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Preserving Federal Court Review in Bivens/FTCA Cases

Last Updated: 
Thu, Jan 23, 2014

The LAC, along with the National Immigration Project of the National Lawyers Guild, is seeking to preserve federal court review of damages actions brought by noncitizens in immigration custody. In damages 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. They also have argued that a Bivens action is not the appropriate remedy in the context of removal proceedings. The LAC argues that Bivens is an appropriate and available remedy for constitutional violations committed by federal immigration officers, and that the government’s argument that the Constitution does not protect arriving noncitizens, even when those noncitizens are LPRs, is fatally flawed.

Tell us about your cases! The LAC 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 clearinghouse@immcouncil.org to let us know what has happened in your clients' cases.

CASERESOURCES

CASE

Felix Garcia v. The United States of America, et al, No. 10 CV 5610 (E.D.N.Y. amici brief filed April 19, 2012). The LAC and the National Immigration Project of the National Lawyers Guild filed an amici 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. amici brief filed Jan. 21, 2013).  The LAC, with the National Immigration Project of the National Lawyers Guild, filed an amici 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. 

Turkman, et al. v. Ashcroft, et al., No. 13-0981 (2d Cir. amicus brief filed Oct. 4, 2013).  The LAC with the National Immigration Project of the National Lawyers Guild filed an amici 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.

RESOURCES

LAC 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.