IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50768

ALEJANDRO GARCIA DE LA PAZ, 

 Plaintiff - Appellee

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

United States Court of Appeals

Fifth Circuit

FILED

May 14, 2015

Lyle W. Cayce

Clerk

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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. 

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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. 

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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 

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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. 

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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).

 

 

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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, 

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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 

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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., MartinezAguero “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.

4 Before 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. 

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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).

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Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994), because they would contradict 

an immigration judge’s removal6 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. 

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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 soughtfor 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.

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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 

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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. 

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§ 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 

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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).

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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. 

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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 

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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 

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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 

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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 

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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. 

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