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Preserving Federal Court Review in Bivens/FTCA Cases
The Council, along with the National Immigration Project of the National Lawyers Guild (NIP), is seeking to preserve federal court review of damages actions brought by noncitizens for abuse of authority of immigration agents. In actions brought under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) and the Federal Tort Claims Act (FTCA), the government has argued that INA § 242(g) bars the court’s review of damages claims brought against federal immigration officers because they involve the “commencement” of removal proceedings, adjudication of removal cases, or execution of removal orders. It also has argued that a Bivens action is not the appropriate remedy in the context of removal proceedings. The Council argues that Bivens is an appropriate and available remedy for constitutional violations committed by federal immigration officers, and that the government’s argument would create virtual blanket immunity to Border Patrol and other federal immigration officers. In FTCA cases, the government makes similar arguments about an alleged lack of jurisdiction.
Tell us about your cases! The Council would like to hear about cases in which the government argues that the court does not have jurisdiction over Bivens/FTCA damages suits in the immigration context. Please contact firstname.lastname@example.org to let us know what has happened in your clients' cases.
Felix Garcia v. The United States of America, et al, No. 10 CV 5610 (E.D.N.Y. amicus brief filed April 19, 2012). The Council and the National Immigration Project of the National Lawyers Guild filed an amicus brief urging the court to find it has jurisdiction over a damages suit brought by an LPR against CBP and ICE. The plaintiff was wrongfully detained for seven days, physically abused, and denied medical attention by federal immigration officers.
Avalos-Palma v. United States, No. 13-05481 (D. N.J. amicus brief filed Jan. 21, 2014). The Council, with the National Immigration Project of the National Lawyers Guild, filed an amicus brief supporting the noncitizen’s right to have the court consider his claim for damages against the United States to compensate him for his unlawful removal by immigration agents. The plaintiff was removed in violation of a mandatory stay of removal and then prevented from returning for more than three years, during which time he was separated from his children and lost his job. In the brief, amici argues, first, that the INA does not bar the court from hearing this type of damage case; and second, that it is an appropriate case for damages under the Federal Tort Claims Act because – as required by the Act – the United States, if a private person, would be liable in similar circumstances under state law. On July 15, 2014, the district court issued an order that denied the government’s motion to dismiss with respect to the plaintiff’s claims of negligence and intentional and negligent infliction of emotional distress.
Turkman, et al. v. Ashcroft, et al., No. 13-0981 (2d Cir. amicus brief filed Oct. 4, 2013). The Council with the National Immigration Project of the National Lawyers Guild filed an amicus brief in support of eight noncitizens of Arab and South Asian descent who sued individual federal officials for physical and emotional abuse that they suffered when detained on immigration charges in the aftermath of September 11. The plaintiffs were held in particularly egregious conditions while the FBI decided whether they were terrorists, or had any value to the 9/11 investigation. In the current appeal, amici argue that the Supreme Court has provided a remedy for the type of constitutional misconduct by federal agents suffered by the plaintiffs in this case.
De la Paz v. Coy, No. 13-50768 (5th Cir. amicus brief filed Apr. 30, 2014). The Council, with the National Immigration Project of the National Lawyers Guild, filed an amicus brief arguing that the district court properly found Border Patrol agents could be sued for damages for a Fourth Amendment violation under Bivens. The case involves roving Border Patrol agents who stopped the plaintiff’s truck based solely on his ethnicity. The Fifth circuit heard oral argument on both De La Paz and Frias on September 3, 2014.
Frias v. Torrez, No.14-10018 (5th Cir. amicus brief filed July 10, 2014). As in De La Paz v. Coy, the Council and the National Immigration Project filed an amicus brief arguing that the district court properly found that Border Patrol agents could be sued for damages for Fourth Amendment violations which occurred during a vehicle stop. The Fifth Circuit heard oral argument on both De La Paz and Frias on September 3, 2014.
Rivas Martinez v. United States, No. 14-56041 (9th Cir. amicus brief filed Jan. 21, 2015). The Council and the National Immigration Project filed an amicus brief arguing that the district court had jurisdiction over the plaintiff’s tort claims. Plaintiff seeks damages for his two-month detention following an unlawful arrest by Border Patrol agents and while DHS agents considered whether to initiate removal proceedings and ultimately commenced them on grounds for which there was no legal basis. Amici argue that neither INA § 236(e) nor § 242(g) bar the district court’s review and that, were the court to hold otherwise, federal immigration agents would have free rein to violated the rights of non-citizens with impunity.
Council Practice Advisory: Whom to Sue and Whom to Serve in Immigration-Related District Court Litigation (May 13, 2010). This practice advisory addresses who is, or who may be, the proper respondent-defendant and recipient for service of process in immigration-related litigation in district court.
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