# Vetcher v. Immigration and Customs Enforcement (ICE)

> District Court, E.D. New York · October 18, 2023

URL: https://www.frixlaw.com/law-library/cases/10310672

## Case

- **Court:** District Court, E.D. New York
- **Decided:** October 18, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10310672

## How later opinions describe it (automated extraction)

- 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

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10310672. Public record. Not legal advice.