Amicus Curiae Brief — Hernandez v. Mesa, 136 S. Ct. 567 (2015) (No. 15-118)

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No. 15-118

IN THE

Supreme Court of the Satie States

JESUS C. HERNANDEZ, ET AL.,

Petitioners,

Vv.

JESUS MESA, JR.,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF THE AMERICAN IMMIGRATION

COUNCIL, NATIONAL IMMIGRATION PROJECT OF

THE NATIONAL LAWYERS GUILD, NATIONAL

POLICE ACCOUNTABILITY PROJECT, AND

NORTHWEST IMMIGRANT RIGHTS PROJECT AS

AMICI CURIAE IN SUPPORT OF PETITIONERS

MARY A. KENNEY MATTHEW E. PRICE

AMERICAN IMMIGRATION Counsel of Record

COUNCIL MARINA K. JENKINS

1331 G. St., Suite 200 TASSITY S. JOHNSON

Washington, D.C., 20005 MICHAEL E, STEWART

(202) 507-7512 JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

(202) 639-6000

mprice@jenner.com

Additional Counsel Listed on Inside Cover

TRINA REALMUTO

NATIONAL IMMIGRATION

PROJECT OF THE NATIONAL

LAWYERS GUILD

14 Beacon St., Suite 602

Boston, MA 02108

(617) 227-9727

MATT ADAMS

NORTHWEST IMMIGRATION

RIGHTS PROJECT

615 Second Ave., Suite 400

Seattle, WA 98104

(206) 957-8611

JULIA YOO

EUGENE IREDALE

IREDALE AND YOO, APC

105 West F. St., 4th Floor

San Diego, CA 92101

(619) 233-1525

Counsel for National

Police Accountability

Project

JOHNATHAN H. FEINBERG

KAIRYS, RUDOVSKY,

MESSING &

FEINBERG LLP

718 Arch St.,

Suite 501 South

Philadelphia, PA 19106

(215) 925-4405

Counsel for National

Police Accountability

Project

TABLE OF CONTENTS

py OF Pe Nie 8 1 | ee iii

INTEREST OF AMICI CURIAE ...........cccccsscessesssseoees 1

SUMMARY OF ARGUMENT .u......cccccccccseseneceseeesensnens 3

EE iesntnintenichiincitensiennansapiniaanastnasaseancnnininanianite 5

I. There Is No Alternative Remedial Scheme to

Redress Agent Mesa’s Violation of Sergio

Hernandez’s Fourth Amendment Rights................ 6

A. There Is No Alternative Remedy Under

PT Sitiiishicncsiincissiineatnietincdesiiiistcunbduiniiisiacialnancdenmeii 6

B. There Is No Alternative Remedy Under

SO EIT cheeciincnestnincirinipninccansesidasnnibiasintsetianeniaasden 9

Il. The Context Weighs Strongly in Favor of a

ee Be eiiictinrnnnitsiactaisnsnrnicnomactsninnenionsiin )

A. The “Special Factors” Previously

Recognized By This Court Do Not Exist

Be IN sicaiatciaiaaitssishenitecniebielentininkaibadammaaesedsi . 10

B. The Context of Border Patrol Is Not a

Special Factor Counseling Against a

FI I titercitcnnscontciinninnindinitmtetcnniineninbins 11

C. The Need for Deterrence Supports a

Bivens Remedy In This Case. ...............::00000-+- 15

‘i

D. Recognizing a Bivens Cause of Action

Would Not Result in a Deluge of New

Bee teinscrvedansiimaieedeninctinnicaninnannineiesintdzenaednes 17

CFC EION cecesccsnscsenssentersecsemmnernimpeoatsnmmemamoenaenmnen 18

TABLE OF AUTHORITIES

CASES

Arizona v. United States, 132 S. Ct. 2492

SIND skciisicnsistaten titi a a i i a at 12

Ballesteros v. Ashcroft, 452 F.3d 1153 (10th

Cir. 2006), adhered to in part on reh’g, 482

fe a 8, ee 18

Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388

+ a RRP NPR Mi a cin ma RS or AS 3

Bush v. Lucas, 462 U.S. 367 (19838) ........cccccesseessees 4,7

Carlson v. Green, 446 U.S. 14 (1980)...........ec0000. 4,5,9

Castillo v. Skwarski, No. 08-5683, 2009 U.S.

Dist. LEXIS 115169 (W.D. Wash. Dec. 10,

RFI Ne SNL Sa Se RSS FET 16

Chae Chan Ping v. United States (The Chinese

Exclusion Case), 130 U.S. 581 (1889)................ 14

Chappell v. Wallace, 462 U.S. 296 (1983)... 3, 8, 10, 11

Correctional Services Corp. v. Malesko, 534

es ee I iceidaieiainniciedicalicsiaieiaindigniedecininuniciitgaa 4,6,15

Estate of Hernandez-Rojas ex rel. Hernandez

v. United States, 62 F. Supp. 3d 1169 (S.D.

ne RR LESTE Se EATS Ee ROPE PORE we en Une 15

FDIC v. Meyer, 510 U.S. 471 (1994)... cceccceeseeeeeeee 15

Franco-de Jerez v. Burgos, 876 F.2d 1038 (1st

SRR OSPR, SE SRO 278 Oo RAE Oe eee 17

Goldstein v. Moatz, 364 F.3d 205 (4th Cir.

Poi aicicsaseshasetacetastystipetenitinenadeiatinidaedaibehatipericanmiineateetes 14

Graham v. Connor, 490 U.S. 386 (1989) ............. 10, 13

Guerra v. Sutton, 783 F.2d 1371 (9th Cir.

RR eR PP ea I I nd) 18

Harisiades v. Shaughnessy, 342 U.S. 580

SEITE satchciiinhiindeiiniepaiigasibaadtainiiatcuhas Clade hdres daibaeits 14

Jasinski v. Adams, 781 F.2d 843 (11th Cir.

piel ninscniieitsitemnciensenpmanindisbniiiaaslphesinnistaniademenceinss 18

Kleindienst v. Mandel, 408 U.S. 753 (1972)............. 14

Martinez-Aguero v. Gonzalez, 459 F.3d 618

ee ee aictinionesiedincicersthiieiabcisatibininenidesaienioitniieon 15,17

McClurg v. Kingsland, 42 U.S. (1 How.) 202

COIIIITEED ciao science ecamsenecietieititainhtaniesininsneciantein ieee 14

Minneci v. Pollard, 565 U.S. 118 (2012)....... 4, 5,6, 10

Perez v. United States, 103 F. Supp. 3d 1180

I iiaintaisceticsaieiisinteitiinesiiaiibiasdinipiabimamnecs 15

Matter of Sandoval, 17 I&N Dec. 70 (BIA

SPIED cissiclesiadcsibiinthinsinniciangpiagiedaniadlicsinninidenieignatiniapitninaces 18

Schweiker v. Chilicky, 487 U.S. 412 (1988).............0 7

South Dakota v. Yankton Sioux Tribe, 522

ee ee ieeinriscdisinceisnsninterisinidinittiineneiticiniamniess 14

Tripati v. U.S. INS, 784 F.2d 345 (10th Cir.

Seieiieccitincalstinnindvepintehidiascaiidteintentlias aoisininisiainsiivinteens 18

United States v. Stanley, 483 U.S. 669 (1987).......... 11

United States v. Villanueva, 408 F.3d 193 (5th

Wilkie v. Robbins, 551 U.S. 537 (2007) ................. 5, 10

Wilkinson v. United States, 440 F.3d 970 (8th

NE icrnicsislsnehietiteiiiieilihntpinndiinaiiiaipinitinnaaaniiininnnceess 14

Ysasi v. Rivkind, 856 F.2d 1520 (Fed. Cir.

ee isioiiteasthceshaiiicinasaniephenidieaasianiinamiiibbiaiininmaiencnidipinciagindation 18

Zadvydas v. Davis, 533 U.S. 678 (2001) .......2......006 14

STATUTES

ee ST iecstcneeniiscninstcigticnmsiinnsanabedactlintions 4,8,9

ee i iitiiininieeiinicinnsninintcinensacstentitsiniionniiiiais 9

ee I IIE ns ctcccsctncsiocnhinentsohniesilatenensiniianhatinas i)

ee a ED sisciesnsnsinetneiiiomnsiinnsiionenncuiuiseteies 4,9

OTHER AUTHORITIES

RT incicdtcnaeessiencelinlodecidensicntitemesiadnasiiiliniaancetinnt 11

American Immigration Council, No Action

Taken: Lack of CBP Accountability in

Responding to Complaints of Abuse (2014),

http://tinyurl.com/Z9ay4k9..............ccsecseceeereeeenene 17

Jason Buch, Mexican Girl Clutched Her Dying

Father, San Antonio Express-News, Sept.

eee iceisacesibtsininsicinbintinnatia > -initaaiibelinarsipaniiiiahiiaaibitenseine 16

Complaint, Riley v. United States, No. 00-cv-

06225 ILG/CLP (E.D.N.Y. Oct. 17, 2000),

SU I Be saihicaincladnaadicipaiienlecisinicaheianibelingiaisinipentnnes 16

More Accounts Emerge Following Deadly

Border Shooting, Nogales Int'l, Jan. 6,

SITE ic uebtadapicceattintatadlivsicindhdiathpunerscinesciteaiipiandinidaiaieadtiin 16

Order, Guzman v. United States, No. CV 08-

01327 GHK (C.D. Cal. May 11, 2010), ECF

Bob Ortega & Rob O’Dell, Deadly border

agents incidents cloaked in silence, AZ

SG RO a

INTEREST OF AMICI CURIAE

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.

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 to defend

immigrant rights. Over the last several years, through

litigation and advocacy, NIPNLG has worked to

promote government accountability for abuse and

misconduct by immigration officials against noncitizens

and individuals perceived to be noncitizens. To address

these issues, NIPNLG represents select victims of

immigration abuse and misconduct, appears as amicus

curiae before federal courts, provides’ technical

assistance, issues practice advisories, and conducts

continuing legal education seminars. NIPNLG has a

‘All parties have consented to the filing of all amicus briefs. No

counsel for a party authored this brief in whole or in part, and no

person, other than amici or their counsel, made any monetary

contribution intended to fund the preparation or submission of this

brief.

direct interest in ensuring that noncitizens are not

unduly prevented from pursuing remedial suits in

response to unconstitutional action by federal

immigration officers.

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-

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 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.

SUMMARY OF ARGUMENT

This Court’s grant of certiorari asked the parties to

address an additional issue not presented in the petition

for cer iorari: whether Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971), provides a cause of action for the claim asserted

in this case.

This Court should not hesitate to find a cause of

action. Since first doing so in Bivens itself, this Court

has recognized a cause of action to seek damages for a

federal agent’s violation of the Fourth Amendment

because, as the Court explained, “(t]he very essence of

civil liberty certainly consists in the right of every

individual to claim the protection of the laws, whenever

he receives an injury.” Id. at 397 (quoting Marbury v.

Madison, 1 (Cranch 137), 168 (1803)). To be sure, the

Court has declined to recognize the availability of a

Bivens cause of action where the plaintiff can avail him-

or herself of an alternative remedial scheme established

by Congress, or in the presence of “special factors” that

point against the recognition of a cause of action. See,

e.g., Chappell v. Wallace, 462 U.S. 296, 303-04 (1983).

But ncither of those caveats are present in this case.

Plainly, Petitioners have no recourse to any

alternative remedial scheme. In contrast to other cases

in which this Court has declined to find a Bivens cause of

action, here Congress has not enacted any “elaborate,

comprehensive scheme ... by which improper action may

be redressed.” Bush v. Lucas, 462 U.S. 367, 385 (1983).

The Immigration and Nationality Act (INA) is not a

substitute because it provides no mechanism to deter

constitutional violations or compensate victims. To the

contrary, the INA confirms that Congress intended to

preserve a Bivens action in these circumstances. The

statute setting forth the powers of immigration officers,

8 U.S.C. § 1357(g)(8), contemplates the availability of

such a remedy. Nor can Petitioners find any redress in

state court, due to the Westfall Act. See 28 U.S.C.

§ 2679(b)(1); cf. Minneci v. Pollard, 565 U.S. 118, 129-30

(2012) (declining to find a Bivens cause of action where

state-law remedies are available). And this Court

previously held that the Federal Tort Claims Act

(FTCA) is not a substitute for Bivens, either. Carlson

v. Green, 446 U.S. 14, 20-23 (1980). Thus, absent Bivens,

Petitioners have no adequate remedy.

Nor are there any “special factors” in this case that

counsel against recognizing a Bivens cause of action. To

the contrary, the context in which this claim arises

strongly favors such a cause of action. “The purpose of

Bivens is to deter individual federal officers from

committing constitutional violations.” Corr. Servs.

Corp. v. Malesko, 534 U.S. 61, 70 (2001). The litany of

cases involving abusive, unconstitutional conduct by

employees of Customs & Border Protection (CBP) and

Immigration and Customs Enforcement (ICE) confirm

that a Bivens remedy is necessary to deter such conduct.

The plenary power that the political branches of

government exercise over the admission and exclusion

of noncitizens does not compel a different conclusion. In

the first place, this case does not involve the admission

or exclusion of noncitizens. It involves an excessive

force claim. In any event, where constitutional rights do

exist notwithstanding plenary power—as here, for the

reasons set forth in Petitioners’ brief, see Br. 14-27—

then the Court should recognize a cause of action that

allows a remedy for violation of those rights.

Finally, recognizing a Bivens cause of action in this

context will not lead to a deluge of new claims. To the

contrary, numerous Courts of Appeals have long

recognized the availability of a Bivens cause of action in

the border patrol and immigration enforcement context,

and lower courts have not been inundated with litigation

as a consequence of this recognition. Nor is there any

evidence that legitimate immigration enforcement

interests have been unduly constrained as a result.

Accordingly, this Court should permit a Bivens cause of

action in this case.

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

despite the absence of any statute conferring such a

right.” Carlson, 446 U.S. at 18. When deciding whether

to apply Bivens to a new context, the Court applies a

well-established two-step test. See, eg., Wilkie v.

Robbins, 551 U.S. 587, 550 (2007). First, the Court

determines whether an “alternative, existing process for

protecting the [constitutionally recognized] interest

amounts to a convincing reason for the Judicial Branch

to refrain from providing” a separate Bivens remedy.

Minneci, 565 U.S. at 122-23 (quoting Wilkie, 551 U.S. at

550) (alteration in original). When no such alternative

exists, the Court proceeds to the second step, in which it

makes “the kind of remedial determination that is

appropriate for a common-law tribunal,” albeit one that

pays “particular heed” to “any special factors counselling

hesitation before authorizing a new kind of federal

litigation.” Id. (quoting Wilkie, 551 U.S. at 550).

Applying that test, a Bivens cause of action should be

available to Petitioners in this case. First, there is no

alternative remedial scheme that would provide redress

for the violation of Sergio Herndndez’s Fourth

Amendment rights. Second, there are sound reasons to

recognize a Bivens cause of action in this case, and there

are no “special factors” weighing against such

recognition.

I. There Is No Alternative Remedial Scheme to

Redress Agent Mesa’s Violation of Sergio

Hernandez’s Fourth Amendment Rights.

Petitioners’ Fourth Amendment claim

unquestionably satisfies the first condition: there is no

alternative remedial scheme through which Petitioners

ean seek redress for the violation of Sergio Hernandez’s

Fourth Amendment rights. “For [Petitioners], as for

Bivens, it is damages or nothing.” Malesko, 534 U.S. at

72 (quoting Davis v. Passman, 442 U.S. 228, 245 (1979)).

A. There Is No Alternative Remedy Under

Federal Law.

First, there is no alternative method under federal

law through which Petitioners can receive compensation

for Agent Mesa’s violation of Sergio Hernandez’s Fourth

Amendment rights. That sets this case apart from a

series of cases in which this Court has declined to

recognize a Bivens remedy because of the availability of

an alternative remedial scheme.

For example, in Bush, 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. 462 U.S. 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.

Td. at 386.

Likewise, in Schweiker v. Chilicky, 487 U.S. 412

(1988), the Court declined to recognize a Bivens action

against government 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

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....” Jd. 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.” I/d. 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, 462 U.S. at 302.

No such alternative federal remedial scheme exists

in this case. Certainly the INA does not offer any

adequate remedy. The INA is a scheme governing the

admission, exclusion, and removal of noncitizens.

Petitioners’ claims 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, such as the unlawful killing in

this case. Nor, as discussed below, do CBP’s or ICE’s

internal disciplinary procedures adequately remedy the

unconstitutional abuses of its officers. See infra at 16-

17.

Indeed, in the INA itself, Congress contemplated the

availability of a Bivens remedy. In the INA, Congress

established a framework for allowing state officers to act

as immigration officers, 8 U.S.C. § 1357(g), and sought to

give those state officers the same protections from suit

that it understood federal immigration officers to enjoy.

Thus, it provided that such a state officer “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). 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.” /d.

Moreover, in enacting § 1357, Congress was legislating

against the backdrop of Carlson, 446 U.S. at 19-24, which

held that the availability of a remedy under the FTCA

does not preclude a Bivens action for the same injury.

Thus, rather than displacing a Bivens cause of action,

Congress intended the INA to co-exist with Bivens.

B. There Is No Alternative Remedy Under State

Law.

There is also no alternative remedy available to

Petitioners under state law, in contrast to cases such as

Malesko and Minneci. 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

“{(pllainly 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.

II. The Context Weighs Strongly in Favor of a Bivens

Cause of Action.

Because there is no alternative remedy available to

Petitioners, this Court should recognize the availability

of a Bivens cause of action, unless there are “special

factors counselling hesitation.” Minneci, 565 U.S. at 123

(quoting Wilkie, 551 U.S. at 550). There are none here.

A. The “Special Factors” Previously Recognized

By This Court Do Not Exist In This Case.

The “special factors” that have led the Court in

previous cases to decline to recognize a Bivens remedy

are not present in this case.

First, the Court has found “special factors” to counsel

against a Bivens remedy when there is not a judicially

manageable standard to adjudicate the alleged

constitutional wrong. Thus, in Wilkie, the Court

declined to recognize a Bivens cause of action to seek

redress for the government’s alleged retaliation against

the plaintiff on account of his exercise of his property

rights. The Court reasoned that “[a] judicial standard to

identify illegitimate pressure going beyond legitimately

hard bargaining would be endlessly knotty to work out,”

and that there would be “serious difficulty [in] devising

a workable cause of action.” Wilkie, 551 U.S. at 562.

That concern does not apply in this case. The

standards for adjudicating excessive force claims under

the Fourth Amendment are well-understood, and the

Court has found no difficulty devising a workable cause

of action for suits alleging excessive force. See, e.g.,

Graham v. Connor, 490 U.S. 386, 394-99 (1989).

Second, the Court has found such “special factors”

to exist in the context of military discipline. The Court

reasoned that the “military establishment” has a “unique

disciplinary structure,” Chappell, 462 U.S. at 304, and

the integrity of that disciplinary structure is 1ecessary

for the military to perform its function. The “special

nature of military life—the need for unhesitating and

decisive action by military officers and equally

disciplined responses by enlisted personnel—would be

undermined by a judicially created remedy exposing

officers to personal liability at the hands of those they

are charged to command.” /d. at 304. Accordingly,

allowing Bivens suits would be “inappropriate.” Jd.; see

also United States v. Stanley, 483 U.S. 669, 683-84

(1987).

The special factors that informed the Court’s holding

in Chappell and Stanley are not present in this case,

either. Allowing Petitioners to sue under Bivens would

not interfere with the chain of command in CBP or ICE

or undermine the discipline of personnel in those

agencies. To the contrary, allowing Bivens actions

would provide additional incentives for CBP and ICE

personnel to follow the rules and procedures intended to

foster respect for the constitutional rights of the

individuals with whom CBP and ICE officers interact.

See 8 C.F.R. § 287.8 (setting forth “standard for

enforcement activities,” including for the use of deadly

force).

B. The Context of Border Patrol Is Not a Special

Factor Counseling Against a Bivens Remedy.

To the extent that Respondent contends that the

context of the border region is a special factor counseling

against a remedy for constitutional violations by federal

officers, that argument is critically flawed. The logic of

that position would apply to actions brought by U.S.

citizens as well as noncitizens, and would apply to torts

committed on either side of the border fence. This Court

should not accept an invitation to carve out the border

region as a zone of official immunity in which judicial

remedies are unavailable, even for blatant violations of

constitutional rights.’

Indeed, Congress has a strong national interest in

deterring mistreatment of foreign nationals by allowing

Bivens suits alleging violations of constitutional rights.

In Arizona v. United States, 132 S. Ct. 2492 (2012), the

Court “reaffirmed that ‘one of the most important and

delicate of all international relationships ... has to do

with the protection of the just rights of a country’s own

nationals when those nationals are in another country.”

Id. at 2498-99 (citation omitted). The perceived

mistreatment of foreign nationals located in the United

States “may lead to harmful reciprocal treatment of

American citizens abroad.” Jd. at 2498. The same logic

applies with equal force to the actual mistreatment by

federal agents of foreign nationals located along

international borders. As the Fifth Circuit panel held

below, this logic “militates in favor of the availability of

some federal remedy for mistreatment at the hands of

those who enforce our immigration laws. Where those

who allege mistreatment have a right but lack a remedy,

as here, the Supreme Court suggests that Congress

*N otably, courts have found that Congress has enucted immigration

statutes with extraterritorial application. In United States v.

Villanueva, 408 F.3d 193 (5th Cir. 2005), the court upheld the

conviction of defendants who had atlempted to smuggle individuals

from E] Salvador into the United States. Defendants were arrested

in Mexico by Mexican police on Mexican terriicry. In affirming the

convictions, the Fifth Circuit found that & U.S.C. § 1824(a)’s

prohibition on bringing undocumented individuals to the United

States applied to extraterritorial conduct, including conduct

occurring exclusively within Mexico. 408 F.3d at 198-200.

would want some remedy to be available.” Hernandez

v. United States, 757 F.3d 249, 276 (5th Cir. 2014),

adhered to in part on reh’g en banc, 785 F.3d 117 (5th

Cir. 2015).

Moreover, patrolling the border region does not

involve any special considerations absent from the

ordinary policing context in which Bivens actions are

well-established. Like police officers, border patrol

officers “are often forced to make split-second

judgments—in circumstances that are tense, uncertain,

and rapidly evolving—about the amount of force that is

necessary in a particular situation.” Graham, 490 U.S.

at 397. But that reality does not foreclose a Bivens

remedy. Instead, the law accounts for these

circumstances by providing a qualified immunity

defense, and potential early dismissal of a civil action, if

a reasonable officer could have believed that the officer’s

conduct was lawful under clearly-established 'aw and

reasonable in the totality of the circumstances. The

reasonable latitude that law enforcement officers enjoy

provides no reason to foreclose a remedy for blatantly

illegal conduct.

This Court’s recognition that the political branches

exercise plenary power over the admission and exclusion

of noncitizens, see Galvan v. Press, 347 U.S. 522, 530

(1954), also does not counsel against a Bivens remedy.

This case does not involve the admission or exclusion of

noncitizens; it involves an excessive force claim under

the Fourth Amendment for the shooting of a teenager.

Moreover, even if plenary power were relevant here,

it would only bear on the scope of constitutional rights,’

and not on the availability of a remedy when 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 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 (1988). 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 “to legislate upon the subject of

patents,” McClurg v. Kingsland, 42 U.S. (1 How.) 202,

206 (1843).

Here, for the reasons given by Petitioners, Sergio

Hernandez had a Fourth Amendment right to not be

shot to death, without provocation, by Respondent. See

Petrs. Br. 14-27. And if that constitutional right is

—

* While some cases rely on plenary power in shaping the scope of

constitutional rights in the immigration context, see, ¢.g.,

Kleindienst v. Mandel, 408 U.S. 753, 766-70 (1972); Harisiades v.

Shaughnessy, 342 U.S. 580, 591-92 (1952), this Court has also long

recognized that the exercise of plenary power is stil] “subject to

important constitutional limitations.” Zadvydas v. Davis, 533 U.S.

678, 696 (2001); Chae Chan Ping v. United States (The Chinese

Exclusion Case), 130 U.S. 581, 604 (1889) (instructing that plenary

power over immigration is restricted in its exercise “by the

[Cjonstitution itself.”).

violated, the victim should have a remedy to obtain both

compensation and to deter future unlawful shootings.

C. The Need for Deterrence Supports a Bivens

Remedy In This Case.

In addition to compensating victims for

constitutional wrongs, “[tJhe 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.”). And the need for deterrence in this context is

grave.

Numerous cases catalogue examples of shocking

abuse by CBP officers, including not only reckless and

fatal shootings like this case, but also cases involving

abuses in detention. See, e.g., Martinez-Aguero v.

Gonzalez, 459 F.3d 618, 620-21 (5th Cir. 2006) (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.

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 a/so 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

Follouing Deadly Border Shooting, Nogales Int’1., Jan.

6, 2011 (reporting border patrol agent’s fatal shooting,

by aiming through the border fence, of 17-year-old

Ramses Barron Torres).

American citizens also are affected when CBP and

ICE officials are permitted to act with impunity. U.S.

citizens have been detained and, in some cases, removed,

by immigration officials. See, e.g., Castillo v. Skwarski,

No. 08-5683, 2009 U.S. Dist. LEXIS 115169 at *2-11, *16

(W.D. Wash. Dee. 10, 2009) (U.S. citizen veteran,

detained for over seven months and ordered removed,

brought Bivens suit); Order, Guzman v. United States,

No. CV 08-01327 GHK (C.D. Cal. May 11, 2010), ECF

No. 80 (American citizen with mental disability who was

detained and removed, settled damages suit);

Complaint, Riley v. United States, No. 00-ev-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

US., settled for monetary damages).

Bivens is critical to deterring such abuse. The

absence of a Bivens remedy would effectively immunize

CBP and ICE officers from adverse consequences for

violations of noncitizens’ rights. Although these

agencies do have internal disciplinary procedures, their

internal discipline 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 American Immigration Council, No Action Taken:

Lack of CBP Accountability in Responding to

Complaints of Abuse 8 (2014),

http://tinyurl.com/z9ay4k9. And 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.

D. Recognizing a Bivens Cause of Action Would

Not Result in a Deluge of New Litigation.

Finally, recognizing a Bivens cause of action in this

case would not open the floodgates to a new type of

Bivens claim. Several Courts of Appeals already have

recognized the availability of a Bivens cause of action in

the border patrol and immigration enforcement context.

See, e.g., Martinez-Aguero, 459 F.3d at 625 (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 on

Bivens claim where noncitizen was held incommunicado

for over ten days); Ysasi v. Rivkind, 856 F.2d 1520, 1528

(Fed. Cir. 1988) (vacating grant of sammary judgment in

favor of border patrol agents in Bivens action based, in

part, on lack of showing that alternative remedies were

available and equally effective), 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); Guerra v. Sutton, 783

F.2d 1371, 1375-76 (9th Cir. 1986) (vacating and

remanding dismissal of Bivens claims against border

patrol agents on qualified immunity grounds), T'ripati v.

U.S. INS, 784 F.2d 345, 346 n.1 (10th Cir. 1986) (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 constitutiona} 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 1&N Dee. 70, 82 (BIA 1979) (citing Bivens

for the proposition that “civil or criminal actions against

the individual officer may be available”). In the 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.

CONCLUSION

For the foregoing reasons, and those set forth in

Petitioners’ brief, the Court should hold that a Bivens

cause of action is available to Petitioners.

December 9, 2016

MARY A. KENNEY

AMERICAN IMMIGRATION

COUNCIL

1331 G. St., Suite 200

Washington, D.C., 20005

(202) 507-7512

JULIA YOO

EUGENE IREDALE

IREDALE AND YOO, APC

105 West F. St., 4th Floor

San Diego, CA 92101

(619) 233-1525

Counsel for National Police

Accountability Project

JOHNATHAN H. FEINBERG

KAIRYS, RUDOVSKY,

MESSING

& FEINBERG LLP

718 Arch St.,

Suite 501 South

Philadelphia, PA 19106

(215) 925-4405

Counsel for National Police

Accountability Project

Respectfully Submitted,

MATTHEW E. PRICE

Counsel of Record

MARINA K. JENKINS

TASSITY S. JOHNSON

MICHAEL E. STEWART

JENNER & BLOCK LLP