would “secure[] adequate deterrence” and afford an

alternative remedy. Egbert, 142 S. Ct. at 1807.

In short, Vetcher’s excessive force claims present a

new context, and special factors counsel against extending

Bivens to provide a right of action in that new context. These

claims therefore must be dismissed.

3. Vetcher’s Due Process Claims

Vetcher’s Fifth Amendment due process claim suffers

from similar shortcomings. The fact pattern in Davis bears

virtually no resemblance to the instant case: whereas Davis

concerned a substantive due process claim arising from alleged

sex discrimination by a congressman against a staff member, see

generally 442 U.S. 228, Vetcher asserts a due process claim

based on Officers Aguilera and Weidlein’s failure to follow an

alleged Fifth Circuit directive to inform that court as to the

timing of his removal. This, too, plainly presents a new

context. And the same special factors that preclude Vetcher’s

Fourth Amendment claims likewise foreclose a Bivens remedy on

this claim. Accordingly, the Fifth Amendment due process claim

also fails.

Conclusion

For the foregoing reasons, the defendants’ motion to

dismiss the amended complaint is granted. The Clerk of Court is

respectfully directed to enter judgment and close the case.

SO ORDERED.

/s/ Eric Komitee__________

ERIC KOMITEE

United States District Judge

Dated: October 18, 2023

Brooklyn, New York