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Tun-Cos v. B. Perrotte

United States Court of Appeals, Fourth Circuit

April 26, 2019

MYNOR ABDIEL TUN-COS; JOSÉ PAJARITO SAPUT; LUIS VELASQUEZ PERDOMO; EDER AGUILAR ARITAS; EDUARDO MONTANO FERNÁNDEZ; PEDRO VELASQUEZ PERDOMO; JOSÉ CÁRCAMO; NELSON CALLEJAS PEÑA; GERMÁN VELASQUEZ PERDOMO, Plaintiffs - Appellees,
v.
B. PERROTTE, ICE Agent; T. OSBORNE, ICE Agent; D. HUN YIM, ICE Agent; P. MANNEH, ICE Agent; A. NICHOLS, ICE Agent, Defendants - Appellants. CHRIS BURBANK; SETH M. M. STODDER; MEGAN H. MACK; MARGO SCHLANGER; PAUL W. VIRTUE; LAWYERS COMMITTEE FOR CIVIL RIGHTS UNDER LAW, Amici Supporting Appellee.

          Argued: December 11, 2018

          Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Anthony John Trenga, District Judge. (1:17-cv-00943-AJT-TCB)

         ARGUED:

          Anne Murphy, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants.

          David Meir Zionts, COVINGTON & BURLING LLP, Washington, D.C., for Appellees.

         ON BRIEF:

          Chad A. Readler, Acting Assistant Attorney General, Mary Hampton Mason, Senior Trial Counsel, Paul E. Werner, Trial Attorney, Torts Branch, Barbara L. Herwig, H. Thomas Byron III, Appellate Staff, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; G. Zachary Terwilliger, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellants.

          Daniel E. Johnson, Mark H. Lynch, José E. Arvelo, Brandon H. Johnson, Daniel T. Grant, Michelle S. Willauer, COVINGTON & BURLING LLP, Washington, D.C.; Simon Y. Sandoval-Moshenberg, Nicholas C. Marritz, Hallie N. Ryan, LEGAL AID JUSTICE CENTER, Falls Church, Virginia, for Appellees. Jon M. Greenbaum, Myesha Braden, Samuel Weiss, Michael Huggins, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, Washington, D.C.; Shira A. Scheindlin, New York, New York; Caitlin Bellis, UNIVERSITY OF CALIFORNIA IRVINE SCHOOL OF LAW - IMMIGRANT RIGHT CLINIC, Irvine, California, for Amicus Lawyer's Committee for Civil Rights Under Law. Nicolas G. Keller, New York, New York, Matthew E. Price, JENNER & BLOCK LLP, Washington, D.C., for Amici Chris Burbank, Seth M. M. Stodder, Megan H. Mack, Margo Schlanger, and Paul Virtue.

          Before NIEMEYER and QUATTLEBAUM, Circuit Judges, and DUNCAN, Senior Circuit Judge.

          Judge Niemeyer wrote the opinion, in which Judge Quattlebaum and Senior Judge Duncan joined.

          NIEMEYER, CIRCUIT JUDGE

         Nine Latino men, who lived in areas of Northern Virginia that were home to many residents of Latino ethnicity, commenced this action against several Immigration and Customs Enforcement ("ICE") agents. They seek money damages to redress the ICE agents' alleged violations of their rights under the Fourth and Fifth Amendments, alleging that the ICE agents (1) stopped and detained them without a reasonable, articulable suspicion of unlawful activity; (2) invaded their homes without a warrant, consent, or probable cause; and (3) seized them illegally. To state a cause of action for damages, they rely on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which held that the victim of a Fourth Amendment violation by federal officers had an implied constitutional claim for damages.

         The ICE agents filed a motion to dismiss, challenging the plaintiffs' reliance on Bivens and also asserting qualified immunity. While the district court assumed that the plaintiffs' action presents a "'modest extension' in a 'new context' for the application of a Bivens remedy," it denied the ICE agents' motion, concluding that a Bivens remedy "should be recognized in this case." It also denied the ICE agents qualified immunity.

         Applying the Supreme Court's recent jurisprudence on Bivens actions, we reverse, concluding that a Bivens remedy is not available in the circumstances of this case. Where there is no statute authorizing a claim for money damages, "it is a significant step under separation-of-powers principles" for a court to impose damages liability on federal officials. Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017). In such cases, "[t]he question is who should decide whether to provide for a damages remedy, Congress or the courts?" Id. at 1857 (cleaned up). "The answer most often will be Congress." Id. Indeed, in the course of repeatedly declining to provide a Bivens remedy in recent years, the Supreme Court has now made clear that "extend[ing] Bivens liability to any new context or new category of defendants" is highly "disfavored." Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (cleaned up). We thus conclude that, because the plaintiffs seek to extend Bivens liability to a context the Supreme Court has yet to recognize and there are "special factors counselling hesitation in the absence of affirmative action by Congress," Abbasi, 137 S.Ct. at 1857 (cleaned up), the plaintiffs' action for damages should be dismissed. Therefore, we reverse the district court's order denying the ICE agents' motion to dismiss and remand with instructions to dismiss the plaintiffs' action.

         I

         In their complaint, the plaintiffs challenge the legality of stops, detentions, and home invasions that they experienced on February 8 and February 17, 2017.

         As alleged in the complaint, on February 8, ICE agents stopped one of the plaintiffs as he was leaving his home and asked if he knew a man in a photo that the agents showed him. When the plaintiff denied knowing the man, the agents demanded that the plaintiff take them into his home. The agents then collected all of the other persons in the home, asked them the same question, and received the same response. They then arrested six residents and took them to an ICE facility in Lorton, Virginia. After ten hours, the agents released the six on bond. Removal proceedings under the Immigration and Nationality Act ("INA") were then initiated against those six, who are now plaintiffs in this action.

         On February 17, ICE agents blocked a car with four Latino men in it as they were pulling out of a parking space, demanding that they provide identification. The ICE agents then showed the detained men photos of two men, whom one of the detained men recognized. The agents then directed the detained men to go to their apartment, where the agents arrested and frisked two of them and took them to an ICE facility in Fairfax, Virginia. After they were released, removal proceedings under the INA were initiated against those two men, who are also now plaintiffs in this action.

         In their initial complaint for damages, the two plaintiffs arrested on February 17 alleged violations of the Fourth and Fifth Amendments. They also asserted that the arrests on that date "did not occur in a vacuum," citing a recent Executive Order which "was represented by the Trump administration as an effort to 'take the shackles off' ICE agents in their enforcement activities." (Citation omitted). As the complaint alleged:

ICE agents across the country have been encouraged to stop individuals without reasonable suspicion, pursuant to the Trump Administration's efforts to "take the shackles off" ICE agents to free them from "what they went through in the last administration." In contrast to the Obama Administration's immigration enforcement policies and practices, which discouraged ICE agents from stopping individuals absent reasonable suspicion that the individuals had violated federal law, . . . [the] Executive Order and implementing guidance from [the Department of Homeland Security] have encouraged a broader set of ...

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