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,
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
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)
Murphy, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellants.
Meir Zionts, COVINGTON & BURLING LLP, Washington, D.C.,
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.
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.
NIEMEYER and QUATTLEBAUM, Circuit Judges, and DUNCAN, Senior
Niemeyer wrote the opinion, in which Judge Quattlebaum and
Senior Judge Duncan joined.
NIEMEYER, CIRCUIT JUDGE
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
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.
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
their complaint, the plaintiffs challenge the legality of
stops, detentions, and home invasions that they experienced
on February 8 and February 17, 2017.
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.
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.
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 ...