After Egbert, DHS’s § 287.10 Grievance Scheme Forecloses Bivens Claims Against HSI Agents; Fabrication‑Based False Arrest Presents a New Bivens Context in the Second Circuit

Introduction

In Sigalovskaya v. Braden (2d Cir. Aug. 27, 2025), the Second Circuit affirmed dismissal of a civil damages action brought under Bivens against four Homeland Security Investigations (HSI) agents. Plaintiff Karina Sigalovskaya alleged HSI agents unlawfully entered her home and fabricated a confession leading to her arrest, pretrial detention, loss of temporary custody of her children, and placement on New York’s sex offender registry. After partial summary judgment, only three claims remained for trial: false arrest and malicious prosecution against Special Agent Abigail Braden, and a failure-to-intervene claim against Special Agent Robert Mancene. Before trial, the agents obtained judgment on the pleadings based on the Supreme Court’s recent decision in Egbert v. Boule.

On appeal, the Second Circuit affirmed. While all three judges agreed the plaintiff’s malicious prosecution claim could not proceed, they differed on the proper rationale for disposing of the false arrest claim. Judge Lee (concurring) concluded the false arrest claim was a “new context” because it centered on alleged fabrication of evidence and that “special factors” barred any extension of Bivens. Judge Pérez (concurring) would have resolved the case solely on the ground that DHS’s internal grievance process, codified at 8 C.F.R. § 287.10, is an “alternative remedial structure” that independently forecloses Bivens under Egbert—adding that the false arrest theory otherwise likely fits the original Bivens context. Judge Lynch (dissenting in part) would have allowed the false arrest claim to proceed because it is materially indistinguishable from Bivens and warned against using minute factual distinctions or ubiquitous internal complaint systems to eviscerate Bivens.

The upshot is a significant Second Circuit precedent clarifying two key points post-Egbert: (1) DHS’s internal complaint and investigation mechanism (§ 287.10, incorporating § 287.8) constitutes an “alternative remedy” that, by itself, bars Bivens actions against HSI agents; and (2) a false arrest claim that is rooted in alleged fabrication of evidence is a “meaningfully different” context from Bivens and is not cognizable under Bivens in this Circuit.

Summary of the Judgment

The Court affirmed judgment on the pleadings dismissing the remaining Bivens claims against HSI agents.
All three judges agreed there is no Bivens cause of action for the plaintiff’s malicious prosecution claim.
False arrest:
- Judge Lee (concurring) held the false arrest claim presents a “new Bivens context” because it is grounded in fabrication-of-evidence allegations, not the warrantless search-and-seizure scenario of Bivens. Special factors—including the DHS remedial scheme—counsel against extension.
- Judge Pérez (concurring) would not decide the “new context” question; instead, she found the DHS grievance process (8 C.F.R. § 287.10) is an alternative remedial structure that “independently foreclose[s]” a Bivens remedy under Egbert.
- Judge Lynch (dissenting in part) would allow the false arrest claim to proceed because it is not meaningfully different from Bivens and warned that relying on internal agency complaint processes would de facto overrule Bivens.
Controlling effect: While the panel did not produce a single majority opinion, two concurring judges agreed that DHS’s § 287.10 regime forecloses a Bivens remedy, making that rationale the narrowest, controlling ground for the affirmance.

Analysis

Precedents Cited and Their Influence

Bivens v. Six Unknown Named Agents (1971): Recognized an implied damages action for Fourth Amendment violations by federal narcotics agents who allegedly conducted a warrantless search and arrest. It remains one of only three Supreme Court-recognized Bivens contexts (alongside Davis and Carlson).
Davis v. Passman (1979) and Carlson v. Green (1980): The other two recognized Bivens contexts (Fifth Amendment sex discrimination by a congressman, and Eighth Amendment deliberate indifference to a prisoner’s medical needs). Since 1980, the Court has “consistently refused to extend” Bivens to new contexts.
Correctional Services Corp. v. Malesko (2001): Emphasized Bivens should not be extended to new categories of defendants or contexts, reinforcing judicial restraint in creating damages remedies.
Ziglar v. Abbasi (2017): Formalized the current two-step analysis: (1) is the claim a “new context,” meaning meaningfully different from Bivens/Davis/Carlson; (2) if yes, do “special factors” counsel hesitation, i.e., is Congress better equipped to weigh costs and benefits of a damages remedy?
Hernandez v. Mesa (2020): Applied Abbasi’s “new context” framework in a cross-border shooting case; emphasized the “broad” understanding of “new context.”
Egbert v. Boule (2022): Pivotal to this case. The Court rejected Bivens remedies for a Fourth Amendment excessive force claim by a Border Patrol agent and for First Amendment retaliation. Egbert sharpened Abbasi by:
- Stating courts should not extend Bivens if there is “any” reason to think Congress is better positioned to create a remedy.
- Holding that an alternative remedial structure—even if it provides no damages—“independently forecloses” a Bivens remedy. Egbert specifically relied on DHS’s existing complaint process as sufficient deterrence/calibration.
Second Circuit summary orders (non-precedential):
- Lewis v. Bartosh (2023) and Cohen v. Trump (2024): Cited by the government for “new category of defendants” reasoning. Judge Lee distinguished them because they involved high-ranking officials or Deputy Marshals protecting the judiciary, not line-level agents engaged in routine law enforcement like in Bivens.
Hicks v. Ferreyra (4th Cir. 2023): Recognized the continued “vitality” of Bivens in ordinary warrantless search-and-seizure contexts, underscoring that Bivens remains good law there. Judge Lee acknowledged Hicks to show that Bivens has not been wholly displaced—while still finding a new context here given the fabrication-centric theory.
Sheikh v. DHS (9th Cir. 2024); Ahmed v. Weyker (8th Cir. 2020); Cantú v. Moody (5th Cir. 2019); Annappareddy v. Pascale (4th Cir. 2021); and Farah v. Weyker (8th Cir. 2019): Sister-circuit decisions generally holding that “fabrication-of-evidence” or “false warrant/affidavit” theories present a meaningfully different context from Bivens’s home-entry arrest, reinforcing Judge Lee’s analysis.
Edwards v. Gizzi (2d Cir. 2024): Noted here primarily for Judge Parker’s dissent, which cautioned against drawing hyper-fine distinctions that would gut Bivens “sub silentio.” Judge Lynch’s dissent resonates with that refrain.

The Court’s Legal Reasoning

1) The two-step Abbasi/Egbert framework

Step One: New Context? Is the claim “meaningfully different” from Bivens/Davis/Carlson? The Supreme Court has defined “new context” broadly.
Step Two: Special Factors? If it is new, courts must deny a Bivens extension where there is “any rational reason” to think Congress is better suited to decide whether a damages remedy should exist. After Egbert, this includes treating any “alternative remedial structure” as independently dispositive; courts must not “second-guess” the Executive’s or Congress’s calibration of remedies/deterrence.

2) How the panel applied the framework

Malicious prosecution: The parties agreed (and the panel held) that malicious prosecution is a new context; special factors—including the DHS grievance regime—foreclose extending Bivens.
False arrest: The judges split:
- Judge Lee (concurrence):
  - New context: Although the complaint included warrantless entry/search allegations, the only remaining false arrest claim was against Agent Braden. The complaint pinned that claim on fabrication of a confession sent to prosecutors, which precipitated arrest and detention. That misconduct—fabrication and forwarding to prosecutors—differs meaningfully from Bivens’s in-home arrest and search whose “primary” harm was to privacy interests. Multiple circuits have likewise treated fabrication-centered claims as new contexts.
  - Special factors:
    - Alternative remedial structure: DHS’s grievance process (8 C.F.R. § 287.10, incorporating § 287.8) provides an internal complaint and investigation mechanism via the Office of Inspector General. Under Egbert, that process itself suffices to foreclose Bivens.
    - Institutional competence: Even beyond national-security matters, HSI’s investigative role (domestic and international) counsel against judicially creating new damages remedies. Egbert cautions against slicing the analysis too narrowly by focusing solely on the specific agent’s local task.
- Judge Pérez (concurrence):
  - Alternative remedy is dispositive: Following Egbert, the DHS grievance mechanism “independently foreclose[s]” a Bivens remedy. That is enough to affirm; no need to decide “new context.”
  - False arrest likely not new: If forced to decide, she would find “no meaningful daylight” between Bivens and an ordinary false arrest claim alleging lack of probable cause. The fabrication allegation does not transform the gravamen—a Fourth Amendment arrest allegedly without probable cause—into a different legal context.
- Judge Lynch (dissent in part):
  - No new context: The core claim is an arrest without probable cause, just like Bivens. Fabrication goes to how the lack of probable cause manifested but does not create a new context. Treating such factual variations as “new” would effectively overrule Bivens.
  - Alternative remedy critique: Using internal agency complaint processes as “special factors” that bar Bivens would nullify Bivens wherever such procedures exist (i.e., virtually everywhere). That approach contravenes the Supreme Court’s repeated insistence that Bivens remains good law.

3) The controlling rule and why it matters

Although the panel issued a short per curiam affirmance accompanied by separate opinions, two concurring judges (Lee and Pérez) agreed that the DHS internal grievance scheme is an “alternative remedial structure” under Egbert that forecloses a Bivens remedy. That shared ground is the narrowest basis for judgment and thus the controlling principle. Practically, that means that in the Second Circuit:

Where the defendant is a DHS/ICE/HSI “immigration officer” (including HSI special agents who have completed basic immigration law enforcement training, see 8 C.F.R. § 287.8(a)(1)(iv)), the existence of the § 287.10 complaint and investigation process itself bars Bivens damages actions.
Even apart from the alternative-remedy holding, there is now persuasive circuit-level authority (Judge Lee’s concurrence, supported by multiple circuits) that false arrest claims predicated on fabrication-of-evidence allegations present a “new context” beyond Bivens.

Impact

Practical foreclosure of Bivens suits against HSI (and likely other DHS components) in the Second Circuit:
- Civil damages claims against DHS agents for Fourth Amendment violations will now be met with an Egbert-based defense that § 287.10 is an “alternative remedial structure.” That alone can defeat a Bivens claim at the pleadings stage.
- The ruling will likely be invoked by CBP, ICE Enforcement and Removal Operations (ERO), and other DHS enforcement arms whose personnel qualify as “immigration officers” under § 287.8.
Narrowing Bivens in ordinary policing contexts:
- Judge Lee’s fabrication-of-evidence rationale tracks sister-circuit decisions treating fabrication-based false arrest claims as “new contexts.” Expect defendants to argue that many Fourth Amendment claims against federal agents are “meaningfully different” from Bivens, especially where the alleged misconduct includes fabrication, false affidavits, or coordination with prosecutors.
Continuing tension with decisions like Hicks v. Ferreyra:
- Hicks reaffirmed the ongoing viability of Bivens for routine, warrantless search-and-seizure by federal officers. The Second Circuit’s decision does not reject that proposition categorically, but it signals that where DHS agents are involved—or where fabrication-of-evidence is central—courts are unlikely to permit Bivens claims to proceed.
Litigation strategy shifts:
- Plaintiffs alleging misconduct by federal officers should anticipate early motions invoking Egbert and § 287.10. Counsel should assess alternative avenues: administrative complaints to DHS OIG, injunctive or declaratory relief where available, the Federal Tort Claims Act (subject to exceptions), suppression of evidence in related criminal proceedings, and parallel state-law claims where a waiver or exception applies.
- For claims against state or local officers, 42 U.S.C. § 1983 remains fully available (unlike Bivens, which is limited to federal actors).
Institutional and legislative implications:
- The opinion underscores the Supreme Court’s signal in Egbert that the “creation” of damages remedies for federal constitutional violations is a legislative task. The more courts treat internal complaint systems as “adequate” alternatives, the less leverage plaintiffs have to obtain damages for federal officer misconduct absent congressional action.

Complex Concepts Simplified

Bivens claim: A judge-made damages remedy allowing individuals to sue federal officers in their individual capacities for certain constitutional violations (not based on a statute). The Supreme Court has recognized only three contexts (Bivens, Davis, Carlson) and has refused to create new ones for decades.
New context: A claim is a “new context” if it is meaningfully different from the facts, defendants, constitutional right, or mechanisms at issue in Bivens/Davis/Carlson. The Supreme Court interprets “new context” broadly.
Special factors: Reasons to hesitate before extending Bivens to a new context—principally that Congress (not courts) should decide whether to create a damages remedy. After Egbert, the presence of any rational reason to defer to Congress ends the inquiry.
Alternative remedial structure: Any existing remedial mechanism (administrative complaint process, internal discipline, etc.) that the political branches have provided. Egbert held that such a structure, even without damages, “independently” forecloses Bivens.
8 C.F.R. §§ 287.8 and 287.10: DHS regulations setting standards for enforcement activities and establishing a grievance process. The Second Circuit treated HSI special agents as “immigration officers” covered by these rules, which require expeditious investigation of complaints (including via OIG).
False arrest: A Fourth Amendment claim alleging a seizure (arrest) without probable cause. Under § 1983, it is a staple claim against state actors; under Bivens (against federal actors), its viability now turns on the Abbasi/Egbert framework.
Malicious prosecution: A claim alleging prosecution without probable cause, typically with malice, that terminated in the plaintiff’s favor. Federal courts have generally treated such claims against federal officers as “new contexts” for Bivens purposes.
Failure to intervene: A theory that an officer who had a realistic opportunity to prevent another officer’s constitutional violation but failed to do so can be liable. In this appeal, the plaintiff did not pursue the failure-to-intervene claim.
Judgment on the pleadings (Rule 12(c)): A procedural motion testing the legal sufficiency of the complaint after pleadings close; the court assumes the complaint’s facts are true and asks whether, as a matter of law, plaintiff states a viable claim.

Conclusion

Sigalovskaya v. Braden cements Egbert’s practical impact in the Second Circuit. Two principles emerge. First, when DHS “immigration officers” (including HSI special agents) are sued for constitutional torts, the internal complaint and investigation framework codified in 8 C.F.R. § 287.10 constitutes an “alternative remedial structure” that, standing alone, forecloses a Bivens remedy. Second, where a plaintiff’s false arrest theory is anchored in the alleged fabrication of evidence, that claim presents a “new context” beyond the original Bivens scenario and is not cognizable as a Bivens action—at least absent congressional authorization.

The separate opinions reflect an active debate about Bivens’s scope after Egbert. Judge Pérez emphasized that Bivens remains viable in its original lanes but must yield where the political branches have installed an alternative process. Judge Lee agreed on the alternative-remedy bar and further reasoned that fabrication-based claims are meaningfully different from Bivens. Judge Lynch’s dissent forcefully argued that using ubiquitous internal processes and fine-grained factual distinctions risks erasing Bivens “sub silentio.”

For litigants and practitioners, the message is unmistakable: in suits against DHS/HSI agents within the Second Circuit, expect early dismissal under Egbert’s alternative-remedy rule. More broadly, plaintiffs challenging federal law-enforcement misconduct must now navigate a Bivens landscape marked by shrinking terrain, turning increasingly toward administrative avenues, non-monetary relief, or legislative solutions.