Mynor Tun-Cos v. B. Perrotte, 922 F.3d 514

Background

Nine Latino men (one a U.S. citizen) sued ICE agents alleging unconstitutional stops, detentions, home entries, arrests, and ethnicity-based discrimination arising from two incidents in February 2017; they sought money damages under Bivens.
Plaintiffs alleged officers conducted warrantless home intrusions, stopped and detained individuals without reasonable suspicion, and effected collateral arrests, leading to removal proceedings for several plaintiffs.
The ICE agents moved to dismiss, arguing a Bivens remedy is not available in the immigration-enforcement context and asserting qualified immunity.
The district court concluded the complaint presented a modest extension of Bivens, found no special factors counseling hesitation, denied dismissal, and rejected the agents’ qualified‑immunity argument.
On interlocutory appeal, the Fourth Circuit applied Ziglar v. Abbasi’s framework (new‑context inquiry and special‑factors analysis) to decide whether to extend Bivens to ICE enforcement of the INA.
The Fourth Circuit reversed: it held the case presents a new Bivens context (immigration enforcement / ICE agents) and identified special factors (comprehensive INA scheme, congressional silence, foreign‑policy/national‑security concerns, and policy‑impact risk) that preclude recognizing a Bivens damages remedy; it remanded with instructions to dismiss.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a Bivens damages remedy is available for alleged Fourth and Fifth Amendment violations by ICE agents enforcing the INA	Bivens should extend: this is a familiar search‑and‑seizure Fourth Amendment context against line officers; INA enforcement does not preclude a damages remedy for constitutional violations occurring outside removal proceedings	Bivens should not extend: this is a different context (immigration enforcement/ICE), and separation‑of‑powers concerns, congressional design of the INA, and foreign‑policy implications counsel against creating a judicial damages remedy	Held: No Bivens remedy — case is a new context and special factors counsel hesitation, so Bivens does not apply; action must be dismissed.
Whether the case differs in a "meaningful way" from prior Bivens line‑search cases	Plaintiffs: difference is not meaningful because claims are routine Fourth Amendment search‑and‑seizure claims by federal officers	Defendants: meaningful differences include statutory mandate (INA vs. criminal law), immigration’s distinctive concerns, and new defendant category (ICE)	Held: Differences are meaningful under Abbasi (statutory mandate, defendant category, and immigration context).
Whether "special factors" counsel hesitation before creating a Bivens remedy	Plaintiffs: INA lacks a money‑damages remedy for these officer acts; absence of statutory damages does not imply Congress wanted to preclude Bivens	Defendants: INA is an elaborate, evolving remedial and regulatory scheme; Congress repeatedly legislated in immigration without creating a Bivens remedy; immigration implicates foreign policy and national security	Held: Special factors exist (comprehensive INA, legislative silence, foreign‑policy/national‑security/prudential concerns, risk of judicial intrusion into enforcement policy), so courts should not create the remedy.
Whether defendants were entitled to qualified immunity at this stage	Plaintiffs: pleadings sufficiently identify each agent’s conduct to overcome a specificity‑based immunity defense	Defendants: argued insufficient specificity and, presumptively, immunity should apply if Bivens unavailable	Held: District court’s qualified immunity ruling was not reached by the Fourth Circuit because the court disposed of the case on the Bivens availability ground; the panel did not decide qualified immunity.

Key Cases Cited

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (recognizing implied Fourth Amendment damages remedy)
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (establishing new‑context and special‑factors framework; extension of Bivens is disfavored)
Ashcroft v. Iqbal, 556 U.S. 662 (clarifying limits on implied causes of action and disfavoring expansions of Bivens)
Davis v. Passman, 442 U.S. 228 (recognizing Fifth Amendment damages remedy in employment discrimination context)
Carlson v. Green, 446 U.S. 14 (recognizing Eighth Amendment damages remedy for federal jailer negligence)
Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (refusing to extend Bivens to private prison context; cautioning courts against creating remedies that alter policy)
Wilkie v. Robbins, 551 U.S. 537 (refusing to extend Bivens where creating a remedy would intrude on policy judgments)
Schweiker v. Chilicky, 487 U.S. 412 (refusing to imply damages remedy where Congress provided an elaborate remedial scheme)