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Bivens Not Available for Immigration Proceedings: 5th Cir.

By Mark Wilson, Esq. on May 19, 2015 | Last updated on March 21, 2019

A claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics is essentially a Supreme Court-created version of 42 USC 1983, a statute conferring a cause of action for state officials' violations of a plaintiff's civil rights.

Plaintiffs can get money damages under Bivens, as they can under 42 USC 1983, but can undocumented immigrants get damages for Fourth Amendment violations allegedly committed by border patrol agents?

An Unlawful Traffic Stop (Maybe)

Not so much, said the Fifth Circuit last week, agreeing with the Ninth and Second Circuits that Bivens isn't available because the plaintiffs can address their issues in immigration removal proceedings.

Daniel Frias and Alejandro Garcia de la Paz were driving on I-20 in a pick-up truck when they were passed by a border patrol agent, Arturo Torrez. Torrez saw what he thought were bodies in the bed of the truck. He radioed dispatch to find out where the truck came from; they radioed back that it wasn't from around there, so Torrez initiated a traffic stop about 250 miles from the Mexican border. Frias eventually admitted he was an illegal alien.

Garcia was similarly arrested in a separate incident, though his case was consolidated into this one.

Fifth Declines to Extend Bivens

Because Bivens is a judicially created remedy, lower courts aren't terribly enthusiastic about applying it to new situations. In particular, the Fifth Circuit wasn't sure whether it would apply to an alleged Fourth Amendment violation committed by border patrol agents.

The other problem is that Bivens is usually a last resort, used only when there are no other remedies for an alleged violation of a constitutional right. The Supreme Court has been pretty clear on this point: Circuit courts of appeal aren't supposed to invent new, non-statutory causes of action like this. In this case, the Fifth Circuit said, the remedy would be to argue all these same claims in an immigration hearing, not a civil suit.

The Fifth has never decided that question, though. Fortunately, the Ninth and Second have, but unfortunately for the plaintiffs, both of those circuits said Bivens was unavailable to immigrants in removal proceedings.

But what about the Fourth Amendment? There's no exclusionary rule when it comes to immigration proceedings, so there would really be no way for the plaintiffs to effectively challenge their detention. That doesn't matter, said the Fifth Circuit: Immigration courts can still choose to exclude evidence if there have been egregious violations. Bivens doesn't have to be made available just because there's not an "exact" equivalent to the exclusionary rule.

And, indeed, it may very well be Congress' intention not to provide a remedy in cases like this. In that event, an Article III court can't do very much. Even if it could, the plaintiffs could still be deported, and their monetary damages wouldn't amount to a lot, anyway.

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