Can Illegal Aliens Sue Under the Constitution?

December 28, 2021

IRLI urges Supreme Court not to expand constitutional lawsuits

WASHINGTON—Yesterday, the Immigration Reform Institute (IRLI) filed a friend-of-the-court brief in the Supreme Court in a case that may impact the nation’s sovereignty. At issue is whether a type of constitutional lawsuit the Court created in 1971, called Bivens actions, should be extended into the immigration context.

The case was brought by an American citizen who deliberately blocked the path of a border agent in pursuit of an alien. The agent pushed the American citizen aside, allegedly causing him some injury. A federal district court dismissed his claim, but the Ninth Circuit Court of Appeals reversed.

In its brief in the Supreme Court, IRLI lists the many reasons why the Court, which has refused to extend Bivens actions since they were created, should not allow them in this new context. IRLI points out that immigration control is part of foreign policy, an area in which Bivens actions have never been allowed. IRLI also points out that typically, border agents interact with illegal aliens who have not, in the legal sense, even entered the country, because they are under the control of the border agents. And, under longstanding precedent, aliens who have not entered the country cannot claim rights under our Constitution.

“Whatever the Court decides in this case, we hope it makes crystal clear that border agents protect our sovereignty, and illegal aliens who have not even entered the country cannot avail themselves of the protections of the Constitution,” said Dale L. Wilcox, executive director and general counsel of IRLI. “Since the vast majority of encounters at the border are not with American citizens, but illegal aliens, and there are other strong legal grounds for not expanding Bivens actions here, we hope the Court reverses the Ninth Circuit.”

The case is Egbert v. Boule, No. 21-147 (Supreme Court).