Immigration and Human Rights Law Review


When federal agents exhibit conduct that violates the United States Constitution, the Supreme Court has held that those agents should be held civilly liable for their actions, as shown by its decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. Applicable constitutional violations include those which infringe on any individuals’ constitutional rights. This includes violations of the constitutional rights of noncitizens. Although the Supreme Court disfavors expansion of Bivens claims and has only extended this remedy twice, in Davis v. Passman and Carlson v. Green, the Ninth Circuit Court recently approved such expansion in a cross-border shooting case, Rodriguez v. Swartz. That decision created a circuit split between the Fifth and Ninth Circuits, which is especially relevant as those Circuits include two-thirds of the courts along the United States border with Mexico. The decision of whether to extend Bivens remedies requires a careful analysis involving sensitive issues relevant to each case; in this case, most notably, foreign affairs, national security, and extraterritorial matters. When used appropriately, interpretations like the Ninth Circuit’s allow constitutional integrity to be upheld and prevent qualified immunity of government officials from being overzealously applied.