4th Circuit: No Remedy for ICE Abuses
Fourth Circuit: If ICE agents break into your house illegally, you have no remedy
Falls Church, Va., April 26, 2019 — Today a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit held that ICE agents may violate clearly-established constitutional rights, and that the victims – U.S. citizens and noncitizens alike – have no legal remedy. Tun-Cos et al. v. Perrotte et al. is a case challenging unconstitutional, warrantless home raids by agents of the U.S. Immigration and Customs Enforcement (ICE).
“The decision flies in the face of established Supreme Court precedent providing that victims of unconstitutional home raids by law enforcement can sue,” says Simon Sandoval-Moshenberg, Legal Director of the Legal Aid Justice Center’s Immigrant Advocacy Program. “The effect of this decision is to treat ICE agents differently from FBI agents and other federal officers, granting ICE agents complete impunity if they commit egregious constitutional violations – a troubling result that should alarm all of us.”
The Tun-Cos case involved so-called “Bivens” claims, which are claims for damages against federal officials for violations of constitutional rights. The ability to recover damages for harms suffered at the hands of government officials when they violate clearly established constitutional rights deters illegal conduct and serves as a critical protection for all those living in America. Although the U.S. Supreme Court recently reaffirmed that such lawsuits may be brought against federal law enforcement officers who commit unconstitutional searches and seizures, a three-judge panel of the Fourth Circuit found that immigration enforcement presented a “new context” and that the plaintiffs had no right to bring a Bivens claim against the agents.
“This decision allows ICE agents to go from door to door, invading U.S. citizens’ homes without a warrant or probable cause, based instead on racial profiling, and those citizens will have no ability to hold them accountable, no matter how flagrant the conduct,” says Sandoval-Moshenberg. “This decision affects every single person, citizen and noncitizen alike.”
The Legal Aid Justice Center and pro bono co-counsel at Covington & Burling are reviewing the decision and all options for further review, including a petition to the full Fourth Circuit to rehear the case en banc. “This case strikes at the heart of protections granted by the Bill of Rights – can the government invade your home without probable cause and without a warrant, and leave you without a remedy?” said Hallie Ryan, Managing Attorney at Legal Aid Justice Center. “An issue of this importance should be decided by the entire Fourth Circuit.”
Background on the Case
Tun-Cos et al. v. Perrotte et al. is a lawsuit which alleges that at 5 a.m. on February 8, 2017, a team of ICE agents coerced entry into the northern Virginia home of Jose Carcamo without a warrant, purportedly searching for a suspect. Once inside, the team of agents went from door-to-door in the home, rounded up all the male residents and detained them in the living rooms, and demanded they produce proof of U.S. citizenship. When some could not, the ICE agents arrested them. The plaintiffs alleged that mid-raid, one ICE agent asked the U.S. citizen homeowner “are there any other Spanish families on this street?” A few days later, the plaintiffs allege that the same team of ICE agents invaded a second home just a few miles away. In this incident, the ICE agents boxed in the car of two men as they were leaving for work, marched them to the door of their homes and demanded entry. Once inside, the agents again went from door-to-door, detained all the male residents and arrested those who could not produce proof of immigration status on-demand. The U.S. citizen homeowner, his family members, and those arrested all sued the ICE agents in the U.S. District Court for the Eastern District of Virginia, demanding they be held accountable for the egregious constitutional violations.
In April 2018, the district court allowed the lawsuit to go forward after the ICE agents attempted to dismiss the case. The court found that the plaintiffs had alleged violations of clearly established constitutional rights and had the right to hold the agents accountable.
Legal Aid Justice Center brought the case with the support of Covington & Burling pro bono counsel.
About the Legal Aid Justice Center
The Legal Aid Justice Center (LAJC) fights injustice in the lives of individual Virginians while rooting out exploitative policies and practices that keep people in poverty. LAJC uses impact litigation, community organizing, and policy advocacy to solve urgent problems in areas such as housing, education, civil rights, immigration, healthcare, workers’ rights, and consumer finance. LAJC’s primary service areas are Charlottesville, Northern Virginia, Richmond and Petersburg, but the effects of their work are felt statewide. www.justice4all.org