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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

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

iv
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

Vv

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

vi
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.

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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.

13

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.

14

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.”).

15

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

16

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).

17

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

18

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

19

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
1099 New York Ave., NW
Suite 900
Washington, DC 20001
(202) 639-6000
mprice@jenner.com

Counsel for Amici Curiae

TRINA REALMUTO
NATIONAL IMMIGRATION
PROJECT OF THE NATIONAI
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0600%3A16. Public record. Not legal advice.