Category Archives: Texas

In the Matter of XXXXX

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In the Matter of XXXXX – Redacted Motion to Terminate Removal Proceedings (based on custody conditions and failure to report child abuse)

Respondent, a 15 year old unaccompanied minor, was arrested by border patrol agents in Texas. CBP detained her in an icebox, and failed to provide her with sufficient food, water, clothing and shelter or medical assistance for approximately eleven days. Respondent was not permitted to shower, brush her teeth or go outside.  She was given only a nylon blanket and forced to sleep on the cold floor in a room crowded with other people.  She became physically sick with cough and fever.

Respondent subsequently was placed in removal proceedings. She subsequently moved to terminate the proceedings, arguing that the agency’s conduct violated the Fifth Amendment, the  terms of the settlement agreement in Flores v. Reno, 8 USC 1232(b) (requiring transfer of unaccompanied minors to custody of the Department of Health and Human Services within 72 hours), and that the agency’s failure to report the conduct as child abuse constituted a crime under 18 USC 2258.  The immigration judge denied the motion to terminate proceedings on February 4, 2015.  The Board of Immigration Appeals subsequently denied an interlocutory appeal.

Counsel: Bryan Johnson

Contact:  Amoachi & Johnson, PLLC | (631) 647-9701 | Bryan@amjolaw.com

Hernandez v. United States of America, sub nom. Hernandez v. Mesa

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Hernandez v. United States of America, Nos. 12-50217, 12-50301 (5th Cir.), sub. nom, Hernandez v. Mesa, No. 15-118 (U.S.)

On June 7, 2010, Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national, was playing with a group of friends on the Mexican side of the border near the Paso del Norte Bridge in El Paso, Texas. The boy and his friends were playing a game in which they ran up the incline of a cement culvert, touched the fence separating the US and Mexico and then ran back down the incline. While they were playing, U.S. Border Patrol Agent Jesus Mesa, Jr. stopped one of Hernandez’s friends, and Hernandez retreated and observed from beneath the pillars of the Paso del Norte Bridge (on the Mexico side). Agent Mesa, standing on U.S. soil, fired at least two gun shots from within the country. One of the bullets hit the boy in the face and killed him.

The boy’s parents sued, raising claims against the United States, Agent Mesa, and unknown federal employees. The district court dismissed the claims for various reasons. On June 30, 2014, a three-judge panel of the Fifth Circuit Court of Appeals reversed the lower court in part and affirmed in part. Although the Court affirmed parts of the district court’s decision, significantly, it ruled that the boys’ parents could bring a Fifth Amendment claim against Agent Mesa. In so holding, the court determined that the child had a Fifth Amendment right to be free from actions that “shock the conscience.” Both the United States and Agent Mesa asked the Fifth Circuit to rehear (reconsider) the court’s decision.

On November 5, 2014, the court granted en banc rehearing and vacated its earlier decision. On January 21, 2015, the en banc panel heard oral argument. On April 24, 2015, the Fifth Circuit issued an en banc opinion. On the question of the violation of Sergio’s rights under the Fourth Amendment, the court held that Plaintiffs could not assert a Fourth Amendment claim because Sergio had no significant voluntary connection to the United States and because was physically in Mexico when Agent Mesa shot him. The court further held that Plaintiffs could not assert a Fifth Amendment claim because, at the time of the shooting, no case law reasonably warned Agent Mesa that the prohibition on excessive force applied in this situation.

On October 11, 2016, the Supreme Court granted certiorari and agreed to hear the case. On June 26, 2017, the Supreme Court vacated the judgment of the Fifth Circuit and remanded the case for further proceedings. In its opinion, the Court first addressed the Bivens claim. It determined that a recently decided Supreme Court decision—Ziglar v. Abbasi, which laid out special factors which counsel “hesitation” in applying a Bivens remedy—would inform the analysis of the Bivens question. The Court remanded to give the parties “the opportunity to brief and argue [Abbasi’s] significance” in answering that question. Second, the Court declined to resolve the Fourth Amendment issue before the Court of Appeals could weigh in under the guidance provided by Abbasi. Finally, with respect to the Fifth Amendment claims regarding Mesa’s qualified immunity, the Court held the Fifth Circuit erred when it granted qualified immunity because Hernandez was a noncitizen “who had no significant voluntary connection to…the United States.” Since that fact was not known to Mesa at the time he shot Hernandez, extending qualified immunity was not appropriate. The Court further declined to address the government’s arguments that Mesa was entitled to qualified immunity regardless of his uncertainty about Hernandez’s nationality at the time of the shooting, and that petitioners’ claim was not cognizable at all under the Fifth Amendment.

On remand from the Supreme Court following its decision in Ziglar v. Abbasi, 137 U.S. 1843 (2017), the Fifth Circuit en banc held that a cross-border shooting presented a “new context” for which federal courts do not have the authority to find an implied damages action under Bivens v. Six Unknown Named Agents of the FBI, 403 U.S. 388 (1971). As a result, the Fifth Circuit dismissed plaintiffs’ Bivens claims. On May 28, 2019, the Supreme Court granted certiorari for a second time.

On February 25, 2020, the Supreme Court issued a decision holding that Bivens was unavailable applying the two-part test outlined in Abbasi. The court first determined that the Hernandez family’s Bivens claims arose in a new context. Turning to the second step of the test, the court found “multiple, related factors” counseling hesitation about extending Bivens. The Hernandez family’s case implicates foreign relations, the court reasoned, because of the “legitimate and important interests” of both the United States and Mexico “that may be affected by the way in which this matter is handled.” “It is not our task,” the court said, “to arbitrate between them.” The court also held that the case implicates the “conduct of agents positioned at the border,” which has a “clear and strong connection to national security.” Writing in dissent, Justice Ginsburg argued that holding a rogue, low-ranking officer accountable for killing a teenager would not undermine U.S. diplomacy or national security.

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Moreno v. United States Customs and Border Protection Officer Mario Unate

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Moreno v. United States Customs and Border Protection Officer Mario Unate and the United States of America., No. 3:14-CV-04266-B (N.D. Tex., filed Dec. 3, 2014)

On December 2, 2012 around 5pm, Jorge Moreno Villegas, who is Hispanic, was driving a pick-up truck on a highway outside of Ozona, Texas with a Hispanic colleague as a passenger.  The men were on their way home from work.  Passing in the opposite direction, a Border Patrol agent saw the two men and, turning his vehicle around, squeezed it in between Mr. Moreno’s truck and the vehicle behind it. It is undisputed that Mr. Moreno had not committed any driving violations.  The agent stopped Mr. Moreno and began questioning him and his passenger about their immigration status and citizenship.  The men declined to respond.  The agent then began questioning them in Spanish and ordered Mr. Moreno to exit the truck.  The agent proceeded to handcuff Mr. Moreno and place him in the back of his vehicle.  He did the same for the passenger.

On December 3, 2014, Mr. Moreno filed a complaint against the agent.  He alleges that the agent stopped him without consent or legal authority and was motivated solely by his Hispanic appearance and that of his passenger.  Mr. Moreno brings a claim against the agent for violating the Fourth Amendment to the United States Constitution and an FTCA claim against the United States for false imprisonment and assault.

On February 12, 2015, Defendants moved to dismiss Mr. Moreno’s FTCA claim for false imprisonment on the basis that he had failed to plead facts regarding his immigration status, and that the arrest would have been lawful if he had told the agent that he was not legally present in the United States. Finding that the Border Patrol agent had pulled Mr. Moreno over solely based on his Hispanic appearance, the Court concluded that he lacked reasonable suspicion or probable cause for the stop and thus denied Defendants’ motion.

In late November 2015, the parties filed a joint motion for a stay pending decision on a forthcoming petition for certiorari to the U.S. Supreme Court in De la Paz v. Coy et al., which was filed in January 2016 (No. 15-888). On June 26, 2017, the Supreme Court denied the petition for writ of certiorari in De la Paz. Following the parties’ subsequent stipulation of dismissal, the district court dismissed the case on January 4, 2018.

Counsel: De Mott, McChesney, Curtright & Armendáriz, LLP

Contact: David Armendáriz | 210.534.1844 | davida@dmcausa.com

Administrative Complaint to DHS Office of Inspector General and DHS Office of Civil Rights and Civil Liberties on Behalf of Unaccompanied Children Abused by CBP

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Administrative Complaint to DHS Office of Inspector General and DHS Office of Civil Rights and Civil Liberties on Behalf of Unaccompanied Children Abused by CBP

On June 11, 2014, the National Immigrant Justice Center, Esperanza Immigrant Rights Project, Americans for Immigrant Justice, Florence Immigrant and Refugee Rights Project, and the ACLU Border Litigation Project submitted an administrative complaint to the DHS Office of Inspector General (OIG) and DHS Office of Civil Rights and Civil Liberties (CRCL) documenting 116 cases of unaccompanied immigrant children who were abused by Border Patrol agents and Customs and Border Protection officials.

Documented from approximately March to May of 2014, the complaints include numerous reports of physical and sexual abuse, as well as verbal abuse involving death threats and racial slurs. Approximately half of the children reported the denial of medical care, including CBP refusal to treat nursing and pregnant minors and infants as young as five months old. Children were forced into stress positions, strip searches, and painful shackling in three-point restraints during transport. Virtually all of the children describe being detained in squalid conditions characterized by extreme cold, overcrowding, and no privacy. More than 80 percent described denial of adequate food and water in CBP custody, including a child whose only available drinking water came from a toilet tank and others who received only frozen or spoiled food and subsequently became ill. Many children reported being separated from other family members, and almost one in three reported that their money and/or personal belongings were confiscated by CBP officials and not returned. Approximately 70 percent reported being held beyond the legally mandated 72-hour period.

For example, M.R., a 15-year-old girl, traveled from Guatemala with her two-year-old son. Both M.R. and her son became sick while in CBP custody, but M.R.’s requests for medical attention were ignored or dismissed for approximately five days, until she and her son were finally taken to a hospital. K.A., a 14-year-old girl, had her asthma medication confiscated by CBP officials and proceeded to suffer multiple asthma attacks in the filthy and overcrowded CBP holding cells. After the first asthma attack, officials threatened that they would punish her if she were faking. H.R., a seven-year-old boy, was severely developmentally disabled and suffering from acute malnourishment when he was apprehended, but CBP held him in custody for approximately five days without any medical treatment. He was eventually hospitalized and underwent emergency surgery.

The complaint notes that many of the same abuses have been documented and reported to DHS for years, but no reforms have been implemented. The complaint further notes that DHS oversight agencies have failed to respond to individual complaints of CBP abuse, conduct investigations, or hold agents accountable, and cites to AIC’s report, No Action Taken, which made similar findings. The complaint calls for the implementation of binding short-term detention standards, independent oversight, uniform complaint procedures, and the delegation of child screening responsibilities to an entity other than CBP, such as United States Citizenship and Immigration Services or the Department of Health and Human Services, among other recommendations.

Counsel: National Immigrant Justice Center | Esperanza Immigrant Rights Project | Americans for Immigrant Justice | Florence Immigrant and Refugee Rights Project | ACLU Border Litigation Project

Contact:  Alexandra Fung | National Immigrant Justice Center |  AFung@heartlandalliance.org

Royce Murray | National Immigrant Justice Center | RMurray@heartlandalliance.org

Americans for Immigrant Justice, Inc. v. CBP, et al. (Rio Grande Hieleras FOIA)

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Americans for Immigrant Justice, Inc. v. CBP, et al.
No. 1:14-cv-20945 KMW (S.D. Fla. Filed Mar. 13, 2014)

Americans for Immigrant Justice, Inc. (AI Justice) has sued CBP and DHS under the Freedom of Information Act (FOIA) for their failure to produce any records in response to a request which sought records pertaining to CBP’s short-term detention policies and procedures, particularly as implemented in the Rio Grande Valley (Valley) in Texas.  In 2013, AI Justice interviewed over 100 individuals who had been detained in CBP holding cells in the Valley prior to being transferred to ICE detention in Miami.  These individuals uniformly reported deplorable conditions in the holding cells. They reported that Border Patrol agents refer to the cells as “hieleras,” which is Spanish for “iceboxes.”  The agents use this term because they keep the temperatures in the cells unbearably low, so that the detainees always are extremely cold.  Additionally, the holding cells are overcrowded; have no beds, although most detainees reported being there at least several days, with some being held up to two weeks; have no bathing facilities and few toiletries; and have toilets that are out in the open.  The detainees also complained of being served inadequate food.  The AI Justice FOIA seeks records relating to these holding cells for the period 2008 through 2013.

CBP finally produced some responsive records, and the parties subsequently agreed to dismiss the case by stipulation on September 10, 2015.

Counsel: Americans for Immigrant Justice

Contact: Jennie Santos | jsantos@aijustice.org

Doe v. El Paso County Hospital District, et al.

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Doe v. El Paso County Hospital District, et al., No. 3:13-cv-00406  (W.D. Tex., filed Dec. 18, 2013)

Jane Doe sued several CBP officers in their individual capacity (as well as medical personnel and a hospital) after being subjected to six hours of increasingly invasive searches of her body in violation of the United States Constitution.  She seeks both compensatory and punitive damages.

Jane Doe is a 54-year-old United States citizen who, when returning from a visit to Mexico and after having her valid passport swiped, was randomly picked by CBP officers for additional screening.  She was sent to secondary inspection and frisked by two female officers, one of whom put her finger in the crevice of Ms. Doe’s buttocks.  Although no contraband was found, she was placed in a line with others, where a dog allegedly alerted CBP officers that she possessed contraband.  She was not carrying any contraband, however, and thus the alert was either a false one or did not occur.  Thereafter, she was strip-searched by CBP officers and examined with a flashlight.  When this revealed no contraband, the defendant CBP officers transported her in handcuffs to the hospital, where she was forced to take a laxative and monitored while having a bowel movement.  Despite no evidence of contraband, she was then subjected to an x-ray, a physical examination of her vagina and rectum, and a C-T scan.  After each of these exams, defendants insisted on proceeding to the next, more invasive exam despite the fact that none of them produced any evidence.  After the C-T scan, Ms. Doe was informed that she could sign a statement indicating voluntary consent to the searches, in which case CBP would pay the hospital bill; if she refused to sign the consent form, she was told she would be billed for the hospital’s expenses.  She refused to sign and subsequently was billed $5,000.

On December 18, 2013, Ms. Doe filed a complaint against various CBP officers alleging constitutional violations for unreasonable seizure, false arrest, false imprisonment, unreasonable search, and deprivation of due process under Bivens. Her complaint also asserted multiple §1983 claims against the medical facilities and staff involved. The claims against the medical staff and facilities were subsequently settled for $1.1 million. The case against CBP continues.

In July 2015, Plaintiff filed an amended complaint, which the CBP Defendants answered in November 2015.  On June 14, 2016, the District Court accepted the parties’ stipulation of dismissal.  On July 21, 2016, the ACLU announced that CBP had agreed to pay Plaintiff $475,000.

Counsel: Edgar Saldivar, Rebecca Robertson | ACLU of Texas

Laura Schauer Ives, Kristen Love, Jesse Hale | ACLU of New Mexico

Contact: Edgar Saldivar | ACLU of Texas | esaldivar@aclutx.org

Laura Schauer Ives | Kennedy Kennedy & Ives, LLC | LSI@civilrightslawnewmexico.com

Frias v. Torrez et al.

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Daniel Frias v. Torrez et al., No. 3:12-CV-1296-B (N.D. Tex., filed Apr. 26, 2012) sub nom. De la Paz et al. v. Coy et al., No. 15-888 (U.S.)

Daniel Frias was driving a four-door pick-up truck on a highway outside of Abilene, Texas with a white colleague as a passenger when a Border Patrol agent stopped his vehicle.  It is undisputed that he had not committed any driving violations.  The Border Patrol agent justified the stop solely on the basis that he allegedly saw shapes in the back seat that appeared to be bodies, and that the route was a known one for smuggling.  Frias disputed that there was anything in the back seat at all.  Upon being stopped, Frias stated that the agent asked him for identification, that he produced his valid New Mexico driver’s license and that he was handcuffed almost immediately after this.  His white colleague was asked for his driver’s license and then not asked any additional questions.  Frias claims that the stop violated the Fourth Amendment to the United States Constitution and was motivated solely by his Hispanic appearance, and also that the agent committed the torts of false arrest and assault.

On October 31, 2013, the district court denied the government’s motion for summary judgment with respect to the constitutional claims against the individual Border Patrol agent and the tort claims against the United States.  The court found that the dispute as to the facts prevented it from granting the government’s motion.  Specifically, if there was nothing in the back seat of the truck, as Frias maintained, then the stop – which took place hundreds of miles from the border and involved no other suspicion of wrongdoing – would not have been justified under the Fourth Amendment.  For similar reasons, the court could not grant the United States’ motion for summary judgment on the false imprisonment and assault tort claims.

On December 30, 2013, the defendant Border Patrol agent filed an interlocutory appeal to the Fifth Circuit. The appeal raised two issues:

  1. Whether the district court improperly extended to a “new context” the remedy for unconstitutional law enforcement conduct first recognized in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971); and
  2. Whether the agent was entitled to qualified immunity from suit.

The parties fully briefed these issues. The National Immigration Project of the National Lawyers’ Guild and the American Immigration Council submitted an amicus brief addressing the Bivens issue. Amici argued that the claims fell within Bivens’ core holding and purpose; the Immigration and Nationality Act was not a remedial or compensatory statute; there were no special factors counseling against a Bivens remedy in a case such as this; and the defendant’s position would create virtual immunity for unconstitutional conduct by immigration agents.

After hearing oral argument on September 3, 2014, the Fifth Circuit – in a consolidated opinion with De La Paz v. Coy – reversed the District Court on May 15, 2015.  The court held that a Bivens action was not available to redress the Border Patrol’s violation of the Fourth Amendment rights of an undocumented noncitizen. Notwithstanding the traditional Fourth Amendment claim presented, the court found that it presented a new “context” for a Bivens claim and refused to extend Bivens to this new context.  The court found that removal proceedings provided an alternative remedial scheme for the plaintiff. It also found that special factors cautioned against such an extension.

The Fifth Circuit, sua sponte, took a vote as to whether to rehear the case en banc. Only four judges voted in favor and on October 14, 2015, the court denied rehearing en banc. Three judges dissented from this denial in a strongly worded opinion which emphasized that this case fell squarely within the holding of Bivens.

In December 2015, the parties filed a joint motion for a stay pending decision on the then forthcoming petition for certiorari to the U.S. Supreme Court in both the instant case and De la Paz v. Coy et al.  The petition was filed in January 2016 (No. 15-888).

Briefing on the petition for writ of certiorari ended on June 1, 2016. On June 26, 2017, the Supreme Court denied the petition for writ of certiorari in De la Paz. Following the parties’ subsequent stipulation of dismissal, the district court dismissed the case on February 15, 2018.

Counsel: Mayer Brown LLP and De Mott, McChesney, Curtright & Armendáriz, LLP

Contact: David Armendáriz | 210.534.1844 | davida@dmcausa.com

FTCA Administrative Complaints of Four Women Denouncing Hieleras

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FTCA Administrative Complaints of Four Women Denouncing Hieleras (filed Mar. 12, 2013)

On various dates in early 2013, four women were apprehended at the United States Texas border by Customs and Border Protection (CBP) agents.  After being apprehended, they were taken by CBP to what the agents called a “hielera,” which is Spanish for “icebox” or “icemaker.”  The hieleras are holding cells which agents often maintain at very low temperature.  The women all describe cells in which dozens of detainees were crowded together.  The cells had no beds, no chairs and each had only a single toilet and sink sitting in the open in the corner.  The women were kept in the cells for as long as 13 days.

The cells were so cold that the women’s fingers and lips turned blue.  They often were fed only one meal a day consisting of a single sandwich, which frequently was frozen. They received nothing to drink other than water, which they had to retrieve from the sink, using their hands or a single cup shared by everyone in the cell.  They were not given blankets or pillows.  Sleeping on the freezing cold floor was next to impossible.  Pregnant women and women with children were present in the cells.

Two of the women are diabetics whose prescriptions were confiscated at the time they were apprehended and never returned.  Both suffered medical problems after their medication was taken from them.  One of them passed out twice and finally was taken to the local hospital’s emergency room.

None of the women were afforded access to a shower or a bath.  Two of them had their menstrual cycles while detained but had no access to a bathroom for bathing.  There was no soap, no change of underwear, and no toothbrushes or toothpaste.

CBP agents regularly asked each of the women to sign documents printed in English, which the women could not read and did not understand.  Agents threatened that they would be kept in the holding cell until they signed these documents.  These agents also referred to them in demeaning ways, including calling them “bitches.”  Only one of the women was asked whether she had a fear of returning to her country of origin, as required, though several of them do.  Eventually, most of the women signed the documents in order to end their suffering in the cold holding cells.  Though they did not understand it at the time, they had signed expedited removal orders. Each of the women was subsequently transferred to a Texas jail and then to a detention facility in Florida while awaiting removal.  All the women filed administrative complaints for damages against the United States for the suffering they endured at the hands of CBP agents. One of these women, Alba Quinonez Florez, subsequently sued the U.S. government in federal court based on the abuses described above.

The government failed to respond to the administrative complaint within the six-month deadline. None of the claimants decided to file a federal complaint.

Counsel: Americans for Immigrant Justice

Contact: Jennie Santos | AI Justice | jsantos@aijustice.org

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Hernandez-Carranco v. U.S.A., et al.

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Hernandez-Carranco v. U.S.A., et al., No. 3:12-CV-05186 (N.D. Tex., filed Dec. 19, 2012)

Josue Hernandez-Carranco, traveling with his father and a friend, stopped in the parking lot of a gas station to use the restroom when two Border Patrol (BP) agents approached and stood in front of the doors of his truck. The agent on Mr. Hernandez-Carranco’s side opened his door, grabbed him by his arm, and, in Spanish, demanded his papers. Mr. Hernandez-Carranco replied in English that he had papers, and showed the agent his valid Texas driver’s license. In Spanish, the agent told him that this was insufficient. He then handcuffed Mr. Hernandez-Carranco, pulled him out of the truck, and placed him in a BP van with several other men. Mr. Hernandez-Carranco was cold, but the agent refused his request to grab his jacket before he was put in the van.

Once on the road, an agent drove the van so recklessly that the men feared for their safety. When the agents finally agreed to a rest stop, they handcuffed the men in pairs and took them out of the van on the side of the road. The BP agents taunted and humiliated one man for his discomfort at having to relieve himself in this situation.

Mr. Hernandez-Carranco seeks damages for his unlawful seizure. At the time of arrest, the agents lacked any reasonable suspicion that Mr. Hernandez-Carranco, his father, or his friend had committed an unlawful act or were in the country illegally. They were over 200 miles from the border, had broken no traffic laws, and had taken no evasive or otherwise unusual action. The BP agents interrogated and arrested Mr. Hernandez-Carranco based solely on his Hispanic appearance.

On January 28, 2014, the parties met for a settlement conference, where they expressed interest in engaging in non-binding mediation with a private mediator or a settlement conference to be conducted by the Magistrate Judge. On April 1, 2014, both parties filed a stipulation of dismissal of all claims.

Counsel: De Mott, McChesney, Curtright & Armendáriz, LLP

Contact: David Armendáriz | 210.534.1844 | davida@dmcausa.com

Garcia De La Paz v. Coy et al.

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Garcia De La Paz v. Coy et al., No. cv-00957 (W.D. Tex., filed Oct. 9, 2012) sub nom. Garcia de la Paz et al. v. Coy et al.  No. 15-888 (U.S.)

Alejandro Garcia De La Paz was riding home from work in Texas in the passenger seat of his co-worker’s truck, with two other coworkers riding in the backseat, when they were pulled over by two Border Patrol vehicles using their emergency flashers. The two agents approached the truck on both sides of the car and, without explaining the reason for the stop, asked whether the passengers were U.S. citizens. Upon hearing Mr. Garcia’s answer, the agent opened Mr. Garcia’s door, grabbed him by the arm, pulled him out of the truck, and brought him to his patrol car.

At the time of the stop, the agents were not patrolling the U.S. border and had no reasonable suspicion that the driver of the car, Mr. Garcia, or the other two passengers had violated or were violating any law. The agents also had no reason to believe that Mr. Garcia and his co-workers were noncitizens, had recently come from a border area, or were in violation of any immigration law. Instead, the agents stopped Mr. Garcia and his co-workers solely because of their Hispanic appearance.

Mr. Garcia seeks damages from the individual agents for the violation of his constitutional right to be free from unlawful searches and seizures, and from the United States for his unlawful arrest by the agents.

The district court denied the individual agents’ request for qualified immunity. The agents appealed this denial of qualified immunity to the Fifth Circuit, raising two issues:

  1. Whether the district court improperly extended to a “new context” the remedy for unconstitutional conduct by a federal agent first recognized in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971); and
  2. Whether the agents were entitled to qualified immunity from suit.

The parties fully briefed these issues. The National Immigration Project of the National Lawyers’ Guild and the American Immigration Council submitted an amicus brief addressing the Bivens issue. Amici argued that the plaintiff’s claims fell within Bivens’ core holding and purpose; the Immigration and Nationality Act did not serve as an alternate remedial scheme that would compensate him for his injuries; there were no special factors counseling against a Bivens remedy in a case such as this; and the defendants’ position would create virtual immunity for unconstitutional conduct by immigration agents.

The Fifth Circuit heard oral argument on September 3, 2014. On May 15, 2015, it reversed the district court, holding instead that a Bivens action was not available to redress the Border Patrol agents’ violation of the Fourth Amendment rights of an undocumented noncitizen. Notwithstanding the traditional Fourth Amendment claim presented , the court found that it presented a new “context” for a Bivens claim. It refused to extend Bivens to this new context, finding that removal proceedings provided an alternative remedial scheme for the plaintiff. It also found that special factors cautioned against such an extension.

The Fifth Circuit, sua sponte, took a vote as to whether to rehear the case en banc. Only four judges voted in favor and on October 14, 2015, the Court denied rehearing en banc. Three judges dissented from this denial in a strongly worded opinion which emphasized that this case fell squarely within the holding of Bivens.

In January 2016, de la Paz filed a petition for writ of certiorari with the U.S. Supreme Court (No. 15-888).  Briefing on the petition for writ of certiorari ended on June 1, 2016.  The petition was initially distributed to the Court for its June 16, 2016 conference, but was rescheduled on June 6, 2016. On June 26, 2017, the Supreme Court denied the petition.

Counsel: Mayer Brown LLP and De Mott, McChesney, Curtright & Armendáriz, LLP

Contact: David Armendáriz| 210.534.1844 | davida@dmcausa.com