                                             PUBLISHED

                           UNITED STATES COURT OF APPEALS
                               FOR THE FOURTH CIRCUIT


                                              No. 18-1451


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.


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: December 11, 2018                                    Decided: April 26, 2019


Before NIEMEYER and QUATTLEBAUM, Circuit Judges, and DUNCAN, Senior
Circuit Judge.
Reversed and remanded with instructions by published opinion. Judge Niemeyer wrote
the opinion, in which Judge Quattlebaum and Senior Judge Duncan joined.


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.




                                          2
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?”


                                            3
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




                                             4
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 enforcement policies that “no
       longer will exempt classes or categories of removable aliens from potential
       enforcement.”

(Citations omitted).     The initial complaint also alleged that “[u]nder the Obama

Administration, ICE agents carried out immigration arrests at [the same apartment


                                             5
complex] multiple times a year, but generally arrested only those persons whom they had

come to arrest . . . [and] generally did not engage in collateral arrests of third persons.”

They alleged that under the Trump Administration, by contrast, “ICE agents have

dramatically increased the number and scope of enforcement actions” at the apartment

complex and that “[t]hese enforcement actions have included numerous collateral

arrests,” including the arrests of the two plaintiffs.

       Several months later, the plaintiffs filed an amended complaint, which added the

events that occurred on February 8, 2017, and the additional seven plaintiffs involved in

those events, one of whom was a U.S. citizen. The amended complaint again alleged

claims for the unreasonable searches and seizures of the plaintiffs, in violation of the

Fourth Amendment, and equal protection claims under the Fifth Amendment. It also

eliminated all references to the Trump Administration’s immigration enforcement policy.

In both complaints, the plaintiffs demanded compensatory and punitive damages, relying

on Bivens.

       The ICE agents filed a motion to dismiss on the ground that a Bivens action is not

available in the context of this case. The agents also asserted qualified immunity.

       The district court rejected both arguments and denied the motion. First, the court

concluded that the plaintiffs stated “cognizable Bivens claims, as those claims were

against persons properly considered federal law enforcement officers under

circumstances that sufficiently approximated those within the recognized contours of that

remedy.” Applying the framework articulated by the Supreme Court in Ziglar v. Abbasi,

137 S. Ct. 1843 (2017), the court first assessed whether the case arose in a “new Bivens


                                               6
context,” noting that “[t]he alleged conduct in this case ha[d] the recognizable substance

of Fourth Amendment violations” but that the agents “[were] ICE agents, rather than

traditional law enforcement officers, . . . and were purporting to operate under a different

‘statutory or other legal mandate’ than the officials referenced in Abbasi.” (Quoting

Abbasi, 137 S. Ct. at 1860).     For those reasons, the court “assumed that this case

present[ed] a ‘modest extension’ in a ‘new context’ for the application of a Bivens

remedy” and therefore went on to evaluate whether “special factors” counseled against

extending Bivens by inquiring “whether ‘(1) Congress ha[d] not already provided an

exclusive statutory remedy; (2) there [were] no special factors counselling hesitation in

the absence of the affirmative action by Congress; and (3) there [was] no explicit

Congressional declaration that money damages not be awarded.’” (Quoting Hall v.

Clinton, 235 F.3d 202, 204 (4th Cir. 2000)).

       After noting that the ICE agents “d[id] not contend that Congress ha[d] already

provided an exclusive statutory remedy . . . or that there [was] an ‘explicit Congressional

declaration that money damages not be awarded,’” the district court concluded that the

issue “reduce[d] to whether any ‘special factors’ counsel[ed] against extending an

implied right of action within the context of this case.” The court then reasoned that the

plaintiffs “are not challenging an entity’s policy” but are rather “claiming straightforward

violations of their Fourth and Fifth Amendment rights based on [the ICE agents’]

conduct.” And while ICE agents, rather than traditional federal law enforcement officers,

were involved, the court concluded that the agents “nevertheless fall within the broad

category of federal law enforcement officers, whose conduct raises the same issues and


                                               7
concerns as in Bivens.” As for the ICE agents’ argument that “Congress’s intent to

preclude a Bivens damages remedy [could] be found in its failure to provide for an

explicit remedy in the [INA] while otherwise ‘aggressively’ legislating in the

immigration area,” the court reasoned that while that argument would have force if

Congress had provided a lesser remedy for this sort of violation, “Congress has provided

no remedy whatsoever.” (Emphasis added).          The court concluded that “Congress’s

silence in this context does not reliably reflect any Congressional intent to preclude a

Bivens damage remedy, particularly given the longstanding judicial recognition of a

Bivens remedy for the types of Fourth and Fifth Amendment claims asserted in this case.”

The court thus ultimately concluded that “there [were] no special factors that would

counsel against [allowing] a Bivens remedy for Plaintiffs’ claims” and accordingly

allowed the plaintiffs to pursue their Bivens claims against the ICE agents.

       The district court also rejected the ICE agents’ claim of qualified immunity. The

ICE agents asserted that the complaint failed to allege “with the required specificity” the

involvement of each ICE agent. The court disagreed, concluding that the plaintiffs

“alleged at this stage each [ICE agent’s] involvement with a sufficient level of factual

specificity to give ‘fair notice’ of the claims asserted against each individual and the

conduct relied on for those claims,” and that, as such, the ICE agents “are not entitled to

qualified immunity on the ground that the plaintiffs have failed to state with specificity

each [ICE agent’s] involvement.” (Quoting Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 545 (2007)).




                                             8
       From the district court’s order dated April 5, 2018, denying their motion, the ICE

agents filed this interlocutory appeal. See Wilkie v. Robbins, 551 U.S. 537, 549 n.4

(2007).


                                             II

       At its core, the plaintiffs’ complaint alleges that ICE agents, in the context of

enforcing the INA, violated their Fourth Amendment rights in stopping them, detaining

them, and entering their home, and their Fifth Amendment rights in discriminating

against them based on their ethnicity. They seek money damages under Bivens.

       Such conduct, if engaged in by state officials, could give rise to a cause of action

under 42 U.S.C. § 1983. But § 1983 does not provide a cause of action against federal

officials, and there is no analogous statute imposing damages liability on federal officials.

       In 1971, however, the Supreme Court decided Bivens, holding that, even absent

statutory authorization, a man who had alleged that federal narcotics officers had

searched his apartment and arrested him for alleged narcotics violations without a warrant

or probable cause and that the officers had used unreasonable force in so doing could sue

those officers on an implied claim for money damages under the Fourth Amendment.

See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,

389–98 (1971).

       In the decade following Bivens, the Court decided two other cases in which it held

that, notwithstanding the lack of a statutory cause of action, an implied damages remedy

was available to redress certain constitutional violations. In the first, Davis v. Passman,



                                             9
442 U.S. 228 (1979), the Court held that the equal protection component of the Fifth

Amendment’s Due Process Clause provided a damages remedy for an administrative

assistant who alleged that a Congressman fired her because she was a woman. See id. at

248–49. And in the second, Carlson v. Green, 446 U.S. 14 (1980), the Court held that

the Eighth Amendment’s Cruel and Unusual Punishments Clause provided a damages

remedy for the estate of a prisoner who died due to the alleged failure of federal jailers to

treat his asthma. See id. at 19.

       In the almost 40 years since Carlson, however, the Court has declined to

countenance Bivens actions in any additional context. See Chappell v. Wallace, 462 U.S.

296, 297 (1983) (refusing to recognize a Bivens remedy where enlisted servicemen

alleged that their officers discriminated against them based on race); Bush v. Lucas,

462 U.S. 367, 390 (1983) (refusing to recognize a Bivens remedy where a federal

employee alleged that his supervisor violated his First Amendment rights); United States

v. Stanley, 483 U.S. 669, 671–72 (1987) (refusing to recognize a Bivens remedy where a

serviceman alleged that military officers violated his substantive due process rights);

Schweiker v. Chilicky, 487 U.S. 412, 414 (1988) (refusing to recognize a Bivens remedy

for alleged violations of procedural due process by Social Security officials); FDIC v.

Meyer, 510 U.S. 471, 473–74 (1994) (refusing to recognize a Bivens remedy where an

employee alleged that he was wrongfully terminated by a federal agency in violation of

due process); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 63 (2001) (refusing to

recognize a Bivens remedy where a prisoner alleged that a private prison operator

violated his Eighth Amendment rights); Wilkie, 551 U.S. at 541 (refusing to recognize a


                                             10
Bivens remedy where a landowner alleged that officials from the Bureau of Land

Management violated the Due Process Clause); Minneci v. Pollard, 565 U.S. 118, 120

(2012) (refusing to recognize a Bivens remedy where prisoners alleged that guards at a

privately operated federal prison violated their Eighth Amendment rights).

       The Court’s most recent guidance on the continued availability of Bivens actions

came in Ziglar v. Abbasi, where the Court expressed open hostility to expanding Bivens

liability and noted that “in light of the changes to the Court’s general approach to

recognizing implied damages remedies, it is possible that the analysis in the Court’s three

Bivens cases might have been different if they were decided today.” 137 S. Ct. at 1856.

The plaintiffs in Abbasi — aliens who were detained and held in the aftermath of the

September 11 terrorist attacks — brought an action against certain executive officials and

the wardens of the facility in which they were held, alleging Fourth and Fifth

Amendment violations premised on the harsh conditions of their confinement and alleged

abuse by prison guards. Id. at 1851–53. The Court held that no Bivens remedy was

available for the conditions-of-confinement claims and accordingly concluded that those

claims should be dismissed. See id. at 1858–63. And it remanded the prisoner abuse

claims, holding that the lower court had erred in concluding that such claims arose in the

same context as Carlson and had therefore failed to engage in the proper analysis. See id.

at 1865. The Abbasi Court explained its outlook by noting that when Bivens, Davis, and

Carlson were decided, “the Court followed a different approach to recognizing implied

causes of action than it follows now.” Id. at 1855. More expansively, it stated:




                                            11
       [I]n light of the changes to the Courts’ general approach to recognizing
       implied damages remedies, it is possible that the analysis in the Court’s
       three Bivens cases might have been different if they were decided today.
       To be sure, no congressional enactment has disapproved of these decisions.
       And it must be understood that this opinion is not intended to cast doubt on
       the continued force, or even the necessity, of Bivens in the search-and-
       seizure context in which it arose. Bivens does vindicate the Constitution by
       allowing some redress for injuries, and it provides instruction and guidance
       to federal law enforcement officers going forward. The settled law of
       Bivens in this common and recurrent sphere of law enforcement, and the
       undoubted reliance upon it as a fixed principle in the law, are powerful
       reasons to retain it in that sphere.

       Given the notable change in the Courts’ approach to recognizing implied
       causes of action, however, the Court has made clear that expanding the
       Bivens remedy is now a “disfavored” judicial activity. Iqbal, 556 U.S., at
       675. This is in accord with the Courts’ observation that it has “consistently
       refused to extend Bivens to any new context or new category of
       defendants.” [Malesko, 534 U.S. at 68]. Indeed, the Court has refused to
       do so for the past 30 years.

Id. at 1856–57. Importantly, the Court emphasized that the question of whether to

provide a Bivens remedy should be informed and limited by separation-of-powers

principles:

       When a party seeks to assert an implied cause of action under the
       Constitution itself, just as when a party seeks to assert an implied cause of
       action under a federal statute, separation-of-powers principles are or
       should be central to the analysis. The question is “who should decide”
       whether to provide for a damages remedy, Congress or the courts? Bush,
       462 U.S. at 380.

       The answer most often will be Congress. When an issue “‘involves a host
       of considerations that must be weighed and appraised,’” it should be
       committed to “‘those who write the laws’” rather than “‘those who interpret
       them.’” Id. (quoting United States v. Gilman, 347 U.S. 507, 512–13
       (1954)). In most instances, the Court’s precedents now instruct, the
       Legislature is in the better position to consider if “‘the public interest would
       be served’” by imposing a “‘new substantive legal liability.’” Schweiker,
       487 U.S. at 426–27 (quoting Bush, 462 U.S. at 390). As a result, the Court



                                             12
         has urged “caution” before “extending Bivens remedies into any new
         context.” Malesko, 534 U.S. at 74.

Id. at 1857 (emphasis added).

         Drawing from these principles and the prior cases in which it declined to extend

Bivens, the Court then clarified the framework that now must be applied in determining

whether a Bivens remedy is available against federal officials. See 137 S. Ct. at 1857–60.

First, courts must inquire whether a given case presents a “new Bivens context.” If the

context is not new — i.e., if the case is not “different in [any] meaningful way” from the

three cases in which the Court has recognized a Bivens remedy, id. at 1859 — then a

Bivens remedy continues to be available. But if the context is new, then courts must,

before extending Bivens liability, evaluate whether there are “special factors counselling

hesitation in the absence of affirmative action by Congress.” Id. at 1857 (emphasis

added) (cleaned up). If any such “special factors” do exist, a Bivens action is not

available.

         The Court has made clear that, for a case to be “different in a meaningful way

from [the three] previous Bivens cases,” a radical difference is not required. Abbasi, 137

S. Ct. at 1859. Indeed, the Abbasi Court, “without endeavoring to create an exhaustive

list,” provided several examples of “meaningful differences,” some of which are quite

minor:

         A case might differ in a meaningful way because of the rank of the officers
         involved; the constitutional right at issue; the generality or specificity of the
         official action; the extent of judicial guidance as to how an officer should
         respond to the problem or emergency to be confronted; the statutory or
         other legal mandate under which the officer was operating; the risk of
         disruptive intrusion by the Judiciary into the functioning of other branches;


                                                13
         or the presence of potential special factors that previous Bivens cases did
         not consider.

Id. at 1859–60; see also id. at 1865 (“The differences between [the Abbasi plaintiffs’

prisoner abuse claims] and the one in Carlson are perhaps small, at least in practical

terms.     Given this Court’s expressed caution about extending the Bivens remedy,

however, the new-context inquiry is easily satisfied” (emphasis added)).

         And in determining whether “special factors” are present to counsel hesitation in

expanding Bivens, courts must consider “whether the Judiciary is well suited, absent

congressional action or instruction, to consider and weigh the costs and benefits of

allowing a damages action to proceed.” Abbasi, 137 S. Ct. at 1857–58. If a factor exists

that “cause[s] a court to hesitate before answering that question in the affirmative,” then a

Bivens remedy is unavailable. Id. at 1858. “In sum, if there are sound reasons to think

Congress might doubt the efficacy or necessity of a damages remedy as part of the system

for enforcing the law and correcting a wrong, then courts must refrain from creating the

remedy in order to respect the role of Congress in determining the nature and extent of

federal-court jurisdiction under Article III.” Id. (emphasis added).


                                             III

         Applying these principles to the case before us, we address first whether this case

arises in a new Bivens context — a context distinct from the contexts in the Supreme

Court’s three Bivens cases. If the case does arise in a new context, we must then inquire

as to whether there are “special factors counselling hesitation in the absence of

affirmative action by Congress.” Abbasi, 137 S. Ct. at 1857 (cleaned up).


                                             14
                                              A

       The ICE agents contend that because this case arises in the immigration context —

i.e., because it concerns ICE agents’ enforcement of the INA, rather than traditional law

enforcement officers’ enforcement of the criminal law, as in Bivens — it presents a new

Bivens context. The plaintiffs respond that while this may be a difference, it is not a

meaningful one, as required by Abbasi.         Indeed, they contend that this case arises

“squarely” in the same “search-and-seizure context ‘in which [Bivens] arose’” (quoting

Abbasi, 137 S. Ct. at 1856) and that, like in Bivens, the instant action is against individual

line-level officers for violations of the Fourth Amendment. In addition, the plaintiffs

argue that their allegations concern actions taken prior to the commencement of any

removal proceeding under the INA and therefore that the INA is not relevant to the

Bivens inquiry.

       Agreeing with the ICE agents, we conclude that the plaintiffs’ position fails to

reckon with the Supreme Court’s specific guidance regarding the new-context inquiry.

Following that guidance, we find that several of the differences identified in Abbasi are

present in this case.

       First, “the statutory or other legal mandate under which the officer[s] [were]

operating” is distinct. Abbasi, 137 S. Ct. at 1860. The ICE agents were not enforcing the

criminal law, as in Bivens, but rather were enforcing the immigration law of the INA.

See id. The plaintiffs attempt to trivialize this difference, arguing at a general level that

because the ICE agents are “federal law enforcement officers” alleged to have

“committed unconstitutional searches and seizures,” this case arises in the same context


                                             15
as Bivens regardless of the statutory mandate under which the ICE agents were operating.

Arguing at so general a level, however, not only ignores the language of Abbasi, it also

fails to appreciate the substantively distinct aspects of immigration enforcement.

Immigration enforcement is by its nature addressed toward noncitizens, which raises a

host of considerations and concerns that are simply absent in the majority of traditional

law enforcement contexts. Indeed, the Supreme Court has recognized as such and has

distinguished between immigration enforcement and criminal law enforcement in the

past. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1050–51 (1984) (holding that the

criminal-law exclusionary rule does not apply in removal proceedings); cf. id. at 1044

(noting that “[m]ost arrests of illegal aliens away from the border occur during farm,

factory, or other workplace surveys. Large numbers of illegal aliens are often arrested at

one time, and conditions are understandably chaotic”). And more generally, the INA

takes an approach to enforcement that is distinct from the approach taken by criminal

laws, favoring arrest and detention for the purpose of removal from the United States,

while the criminal law imposes incarceration for the distinct purposes stated in 18 U.S.C.

§ 3553(a).

      Also, enforcement of the immigration laws implicates broad policy concerns

distinct from the enforcement of criminal law. Indeed, the plaintiffs recognized as much

in their initial complaint, pointing out the significance of the Trump Administration’s

immigration policy to their case and emphasizing the differences between the policies of

the Obama Administration and the Trump Administration:




                                           16
       In contrast to the Obama Administration’s immigration enforcement
       policies and practices, which discourage ICE agents from stopping
       individuals absent reasonable suspicion that the individuals had violated
       federal law, the January 25, 2017 Executive Order [of the Trump
       Administration] and implementing guidance from [the Department of
       Homeland Security] have encouraged a broader set of enforcement
       priorities that “no longer will exempt classes or categories of removable
       aliens from potential enforcement.”

(Citing Department of Homeland Security memoranda from the two Administrations).

       In addition, as part of the new-context analysis, the Abbasi Court “refused to

extend Bivens to any . . . new category of defendants,” and pointed out categories that had

been found to be meaningfully distinct from the three Bivens cases, such as “federal

employer[s],” “military officers,” “Social Security officials,” a “federal agency,” a

“private prison operator,” “officials from the Bureau of Land Management,” and “prison

guards at a private prison.” Abbasi 137 S. Ct. at 1857 (emphasis added). So it is in this

case that the plaintiffs seek to extend Bivens liability to a new category of defendants —

ICE agents, who are charged with the enforcement of the immigration laws.

       Further, the plaintiffs’ Fifth Amendment claims have no analogue in the Supreme

Court’s prior Bivens cases. In effect, the plaintiffs attempt to wed the Fifth Amendment

equal protection claim of Davis v. Passman, which concerned a Congressman firing his

female secretary, see 442 U.S. at 230–31, with the Fourth Amendment claim of Bivens.

But such hybridization cannot alter the fact that the plaintiffs’ claim of discrimination

“bear[s] little resemblance to the three Bivens claims the Court has approved in the past.”

Abbasi, 137 S. Ct. at 1860.




                                            17
        In short, as the Abbasi Court noted, “even a modest extension is still an extension”

for purposes of the new-context analysis, 137 S. Ct. at 1864, and the district court was

correct in recognizing this in its opinion. Because the plaintiffs seek to extend Bivens

liability to a new context, we must now inquire as to whether there are any “special

factors counselling hesitation [in extending Bivens liability] in the absence of affirmative

action by Congress.” Id. at 1857.

                                             B

        In determining whether “special factors” are present, we focus on whether

Congress might doubt the need for an implied damages remedy. See Abbasi, 137 S. Ct. at

1858.

        Arguing that “special factors” do exist in this case, the ICE agents point to the

complex and comprehensive nature of the INA, as well as the “sheer size” of the

immigration system. They emphasize that Congress omitted a private damages remedy

for constitutional violations arising from immigration enforcement and investigations

while pervasively regulating other aspects of immigration policy and argue that this

suggests that Congress intended to exclude such a remedy. The Judiciary’s recognition

of such a remedy absent statutory authorization would thus, according to the ICE agents,

raise grave separation-of-powers concerns.        In addition, the ICE agents point to

immigration’s relation to foreign policy and diplomacy and contend that the plaintiffs’

action, in purpose and effect, seeks to alter immigration enforcement policy, which is a

role for the Executive, not the Judiciary.




                                             18
       The plaintiffs, by contrast, argue that they are only challenging “run-of-the-mill,

unconstitutional law enforcement activity by individual law enforcement agents” and that

“this case is not about the U.S. ‘immigration system’” as such. The plaintiffs also

emphasize that, while the INA does provide “various procedural mechanisms to

individuals who have been placed in removal proceedings,” the INA “does not provide a

remedial scheme for violations committed by immigration officials outside of removal

proceedings.” (Quoting Diaz-Bernal v. Myers, 758 F. Supp. 2d 106, 218 (D. Conn.

2010)).

       Again, we conclude that the plaintiffs’ position fails to take account of the

Supreme Court’s specific instructions about extending Bivens claims. As the ICE agents

argue, because immigration enforcement is, at bottom, about ensuring that only those

foreign nationals who are legally authorized to be in the United States remain present

here, such enforcement has “the natural tendency to affect diplomacy, foreign policy, and

the security of the nation, which . . . counsel hesitation in extending Bivens.” Mirmehdi

v. United States, 689 F.3d 975, 983 (9th Cir. 2012) (cleaned up); see also Abbasi, 137

S. Ct. 1861–62 (concluding that plaintiffs’ claims would “of necessity require an inquiry

into sensitive issues of national security” and that this fact “counsell[ed] hesitation ‘in the

absence of affirmative action by Congress.’” (citation omitted)); cf. Vanderklok v. United

States, 868 F.3d 189, 209 (3d Cir. 2017) (“[T]he role of the TSA in securing public safety

is so significant that we ought not create a damages remedy in this context”).

       Moreover, immigration enforcement is “a context in which Congress has designed

its regulatory authority in a guarded way, making it less likely that Congress would want


                                              19
the Judiciary to interfere.” See Abbasi, 137 S. Ct. at 1858 (citing Chappell, 462 U.S. at

302 (military); Stanley, 483 U.S. at 679 (same); Meyer, 510 U.S. at 486 (public purse);

Wilkie, 551 U.S. at 561–62 (federal land)). Indeed, Congress took steps to ensure that the

protections it provided in the INA would be exclusive of any additional judicial remedy.

See 8 U.S.C. § 1252(b)(9) (“Judicial review of all questions of law and fact, including

interpretation and application of constitutional and statutory provisions, arising from any

action taken or proceeding brought to remove an alien from the United States . . . shall be

available only in judicial review of a final order under this section”); id. § 1252(g)

(“Except as provided in this section . . . , no court shall have jurisdiction to hear any

cause or claim by or on behalf of any alien arising from the decision or action by the

Attorney General to commence proceedings, adjudicate cases, or execute removal orders

against any alien”); id. § 1226(e) (limiting court review of the Attorney General’s

decisions to arrest and detain aliens).

       In the same vein, where Congress has provided “an alternative remedial

structure . . . , that alone may limit the power of the Judiciary to infer a new Bivens cause

of action.” Abbasi, 137 S. Ct. at 1858. And the INA does indeed contain such a remedial

structure. See, e.g., 8 C.F.R. § 287.8 (establishing “standards for enforcement activities”

conducted under the INA); id. § 287.10 (providing for an “[e]xpedited internal review

process” of alleged violations of the standards established in § 287.8); id. §§ 236.1(d),

1003.38 (providing persons detained under the INA an adversarial bond hearing, with a

right to appeal); 8 U.S.C. § 1229a(b) (adversarial removal hearing); id. § 1252 (judicial

review of removal orders); see also Alvarez v. ICE, 818 F.3d 1194, 1206 (11th Cir. 2016)


                                             20
(“The [INA] is ‘an elaborate remedial system that has been constructed step by step, with

careful attention to conflicting policy considerations’” (quoting Bush, 462 U.S. at 388));

De La Paz v. Coy, 786 F.3d 367, 375–78 (5th Cir. 2015) (detailing the INA’s

“comprehensive regulation of all immigration related issues,” including provisions

“specifically designed to protect the rights of illegal aliens,” and concluding that the INA

“comprises . . . an elaborate remedial scheme [that] precludes creation of a Bivens

remedy”).

       The plaintiffs are correct that the protections provided by the INA do not include a

money damages remedy and often do not redress constitutional violations that occur apart

from removal proceedings. But this misses the point, for the relevant question “is not

what remedy the court should provide for a wrong that would otherwise go unredressed”

but instead “whether an elaborate remedial system . . . should be augmented by the

creation of a new judicial remedy.” Bush, 462 U.S. at 388; see also Chilicky, 487 U.S. at

421–22 (“The absence of statutory relief for a constitutional violation . . . does not by any

means necessarily imply that courts should award money damages against the officers

responsible for the violation”).

       Congress’s legislative actions in this area persuasively indicate that Congress did

not want a money damages remedy against ICE agents for their allegedly wrongful

conduct, as indicated by its frequent amendment of the INA and its repeated refusal to

provide a damages remedy. See, e.g., REAL ID Act of 2005, Pub. L. No. 109-13,

119 Stat. 302; Illegal Immigration Reform and Immigrant Responsibility Act of 1996,

Pub. L. No. 104-208, div. C, 110 Stat. 3009-546; Antiterrorism and Effective Death


                                             21
Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214; Immigration Act of 1990, Pub.

L. No. 101-649, 104 Stat. 4978; Immigration Reform and Control Act of 1986, Pub. L.

No. 99-603, 100 Stat. 3359; Act of Oct. 20, 1976, Pub. L. No. 94-571, 90 Stat. 2703; Act

of Oct. 3, 1965, Pub. L. No. 89-236, 79 Stat. 911; see also De La Paz, 786 F.3d at 377

(“Despite its repeated and careful attention to immigration matters, Congress has declined

to authorize damage remedies against individual agents involved in civil immigration

enforcement. The institutional silence speaks volumes and counsels strongly against

judicial usurpation of the legislative function”). And “legislative action suggesting that

Congress does not want a damages remedy is itself a factor counseling hesitation.”

Abbasi, 137 S. Ct. at 1865; see id. at 1862 (concluding that, as regarded the plaintiffs’

conditions-of-confinement claims, Congress’s failure to provide a damages remedy was

instructive given its “frequent and intense” interest in the response to the September 11

attacks); id. at 1865 (reasoning that, as regarded the plaintiffs’ prisoner abuse claims,

Congress’s failure to provide “a standalone damages remedy against federal jailers” in

the Prison Litigation Reform Act, which was enacted after Carlson, arguably “suggests

Congress chose not to extend the Carlson damages remedy to cases involving other types

of prisoner mistreatment”).

      Finally, Bivens actions “have never [been] considered a proper vehicle for altering

an entity’s policy.” Malesko, 534 U.S. at 74. Yet, this is what the plaintiffs appear to

want. Allegations that they made in their initial complaint specifically targeted the

Trump Administration’s immigration enforcement policy with the purpose of altering it,

even though they attempted in their amended complaint to distance themselves — at least


                                           22
overtly — from alleging such a purpose, surely to avoid this very discussion. But their

purpose was undoubtedly not abandoned, as betrayed by their extensive challenge to

policy in their initial complaint based on the same facts and by their contention that the

Trump Administration’s policy gave rise to the conduct that they alleged in both

complaints was illegal. See United States v. McKeon, 738 F.2d 26, 31 (2d Cir. 1984)

(“The law is quite clear that [superseded] pleadings constitute the admissions of a party-

opponent and are admissible in the case in which they were originally filed as well as in

any subsequent litigation involving that party. A party thus cannot advance one version

of the facts in its pleadings, conclude that its interests would be better served by a

different version, and amend its pleadings to incorporate that version, safe in the belief

that the trier of fact will never learn of the change in stories”). This attack on executive

policy represents yet another “special factor counselling hesitation.” Abbasi, 137 S. Ct.

at 1860.

                                         *        *    *

       At bottom, we conclude that the plaintiffs’ complaint seeks to extend the Bivens

remedy to a new context and that the application of Bivens to this new context causes us

to hesitate, as it raises the substantial question of whether Congress would want the

plaintiffs to have a money damages remedy against ICE agents for their allegedly

wrongful conduct when enforcing the INA. Accordingly, we conclude that no Bivens

remedy is available. Because of this ruling, we do not reach the ICE agents’ claim of

qualified immunity. See Wilkie, 551 U.S. at 549 n.4.




                                             23
       We therefore reverse the district court’s order denying the ICE agents’ motion to

dismiss and remand to the district court with instructions to dismiss the plaintiffs’ action.

                               REVERSED AND REMANDED WITH INSTRUCTIONS




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