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‘Kings and Queens’ of Border Puzzle Courts Divided on Liability (Correct)

Dec. 10, 2021, 11:00 AMUpdated: Dec. 14, 2021, 4:57 PM

Welcome back to Opening Argument, a column where I dig into complicated legal fights, unpack issues dividing appeals courts, and discuss disputes ripe for Supreme Court review. On tap today: a look at when border patrol agents can be sued for violating someone’s constitutional rights.

Border patrol agents allegedly took Anas Elhady’s coat and shoes, and held him in a near-freezing cell without a blanket after he legally crossed the border back into the U.S. from Canada. Robert Boule was allegedly shoved to the ground by a border patrol agent who came onto his property without a warrant to check the immigration status of a guest at the inn Boule owns in Washington.

Can they each sue the agents for damages? The answer right now depends on which court is hearing their case.

The Supreme Court is expected to provide more clarity in a case it’s hearing later this term. Depending on how the justices rule, it could further insulate border patrol agents from liability.

If there’s no way to hold individual agents accountable for their conduct at the border, “then custom agents are kings and queens unto themselves,” said Elhady’s attorney Gadeir Abbas, a senior litigation attorney at the Council on American-Islamic Relations.

A 1971 Supreme Court decision gave people the right to hold federal officials liable when their constitutional rights are violated, but courts have been trying to figure out if or when that applies to immigration officials. So far, they’re coming to different conclusions.

The U.S. Court of Appeals for the Sixth Circuit said Elhady, who claimed his detainment violated his Fifth Amendment right to due process, didn’t have a right to sue the agents involved. The Ninth Circuit said Boule did.

Boule argued he had a Fourth Amendment right to be free from unlawful entry onto his property and a First Amendment right not to be retaliated against after he complained to the U.S. Customs and Border Protection (CBP) authorities about the agent that shoved him. Boule said state and federal agencies, including the Internal Revenue Service, started investigating him after he complained.

Hannah Mullen, a clinical fellow at Georgetown University Law Center who specializes in public interest appeals, said no current circuit court has flat out said border patrol agents can never be sued under that 1971 Supreme Court opinion, known as Bivens v. Six Unknown Named Agents, but she said some cases seem to tip-toe up to that line.

The Sixth Circuit last month said every other appeals court except the Ninth Circuit has refused to expand the ruling to the border and immigration context.

Misconduct and abuse by border patrol agents has been reported repeatedly, but a 2019 report from the Office of the Inspector General for the Department of Homeland Security found the agency, which includes CBP, doesn’t have sufficient policies and procedures in place to address employee misconduct.

Courts seem to be trying to figure out how to comply with the Supreme Court’s 2020 ruling in Hernandez v. Mesa. The court in 5-4 decision said the parents of a Mexican teenager couldn’t sue a border patrol agent who shot and killed their son from across the border.

In the court’s majority opinion, Justice Samuel Alito said “the Constitution’s separation of powers requires us to exercise caution before extending Bivens to a new ‘context,’ and a claim based on a cross-border shooting arises in a context that is markedly new.”

Mullen said the circuits seem to think the Supreme Court in Hernandez meant to cut back on the availability of Bivens’ remedies against border patrol agents, but it’s not clear how much.

Some argue Bivens should be overturned altogether. In a friend-of-court brief supporting the agent in his appeal in the Boule case, the Immigration Reform Law Institute told the Supreme Court that Congress never affirmatively ratified it and therefore the court can get rid of it. The institute noted that Congress amended the Federal Tort Claims Act “to make the “government independently liable in damages for the same type of conduct that is alleged to have occurred in Bivens.”

The Federal Tort Claims Act allows you to sue over something the federal government did to you that injured or harmed you, said Christopher Hajec, director of litigation at the Immigration Reform Law Institute, the legal organization of the Federation for American Immigration Reform, which supports limiting legal immigration.

“So there is another avenue,” he said.

But the Supreme Court specifically refused to consider whether Bivens should be overruled when it agreed to hear the agent’s appeal in the Boule case. The justices will instead decide if you can bring a suit under Bivens for a First Amendment retaliation claim and whether you can sue federal officers engaged in immigration-related functions for allegedly violating your Fourth Amendment rights. Oral arguments in the case haven’t yet been scheduled.

“I could imagine a Supreme Court, in an opinion by Justice Alito saying something like ‘Yes Bivens still is the law, but we find that in this case involving enforcement of the immigration laws, Bivens claims really don’t fit and don’t belong, and limit Bivens one step further and say immigration cases are different,” said Kevin Johnson, the dean of University of California Davis School of Law.

If the court does that, Johnson, who’s written extensively on immigration law and civil rights, said it would embolden border patrol agents to feel like they can act with a great deal of discretion that will never be questioned.

(The story was updated in the 16th graph to correct Christopher Hajec's title.)

To contact the reporter on this story: Lydia Wheeler in Washington at

To contact the editor responsible for this story: Andrew Childers at; Jo-el J. Meyer at