Immigration enforcement, including the ongoing and unprecedented ICE raids, have been in just about every news cycle over the past 100+ days. Many stories have emerged about U.S. Citizens being improperly detained by ICE. In just one of many examples, in late June, United States citizen Andrea Valez was arrested by ICE after getting dropped off at work by her mother and sister. According to reporting, “[t]he incident comes as numerous US citizens have been swept up in the Trump administration’s crackdown on immigrants. People have reported they are being targeted for their skin color and for attempting to aid immigrants being detained by immigration agents.”
And, to be clear, while the level and intensity of immigration enforcement is unprecedented, this is certainly not the first time that ICE has wrongfully detained and even wrongfully deported a lawful citizen or resident. In July 2021, the Government Accountability Office (described as a “non-partisan congressional watchdog”) published a report finding that between 2015 and 2020, ICE erroneously deported at least 70 US citizens, arrested 674 and detained 121. With the alarming speed and seemingly indiscriminate fashion ICE is now carrying out its orders, the situation is unfortunately likely going to get worse.
Thankfully, individuals (citizens and non-citizens alike) whose constitutional rights are violated are not without legal remedy. That remedy was created by the judiciary in 1971 in a case called Bivens.
Understanding Bivens Actions: Suing Federal Officers for Constitutional Violations
Most people are familiar with the idea that you can sue the government under certain (albeit limited) circumstances, like under the Federal Tort Claims Act (FTCA) or Section 1983. However, Section 1983 applies only to state officials — not federal agents/officers. When a federal agent/officer is the offending party, that’s where a Bivens action comes into play.
What is a Bivens action?
A Bivens action is a judicially created remedy that allows individuals to sue federal officers in their individual capacities for damages resulting from constitutional violations. The cause of action takes its name from the landmark Supreme Court decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In that case, the Court held that a plaintiff could recover money damages against federal narcotics agents who conducted an unconstitutional search and arrest in violation of the Fourth Amendment.
Bivens provides a narrow exception to the general principle of sovereign immunity, which typically shields the federal government and its employees from suit.
Requirements and elements of a Bivens claim
Unlike Section 1983, there is no statutory scheme spelling out Bivens actions. Instead, the right to sue and its contours have been developed by courts.
To bring a Bivens claim, a plaintiff generally must allege:
- That a federal officer acting under color of federal authority (not a state or local officer)
- Violated a clearly established constitutional right of the plaintiff, such as those guaranteed by the Fourth, Fifth, or Eighth Amendments.
- That the violation proximately caused the plaintiff’s injuries, resulting in compensable damages.
Courts often break it down to these essential elements:
✅ Action under color of federal law – The defendant must be a federal agent acting in an official capacity.
✅ Deprivation of a constitutional right – There must be a direct violation of the Constitution (not just federal statutes or regulations).
✅ Causation and damages – The plaintiff must show that the violation caused actual harm.
Judicial caution and “special factors”
It’s important to note that the Supreme Court has narrowed Bivens significantly over the last few decades. The Court has repeatedly warned against extending Bivens into “new contexts,” emphasizing separation-of-powers concerns. If there are “special factors counseling hesitation,” or if Congress has provided an alternative remedy (even if less complete), courts often refuse to imply a Bivens remedy.
Hypothetical Bivens claim for wrongful detention by ICE agents
Consider this scenario:
- A U.S. citizen returns from vacation abroad. At the airport, ICE agents mistakenly identify him as someone subject to a detention removal order.
- Despite presenting a valid U.S. passport, he is detained for 48 hours in a holding facility.
- During this time, he is denied access to counsel and family, causing emotional distress and lost wages.
In this situation, the citizen might bring a Bivens claim under the Fourth Amendment, alleging that the ICE agents wrongfully seized him without probable cause. This closely tracks the original Bivens context: an unreasonable seizure under the Fourth Amendment by federal officers. Courts have recognized that prolonged detention without probable cause can form the basis for such a claim.
And, to be clear, one need not necessarily be a citizen — or even a lawful resident — to have a potential Bivens claim for wrongful detention; although the fact that the plaintiff was not a citizen or resident could certainly become a factor in the court’s analysis.
However, suchh cases are always highly fact-specific. Courts will examine whether there are alternative remedial schemes provided by Congress (for example, under the Immigration and Nationality Act), whether immigration enforcement presents a “special factor” counseling hesitation, and whether qualified immunity shields the officers.
Conclusion
Bivens remains a critical — but increasingly constrained — tool for holding federal officers personally accountable for constitutional violations. While there are certainly hurdles to bringing a Bivens claim, and courts have become more reluctant to expand Bivens liability into new areas, it continues to provide an essential check on federal power, especially in classic Fourth Amendment scenarios like wrongful searches and seizures.
If you believe your rights have been violated by law enforcement and would like to discuss with us, please contact us today.