No Bivens Remedy Against ICE Agents for Immigration-Related Fourth or Fifth Amendment Violations:
A Commentary on Riccy Mabel Enriquez-Perdomo v. Ricardo A. Newman, 6th Cir. (2025)

1. Introduction

In Riccy Mabel Enriquez-Perdomo v. Ricardo A. Newman, the United States Court of Appeals for the Sixth Circuit confronted a recurring, but still unsettled, question: whether federal courts may imply a damages remedy (Bivens) against federal immigration officers who allegedly violate the Fourth and Fifth Amendments during enforcement activities. The plaintiff, a Honduran-born Deferred Action for Childhood Arrivals (DACA) recipient, alleged she was unlawfully arrested, shuffled among detention facilities for eight days, and then released without explanation. She sued the individual ICE agents for:

• Unconstitutional arrest and imprisonment (Fourth Amendment)
• Unconstitutional unlawful pre-trial detention (Fourth Amendment)
• Denial of due process (Fifth Amendment)
• Denial of equal protection (Fifth Amendment)

After earlier procedural skirmishes—including a prior appeal holding that § 1252(g) did not strip jurisdiction because DACA rendered her 2004 removal order non-executable—the district court granted summary judgment, finding all remaining counts to be impermissible extensions of Bivens v. Six Unknown Named Agents. The Sixth Circuit affirmed.

2. Summary of the Judgment

1. New Bivens Contexts. All of the plaintiff’s claims arise in “meaningfully different” contexts from the Supreme Court’s three historical Bivens actions (Bivens, Davis, Carlson).
2. Special Factors Foreclose the Remedy. Even if the contexts were close, two alternative remedial structures—the Department of Homeland Security / Immigration and Nationality Act (INA) complaint process and habeas corpus—are adequate and counsel hesitation.
3. Result. No implied damages remedy exists; summary judgment for defendants is affirmed. Qualified-immunity issues remain untouched.

3. Analysis

3.1 Precedents Cited and Their Influence

• Ziglar v. Abbasi Framework. Introduced the modern two-step test: (1) Is the proposed claim a “new context”? (2) Are there “special factors” counseling hesitation?
• Hernandez & Egbert (border-security cases). Stressed that national-security and immigration contexts are “rarely proper subjects for judicial intervention.” Egbert specifically treated Complaint-process availability and habeas as sufficient alternative remedies—even if imperfect.
• Sixth Circuit Guidance.
  • Elhady v. Unidentified CBP Agents (2021) – held border-detention claims a new context.
  • Jacobs v. Alam (2019) – pre-Egbert case finding no new context for a home raid, but distinguished here because Jacobs involved a residence and local officers.

3.2 Legal Reasoning

1. Step 1 – New Context.
   • Fourth-Amendment claims differ from Bivens because the arrest occurred in a federal office, not a home, and in the immigration-enforcement milieu.
   • Fifth-Amendment equal-protection claim differs from Davis because it concerns law-enforcement discrimination, not congressional employment discrimination.
   • Fifth-Amendment due-process claim is categorically different from any of the original trilogy.
   • ICE agents, performing an executive immigration function, are distinct defendants from those in Bivens (Treasury narcotics agents) and Davis (legislator). That dissimilarity alone can create a new context under Ziglar.
2. Step 2 – Special Factors.
   • INA/DHS Complaint System. Congress authorized DHS to supervise its employees; regulations (8 C.F.R. § 287.8, § 287.10) furnish a channel to complain about misconduct.
   • Habeas Corpus. While limited to release—not damages—it was available (and actually pursued) during the allegedly unlawful detention. Under Ziglar and Egbert, the mere presence of any alternative process bars judicial creation of a damages remedy.
   • Separation-of-Powers Concerns. Immigration enforcement is entrusted primarily to Congress and the Executive; implying damages risks judicial intrusion into sensitive, politically charged policy domains.

3.3 Impact of the Decision

• Forecloses Bivens Actions Against ICE Officers, at least in the Sixth Circuit. Plaintiffs alleging constitutional violations during immigration enforcement can no longer rely on Bivens for damages in this circuit unless Congress intervenes.
• Broadens “Immigration Context” Shield. The opinion treats standard, interior-Enforcement activities (far from a physical border) as sharing the same “national-security/immigration” sensitivity previously reserved for border-patrol situations. This significantly expands the shield recognized in Egbert.
• Administrative Exhaustion Likely Mandatory. Future litigants will be directed to DHS Office of Civil Rights and Civil Liberties (CRCL), Office of Inspector General (OIG), or other agency channels before considering damages litigation.
• Practical Shift to FTCA & injunctive avenues. Counsel for non-citizens may pivot to Federal Tort Claims Act suits (against the U.S., not individual officers) or to prospective injunctive relief under § 1331 rather than personal-capacity claims.
• Qualified Immunity Sidestepped. The panel’s choice to terminate at the Bivens step leaves immunity doctrine untouched; federal defendants gain protection via threshold non-liability, not only immunity.

4. Complex Concepts Simplified

5. Conclusion

The Sixth Circuit’s decision cements a significant limitation on constitutional tort suits against immigration officers. By classifying both Fourth- and Fifth-Amendment claims arising from ICE enforcement as “new contexts” and pointing to administrative complaints and habeas as adequate alternatives, the court aligns with—and extends—the Supreme Court’s increasingly restrictive Bivens jurisprudence. For practitioners, the ruling warns that creative pleading will not circumvent the judiciary’s deference to Congress in the immigration arena; substantive relief must now be sought either through statutory avenues Congress has provided or through new legislation. Strategically, the case underscores the urgency for legislative action if society desires a damages remedy for federal constitutional violations in immigration enforcement.