     Case: 13-50768   Document: 00513043880        Page: 1   Date Filed: 05/14/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 13-50768                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
ALEJANDRO GARCIA DE LA PAZ,                                          May 14, 2015
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

JASON COY, United States Customs and Border Protection Officer;
MARIO VEGA, United States Customs and Border Protection Officer,

             Defendants - Appellants

_____________________________

Cons w/ 14-10018


DANIEL FRIAS,

             Plaintiff - Appellee

v.

ARTURO TORREZ, United States Customs and Border Protection Officer,
formerly known as John Doe,

             Defendant - Appellant



                Appeal from the United States District Court
                     for the Western District of Texas
    Case: 13-50768         Document: 00513043880         Page: 2     Date Filed: 05/14/2015



                                        No. 13-50768
                                        No. 14-10018

                    Appeal from the United States District Court
                         for the Northern District of Texas


Before JOLLY and JONES, Circuit Judges, and GODBEY, District Judge. ∗
EDITH H. JONES, Circuit Judge:
      Customs and Border Patrol (“CBP”) agents apprehended Daniel Frias
and Alejandro Garcia de la Paz, both illegal aliens, in separate incidents miles
from the U.S.-Mexico border, in the heart of Texas. Both allege that the agents
stopped them only because they are Hispanic.                  Represented by the same
attorney, both filed Bivens suits against the arresting agents, alleging Fourth
Amendment violations. On appeal, both cases present the same fundamental
question: can illegal aliens pursue Bivens claims against CBP agents for
illegally stopping and arresting them? This question has not been squarely
faced in our circuit, although two other circuits have held in the negative.
Mirmehdi v. United States, 689 F.3d 975 (9th Cir. 2011) (no Bivens claim for
constitutionally invalid immigration detention); Arar v. Ashcroft, 585 F.3d 559
(2d Cir. 2009) (en banc) (no Bivens claim regarding extraordinary rendition of
alien). Like those courts, we conclude that Bivens actions are not available for
claims that can be addressed in civil immigration removal proceedings.
Accordingly, we REVERSE and REMAND with instructions to dismiss both
actions against the individual officers.




      ∗
          District Judge of the Northern District of Texas, sitting by designation.
                                               2
    Case: 13-50768     Document: 00513043880   Page: 3   Date Filed: 05/14/2015



                                No. 13-50768
                                No. 14-10018

                              BACKGROUND
     Frias’s Stop and Arrest. On April 28, 2010 Frias and a colleague were
travelling on I-20 about twenty miles east of Abilene, heading west toward
Baird, Texas. The two men were in a four-door Dodge pickup truck modified
to carry heavy loads. At the same time, CBP agent Arturo Torrez was driving
eastbound on I-20 toward Dallas. As Frias’s truck passed, Torrez noticed what
looked like bodies lying in the backseat. Torrez also observed that the truck
had a large shielded rear bed. Torrez immediately turned his vehicle around
to follow the truck.    After Torrez caught up, he radioed for a “1028” to
determine the vehicle’s origin. He then maneuvered his vehicle alongside
Frias’s to look inside. There, Torrez again saw what looked like bodies lying
in the backseat. When the “1028” revealed that the truck was not from the
area, Torrez knew enough. He maneuvered his vehicle behind the truck and
turned on his emergency lights. At the time of the stop, the men were about
250 miles from the U.S.-Mexico border. After a brief interrogation, Frias
admitted he was an illegal alien and was taken into custody. Although the
reason does not appear in the record, Frias’s immigration proceedings have
been terminated.
     As a result of his stop and arrest, Frias brought five claims against the
U.S. Government and Torrez. His first two claims sought declaratory relief
under the Declaratory Judgment Act, 28 U.S.C. § 2201, and the Administrative
Procedures Act, 5 U.S.C. §§ 500-596. Third, he brought a Bivens claim against
Torrez individually, alleging that Torrez violated the Fourth Amendment
because he lacked reasonable suspicion for the stop and probable cause for
Frias’s arrest. The fourth and fifth claims were brought under the Federal
Tort Claims Act, 28 U.S.C. §§ 2671-2680, against the government for false
imprisonment and assault.
                                      3
     Case: 13-50768       Document: 00513043880          Page: 4     Date Filed: 05/14/2015



                                       No. 13-50768
                                       No. 14-10018

       Both the government and Torrez moved to dismiss the complaint. Torrez
argued that the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et
seq., makes a Bivens claim unavailable and asserted qualified immunity. The
district court disagreed, holding that the INA does not preclude a Bivens claim.
It postponed ruling on qualified immunity until the summary judgment phase.
In response to Torrez’s summary judgment motion, the court held definitively
that Torrez does not have qualified immunity. He timely appealed.
       Garcia’s Stop and Arrest. 1 On October 11, 2010, Garcia and three others
left their worksite near Vanderpool, Texas in a red Ford F-150 extended-cab
pickup truck, travelling north on Ranch Road 187. The men were heading for
San Antonio, from which their travel originated. As the four men travelled
north, they passed CBP Agents Coy and Vega who were travelling south on
Ranch Road 187 in separate vehicles. When the truck then turned east onto
Ranch Road 337, Coy and Vega decided to follow it. Sometime thereafter, and
about 100 miles from the U.S.-Mexico border, the agents decided to stop the
truck. During the ensuing stop, agent Vega asked Garcia if he was a U.S.
citizen. Garcia “answered his question” 2 and was apprehended. During oral




       1 Because Agents Coy and Vega appeal the denial of their motion to dismiss, these
facts are taken from Garcia’s complaint.

       2 This language comes from Garcia’s complaint. We note, however, that this type of
evasive pleading is insufficient to defeat qualified immunity for his arrest. “[T]here must not
even arguably be probable cause . . . for immunity to be lost.” Brown v. Lyford, 243 F.3d 185,
190 (5th Cir. 2001) (internal citation and quotation marks omitted). Simply stating that
Garcia “answered [Vega’s] question” does not show that the agents lacked arguable probable
cause to arrest him. As Justice Brandeis said:

       [T]here is no rule of law which prohibits officers charged with the
       administration of the immigration law from drawing an inference from the
       silence of one who is called upon to speak . . . . A person arrested . . . is not
       protected by a presumption of citizenship comparable to the presumption of
                                              4
     Case: 13-50768       Document: 00513043880         Page: 5    Date Filed: 05/14/2015



                                      No. 13-50768
                                      No. 14-10018

argument in this court, we were informed that Garcia’s immigration
proceedings were administratively closed.
       Subsequently, Garcia sued Coy, Vega, and the U.S. Government. Like
Frias, Garcia asserted claims under the Declaratory Judgment Act and the
Administrative Procedures Act; claims against the government under the
Federal Tort Claims Act for false imprisonment and assault; and Bivens claims
against the agents individually for unlawfully stopping and arresting him. Coy
and Vega moved to dismiss the Bivens claims, arguing, like Torrez, that the
INA precludes Garcia’s Bivens claims and that they have qualified immunity.
The district court refused to dismiss, holding that the INA does not preclude
Garcia’s Bivens claims and that the agents do not have qualified immunity.
They timely appealed.
               JURISDICTION AND STANDARD OF REVIEW
       This court reviews de novo denials of qualified immunity. Brown v.
Miller, 519 F.3d 231, 236 (5th Cir. 2008); Hampton v. Okitbbeha Cnty. Sherriff
Dep’t, 480 F.3d 358, 364 (5th Cir. 2007).             Our jurisdiction over qualified
immunity appeals extends to “elements of the asserted cause of action” that
are “directly implicated by the defense of qualified immunity[,]” including
whether to recognize new Bivens claims. Wilkie v. Robbins, 551 U.S. 537, 549
n.4, 127 S. Ct. 2588, 2597 (2007) (quoting Hartman v. Moore, 547 U.S. 250, 257
n.5, 126 S. Ct. 1695, 1702 (2006)). On appeal from a motion to dismiss, this




       innocence in a criminal case. There is no provision which forbids drawing an
       adverse inference from the fact of standing mute.

U.S. ex rel. Bilokumsky v. Tod, 263 U.S. 149, 154, 44 S. Ct. 54, 56 (1923) (internal citation
omitted). As a result, border patrol agents can rightfully assume that when a suspected alien
conceals his status, either by standing silent or answering evasively, he is in fact in this
country illegally. Therefore, Garcia’s pleadings fail to overcome qualified immunity.
                                             5
     Case: 13-50768       Document: 00513043880          Page: 6     Date Filed: 05/14/2015



                                       No. 13-50768
                                       No. 14-10018

court accepts all well-pleaded facts as true and views them in the light most
favorable to the plaintiff. Brown, 519 F.3d at 236. When this court reviews a
denial of qualified immunity at the summary judgment stage, it does not assess
the district court’s factual findings, but decides whether those facts are
material and whether, based on the undisputed material facts, the agents have
qualified immunity. Hampton, 480 F.3d at 364.
                                      DISCUSSION
       On appeal, the agents present two issues. First, they argue that the INA
and special factors bar Bivens claims in the immigration context.
Alternatively, the agents assert qualified immunity, not for the traffic stops (at
this stage), but only for the aliens’ arrests and detentions. Because we hold
that aliens involved in civil immigration enforcement actions cannot sue the
arresting agents for simply stopping and detaining them, we need not decide
whether the agents have qualified immunity. 3
       In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388, 91 S. Ct. 1999 (1971), the Supreme Court created a damage


       3 There are, however, compelling arguments in favor of granting qualified immunity
to the border patrol agents for the arrests and detention of the aliens. Frias admitted to the
agent that he was illegally present in the United States. Contrary to the district court’s
analysis, which purported to rely on a lack of probable cause, on summary judgment the alien
had to overcome the burden of showing that “no reasonable agent” would have concluded that
probable cause existed for Frias’s detention. Brown, 243 F.3d at 190. And Garcia pleads
only that he “answered” the agent’s question about his nationality or presence, thereby
precipitating his arrest. Following Justice Brandeis’s reasoning in fn. 2 supra, courts need
not turn a blind eye, even at the pleading stage, to clever evasions of a simple immigration
inquiry.
        Moreover, both plaintiffs err in arguing that their arrests lacked probable cause where
the answers to the agents’ questions were “fruit of the poisonous tree” of their traffic stops.
No court has yet applied this criminal law doctrine to civil cases like immigration
proceedings, see I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1051, 104 S. Ct. 3479, 3489 (1984);
see also Townes v. City of New York, 176 F.3d 138, 146 (2d Cir. 1999).


                                              6
    Case: 13-50768        Document: 00513043880       Page: 7   Date Filed: 05/14/2015



                                      No. 13-50768
                                      No. 14-10018

remedy against individual federal law enforcement officers who allegedly
conducted a warrantless search of a suspect’s home and arrested him without
probable cause. The cause of action, the Court said, flowed from the necessity
to enforce the Fourth Amendment in circumstances where the victim had no
effective   alternative     remedy.      Bivens      established   that,   in   certain
circumstances, “the victims of a constitutional violation by a federal agent have
a right to recover damages against the official in federal court despite the
absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14,
18, 100 S. Ct. 1468, 1471 (1980).
      Garcia and Frias predicate their claim on an analogy between the Fourth
Amendment violations they allegedly endured and the facts in Bivens. They
thus equate civil immigration enforcement actions with federal criminal law
enforcement. These propositions fail to account for subsequent holdings of the
Supreme Court, which have narrowed and reframed Bivens in the course of
rejecting nearly all other claims for an implied damage remedy against federal
officers or agents. In particular, the Court has rejected treating Bivens on an
amendment-by-amendment basis. Compare Davis v. Passman, 442 U.S. 228,
99 S. Ct. 2264 (1979) (allowing a Bivens remedy for a congressional employee’s
Fifth Amendment claim) with Schweiker v. Chilicky, 487 U.S. 412, 108 S. Ct.
2460 (1988) (rejecting a Bivens remedy for Social Security recipient’s Fifth
Amendment claim). Instead of an amendment-by-amendment ratification of
Bivens actions, courts must examine each new context—that is, each new
“potentially recurring scenario that has similar legal and factual components.”
Arar, 585 F.3d at 572.
      The Supreme Court’s later cases have disavowed that a Bivens suit is
“an automatic entitlement;” in fact, it is disfavored. Wilkie, 551 U.S. at 550,
127 S. Ct. at 2597; see also Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 75,
                                           7
    Case: 13-50768     Document: 00513043880      Page: 8    Date Filed: 05/14/2015



                                  No. 13-50768
                                  No. 14-10018

122 S. Ct. 515, 524 (2001) (Scalia, J., concurring) (“Bivens is a relic of the heady
days in which this Court assumed common-law powers to create causes of
action—decreeing them to be ‘implied’ by the mere existence of a statutory or
constitutional prohibition. As the Court points out, we have abandoned that
power to invent ‘implications’ in the statutory field. There is even greater
reason to abandon it in the constitutional field, since an ‘implication’ imagined
in the Constitution can presumably not even be repudiated by Congress.”
(internal citations omitted)). The Court has not created a new Bivens remedy
in the last thirty-five years, although “it has reversed more than a dozen
appellate decisions that had created new actions for damages.”            Vance v.
Rumsfeld, 701 F.3d 193, 198 (7th Cir. 2012) (en banc). Moreover, because
Bivens suits implicate grave separation of powers concerns, “a decision to
create a private right of action is one better left to legislative judgment in the
great majority of cases.” Sosa v. Alvarez-Machain, 542 U.S. 692, 727, 124 S. Ct.
2739, 2762-63 (2004) (citing Malesko, 534 U.S. at 68, 122 S. Ct. at 520). As a
result, courts must “respond[ ] cautiously to suggestions that Bivens remedies
be extended.” Schweiker, 487 U.S. at 421, 108 S. Ct. at 2467.
      Frias and Garcia contend, however, that this court has already extended
Bivens to include claims against border patrol agents for unlawful stops and
arrests. If they are correct, this panel is bound by our precedent. If not, we
must apply the Supreme Court’s reasoning in the Bivens line of cases, taken
as a whole, and decide whether to extend Bivens. As it happens, there are two
reasons why prior decisions of this court do not cover the present claims.
       First, according to black letter law, “a question not raised by counsel or
discussed in the opinion of the court” has not “been decided merely because it
existed in the record and might have been raised and considered.” United
States v. Mitchell, 271 U.S. 9, 14, 46 S. Ct. 418, 420-21 (1926); see also HENRY
                                         8
     Case: 13-50768      Document: 00513043880         Page: 9    Date Filed: 05/14/2015



                                      No. 13-50768
                                      No. 14-10018

CAMPBELL BLACK, HANDBOOK ON THE LAW OF JUDICIAL PRECEDENTS, OR, THE
SCIENCE OF CASE LAW 37 (1912).        This is precisely what happened in this court’s
prior cases, where the parties never raised—and this court never decided—
whether border patrol agents can be Bivens defendants. On the same basis,
the Ninth Circuit, while noting that prior panels of that court had assumed but
not actually decided the existence of a Bivens claim, recently held that Bivens
claims are unavailable to immigrants in removal proceedings. See Mirmehdi,
689 F.3d at 980 n.2 (“The Mirmehdis argue that we have, in fact, recognized
an immigrant's right to pursue a Bivens action . . . . But because [our] cases . . .
did not squarely present the issue, it remains open.”).
       In Martinez-Aguero v. Gonzalez, an alien who was detained and
physically abused at the U.S.-Mexico border brought a Bivens suit against the
arresting INS patrol agent. 4 459 F.3d 618, 620 (5th Cir. 2006). On appeal, the
agent argued that because of the “entry fiction,” which treats removable aliens
as stopped at the border despite their physical presence in the U.S., Martinez-
Aguero “had no constitutional rights at the time of the alleged incident.” Id.
at 622. This court, therefore, only addressed whether the entry fiction applied.
Id. at 623. The agent did not challenge whether illegal aliens are entitled to a
Bivens remedy, but instead contended that they have no right at all.                     In
allowing the claim to proceed, this court had no occasion to consider whether
Bivens might not apply.




       4Before 2003, border security was split among various federal agencies including the
Immigration and Naturalization Service (now USCIS). The Homeland Security Act of 2002,
Pub. L. No. 107-296 (2002), consolidated the agencies responsible for border security. Since
then, the CBP has primary responsibility over border security. Our decision in no way turns
on nomenclature, however. The same analysis applies to all federal agents engaged in
immigration enforcement.
                                             9
    Case: 13-50768       Document: 00513043880        Page: 10     Date Filed: 05/14/2015



                                      No. 13-50768
                                      No. 14-10018

       Moreover, the court in Martinez-Aguero relied on Lynch v. Cannatella,
a prior decision that assumed the existence of Bivens suits for physical abuse
perpetrated against immigration detainees. 810 F.2d 1363, 1369-70 (5th Cir.
1987). Lynch’s analysis, as the later panel acknowledged, may be in some
tension with ensuing pronouncements of the Supreme Court, but our panel
found its conclusion binding. See Martinez-Aguero, 459 F.3d at 623-25. We
must consequently defer to both of these prior decisions, to the extent that they
permit     Bivens     actions     against     immigration       officers    who     deploy
unconstitutionally excessive force when detaining immigrants on American
soil. “There are . . . no identifiable national interests that justify the wanton
infliction of pain.” Martinez-Aguero, 459 F.3d at 623 (citing Lynch, 810 F.2d
at 1373-74). 5 This case is distinguishable from Lynch and Martinez-Aguero
because it involves no allegations of excessive force.
       The additional published precedent relied on by Garcia and Frias,
Humphries v. Various USINS Employees, likewise did not address the
availability of Bivens suits against border patrol agents. 164 F.3d 936 (5th Cir.
1999). In Humphries, the pro se plaintiff’s complaint “consist[ed] of numerous
handwritten pages” which “as a whole [were] difficult to understand.” Id. at
938. Although “[t]he exact contours of [Humphries’s] claims [were] difficult to
discern,” the Kenyan citizen brought a Bivens suit against federal agents,
alleging among other things that they mistreated him while in immigration
detention and forced him to work under threat of deportation. Id. at 939. A
magistrate judge recommended that the claims be dismissed under Heck v.


       5 Under the Lynch rationale, Martinez-Aguero also allowed the plaintiff’s claim for
“false arrest” to proceed under Bivens. 459 F.3d at 625-26. That claim, however, challenged
her arrest for the crime of interfering with a law enforcement officer and did not, as here,
involve civil immigration enforcement. Id. (citing 18 U.S.C. § 111).

                                            10
    Case: 13-50768      Document: 00513043880        Page: 11    Date Filed: 05/14/2015



                                    No. 13-50768
                                    No. 14-10018

Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994), because they would contradict
an immigration judge’s removal 6 decision. Id. This issue—whether Heck
operated in the removal context—was one of first impression. Id. at 940.
Humphries’s court-appointed counsel argued, and this court decided only that
Heck did not bar his claims. Id. at 946. To make a long story short, the parties
never discussed and this court had no reason to decide whether Bivens extends
to civil immigration proceedings.
      The same is true of the non-precedential, non-binding, unpublished
decisions on which Frias and Garcia rely. In none of those cases did the agents
contend that plaintiffs could not sue them under Bivens. See Rynearson v.
United States, No. 13-51114, 2015 WL 795784, at *4 (5th Cir. Feb. 26, 2015)
(“Rynearson argues the [CBP] agents violated his Fourth Amendment rights
by being ‘intentionally dilatory’ in waiting too long to ask about his citizenship,
intentionally extending the duration of his detainment, and calling his military
base to inquire into his military status.”); Pelayo v. U.S. Border Patrol Agent
No. 1, 82 F. App’x 986 (5th Cir. 2003) (unpublished) (“The defendants argue
that plaintiff failed to allege the violation of a constitutional right because
Brand, Stone, and Garza were not personally involved in any alleged
deprivation.    They further argue that Labadie was entitled to qualified
immunity because his actions were objectively reasonable”); Ramirez v. United
States, 999 F.2d 1579 (5th Cir. 1993) (unpublished) (“The agents do not dispute
that Linares has alleged a violation of his constitutional right to be free from
the use of excessive force. They contend, instead, that the district court applied



      6  Before the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), Pub. L. No. 105-201, 110 Stat. 3009 (1996), removal was described as either
“exclusion” or “deportation.” Humphries, 164 F.3d at 939 n.1. The Humphries decision uses
the term “exclusion” throughout. For simplicity’s sake, we will use “removal” here.
                                           11
    Case: 13-50768      Document: 00513043880         Page: 12    Date Filed: 05/14/2015



                                     No. 13-50768
                                     No. 14-10018

an incorrect legal standard in determining qualified immunity vel non.”
(footnote omitted)).
      Consequently, this court’s past cases have not decided whether Bivens
extends to claims arising from civil immigration apprehensions and
detentions, other than those alleging unconstitutionally excessive force. Two
sister circuits, as noted, have specifically found that deportation proceedings
and extraordinary rendition under the immigration law constitute new
contexts under Bivens and have declined to impose judicially created remedies
in those situations.       Arar, 585 F.3d at 564 (“This opinion holds that
‘extraordinary rendition’ is a context new to Bivens claims . . . [and] in the
context of extraordinary rendition, hesitation [in creating a Bivens remedy] is
warranted by special factors”); Mirmehdi, 689 F.3d at 981 (“Deportation
proceedings are such a context, unique from other situations where an
unlawful detention may arise.”). 7 As the following discussion indicates, we
agree with those conclusions.
                                            I.
      The Supreme Court has explained that federal courts may not step in to
create a Bivens cause of action if “any alternative, existing process for
protecting the interest amounts to a convincing reason for the Judicial Branch
to refrain from providing a new and freestanding remedy in damages.” Wilkie,
551 U.S. at 550, 127 S. Ct. at 2598. Even if no such alternative process exists,


      7  The district court in Garcia’s case stated that Mirmehdi is a decision narrowly
limited to detention pending removal proceedings, whereas this case concerns conduct that
precedes detention. We disagree. Mirmehdi characterized the “new context” of the sought-
for Bivens claim as “deportation proceedings.” 689 F.3d at 981. The Supreme Court
recognizes that the deportation process “ordinarily begins with a warrantless arrest.” Reno
v. Flores, 507 U.S. 292, 307, 113 S. Ct. 1439, 1449 (1993). Moreover, as we discuss below,
immigration law is just as concerned with pre-detention procedures as with post-arrest
removal proceedings.
                                            12
   Case: 13-50768     Document: 00513043880     Page: 13     Date Filed: 05/14/2015



                                 No. 13-50768
                                 No. 14-10018

however, a court “must make the kind of remedial determination that is
appropriate for a common-law tribunal, paying particular heed, however, to
any special factors counselling hesitation before authorizing a new kind of
federal litigation.” Id. We conclude that there is both an alternative process
for protecting the Fourth Amendment rights of illegal aliens subjected to
unconstitutional traffic stops and arrests, and special factors require denying
a Bivens remedy for their claims arising out of civil immigration enforcement
proceedings.
                                       A.
      The point of examining the existing process is to determine whether
Congress has explicitly or implicitly indicated “that the Court’s power should
not be exercised.” Bush v. Lucas, 462 U.S. 367, 378, 103 S. Ct. 2404, 2411
(1983).   The central question in this inquiry, therefore, is whether “an
elaborate remedial system that has been constructed step by step, with careful
attention to conflicting policy considerations, should be augmented by the
creation of a new judicial remedy.” Id. at 388, 103 S. Ct. at 2417. Because the
INA comprises just such an elaborate remedial scheme, it precludes creation
of a Bivens remedy.
      As the Supreme Court has acknowledged “[f]ederal governance of
immigration and alien status is extensive and complex.” Arizona v. United
States, --- U.S. ---, 132 S. Ct. 2492, 2499 (2012).        For example, the INA
intricately prescribes removal procedures. Aliens are entitled to notice of the
initiation of removal proceedings, 8 U.S.C. § 1229(a)(1), bond, id. § 1226(a)(2),
an adversarial removal hearing, id. § 1229a(b)(4), and the right to appeal, id.
§ 1252. At the removal hearing, individuals have a right to representation by
competent counsel, id. § 1229a(b)(4)(A), the right to examine the evidence
against them, id. § 1229a(b)(4)(B), and the right to present evidence, id. An
                                       13
   Case: 13-50768     Document: 00513043880     Page: 14   Date Filed: 05/14/2015



                                 No. 13-50768
                                 No. 14-10018

individual dissatisfied with the result of the removal hearing may pursue
multiple levels of appellate review. Initially, individuals can appeal to the
Board of Immigration Appeals.          8 C.F.R. § 1003.1(b).       Under some
circumstances, the Attorney General can review the decisions of the BIA.
8 C.F.R. § 1003.1(h)(1)(i)-(iii). If that fails, an individual can seek review in
federal court. 8 U.S.C. § 1252. In limited circumstances, further review is
available in a habeas corpus proceeding.         IRA J. KURZBAN, KURZBAN’S
IMMIGRATION LAW SOURCEBOOK 1501 (14th ed.).
      The INA also includes provisions specifically designed to protect the
rights of illegal aliens. Border patrol agents can only search a person or his
possessions if they “have reasonable cause to suspect that grounds exist for
denial of admission to the United States . . . which would be disclosed by such
search.” 8 U.S.C. § 1357(c). They can only make an arrest if they “ha[ve]
reasonable grounds to believe that the person to be arrested has committed or
is committing” a felony or immigration violation. 8 U.S.C. § 1357(a)(2)-(5); see
also 8 C.F.R. § 287.8(c)(2)(i) (“An arrest shall be made only when the
designated immigration officer has reason to believe that the person to be
arrested has committed an offense against the United States or is an alien
illegally in the United States.”). And even if an agent has reasonable belief,
before making an arrest, there must also be “a likelihood of the person escaping
before a warrant can be obtained for his arrest.” 8 U.S.C. § 1357(a)(2), (5); see
also 8 C.F.R. § 287.8(c)(2)(ii) (“A warrant of arrest shall be obtained except
when the designated immigration officer has reason to believe that the person
is likely to escape before a warrant can be obtained.”). Once apprehended, “the
person arrested shall be taken without unnecessary delay before the nearest
available officer empowered to commit persons charged with offenses against
the laws of the United States.”      8 U.S.C. § 1357(a)(4); see also 8 U.S.C.
                                       14
   Case: 13-50768     Document: 00513043880       Page: 15   Date Filed: 05/14/2015



                                 No. 13-50768
                                 No. 14-10018

§ 1357(a)(2) (requiring aliens arrested for immigration violations to be brought
before an immigration officer “without unnecessary delay” to examine their
right to enter or remain in the United States).
      In immigration proceedings, unlike criminal prosecutions, there is no
exclusionary rule for illegally seized evidence. Lopez-Mendoza, 468 U.S. at
1050, 104 S. Ct. at 3489.     Nevertheless, evidence seized under egregious
circumstances may be suppressed. Id. at 1050-51, 104 S. Ct. at 3489. An alien
who succeeds in a suppression motion may achieve a substantial victory in the
termination of the removal proceedings.
      Even without a mandatory exclusionary rule, the INA maintains its own
standards of conduct by training individuals in those standards and
“establish[ing] an expedited, internal review process for violations of such
standards.” 8 U.S.C. § 1357(a)(5). Given this mandate, the Department of
Homeland Security (“DHS”) has developed a process to review alleged Fourth
Amendment violations. 8 C.F.R. § 287.10(a). Complaints that agents violated
the INA or standards of conduct “shall be referred promptly for investigation”
and that investigation must occur “expeditiously.” 8 C.F.R. § 287.10(c), (a). At
the conclusion of an investigation, “the investigative report shall be referred
promptly for appropriate action.”     8 C.F.R. § 287.10(c).       Agents may be
prosecuted criminally for violating aliens’ rights against excessive force. See
United States v. Brugman, 364 F.3d 613, 614 (5th Cir. 2004) (affirming the
conviction of a border patrol agent for violating 18 U.S.C. § 242).
      Despite all these protections, Frias and Garcia argue that the INA fails
adequately to protect their Fourth Amendment interests because it does not
provide a damages remedy against individual agents. This is a misreading of
the case law. The INA need not provide an exact equivalent to Bivens. See
Malesko, 534 U.S. at 69, 127 S. Ct. 520 (“So long as the plaintiff had an avenue
                                       15
    Case: 13-50768        Document: 00513043880          Page: 16     Date Filed: 05/14/2015



                                       No. 13-50768
                                       No. 14-10018

for some redress, bedrock principles of separation of powers foreclosed judicial
imposition of a new substantive liability.”). 8 Further, in the face of a due
process claim that Social Security benefits were mishandled and the plaintiff
was deprived of them for a significant period of time, the Court rejected
crafting a Bivens damage remedy because “Congress has provided what it
considers adequate remedial mechanisms for constitutional violations.”
Schweiker, 487 U.S. at 423, 108 S. Ct. at 2468. This it has done in the INA.
The absence of monetary damages in the alternative remedial scheme is not
ipso facto a basis for a Bivens claim.
        A fair reading of legislative developments pertaining to immigration
leads ineluctably to the conclusion that Congress’s failure to provide an
individual damages remedy “has not been inadvertent.” Schweiker, 487 U.S.
at 423, 108 S. Ct. at 2468. Since the INA was enacted in 1952, Congress has
frequently amended it, demonstrating that “the Judiciary [should] stay its
Bivens hand.” Wilkie, 551 U.S. at 554, 127 S. Ct. at 2600; see e.g., Immigration
and Nationality Act of 1965, Pub. L. No. 89-236, 79 Stat. 911 (1965);
Immigration and Nationality Act Amendments of 1976, Pub. L. No. 94-571,
90 Stat. 2703 (1976); Immigration Reform and Control Act of 1986, Pub. L.
No. 99-603, 100 Stat. 3359 (1986); Immigration Act of 1990, Pub. L. No. 101-
649, 104 Stat. 4978 (1990); Illegal Immigration Reform and Responsibility Act
of 1996, Pub. L. No. 104-208, 110 Stat. 3009-54 (1996); Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996);
REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302 (2005); see also IRA J.


       8 In fact, the government may not need to provide any remedy at all. See Chappell v.
Wallace, 462 U.S. 296, 304, 103 S. Ct. 2362, 2367-68 (1983) (denying Bivens actions for
enlisted military personnel against their superior officers); United States v. Stanley, 483 U.S.
669, 684, 107 S. Ct. 3054, 3064 (1987) (denying a Bivens remedy for injuries that arise out of
or are in the course of activity incident to military service).
                                              16
   Case: 13-50768      Document: 00513043880    Page: 17   Date Filed: 05/14/2015



                                 No. 13-50768
                                 No. 14-10018

KURZBAN, KURZBAN’S IMMIGRATION LAW SOURCEBOOK 3-30 (14th ed.) (listing
statutes).   In its most recent session, Congress considered numerous
immigration bills.   See e.g., Border Security, Economic Opportunity, and
Immigration Modernization Act, H.R. 15, 113th Cong. (2014); Immigrant
Detainee Legal Rights Act, H.R. 3914, 113th Cong. (2014). 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.
      In sum, Congress through the INA and its amendments has indicated
“that the Court’s power should not be exercised.” Bush, 462 U.S. at 378, 103
S. Ct. at 2411. The INA’s comprehensive regulation of all immigration related
issues, combined with Congress’s frequent amendments shows that the INA is
“an elaborate remedial system that has been constructed step by step, with
careful attention to conflicting policy considerations.” Id at 388, 103 S. Ct. at
2417. Such a system “should [not] be augmented by the creation of a new
judicial remedy.” Id., 103 S. Ct. at 2417. Although Frias and Garcia criticize
the self-policing mechanisms within immigration law and procedures, our
constitutionally mandated separation of powers requires this result.         The
choice of remedies is “one better left to legislative judgment.” Sosa, 542 U.S.
at 727, 124 S. Ct. at 2762. Once the legislature has chosen a remedial scheme,
federal courts are not free to supplement it. Here, the implicit but emphatic
message from Congress requires this court to abstain from subjecting
immigration officers to Bivens liability for civil immigration detention and
removal proceedings.




                                       17
    Case: 13-50768        Document: 00513043880       Page: 18    Date Filed: 05/14/2015



                                    No. 13-50768
                                    No. 14-10018

                                          B.
       Although we are convinced that the comprehensive regulations and
remedies provided in civil immigration law and regulations preclude crafting
an implied damage remedy here, “special factors” also counsel against
extending Bivens liability to this new context. For this second prong of the
determination whether to extend Bivens, a court “must make the kind of
remedial determination that is appropriate for a common-law tribunal, paying
particular heed, however, to any special factors counselling hesitation before
authorizing a new kind of federal litigation.” Wilkie, 551 U.S. at 550, 127 S. Ct.
at 2598. The Second Circuit has observed that, “[t]he only relevant threshold—
that a factor ‘counsels hesitation’—is remarkably low.”              Arar v. Ashcroft,
585 F.3d at 574. The special factors unique to the immigration context far
outweigh any benefits that might accrue from authorizing Bivens suits.
       First, although the deterrent impact of personal damages exposure is
difficult to assess, it appears that a Bivens remedy “is unlikely to provide
significant, much less substantial, additional deterrence.” Lopez-Mendoza,
468 U.S. at 1046, 104 S. Ct. at 3487 (internal citation and quotation marks
omitted). As detailed above, the INA already prohibits border patrol agents
from   searching     or     arresting   individuals     without    reasonable    belief.
See 8 U.S.C. § 1357(a)(2)-(5).          DHS regulations prohibit stopping and
questioning individuals without reasonable suspicion. 8 C.F.R. § 287.8(b)(2).
The regulations further authorize arrests only if there is “reason to believe that
the person to be arrested has committed an offense . . . or is an [illegal] alien.”
8 C.F.R. § 287.8(c)(2)(i). DHS has established an expedited procedure for
reviewing complaints of alleged violations.           8 C.F.R. § 287.10(a).     Agency
norms, therefore, are closely tailored to conform with constitutional standards.
Additionally, the Supreme Court explained in Lopez-Mendoza that the
                                          18
   Case: 13-50768     Document: 00513043880     Page: 19   Date Filed: 05/14/2015



                                 No. 13-50768
                                 No. 14-10018

possibility of criminal prosecution for certain immigration crimes brings with
it the exclusionary rule for illegally obtained evidence and already exerts some
deterrent effect. 468 U.S. at 1042-43, 104 S. Ct. at 3485. To the extent,
however, that most immigration enforcement results in civil removal
proceedings in which removability is conceded, the occasional suit for damages
may be a risk against which most officers can readily insure and is a deterrent
only regarding the threat of employment repercussions for misconduct.
      Nor would a Bivens remedy provide meaningful compensation to the
victims, especially in cases like those before us. When the victims of an illegal
stop and arrest are removable aliens, the damages available in a Bivens action
would be minimal.     Not only do Frias and Garcia not seek damages for
detention in these cases, but such damages would not be available (absent
unconstitutional physical abuse) precisely because they have no right not to be
detained. See Lopez-Mendoza, 468 U.S. at 1048, 104 S. Ct. at 3488 (“The
constable’s blunder may allow the criminal to go free, but we have never
suggested that it allows the criminal to continue in the commission of an
ongoing crime.”). They are no less removable just because the manner of their
apprehensions violated the Fourth Amendment. See id. (noting that illegal
aliens are “person[s] whose unregistered presence in this country, without
more, constitutes a crime”). In many removal cases, the government does not
need any evidence collected at the time of arrest to prove that a person is
removable. See id. at 1043, 104 S. Ct. at 3487 (explaining that in removal
proceedings the government need only prove alienage “that will sometimes be
possible using evidence gathered independently of, or sufficiently attenuated
from, the original arrest”). Thus, it is hard to see what compensation—if any—
Frias and Garcia would be entitled to under the facts of this case. In any event,
as has been noted above, the aliens’ ultimate remedies lie in pursuing
                                       19
   Case: 13-50768     Document: 00513043880      Page: 20   Date Filed: 05/14/2015



                                  No. 13-50768
                                  No. 14-10018

termination of removal proceedings through the INA’s many available
avenues. In certain cases, the exclusion of exculpatory evidence might be
sought if there is an “egregious violation[] of [the] Fourth Amendment or other
liberties that might . . . undermine the probative value of the evidence
obtained.” Id. at 1050, 104 S. Ct. at 3489.
      These speculative benefits come at significant costs. Bivens liability
could deter agents from vigorous enforcement and investigation of illegal
immigration.    Faced with a threat to his checkbook from suits based on
evolving and uncertain law, the officer may too readily shirk his duty. Just as
troubling, Bivens liability would likely preclude many of the mass arrests that
are critical to immigration enforcement in workplaces and safe houses.
Immigration arrests often “occur in crowded and confused circumstances.”
Lopez-Mendoza, 468 U.S. at 1049, 104 S. Ct. at 3489. Thwarting Bivens suits
would require agents to produce “a precise account of exactly what happened
in each particular arrest.” Id. at 1049-50, 104 S. Ct. at 3489. Because of the
chaos surrounding such enforcement actions and multiple simultaneous
arrests, producing a detailed account of each arrest is impossible. In unusual
but not unforeseeable cases, Bivens suits concerning immigration enforcement
may disclose more than “normal domestic law-enforcement priorities and
techniques” and might involve “the disclosure of foreign-policy objectives and
. . . foreign-policy products.” Mirmehdi, 689 F.3d at 983 (internal citations and
quotation marks omitted).
     Another “special factor” counselling hesitation is that immigration policy
and enforcement implicate serious separation of powers concerns.              The
Constitution gives Congress the power to “establish a uniform Rule of
Naturalization.”    U.S. Const., art. I, § 8, cl. 4.   This, combined with the
Executive Branch’s “inherent power as sovereign to control and conduct
                                       20
    Case: 13-50768      Document: 00513043880       Page: 21   Date Filed: 05/14/2015



                                     No. 13-50768
                                     No. 14-10018

relations with foreign nations” gives the political branches of the federal
government “broad, undoubted power over the subject of immigration.”
Arizona, 132 S. Ct. at 2498.         Particularly in the immigration context, a
judicially created Bivens remedy is superimposed on the other branches’
constitutional authority. Lack of institutional competence as well as a lack of
constitutional authority counsel or demand hesitation by the judiciary in
fostering litigation of this sort.
          Finally, extending Bivens suits to the immigration context could yield
a tidal wave of litigation. There are over 11 million illegal aliens in the United
States.     MICHAEL HOEFER, NANCY RYTINA, AND BRYAN BAKER, DEP’T OF
HOMELAND        SEC.,   ESTIMATES      OF    THE    UNAUTHORIZED      IMMIGRATION
POPULATIONS RESIDING IN THE UNITED STATES 1, JANUARY 2011 (2012). In
2013, the federal government apprehended 662,483 illegal aliens. JOHN F.
SIMANSKI, DEP’T OF HOMELAND SEC., ANNUAL REPORT IMMIGRATION
ENFORCEMENT ACTIONS: 2013 3 (2014).                CBP accounted for 420,789 or
64 percent of those apprehensions. Id. at 4. Over eighty percent of those
apprehensions occurred along the southwest border. Id. The Supreme Court
has noted that “the deportation process ordinarily begins with a warrantless
arrest.” Reno v. Flores, 507 U.S. 292, 307, 113 S. Ct. 1439, 1449-50 (1993). It
is an easy exercise for aliens, even without an attorney, to file suit alleging, as
in these cases, that there was no reasonable suspicion for their stops, arrests
or detentions. Extending Bivens actions to millions of illegal aliens could
cripple immigration enforcement with the distraction, cost, and delay of
lawsuits, even as it exposed enforcement officers to personal liability simply
for doing their job.
      In the final tally, the costs of judicially creating a new Bivens remedy
significantly outweigh any largely conjectural benefits. On the second prong
                                            21
   Case: 13-50768     Document: 00513043880       Page: 22   Date Filed: 05/14/2015



                                 No. 13-50768
                                 No. 14-10018

of the Bivens analysis, this is not a hard case. Were we a common law court
empowered to craft a remedy for the alleged illegal traffic stops and arrests
here (which we are not as a result of the analysis on the first Bivens prong), we
would desist for all the reasons recited above.
                                CONCLUSION
      Based on our conclusion that these plaintiffs cannot pursue Bivens suits
against the agents for allegedly illegal conduct during investigation, detention,
and removal proceedings, we REVERSE and REMAND for further
proceedings consistent with this opinion.




                                       22
