Whether Bivens v Six Unknown Named Agents of Fed Bureau of Narcotics could be extended to give plaintiff a right to sue for damages; Egbert v Boule; “Context” of the claim; Alternative remedies; Fourth Amendment claim for a warrantless arrest outside the home & in the context of immigration enforcement; Fifth Amendment equal protection claim; Davis v Passman; Fifth Amendment due process deprivation claim; United States Immigration & Customs Enforcement (ICE); The Deferred Action for Childhood Arrivals (DACA)

The court held that plaintiff-Enriquez-Perdomo could not rely on Bivens to establish the right to sue defendants-ICE agents for damages because her Fourth and Fifth Amendment claims constituted “new Bivens contexts” and she had alternative remedies. She entered the U.S. illegally as a child. She received protection under the DACA, which made her order of removal non-enforceable. As an adult, she often visited a local ICE facility to post bond for those in custody. On one visit, ICE detained her “without a warrant or probable cause, despite her DACA status. [She] was then repeatedly moved to different locations across the country until she was finally released eight days later.” She sued the ICE agents for violating her constitutional rights, relying on Bivens to establish her implied federal cause of action. At issue here were her Fourth and Fifth Amendment claims. The district court granted defendants summary judgment. The court explained that a two-step test applied. First, courts must consider whether a case presents a new Bivens situation that is “meaningfully different” from those in which the Supreme Court has implied a damages action. “Importantly, the mere fact that the claim is for a violation of the Fourth or Fifth Amendment does not make [it] similar enough to Bivens or Davis—instead it is the context of the claim that matters.” The Supreme Court has “noted some specific differences to look for in deciding a new context.” Second, if a court finds “a new context, a ‘Bivens remedy is unavailable if there are “special factors” indicating that the Judiciary is at least arguably less equipped than Congress to’” assess whether a damages action should be allowed. One such factor is if “‘Congress already has provided, or has authorized the Executive to provide,’” an alternative remedy. The court held that plaintiff’s Fourth and Fifth Amendment claims “constitute new contexts to which Bivens cannot extend.” Her Fourth Amendment claims were “materially different from those in Bivens” — she was arrested “outside her home and in the context of immigration enforcement.” Further, she had “two alternate remedies—an administrative complaint procedure and habeas[.]” As for her Fifth Amendment claims, the comparator case was Davis. The court held that her equal protection claim also presented a new context where it occurred outside of the employment context and involved “a federal officer of a different rank and in a different branch of government.” Further, the habeas alternative remedy was also available. Finally, she did “not have a valid Bivens cause of action” as to her due process violation claim and “a Fifth Amendment due process claim is clearly a materially different context from a Fifth Amendment equal protection claim.” Also, she had an adequate alternative remedy. Affirmed.