Open Season on Border Agents?

Press Releases

September 7, 2021

IRLI urges Supreme Court to curtail lawsuits by illegal aliens

WASHINGTON—The Immigration Law Reform Institute has filed a friend-of-the-court brief in the U.S. Supreme Court seeking review of a decision by the Ninth Circuit Court of Appeals to restart a lawsuit against a border agent. The suit was brought by an illegal alien who claims the agent pushed him in a human-smuggling stash house near the Canadian border, causing him to injure his back.

The suit is known as a “Bivens action,” in which individuals may sue government agents for monetary damages under the Constitution for committing alleged harms in the course of their duties. Such suits were allowed by the Supreme Court in a Seventies-era decision that members of the Court have criticized, and the Court itself has limited, ever since.

In its brief, IRLI argues that the Court should get rid of Bivens actions altogether, because the case allowing them is widely-recognized as wrongly decided. IRLI also points out that, since that case, Congress has passed a law allowing individuals to sue the government, rather than agents directly, in circumstances like those of the alien plaintiff in this case.

At the very least, IRLI shows, Bivens actions should not be allowed in the immigration context, any more than in military contexts, because border agents are executing the foreign policy of the United States, which courts lack competence to oversee.

“The last thing we need is for border agents, in the challenging and often rough-and-tumble world of immigration law enforcement, to be hamstrung by the fear of lawsuits against them personally, for money damages,” said Dale L. Wilcox, executive director and general counsel of IRLI. “The costs of defending even a meritless lawsuit can be staggering. We hope the Court takes up this case, overrules the Ninth Circuit, and allows the protectors of our border and nation to do their already-difficult jobs without undue fear.”

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

Get Connected

Sign up for our email newsletter to stay up to date with immigration reform in the United States.

Attorneys United for a Secure America (AUSA) is a non-partisan affiliation of talented attorneys dedicated to pursuing cases that serve the national interest when it comes to immigration law.

If you are interested in joining the network, visit the AUSA website.