Amicus Curiae Brief — Jesus C. Hernández, et al., Petitioners v. Jesus Mesa, Jr.
Supreme Court briefAug 9, 2019
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No. 17-1678
IN THE
Supreme Court of the United States
_________
JESUS C. HERNÁNDEZ, ET AL.,
Petitioners,
v.
JESUS MESA, JR.,
Respondent.
________
On Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit
________
BRIEF OF IMMIGRANT AND CIVIL RIGHTS
ORGANIZATIONS AS AMICI CURIAE IN
SUPPORT OF PETITIONERS
________
TRINA REALMUTO
MARY A. KENNEY
AMERICAN IMMIGRATION
COUNCIL
1331 G Street
Suite 200
Washington, DC 20005
(202) 507-7512
MATTHEW E. PRICE
Counsel of Record
JENNER & BLOCK LLP
1099 New York Avenue, NW
Suite 900
Washington, DC 20001
(202) 639-6000
MPrice@jenner.com
Counsel for Amici Curiae
MATT ADAMS
NORTHWEST IMMIGRANT
RIGHTS PROJECT
615 Second Avenue
Suite 400
Seattle, WA 98104
(206) 957-8611
JONATHAN H. FEINBERG
KAIRYS, RUDOVSKY,
MESSING & FEINBERG
LLP
718 Arch Street
Suite 501 South
Philadelphia, PA 19106
(215) 925-4405
Counsel for National Police
Accountability Project
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................... iii
INTEREST OF AMICI CURIAE................................... 1
SUMMARY OF ARGUMENT ......................................... 4
ARGUMENT ....................................................................... 7
I.
Most Immigration Enforcement Activities
Do Not Present a “New Context” for
Bivens Because They Are Substantially
Similar to Other Forms of Law
Enforcement that Are Subject to Bivens. ........... 8
II.
Most Bivens Claims Seeking a Remedy for
Constitutional Violations by ICE and CBP
Officers Will Not Involve Special Factors. ........ 14
A.
Congress
Contemplated
the
Availability of a Bivens Remedy in
the Immigration and Nationality
Act Itself. .................................................... 15
B.
Allowing a Bivens Remedy Does
Not
Disrupt
Governmental
Operations. ................................................. 16
C.
Immunizing Immigration Officers
Would Result in Unworkable
Distinctions and Anomalies. .................... 19
D.
The Deterrent Effects of Bivens
Are Especially Important in
Immigration-Related Cases. .................... 26
E.
There Is No Alternative Remedial
Scheme Available. ..................................... 29
ii
CONCLUSION ................................................................. 32
iii
TABLE OF AUTHORITIES
CASES
Ballesteros v. Ashcroft, 452 F.3d 1153 (10th
Cir. 2006), adhered to in part on reh’g by
482 F.3d 1205 (10th Cir. 2007).............................. 17
Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388
(1971) ....................................................... 4, 5, 7, 9, 31
Bush v Lucas, 462 U.S. 367 (1983) ............................. 29
Carlson v. Green, 446 U.S. 14 (1980)................ 8, 16, 31
Castillo v. Skwarski, No. 08-5683, 2009 U.S.
Dist. LEXIS 115169 (W.D. Wash. Dec. 10,
2009)......................................................................... 28
Chappell v. Wallace, 462 U.S. 296 (1983) .................. 30
Correctional Services Corp. v. Malesko, 534
U.S. 61 (2001)...................................................... 7, 26
Cotzojay v. Holder, 725 F.3d 172 (2d Cir. 2013) ....... 11
Eldred v. Ashcroft, 537 U.S. 186 (2003) ..................... 18
Estate of Hernandez-Rojas ex rel. Hernandez
v. United States, 62 F. Supp. 3d 1169 (S.D.
Cal. 2014)................................................................. 27
FDIC v. Meyer, 510 U.S. 471 (1994) ........................... 26
Franco-de Jerez v. Burgos, 876 F.2d 1038 (1st
Cir. 1989) ................................................................. 16
Galvan v. Press, 347 U.S. 522 (1954).......................... 17
Goldstein v. Moatz, 364 F.3d 205 (4th Cir.
2004)......................................................................... 18
iv
Guerra v. Sutton, 783 F.2d 1371 (9th Cir.
1986)......................................................................... 17
Harlow v. Fitzgerald, 457 U.S. 800 (1982) ................ 23
INS v. Delgado, 466 U.S. 210 (1984) .......................... 11
Jasinski v. Adams, 781 F.2d 843 (11th Cir.
1986)..................................................................... 9, 16
Katz v. United States, 389 U.S. 347 (1967) ................ 11
Lanuza v. Love, 899 F.3d 1019 (9th Cir.
2018)............................................................. 16, 18, 26
Martinez-Aguero v. Gonzalez, 459 F.3d 618
(5th Cir. 2006) ................................................... 16, 26
Matter of Sandoval, 17 I. & N. Dec. 70 (B.I.A.
1979)......................................................................... 17
Muehler v. Mena, 544 U.S. 93 (2005) ......................... 26
Perez v. United States, 103 F. Supp. 3d 1180
(S.D. Cal. 2015) ..................................................27-28
Santos v. Frederick County Board of
Commissioners, 725 F.3d 451 (4th Cir.
2013)......................................................................... 25
Schweiker v. Chilicky, 487 U.S. 412 (1988) ......... 29, 30
South Dakota v. Yankton Sioux Tribe, 522
U.S. 329 (1998)........................................................ 18
Terry v. Ohio, 392 U.S. 1 (1968) .................................. 10
Tripati v. United States INS, 784 F.2d 345
(10th Cir. 1986) ................................................... 9, 17
United States v. Brignoni-Ponce, 422 U.S. 873
(1975) ....................................................................... 10
v
United States v. Castellanos, 518 F.3d 965 (8th
Cir. 2008) ........................................................... 11, 12
United States v. Correa-Santos, 785 F.3d 307
(8th Cir. 2015) ......................................................... 19
United States v. De La Cruz, 703 F.3d 1193
(10th Cir. 2013) ....................................................... 10
United States v. Matthews, 181 F. App’x 171
(3d Cir. 2006) .......................................................... 19
United States v. Soto, 649 F.3d 406 (5th Cir.
2011)......................................................................... 11
Whren v. United States, 517 U.S. 806 (1996) ............ 23
Wilkinson v. United States, 440 F.3d 970 (8th
Cir. 2006) ................................................................. 18
Ysasi v. Rivkind, 856 F.2d 1520 (Fed. Cir.
1988)......................................................................... 16
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017)............ passim
STATUTES
8 U.S.C. § 1325 ........................................................ 12, 20
8 U.S.C. § 1326 ........................................................ 12, 20
8 U.S.C. § 1327 ........................................................ 12, 20
8 U.S.C. § 1357(a)(5) ..................................................... 19
8 U.S.C. § 1357(g).......................................................... 23
8 U.S.C. § 1357(g)(7) ..................................................... 15
8 U.S.C. § 1357(g)(8) ............................................... 15, 24
28 U.S.C. § 1346(b)........................................................ 31
vi
28 U.S.C. § 2671 et seq. ................................................. 31
28 U.S.C. § 2679(b)(1) ................................................... 31
42 U.S.C. § 1983 ............................................................ 25
OTHER AUTHORITIES
Jason Buch, Mexican Girl Clutched Her Dying
Father, San Antonio Express-News, Sept.
8, 2012 ...................................................................... 27
Guillermo Cantor & Walter Ewing, Special
Report: American Immigration Council,
Still No Action Taken: Complaints
Against Border Patrol Agents Continue to
Go
Unanswered
(2017),
https://tinyurl.com/yxahta3k ............................... 28
Complaint, Riley v. United States, No. 00-cv06225 ILG/CLP (E.D.N.Y. Oct. 17, 2000),
ECF No. 1 ............................................................... 28
Stella Burch Elias, “Good Reason to Believe”:
Widespread Constitutional Violations in
the Course of Immigration Enforcement
and the Case for Revisiting LopezMendoza, 2008 Wis. L. Rev. 1109 (2008) ............ 27
Christopher N. Lasch et al., Understanding
“Sanctuary Cities”, 59 B.C. L. Rev. 1703
(2018) ....................................................................... 24
vii
Daniel E. Martinez, et al., American
Immigration Council, Special Report: No
Action
Taken:
Lack
of
CBP
Accountability
in
Responding
to
Complaints
of
Abuse
(2014),
http://tinyurl.com/z9ay4k9.................................... 28
More Accounts Emerge Following Deadly
Border Shooting, Nogales Int., Jan. 6,
2011 .......................................................................... 27
Mark Motivans, Bureau of Justice Statistics,
United States Department of Justice,
Federal Justice Statistics, 2015-2016, (Jan.
2019), https://tinyurl.com/y2pm378m ................. 13
Office of the Attorney General, Memorandum
for All Federal Prosecutors (Apr. 11,
2017), https://tinyurl.com/y293m3jv ................... 13
Bob Ortega & Rob O’Dell, Deadly border
agents incidents cloaked in silence, AZ
Republic, Dec. 16, 2013 ......................................... 27
Press Release, United States Immigration &
Customs Enforcement, Q&A:
DHS
Implementation of the Executive Order on
Enhancing Public Safety in the Interior of
the United States, A21 (Feb. 21, 2017),
https://tinyurl.com/gt3svwc ................................. 24
Joel Rubin, It’s Legal for an Immigration
Agent To Pretend To Be a Police Officer
Outside Someone’s Door, but Should it
Be?, L.A. Times (Feb. 21, 2017),
https://tinyurl.com/y57psrgd ............................... 12
viii
TRAC Reports, Immigration Now 52 Percent
of All Federal Criminal Prosecutions,
https://trac.syr.edu/tracreports/crim/446/
(last visited Aug. 5, 2019) ................................12-13
United States Customs and Border Protection,
About CBP, https://www.cbp.gov/about
(last visited Aug. 5, 2019) ....................................... 7
United States Department of Justice, Justice
Manual: Criminal Resource Manual § 1917,
Arrest,
Search
and
Seizure
by
Immigration
Officers
(2018),
https://tinyurl.com/y44463dn ............................... 10
United States Immigration & Customs
Enforcement,
Border
Enforcement
Security
Task
Force
(BEST),
https://tinyurl.com/y4txo63n (last visited
Aug. 5, 2019) ........................................................... 22
United States Immigration & Customs
Enforcement, Celebrating the History of
ICE, https://tinyurl.com/y4lphubd (last
visited Aug. 5, 2019) .............................................. 12
United States Immigration & Customs
Enforcement, Fact Sheet: A Day in the
Life of ICE Enforcement and Removal
Operations, https://tinyurl.com/y6ny5o6o
(last visited Aug. 5, 2019) ..................................... 20
ix
United States Immigration & Customs
Enforcement,
Fiscal
Year
2018
Enforcement and Removal Operations
Report, https://tinyurl.com/y92bd6rt (last
visited Aug. 5, 2019) ................................................ 7
United States Immigration & Customs
Enforcement,
Homeland
Security
Investigations, https://tinyurl.com/y4au
vog6 (last visited Aug. 5, 2019) ............................ 20
United States Immigration & Customs
Enforcement, Joint Terrorism Task
Force, https://tinyurl.com/y5be4kv4 (last
visited Aug. 5, 2019) .............................................. 21
United States Immigration & Customs
Enforcement, Narcotics Enforcement,
https://tinyurl.com/y25zumcw (last visited
Aug. 5, 2019) ......................................................19-20
1
INTEREST OF AMICI CURIAE1
The American Immigration Council (the
Council) is a national non-profit organization established
to increase public understanding of immigration law and
policy, advocate for the just and fair administration of
our immigration laws, protect the legal rights of
noncitizens, and educate the public about the enduring
contributions of America’s immigrants. The Council
frequently appears in federal courts on issues relating to
available remedies when immigration officers engage in
unlawful and unconstitutional conduct, and undertakes
research and advocacy related to the accountability of
immigration enforcement agencies and personnel.
Muslim Advocates is a national legal advocacy
and educational organization that works on the
frontlines of civil rights to guarantee freedom and
justice for Americans of all faiths. Muslim Advocates
advances these objectives through litigation and other
legal advocacy, policy engagement, and civic education.
As part of its work, Muslim Advocates has filed lawsuits,
amicus briefs, and public comments on a broad range of
immigrants’ rights issues, including the rights of
immigrants to be free from unconstitutional arrest and
detention and their right to be free from targeting and
discrimination on the basis of race, religion, or ethnicity.
The issues at stake in this case directly implicate the
work of the organization to hold government officials
1
All parties have consented to the filing of this brief. No party’s
counsel authored this brief in whole or in part, and no person other
than amici contributed money that was intended to fund preparing
or submitting this brief.
2
accountable for such constitutional violations.
The National Immigrant Justice Center (NIJC)
is a program of Heartland Alliance, which provides
resettlement services to refugees and mental health
services for immigrants and refugees. NIJC, through its
staff of attorneys, paralegals and a network of over 1,500
pro bono attorneys, provides free or low-cost legal
services to thousands of immigrants each year. Through
its direct representation, NIJC has identified a
consistent need for holding immigration officers
accountable for violations of our clients’ constitutional
rights. NIJC has represented many clients in damages
cases for violations of their constitutional rights,
including: Gonzalez Goodman v. Maricopa County, Case
No. 16-4388 (D. Ariz.); Ocampo v. Harrington, Case No.
13-3134 (C.D. Ill.); and Watson v. Estrada, Case No. 146459 (E.D.N.Y.).
The National Immigration Law Center (NILC)
is a leading national organization exclusively dedicated
to defending and advancing the rights and opportunities
of low-income immigrants and their families in the
United States. In the last 40 years, NILC has won
landmark legal decisions protecting fundamental rights
that reinforce our nation’s values of equality,
opportunity, and justice. NILC’s expertise includes
advocacy and litigation related to the constitutional and
statutory rights of immigrants, including challenging the
unlawful conduct of federal immigration officials.
The National Immigration Project of the
National Lawyers Guild (NIPNLG) is a non-profit
membership organization of immigration attorneys,
legal workers, grassroots advocates, and others working
3
to defend immigrants’ rights and to secure a fair
administration of the immigration and nationality laws.
NIPNLG provides legal training to the bar and the
bench on immigration-related matters and is the author
of four immigration law treatises published by Thomson
Reuters. NIPNLG has engaged in federal litigation on
behalf of immigrants seeking damages for violations of
their constitutional rights.
The Northwest Immigrant Rights Project
(NWIRP) is a Washington State nonprofit organization
that promotes justice by defending and advancing the
rights of immigrants through direct legal services,
systemic advocacy, and community education. NWIRP
strives for justice and equity for all persons, regardless
of where they were born. With over 35 attorneys and
legal workers, NWIRP provides direct representation
to low-income immigrants who are placed in removal
proceedings and to those who face abuse and
mistreatment by immigration officers. NWIRP has
represented numerous victims of unconstitutional acts
by border patrol agents and has a direct interest in the
outcome of this case.
The National Police Accountability Project
(NPAP) was founded in 1999 by members of the
National Lawyers Guild to address allegations of
misconduct by law enforcement and corrections officers
by coordinating and assisting civil rights lawyers. The
project presently has more than 550 attorney members
throughout the United States. NPAP provides training
and support for attorneys and other legal workers,
public education and information on issues related to
misconduct and accountability, and resources for non-
4
profit organizations and community groups involved
with victims of law enforcement misconduct. NPAP also
supports legislative efforts aimed at increasing
accountability, and appears as amicus curiae in cases,
such as this one, that present issues of particular
importance for the clients of its lawyers, i.e., clients
injured by law enforcement use of force.
The Southern Poverty Law Center (SPLC) is a
nonprofit organization founded in 1971 that throughout
its history has worked to make the nation’s
constitutional ideals a reality for everyone. The SPLC’s
legal department fights all forms of discrimination and
works to protect society’s most vulnerable members.
SPLC has litigated numerous cases to ensure that
immigrants and refugees are treated with dignity and
fairness and can access judicial remedies for violations of
their constitutional rights. SPLC has a strong interest
in opposing governmental action that undermines the
promise of civil rights for all.
SUMMARY OF ARGUMENT
This Court’s grant of certiorari asked the parties
to address whether Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971),
provides a cause of action for the cross-border shooting
by a federal immigration officer alleged in this case. As
Amici concerned with a broad range of immigration
issues, including holding immigration officers
accountable for misconduct, we write to express our
view that, in deciding this case, the Court should not call
into question the general applicability of Bivens to cases
arising from immigration enforcement. While the Court
has “urged ‘caution’ before ‘extending Bivens remedies
5
into any new context,’” Ziglar v. Abbasi, 137 S. Ct. 1843,
1857 (2017) (quoting Corr. Servs. Corp. v. Malesko, 534
U.S. 61, 74 (2001)), the vast majority of claims arising
from immigration enforcement fall squarely within the
traditional Bivens context.2
First, many of the activities involved in
immigration enforcement are indistinguishable from the
activities involved in other law enforcement actions by
federal agents to whom Bivens has long applied.
Immigration enforcement revolves around searches and
seizures, and there is nothing about the operational
realities of the searches and seizures conducted in
relation to general immigration enforcement that
differentiates them from searches and seizures carried
out in other law enforcement contexts. Unlawful
searches and seizures are clearly subject to Bivens
liability—indeed, Bivens itself arose from allegations
that federal agents violated the Fourth Amendment by
conducting illegal searches and seizures. Bivens, 403
U.S. at 389. It would be anomalous to withhold a Bivens
remedy for unlawful searches and seizures conducted in
the course of enforcing immigration laws, when those
searches and seizures are substantively identical to the
activities carried out in the course of enforcing other
types of federal laws.
Second, in the vast majority of immigration cases,
there are no “special factors counselling hesitation”
about providing a Bivens remedy for illegal searches and
seizures, or other unconstitutional actions, conducted in
2
This case presents a Bivens claim under both the Fourth and Fifth
Amendments. This brief, however, focuses on Fourth Amendment
Bivens claims.
6
the course of enforcing immigration laws. Abbasi, 137 S.
Ct. at 1857 (quoting Carlson v. Green, 446 U.S. 14, 18
(1980)). Congress itself contemplated the availability of
a Bivens remedy in the Immigration and Nationality Act
(INA) for unconstitutional actions taken during
immigration enforcement, so there is no reason “to think
Congress might doubt the efficacy or necessity of a
damages remedy.” Id. at 1858. There is also no concern
that allowing a Bivens remedy would disrupt
governmental operations. Most Bivens cases involve
low-level law-enforcement officers, and federal courts
long have recognized Bivens suits against such officers
without disrupting governmental operations. And while
Congress has plenary power over the admission and
exclusion of noncitizens, allowing Bivens liability for
constitutional violations will not affect federal
immigration policy; it will only deter rogue officers from
violating the Constitution as they carry out that policy.
Third, creating a rule to categorically disallow
Bivens actions whenever officers are enforcing the
immigration laws would create serious judicial
anomalies.
Immigration enforcement is highly
entangled with other forms of law enforcement. The
modern reality is that federal immigration officers
routinely enforce non-immigration laws, while other
federal law enforcement officers routinely conduct joint
raids with federal immigration officers. Moreover, the
INA provides limited authority for state and local law
enforcement officers to carry out immigration
enforcement. As a result, there is no judicially workable
way to disentangle immigration enforcement from other
law enforcement or to carve out an immigration
7
enforcement exception to Bivens.
Finally, regardless of the Court’s decision in this
case, Bivens plays a particularly important deterrent
role with respect to immigration enforcement. See Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001) (“The
purpose of Bivens is to deter individual federal officers
from
committing
constitutional
violations.”).
Immigration enforcement represents a major portion of
all federal law enforcement—U.S. Customs and Border
Protection (CBP), which includes the U.S. Border
Patrol, “is one of the world's largest law enforcement
organizations,” arresting more than 1,100 individuals on
a “typical day,” About CBP, https://www.cbp.gov/about
(last visited Aug. 5, 2019), while Immigration and
Customs Enforcement (ICE) makes more than 100,000
arrests a year. U.S. Immigr. & Customs Enf’t, Fiscal
Year 2018 Enforcement and Removal Operations
Report, 2, https://tinyurl.com/y92bd6rt (last visited Aug.
5, 2019). However, there is no alternative remedial
scheme for either citizens or noncitizens who suffer
constitutional injuries at the hands of immigration
officers. Instead, Bivens provides the only mechanism
for deterring unconstitutional conduct in a large share of
American law enforcement. Thus, for victims of Fourth
Amendment violations committed in the course of
immigration enforcement, as for Bivens himself, “it is
damages or nothing.” Bivens, 403 U.S. at 410 (Harlan,
J., concurring in the judgment).
ARGUMENT
“Bivens established that the victims of a
constitutional violation by a federal agent have a right to
recover damages against the official in federal court
8
despite the absence of any statute conferring such a
right.” Carlson v. Green, 446 U.S. 14, 18 (1980). To
determine whether a Bivens remedy is available in a
particular case, this Court first asks whether the case
involves a “new context” for Bivens. Abbasi, 137 S. Ct.
at 1857 (quoting Malesko, 534 U.S. at 68). If the case
does not involve a new context, a Bivens cause of action
is available. See id. at 1857-58. If the case does involve
a new context, the Court performs “a special factors
analysis.” Id. at 1860. “[A] Bivens remedy will not be
available if there are ‘special factors counselling
hesitation in the absence of affirmative action by
Congress.’” Id. at 1857 (quoting Carlson, 446 U.S. at 18).
Under this test, a Bivens remedy should
generally be available to victims of Fourth Amendment
violations committed in the course of immigration
enforcement. Searches and seizures conducted by lowlevel immigration officers to enforce the immigration
laws do not represent a new context for Bivens. And
even if they did, there are sound reasons for recognizing
a Bivens remedy with regard to such immigration
enforcement actions, and no special factors counselling
against such recognition.
I.
Most Immigration Enforcement Activities Do
Not Present a “New Context” for Bivens
Because They Are Substantially Similar to
Other Forms of Law Enforcement that Are
Subject to Bivens.
A case “presents a new Bivens context” if it “is
different in a meaningful way from previous Bivens
cases decided by this Court . . . .” Abbasi, 137 S. Ct. at
1859. But the vast majority of Bivens claims arising
9
from immigration enforcement do not differ in any
“meaningful way,” id., from Bivens. Accordingly,
federal courts have recognized Bivens claims against
immigration officers for decades. E.g., Tripati v. U.S.
INS, 784 F.2d 345, 346 n.1 (10th Cir. 1986) (finding civil
rights action against immigration officer was properly
brought under Bivens); Jasinski v. Adams, 781 F.2d 843,
845-46 (11th Cir. 1986) (affirming denial of summary
judgment in Bivens challenge to detention and search by
immigration officer). In particular, many immigration
enforcement claims involve exactly the same kinds of
searches and seizures, subject to exactly the same
Fourth Amendment limitations, as claims arising from
criminal law enforcement, for which a Bivens remedy is
available.
In Bivens, the petitioner alleged that federal
agents, “acting under claim of federal authority,”
entered and searched his apartment without a warrant
and arrested him without probable cause. 403 U.S. at
389. This Court held that the petitioner could sue those
officials for damages for violations of his Fourth
Amendment “right to be free from unreasonable
searches and seizures carried out by virtue of federal
authority.” Id. at 392. This Court has recently
reaffirmed “the continued force, or even the necessity,
of Bivens in the search-and-seizure context in which it
arose” and has explained that “[t]he settled law of
Bivens in this common and recurrent sphere of law
enforcement” is a “powerful reason[] to retain it . . ..”
Abbasi, 137 S. Ct. at 1856-57. Unlawful searches and
seizures conducted by low-level federal law enforcement
officers in violation of the Fourth Amendment are thus
10
the quintessential context for Bivens.
As in Bivens, legal mandate governing
immigration officers’ conduct in arrests, searches, and
seizures is the Fourth Amendment, not the INA. The
Fourth Amendment “applies to all seizures of the
person” regardless of an officer’s specific area of
concern. United States v. Brignoni-Ponce, 422 U.S. 873,
878 (1975) (citation omitted). As the Department of
Justice instructs in its guidance to U.S. Attorneys, “[t]he
general rules concerning arrest, search and seizure
applicable to other federal officers are, of course,
applicable to immigration officers.” U.S. Dep’t of
Justice, Justice Manual: Criminal Resource Manual
§ 1917, Arrest, Search and Seizure by Immigration
Officers (2018), https://tinyurl.com/y44463dn.
The daily process of immigration enforcement
involves the same kinds of searches and seizures by line
federal officers, subject to the same Fourth Amendment
limitations, as are involved in other federal law
enforcement actions. Stops by immigration officers, for
example, require reasonable suspicion—just like any
other investigative stop. See Terry v. Ohio, 392 U.S. 1
(1968) (requiring reasonable suspicion for investigative
stops); Brignoni-Ponce, 422 U.S. at 881 (extending
Terry to require reasonable suspicion for stops by
Border Patrol agents seeking “aliens who are illegally in
the country”); United States v. De La Cruz, 703 F.3d
1193, 1194-96 (10th Cir. 2013) (requiring “reasonable
suspicion” in order to pass Fourth Amendment muster
for an investigative stop by ICE agents looking for
someone “thought to be unlawfully in the United
States”); id. at 1196 (“This case [regarding ICE agents]
11
involves an investigative, or Terry, stop, which is a
seizure for Fourth Amendment purposes.” (footnote
omitted)); United States v. Soto, 649 F.3d 406, 409 (5th
Cir. 2011) (“‘A border patrol agent conducting a roving
patrol may make a temporary investigative stop of a
vehicle only if the agent is aware of specific articulable
facts, together with rational inferences from those facts,
that reasonably warrant suspicion that the vehicle’s
occupant is engaged in criminal activity.’” (quoting
United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir.
2001))). In fact, the general Fourth Amendment test for
the reasonableness of detaining an individual in order to
conduct an interrogation comes from a case involving
Immigration and Naturalization Service agents
searching for “illegal aliens,” INS v. Delgado, 466 U.S.
210, 211-12 (1984), demonstrating that the Fourth
Amendment applies equally regardless of whether
immigration law or other laws are being enforced, and
regardless of whether an immigration officer or another
law enforcement officer is involved.
Similarly, searches by immigration officers
require warrants. E.g., Cotzojay v. Holder, 725 F.3d 172,
174, 181 (2d Cir. 2013) (requiring a warrant or consent
for a search of a home by ICE agents); United States v.
Castellanos, 518 F.3d 965, 967-69 (8th Cir. 2008) (same).
The warrant requirement for searches by immigration
officers is likewise the same as the Fourth Amendment
requirement for searches by other law enforcement
officers enforcing other laws. See Katz v. United States,
389 U.S. 347, 357 (1967) (“[S]earches conducted outside
the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth
12
Amendment . . . .”); Castellanos, 518 F.3d at 969 (quoting
same and applying it to a search of a home by ICE
agents).
The daily operational reality of immigration
enforcement—line federal law enforcement officers
conducting searches and seizures subject to standard
Fourth
Amendment
limitations—is
thus
indistinguishable in substance from the operational
process of routine policing by other law enforcement
officers. ICE in fact characterizes itself as a “powerful
and sophisticated federal law enforcement agency,” U.S.
Immigr. & Customs Enf’t, Celebrating the History of
ICE, https://tinyurl.com/y4lphubd (last visited Aug. 5,
2019), and its agents identify themselves to suspects as
“police,” see Joel Rubin, It’s Legal for an Immigration
Agent To Pretend To Be a Police Officer Outside
Someone’s Door, But Should it Be?, L.A. Times (Feb. 20,
2017), https://tinyurl.com/y57psrgd. In practice, there is
nothing meaningful to differentiate this type of
standard, every-day immigration enforcement from
other law enforcement.
Finally, some immigration violations are
themselves criminal offenses. E.g., 8 U.S.C. § 1325
(criminal penalties for improper entry); id. § 1326
(criminal penalties for attempting to reenter after prior
removal); id. § 1327 (criminal penalties for aiding or
assisting the entry of inadmissible aliens). As a result,
CBP and ICE frequently transfer cases to U.S.
Attorneys’ Offices for prosecution. Indeed, in FY2016,
prosecutions for immigration-related criminal offenses
totaled 69,636, and CBP and ICE were the lead
investigative agencies for 97% of those cases. See TRAC
13
Reports, Immigration Now 52 Percent of All Federal
Criminal
Prosecutions,
https://trac.syr.edu/trac
reports/crim/446/ (last visited Aug. 5, 2019); see also
Mark Motivans, Bureau of Justice Statistics, U.S. Dep’t
of Justice, Federal Justice Statistics, 2015-2016, at 6 tbl.
3 (Jan. 2019), https://tinyurl.com/y2pm378m (Homeland
Security was the referring agency for 52.6% of all
matters opened by U.S. Attorneys in FY2016). Indeed,
in April 2017, then-Attorney General Jeff Sessions
directed federal prosecutors to make the prosecution of
criminal “immigration offenses higher priorities.” Office
of the Attorney General, Memorandum for All Federal
Prosecutors (Apr. 11, 2017), https://tinyurl.com/y293
m3jv. Immigration enforcement is thus not only
substantially similar to other federal law enforcement
activity—it often, literally, is routine criminal law
enforcement.
As a result, garden-variety immigration
enforcement simply does not constitute a “new Bivens
context.” Abbasi, 137 S. Ct. at 1859. Applying the test
articulated in Abbasi, allegations that an immigration
officer committed an unlawful search or seizure involve
the same “rank” of officers (line officers) and the same
“constitutional right” (the Fourth Amendment) as
Bivens itself did. Id. at 1859-60. Such allegations also
involve the same “specificity of the official action” (an
unlawful search or seizure), the same degree of “judicial
guidance” (Fourth Amendment jurisprudence), the
same “legal mandate” for the officer (Fourth
Amendment limitations), and the same risk of “intrusion
by the Judiciary” (no more than in applying Bivens to
other rogue officers) as Bivens itself. Id. at 1860. “The
14
settled law of Bivens” in “the search-and-seizure
context” should thus apply equally to searches and
seizures during immigration enforcement. Id. at 185657. The Court should take care not to suggest otherwise.
II.
Most Bivens Claims Seeking a Remedy for
Constitutional Violations by ICE and CBP
Officers Will Not Involve Special Factors.
There are no “special factors counselling
hesitation,” Abbasi, 137 S. Ct. at 1857 (quotation marks
omitted), about providing a Bivens remedy for
constitutional violations committed in the course of
general immigration enforcement. The special factors
analysis “concentrate[s] on whether the Judiciary is well
suited, absent congressional action or instruction, to
consider and weigh the costs and benefits of allowing a
damages action to proceed,” and a special factor is one
that would “cause a court to hesitate before answering
that question in the affirmative.” Id. at 1857-58. Special
factors might include facts suggesting that “Congress
has designed its regulatory authority in a guarded way,
making it less likely that Congress would want the
Judiciary to interfere,” or the presence of “an alternative
remedial structure.” Id. at 1858. In the vast majority of
Bivens cases arising from immigration enforcement,
such special factors are not present. To the contrary, the
text of the INA, the need for deterrence, and the lack of
an alternative remedial scheme all point strongly in
favor of a Bivens remedy.
15
A.
Congress Contemplated the Availability
of a Bivens Remedy in the Immigration
and Nationality Act Itself.
The statutory language of the INA dispels any
“sound reason[] to think Congress might doubt the
efficacy or necessity of a damages remedy as part of the
system for enforcing the law and correcting a wrong,”
Abbasi, 137 S. Ct. at 1858, by expressly taking the
availability of Bivens into account. In a set of provisions
that establish certain limited authority for state and
local officials to enforce the immigration laws, Congress
specified that any such officer or employee “shall not be
treated as a Federal employee for any purpose other
than for purposes of … sections 2671 through 2680 of
Title 28 [the Federal Tort Claims Act (FTCA)] (relating
to tort claims).” 8 U.S.C. § 1357(g)(7). The provision
immediately following states:
[a]n officer or employee of a State or political
subdivision of a State acting under color of
authority under this subsection, or any
agreement entered into under this subsection,
shall be considered to be acting under color of
Federal authority for purposes of determining
the liability, and immunity from suit, of the
officer or employee in a civil action brought
under Federal or State law.
8 U.S.C. § 1357(g)(8) (emphasis added). The reference to
a suit against an “officer or employee in a civil action
brought under Federal … law,” id. (emphasis added), is
plainly a reference to Bivens. A suit under the FTCA is
a suit against the United States, not against an “officer
or employee.” Id. Moreover, in enacting Section 1357,
16
Congress was legislating against the backdrop of
Carlson, which held that the availability of a remedy
under the FTCA does not preclude a Bivens action for
the same injury. See Carlson, 446 U.S. at 19-23. Indeed,
this provision of the INA “demonstrates Congress
contemplated that civil actions would be maintained
against both federal immigration officers and state
employees acting in the capacity of federal immigration
officers when their actions allegedly violate the
Constitution or other laws.” Lanuza v. Love, 899 F.3d
1019, 1031 (9th Cir. 2018). Thus, rather than displacing
a Bivens cause of action, Congress intended the INA to
co-exist with Bivens.
B.
Allowing a Bivens Remedy Does Not
Disrupt Governmental Operations.
Lower courts, including several Courts of
Appeals, have long recognized Bivens remedies for
constitutional violations by ICE and CBP officers
without any resulting disruption. E.g., MartinezAguero v. Gonzalez, 459 F.3d 618, 625 (5th Cir. 2006)
(involving false arrest and excessive force against
Mexican woman near U.S. port of entry); Franco-de
Jerez v. Burgos, 876 F.2d 1038, 1039, 1042-43 (1st Cir.
1989) (allowing case to proceed to discovery against
immigration officer where noncitizen was held
incommunicado for over ten days); Ysasi v. Rivkind, 856
F.2d 1520, 1528 (Fed. Cir. 1988) (vacating grant of
summary judgment in favor of Border Patrol agents
based, in part, on lack of showing that alternative
remedies were available and equally effective); Jasinski,
781 F.2d at 845-46 (affirming denial of summary
judgment for the defendant in challenge to detention and
17
search by immigration officer); Guerra v. Sutton, 783
F.2d 1371, 1375-76 (9th Cir. 1986) (vacating and
remanding dismissal against border patrol agents on
qualified immunity grounds); Tripati, 784 F.2d at 346 n.1
(finding civil rights action against immigration officer
properly brought under Bivens); accord Ballesteros v.
Ashcroft, 452 F.3d 1153, 1160 (10th Cir. 2006) (“No
remedy for the alleged constitutional violations would
affect the BIA’s final order of removal. Any remedy
available to Mr. Ballesteros would lie in a Bivens
action.”), adhered to in part on reh’g, 482 F.3d 1205 (10th
Cir. 2007); Matter of Sandoval, 17 I. & N. Dec. 70, 82
(BIA 1979) (citing Bivens for the proposition that “civil
or criminal actions against the individual officer may be
available”). In the more than thirty years since the first
of these decisions, there has been no resulting deluge of
meritless cases or interference with the government’s
ability to enforce the immigration laws.
Furthermore, the government’s plenary power
over the admission and exclusion of noncitizens, see
Galvan v. Press, 347 U.S. 522, 530 (1954), does not
support a categorical rule disallowing Bivens liability for
constitutional
claims
related
to
immigration
enforcement, as such claims, generally, do not relate to
the government’s power to remove or exclude, but
instead relate to the conduct of officers in exercising that
power. Even if plenary power affects the scope of
constitutional rights, it does not affect the remedy if
those rights are violated. Consequently, in other
contexts in which Congress exercises plenary power,
Courts of Appeals have not hesitated to allow Bivens
claims. For example, the Eighth Circuit allowed a
18
Bivens claim against a Bureau of Indian Affairs officer
to proceed, Wilkinson v. United States, 440 F.3d 970, 971
(8th Cir. 2006), even though Congress exercises plenary
power over the affairs of Native Americans, South
Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343-44
(1998). Similarly, a Bivens suit against patent officers
withstood a claim of absolute immunity in the Fourth
Circuit, Goldstein v. Moatz, 364 F.3d 205, 211-19 (4th Cir.
2004), even though Congress has plenary power to
“legislate on the subject of patents,” Eldred v. Ashcroft,
537 U.S. 186, 239 (2003).
Moreover, because regular policing activities can
and do routinely affect noncitizens, there is no reason to
think that ordinary immigration enforcement has any
greater foreign policy implications than other policing
activities. See Lanuza, 899 F.3d at 1029-30 (providing a
Bivens remedy against an ICE official who “knowingly
forged evidence” and noting that “the facts of this case
show that immigration cases often do not implicate highlevel policy decisions related to national security”).
Abbasi itself contrasted the claim in that case, involving
“major elements of the Government’s whole response to
the September 11 attacks,” with Bivens claims arising
from “standard law enforcement operations,” Abbasi,
137 S. Ct. at 1861 (internal quotation marks omitted).
Finally, to the extent that any individual immigrationrelated case did raise unique foreign policy or national
security concerns, courts could address them the same
way this Court did in Abbasi: on a case-by-case basis.
19
C.
Immunizing
Immigration
Officers
Would
Result
in
Unworkable
Distinctions and Anomalies.
Further, there is no judicially workable way to
carve out routine immigration enforcement as an
exception to Bivens. Immigration enforcement is
intertwined with the enforcement of other laws: federal
immigration officers enforce other, non-immigration
laws, while other federal officers also enforce
immigration laws. The INA also allows state and local
police officers to exercise some limited authority to
enforce federal immigration laws. As a result, there is
no practical way to disentangle immigration
enforcement from other routine policing.
1.
First, immigration officers have authority
to search and seize for reasons beyond just the
enforcement of immigration law.
Pursuant to
8 U.S.C. § 1357(a)(5), immigration officers “make
arrests” for “any felony cognizable under the laws of the
United States” and “for any offense against the United
States, if the offense is committed in the officer’s or
employee’s presence.” If, for example, ICE officers
discover drugs in the course of a search, they are
authorized to make an arrest for violations of federal
narcotics laws, regardless of the immigration status of
the individual, including arrests of U.S. citizens. E.g.,
United States v. Correa-Santos, 785 F.3d 307 (8th Cir.
2015) (involving an ICE investigation of a
methamphetamine distribution ring); United States v.
Matthews, 181 F. App’x 171 (3d Cir. 2006) (involving an
arrest by ICE agents for narcotics possession); see also
U.S. Immigr. & Customs Enf’t, Narcotics Enforcement,
20
https://tinyurl.com/y25zumcw (last visited Aug. 5, 2019)
(explaining that “ICE agents enforce a wide range of
criminal statutes” to combat narcotics smuggling).
Moreover, as described supra, some immigration
violations
are
also
criminal
offenses,
e.g.,
8 U.S.C. §§ 1325, 1326, 1327, and ICE routinely transfers
criminal cases to U.S. Attorneys’ Offices, U.S. Immigr.
& Customs Enf’t, Fact Sheet: A Day in the Life of ICE
Enforcement and Removal Operations, https://tinyurl.
com/y6ny5o6o (last visited Aug. 5, 2019). Additionally,
ICE’s Homeland Security Investigations (HSI) agents
have “broad legal authority to enforce a diverse array of
federal statutes” and use “this authority to investigate
all types of cross-border criminal activity,” from
terrorism to financial crimes, cybercrimes, human rights
violations, human trafficking, narcotics, and art theft.
U.S. Immigr. & Customs Enf’t, Homeland Security
Investigations,
https://tinyurl.com/y4auvog6
(last
visited Aug. 5, 2019).
If immigration enforcement were treated as a
context in which Bivens did not apply, courts would be
forced to make complex determinations regarding
whether a particular action taken by an ICE or CBP
officer fell within or outside that context to assess
whether a remedy was available. But, as a practical
reality, such an inquiry is inherently nebulous because
immigration enforcement is often inextricably
intertwined with criminal enforcement. For example, if
an ICE officer conducts an unlawful stop to probe an
individual’s immigration status but arrests the person
for a criminal offense unrelated to immigration, would
Bivens liability turn on the officer’s initial motivation for
21
the stop, the reason for the arrest, or something else? Or
what if ICE officers illegally seize an individual on an
initial suspicion of both a civil immigration violation and
a criminal immigration violation?
The only alternative to these difficult linedrawing problems would be to immunize ICE and CBP
officers from Bivens liability across the board. That,
however, would create an illogical regime in which
immigration officers would be immune for committing
constitutional violations in the course of routine criminal
law enforcement, but other federal officers, such as
Federal Bureau of Investigation (FBI) agents, would be
subject to liability for the exact same actions. Not only
does such a distinction make little practical sense, it
would also create perverse incentives for the
government: an agency that wanted to conduct an
unconstitutional law enforcement action could simply
have ICE or CBP carry it out.
2.
The arbitrariness of giving ICE and CBP
officers special immunity from Bivens is underscored by
the reality that these officers routinely participate in
interagency task forces with other federal agencies
aimed at a range of criminal activity, from terrorism to
human trafficking, gang violence, and narcotics. For
example, the Joint Terrorism Task Force (JTTF), for
example, involves members of, inter alia, the FBI and
ICE. U.S. Immigr. & Customs Enf’t, Joint Terrorism
Task Force, https://tinyurl.com/y5be4kv4 (last visited
Aug. 5, 2019). The Border Enhancement Security Task
Force (BEST) involves personnel from, inter alia, ICE,
CBP, the U.S. Coast Guard, the U.S. Secret Service, the
Drug Enforcement Administration (DEA), and the
22
Bureau of Alcohol, Tobacco, and Firearms (ATF). U.S.
Immigr. & Customs Enf’t, Border Enforcement Security
Task Force (BEST), https://tinyurl.com/y4txo63n (last
visited Aug. 5, 2019).
If a Bivens remedy were not available for
constitutional violations committed in the course of
immigration enforcement, action by joint federal task
forces would create difficult questions for courts about
whether a particular search or seizure occurred in a
Bivens-free “immigration” context or in a routine
criminal law enforcement context to which Bivens
applies. Courts would have to develop rules about
searches and seizures that occur in the course of
enforcement actions with multiple purposes. Courts
would either have to draw arbitrary distinctions
between officers from different federal agencies
participating in the same raid—e.g., immunizing ICE
officers but not FBI officers for the same actions on the
same task force—or craft rules to try to parse whether
a particular action by a federal officer during a joint raid
was driven by an ‘immigration law’ or a ‘criminal law’
goal. The latter option would then force courts to inquire
into officers’ primary motives for a given search or
seizure, which would require discovery into information
that federal law enforcement agencies would surely view
as highly sensitive.
All of these issues, moreover, would require
extensive fact-bound litigation requiring additional
discovery in any case involving a Bivens claim and
potential immigration enforcement, because courts
would first have to determine whether Bivens applied to
each facet of the law enforcement conduct in question.
23
This Court should not adopt a rule that would routinely
generate such litigation. Cf. Whren v. United States, 517
U.S. 806 (1996) (rejecting inquiry into officers’
subjective intent with regard to alleged Fourth
Amendment violations); Harlow v. Fitzgerald, 457 U.S.
800, 817-18 (1982) (warning against any unnecessary
“burdens of broad-reaching discovery” in Bivens
actions).
Finally, if a Bivens remedy were not available in
the general area of immigration enforcement, joint
federal task forces would create significant
opportunities for manipulation by the government. For
instance, as noted supra, an agency that wanted to carry
out an unconstitutional search could simply avoid Bivens
liability by having ICE perform the search or by having
ICE participate along with other agencies in the search.
Alternatively, the government could retroactively
shield law enforcement officers who violated
constitutional rights by later bringing immigration
charges that might otherwise not have been brought.
This Court should avoid opening this Pandora’s
Box by continuing to apply “[t]he settled law of Bivens,”
Abbasi, 137 S. Ct. at 1856-57, to searches and seizures,
regardless of the subject matter of the law being
enforced and regardless of which federal agency issued
the officer’s badge.
3.
Treating immigration enforcement as a
Bivens-free context may create the further anomaly of
immunizing state and local police officers for
constitutional violations committed in the course of
routine local policing. Under 8 U.S.C. § 1357(g), the
Attorney General “may enter into a written agreement
24
with a State, or any political subdivision of a State,
pursuant to which an officer or employee of the State or
subdivision, who is . . . qualified to perform a function of
an immigration officer in relation to the investigation,
apprehension, or detention of aliens in the United States
. . . may carry out such function . . . .” ICE uses this
authority to run the “287(g) program,” in which local and
state police departments are deputized to enforce
certain immigration laws. Press Release, U.S. Immigr.
& Customs Enf’t, Q&A: DHS Implementation of the
Executive Order on Enhancing Public Safety in the
Interior of the United States, A21 (Feb. 21, 2017),
https://tinyurl.com/gt3svwc (“ICE officers and agents as
well as state and local 287(g) officers are trained to
enforce immigration laws both in civil and criminal
environments.”). The number of 287(g) agreements has
expanded significantly in recent years. Christopher N.
Lasch et al., Understanding “Sanctuary Cities”, 59 B.C.
L. Rev. 1703, 1727 (2018).
State and local officers in 287(g) agreements step
into the shoes of federal officers for the purposes of
liability and defenses. 8 U.S.C. § 1357(g)(8) (“An officer
or employee of a State or political subdivision of a State
acting under color of authority under this subsection, or
any agreement entered into under this subsection, shall
be considered to be acting under color of Federal
authority for purposes of determining the liability, and
immunity from suit, of the officer or employee in a civil
action brought under Federal or State law.”).
Consequently, if a Bivens remedy were not available
with regard to immigration enforcement, state and local
officers in 287(g) agreements would be immune when
25
acting in their immigration enforcement capacity.
Such a result would be judicially unworkable.
State and local officers in 287(g) agreements blend
ordinary policing with immigration enforcement, for
instance by conducting routine traffic stops in part to
determine drivers’ immigration status. Such ordinary
policing activity by state and local officers is subject to
damages liability under 42 U.S.C. § 1983. But because
state and local officers in 287(g) agreements step into the
shoes of federal officers for purposes of liability, if
immigration enforcement were a Bivens-free context,
these state and local officers could be immunized for a
wide swath of their ordinary law enforcement work.
Imagine, for example, that a local police officer makes an
unconstitutional stop or arrest but then discovers that
the suspect is also in violation of immigration law.
Would the officer suddenly become immune from suit as
soon as the immigration law violation appears? Or would
the court have to parse the officer’s motivation—
criminal enforcement or immigration enforcement—at
each step in the interaction with the suspect? Courts
already sometimes must wrestle with determining
whether complaints against local officers whose
departments are involved in 287(g) agreements are
properly brought under Bivens or Section 1983. E.g.,
Santos v. Frederick Cty. Bd. of Comm’rs, 725 F.3d 451,
463 (4th Cir. 2013) (avoiding question because deputies
did not themselves participate in Sheriff’s Office’s 287(g)
program). The stakes would be much higher if liability
were determined by the answer. Additionally, even
where a Section 287(g) agreement does not exist, ICE
officers sometimes join local and state police on raids in
26
which potential suspects may be noncitizens. See, e.g.,
Muehler v. Mena, 544 U.S. 93 (2005) (immigration officer
participated in local police raid aimed at suspected gang
members). The Court should not create incentives for
state and local officers to circumvent liability under
Section 1983 by relying on federal immigration officers
to commit constitutional violations.
D.
The Deterrent Effects of Bivens Are
Especially Important in ImmigrationRelated Cases.
In addition to compensating victims for
constitutional wrongs, “[t]he purpose of Bivens is to
deter individual federal officers from committing
constitutional violations.” Malesko, 534 U.S. at 70;
FDIC v. Meyer, 510 U.S. 471, 485 (1994) (“It must be
remembered that the purpose of Bivens is to deter the
officer.” (emphasis omitted)). The litany of cases
involving unconstitutional behavior by CBP and ICE
officials indicates the need for the deterrent effect of a
Bivens action. See, e.g., Lanuza, 899 F.3d at 1033
(applying Bivens to an ICE attorney who forged
evidence and explaining that “[r]ecognizing a Bivens
action here will produce widespread litigation only if
ICE attorneys routinely submit false evidence … if this
problem is indeed widespread, it demonstrates a dire
need for deterrence, validating Bivens’ purpose”);
Martinez-Aguero, 459 F.3d at 620-21 (holding that
border patrol agent was not entitled to qualified
immunity for yelling profanities while repeatedly
kicking a handcuffed woman in the back and pushing her
against a concrete wall, triggering epileptic seizures);
Perez v. United States, 103 F. Supp. 3d 1180, 1191 (S.D.
27
Cal. 2015) (describing “the Rocking Policy,” whereby
border patrol agents deem rock-throwing a sufficient
threat to justify lethal use of force by gunfire); Estate of
Hernandez-Rojas ex rel. Hernandez v. United States, 62
F. Supp. 3d 1169, 1172-73, 1188 (S.D. Cal. 2014) (denying
summary judgment motion where plaintiffs presented
sufficient evidence that border patrol agents’ physical
abuse of detained Mexican national—including evidence
that the detainee was repeatedly punched, kicked, and
stepped on—“[was] a substantial factor in causing [the
detainee’s] injuries and death”); see also Bob Ortega &
Rob O’Dell, Deadly Border Agents Incidents Cloaked in
Silence, AZ Republic, Dec. 16, 2013 (reporting border
patrol agent’s fatal shooting, from the United States’
side of the Rio Grande, of Juan Pablo Perez Santillan,
who was on the Mexican bank of the river); Jason Buch,
Mexican Girl Clutched Her Dying Father, San Antonio
Express-News, Sept. 8, 2012 (reporting border patrol
agent’s fatal shooting, from a boat in the Rio Grande, of
Guillermo Arevalo Pedraza, who was celebrating a
birthday with his wife and two young daughters on the
Mexican bank of the river); More Accounts Emerge
Following Deadly Border Shooting, Nogales Int., Jan. 6,
2011 (reporting border patrol agent’s fatal shooting, by
aiming through the border fence, of 17-year-old Ramses
Barron Torres); Stella Burch Elias, “Good Reason to
Believe”: Widespread Constitutional Violations in the
Course of Immigration Enforcement and the Case for
Revisiting Lopez-Mendoza, 2008 Wis. L. Rev. 1109,
1124–40 (documenting “the widespread occurrence of
constitutional
violations”
during
immigration
enforcement). Furthermore, noncitizens are not the
only group affected. U.S. citizens are also injured when
28
ICE and CBP officials can act with impunity. See, e.g.,
Castillo v. Skwarski, Case No. C 08-5683, 2009 U.S. Dist.
LEXIS 115169 at *2-11, *15-16 (W.D. Wash. Dec. 10,
2009) (U.S. citizen veteran, detained for over seven
months and ordered removed, brought Bivens suit);
Complaint, Riley v. United States, No. 00-cv-06225
ILG/CLP (E.D.N.Y. Oct. 17, 2000), ECF No. 1 (Bivens
and FTCA claims for unlawful detention, shackling, and
strip search of lawful permanent resident upon return to
U.S., settled for monetary damages).
Finally, while ICE and CBP do have internal
disciplinary procedures, their internal discipline
consistently has been toothless. A study by the
American Immigration Council covering 809 complaints
of alleged abuse lodged against border patrol agents
between January 2009 and January 2012 revealed that,
in an astonishing 97% of cases resulting in a formal
decision, no action was taken. Over 75% of these cases
involved allegations of physical abuse or excessive force.
See Daniel E. Martinez, et al., American Immigration
Council, Special Report: No Action Taken: Lack of CBP
Accountability in Responding to Complaints of Abuse
8-9 (2014), http://tinyurl.com/z9ay4k9; see also Guillermo
Cantor & Walter Ewing, Special Report: American
Immigration Council, Still No Action Taken:
Complaints Against Border Patrol Agents Continue to
Go Unanswered (2017), https://tinyurl.com/yxahta3k.
Moreover, it is likely that the vast majority of cases go
unreported: victims and their families—many of whom
are without formal education, face language barriers, or
lack legal sophistication—are not well-positioned to
ensure that these internal processes are effective at
guarding the guardians. The absence of a Bivens action
29
in cases involving routine immigration enforcement
would effectively immunize CBP and ICE officers from
adverse consequences for violations of citizens’ and
noncitizens’ rights. Bivens is therefore critical to
deterring abuse in the area of immigration enforcement
to protect noncitizens and citizens alike.
E.
There Is No Alternative Remedial
Scheme Available.
Finally, there is no alternative remedial scheme
under federal law through which victims of
constitutional violations by immigration enforcement
officers can seek redress. This distinguishes cases
arising out of immigration enforcement actions from
those cases where the Court has declined to recognize a
Bivens action because of the availability of an
alternative remedial scheme.
For example, in Bush v Lucas, 462 U.S. 367
(1983), the Court found that the “elaborate,
comprehensive scheme” of civil-service protections and
procedures precluded recognition of a Bivens cause of
action to redress retaliatory firings in violation of the
First Amendment. Id. at 385. That system, the Court
found, “provide[d] meaningful remedies for employees”
who claimed to have suffered retaliatory action in
violation of the First Amendment. Id. at 386.
Likewise, in Schweiker v. Chilicky, 487 U.S. 412
(1988), the Court declined to recognize a Bivens action
against federal officers who allegedly violated due
process in denying claims for Social Security disability
benefits.
The Court pointed to the “elaborate”
administrative structure and procedures, id. at 414, that
30
Congress specifically designed to address problems
created by the wrongful termination of disability
benefits. In devising that system, Congress “chose
specific forms and levels of protection for the rights of
persons
affected
by
incorrect
eligibility
determinations . . . .” Id. at 426. Given Congress’s
careful calibration of this remedial scheme, the Court
deferred to Congress’s judgment as to how best to
“mak[e] the inevitable compromises required in the
design of a massive and complex welfare benefits
program.” Id. at 429.
The Court reached a similar conclusion in a case
involving military discipline. There, too, “Congress . . .
ha[d] established a comprehensive internal system of
justice to regulate military life, taking into account the
special patterns that define the military structure. The
resulting system provide[d] for the review and remedy
of complaints and grievances such as those presented
by” the plaintiffs who sought a Bivens cause of action.
Chappell v. Wallace, 462 U.S. 296, 302 (1983).
No such alternative federal remedial scheme
exists in this case. The INA certainly does not offer any
adequate remedy. The INA is a scheme governing the
admission, exclusion, and removal of noncitizens. Claims
about constitutional violations have nothing to do with
any of these actions. And, in any event, nothing in the
INA provides for the redress of injuries suffered as a
result of constitutional violations. Nor, as discussed
above, do CBP’s or ICE’s internal disciplinary
procedures adequately remedy the unconstitutional
abuses of its officers. See supra at 28-29. Indeed, as
discussed above, the INA itself is evidence that
31
Congress contemplated the availability of a Bivens
action. See supra at 15-16.
Furthermore, in contrast to cases such as
Malesko and Minneci, there is no alternative remedial
scheme under state law either. Under the Westfall Act,
28 U.S.C. § 2679(b)(1), the United States would be
substituted as the defendant in any state-law suit
against Respondent, and Petitioners would be forced to
proceed under the FTCA. 28 U.S.C. §§ 1346(b), 2671 et
seq. Yet, as noted above, this Court has held that the
FTCA is not the kind of alternative remedial scheme
that can displace a Bivens cause of action. See Carlson,
446 U.S. at 20-23. The Court held in Carlson that
“[p]lainly FTCA is not a sufficient protector of the
citizens’ constitutional rights, and without a clear
congressional mandate we cannot hold that Congress
relegated [a plaintiff] exclusively to the FTCA remedy.”
Id. at 23. Consequently, for both noncitizens and citizens
who suffer constitutional harms by ICE or CBP officers,
“it is [Bivens] or nothing.” Bivens, 403 U.S. at 410
(Harlan, J., concurring in the judgment).
32
CONCLUSION
For the foregoing reasons, the Court should rule
in favor of Petitioners and find that a Bivens remedy is
appropriate in this case. Should the Court rule to the
contrary, the Court should confine its ruling to the
narrow circumstances of this case and reaffirm longstanding rules permitting Bivens causes of action for
Fourth Amendment violations committed in the course
of routine, domestic enforcement of immigration law.
Respectfully submitted,
TRINA REALMUTO
MARY A. KENNEY
AMERICAN IMMIGRATION
COUNCIL
1331 G Street
Suite 200
Washington, DC 20005
(202) 507-7512
MATTHEW E. PRICE
Counsel of Record
JENNER & BLOCK LLP
1099 New York Avenue, NW
Suite 900
Washington, DC 20001
(202) 639-6000
MPrice@jenner.com
Counsel for Amici Curiae
MATT ADAMS
NORTHWEST IMMIGRANT
RIGHTS PROJECT
615 Second Avenue
Suite 400
Seattle, WA 98104
(206) 957-8611
JONATHAN H. FEINBERG
KAIRYS, RUDOVSKY,
MESSING & FEINBERG
LLP
718 Arch Street
Suite 501 South
Philadelphia, PA 19106
(215) 925-4405
Counsel for National Police
Accountability Project
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