Excerpted From: Andrew Tae-Hyun Kim, Immigrant Torts, 57 U.C. Davis Law Review 1059 (December, 2023) (342 Footnotes) (Full Document)


AndrewTaeHyunKim.jpegA fifteen-year-old boy named Sergio Adrián Hernández-Güereca (Hernández) was walking with his friends along the U.S.-Mexico border when he was shot dead by a U.S. Border Patrol agent. Hernández and his friends were playing a game that involved running across a small culvert separating El Paso, Texas from Ciudad Juarez, Mexico, touching the fence on the U.S. side, then running back to the Mexico side. A U.S. Border Patrol agent named Jesus Mesa, Jr. arrived by bicycle and detained one of the boys who was on the U.S. side and running toward the Mexican side. In response, Hernández ran in the same direction. While Hernández stood still by the culvert, Mesa fired two shots at him from the U.S. side. One bullet struck Hernández in the face, killing him instantly. Hernández's parents alleged that the boy had been unarmed and did not pose a threat to Mesa.

The U.S. Department of Justice (“DOJ”) investigated the killing and found that Mesa “did not act inconsistently with [U.S. Customs and Border Protection (“CBP”)] policy or training regarding use of force.” The DOJ also declined to prosecute Mesa for federal civil rights violations, finding that he did not “act[] willfully and with the deliberate and specific intent to do something the law forbids.”

Hernández's parents sued Mesa for violations of their son's rights under the Fourth and Fifth Amendments of the U.S. Constitution. They stated their claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, a U.S. Supreme Court decision that recognized an implied cause-of-action for monetary damages against federal officers for their torts that violate the Constitution. That case involved the excessive use of force by federal officers during a warrantless search of a home. Since then, courts have accepted and applied Bivens to deter and compensate law enforcement abuses. Like the allegations under the Fourth Amendment in Bivens, Hernández also framed his harm as an unreasonable seizure that violated the Fourth Amendment. The Court disagreed.

That the Court refused to recognize the remedy in Hernández is not altogether surprising, as it has significantly curtailed Bivens's scope in recent years. What is surprising--and new--is the Court's more overt expression of hostility toward it, with several justices expressly calling for its overruling and arguably doing so.

Bivens's erosion, and the reasons for it, have been the subject of much scholarly inquiry and debate. What has been missing in that scholarly discourse is that the doctrine's recent dismantling has occurred primarily in cases involving immigrants and immigration-related matters. As I argue, the dominant factual predicate surrounding constitutional torts claims changed with Ashcroft v. Iqbal, which involved the detention of noncitizens following 9/11. Of the constitutional torts cases the Court has decided since that fateful day, nearly half have involved immigrants or immigration-related matters, including its most recent trio of cases. Notably, no case decided by the Court before Iqbal appears to have involved immigrants or was immigration-related.

It is precisely within this factual context that the Court has systematically dismantled the remedy, discarding decades of precedent in the process. Such shift has occurred not because the facts are necessarily novel but because the Court chose to frame them as such and resurrected categorial assumptions and false narratives about immigrants--the same ones that have driven the developments in immigration law to exclude immigrants from the ambit of constitutional protections for over a century.

This Article's novel contribution is contextualizing the recent transformation of constitutional torts in immigration law and its animating principles. It uncovers hidden connections to foundational principles in immigration law to explain Bivens's erosion. It frames the Court's separation-of-powers rationales for the change in law as incomplete by showing that the remedy's erosion occurred primarily in cases involving immigrants or immigration-related matters and through the Court's reliance on, and promotion of, false immigrant narratives.

The Article proceeds in three parts. In Part I, I articulate a new framework for understanding the Court's constitutional torts jurisprudence that highlights the role of immigrant status. Under it, I locate the advent of Bivens's undoing with Iqbal, the Court's first apparent Bivens case involving immigrant plaintiffs, and trace the Court's new hostility toward the remedy in a line of cases, all of which involved immigrants or immigration-related matters. I expose how under that lens, the Court discarded decades of precedent, in part, by relying on the following three false immigrant narratives: (1) immigrant as terrorist, (2) immigrant as danger, and (3) immigrant as foreign. Concerning the first narrative, I analyze the trio of Iqbal, al-Kidd, and Ziglar as depending on the over-determining view that immigrants are terrorists and national security risks. Concerning the second narrative, I illustrate how the Court's national security framing and its use of the “illegal alien” rhetoric promoted the false association of immigrants with notions of dangerousness. Concerning the third narrative, I demonstrate how the Court in Hernández and Egbert exaggerated the foreign dimensions in the case to drive its outcomes. Using these false narratives, the Court changed the law fundamentally by inventing a new legal standard that would exclude most claims--even suggesting that constitutional torts committed by Border Patrol agents should categorically be immunized.

In Part II, I amplify the novel connection I draw between constitutional torts and immigration law by locating the same three false immigrant narratives in a foundational immigration law theory that has been used to exclude immigrants from the ambit of constitutional protections for over a century: the plenary power doctrine. Under it, the Court has either deferred to Congress or refused to review altogether federal statutes concerning noncitizens for compliance with the Constitution's substantive and procedural requirements when Congress had relied on classifications that may be unconstitutional if applied to citizens, such as race, alienage, gender, and legitimacy. I show how in immigration law, the Court has depended on the same three false immigrant narratives of immigrant as terrorist, immigrant as danger, and immigrant as foreign to foreclose remedies and require similar extraordinary deference to Congress by concluding that Congress's power over immigrants and immigration-related matters is plenary. Using prominent examples from history, I illustrate how such immigrant narratives have driven and defined significant legal and policy changes in immigration law.

Concerning the first immigrant narrative, I analyze the developments in law and policy from, and reflected in, (1) the “Red Scare” of the 1950s, (2) the “War on Terror” following 9/11, and (3) the Trump “travel ban” that viewed certain immigrants primarily through the national security lens of terrorism. Concerning the second immigrant narrative, I frame two landmark pieces legislation, the Illigal Immigration Reform and Immigration Responsibility Act (“IIRIRA”) and the Antiterrorism and Effective Death Penalty Act (“AEDPA”), and the “alien” metaphors that supported their enactment, as dependent on the exaggerated connection between immigrants and crime to perpetuate the false myth of immigrant dangerousness. Concerning the third immigrant narrative, I uncover the construction of certain immigrants as “the other” as moored in the false assumption that immigrants bear the taint of perpetual foreignness. I show how these three false narratives have supported the plenary power doctrine in immigration law and justified the Court's similar foreclosure of remedies there.

In Part III, I analyze the consequences of the remedy's demise by exposing harms to both the law and the person. For the law, I locate the remedy's erosion in the broader context of immigration law that has viewed immigrants as exceptional and “strangers” to the Constitution. I also analogize the Court's exceptional treatment of immigrants and immigration-related matters in constitutional torts to other areas of the law where the Court has done the same. I argue that the Court's casual discarding of Bivens and precedent undermines stare decisis and other foundational principles. In the process, I advance the scholarly discourse on the exceptionalism of immigration law and show the harmful effects of its errant departure from established substantive and procedural legal norms.

For the person, I uncover what the lack of a constitutional torts remedy means for both noncitizens and citizens. I argue that the loss of the remedy falls disproportionately on certain immigrants and show how their lives stand on an even more precarious footing, particularly after the Court's seeming categorical foreclosure of claims against Border Patrol agents. I support that argument with the following four factual predicates: (1) Since 2001, immigrants or persons involved in immigration-related matters have filed a significant number of Bivens cases; (2) the number of encounters between such persons and law enforcement officers has soared recently and shows no evidence of stopping; (3) Hernández's death is far from an isolated incident in light of other similar deaths and documented complaints of serious physical and sexual abuse by CBP agents; and (4) since 2010, over 250 immigrants or persons involved in immigration-related matters, including unarmed children, have died in fatal encounters with CBP agents.

Finally, I examine the spill-over effect of Bivens's demise on U.S. citizens. I show that in the immigration enforcement context, both at and away from the border, U.S. citizens remain vulnerable because of the broad arrest and detention powers afforded law enforcement officers. Similarly, I demonstrate how such law enforcement abuses may arise in non-immigration-related enforcement contexts, for which the Bivens remedy was once available and for which the rationales of national security, dangerousness, and foreignness that applied to immigrants and upon which the Court relied to dismantle it, are inapposite. But because the Court in Ziglar, Hernández, and Egbert did not limit their holdings to immigrants, the border, or the immigration-related context, the erosion of the torts remedy leaves U.S. citizens vulnerable to even the most egregious constitutional abuses. I show how in the current era of increased migration across borders, and the increased enforcement that follows, the lack of a constitutional remedy exacts too high a price for both the law and the person.

[. . .]

This Article has contextualized the recent transformation of the U.S. Supreme Court's constitutional tort jurisprudence within immigration law and its animating principles. I have exposed how Bivens's recent effective demise has occurred primarily in cases involving immigrants or immigration-related matters. I have argued that it was precisely within that factual context that the Court systematically dismantled what was left of the doctrine, rendering the remedy effectively dead. I have shown that it did so, in part, by relying on the false immigrant narratives of immigrant as terrorist, immigrant as danger, and immigrant as foreign--the same three false narratives that have also driven significant developments in U.S. immigration law for over a century.

The consequences are significant. For the law, I have uncovered the hidden connections between constitutional torts and immigration law. For the person, the effective demise of Bivens likely means that constitutional violations may go unremedied, particularly for noncitizens under the majority's conclusion in Egbert that seemingly immunizes the conduct of Border Patrol agents. While immigrants, and the false narratives about them, have contributed to the erosion of Bivens, the consequences are born by both citizens and noncitizens alike--both of whom stand at a greater risk of constitutional torts, at the border and beyond.

Andrew Tae-Hyun Kim. Professor of Law, Syracuse University College of Law. J.D. Harvard Law School; B.A. Duke University.