Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction

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Case 3:07-cv-01436-RNC Document 51-2 Filed 02/01/2008 Page 18 of 32packages. As Congress has explicitly laid out, the INA divests district courts of jurisdiction tohear challenges to bond determinations, and thus this Court may not review Plaintiffs’ claimsregarding bond, regardless of its label in the complaint or his theory of recovery. See 8 U.S.C. §1226(e). See also United States v. Fausto, 484 U.S. 439, 443-49 (1988).II. Plaintiff May Not Pursue A Bivens Remedy In Light Of Alternative Remedies InPlace And The Special Factors Present In The Immigration And Nationality ActEven if Plaintiffs’ claims are properly before this Court, they have no damages remedyagainst the individual federal defendants for claims regarding their arrest and detention. To theextent Plaintiffs have alleged constitutional violations, such claims are actionable—if atall—under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.388, 397 (1971). In Bivens, the Supreme Court asserted its general remedial powers to imply aprivate cause of action for damages, directly under the Constitution, against federal officers intheir individual capacities. Id. at 396. Nonetheless, Bivens and subsequent decisions have madeclear that federal courts have no freewheeling authority to imply a damages remedy any time aplaintiff can show a violation of the Constitution by a federal officer. See, e.g., CorrectionalServs. Corp. v. Malesko, 534 U.S. 61 (2001). In fact, for twenty-five years the Supreme Court“consistently refused to extend Bivens liability to any new context or new category ofdefendants.” Malesko, 534 U.S. at 68; see also Schweiker v. Chilicky, 487 U.S. 412, 421-25(1988) (“[o]ur more recent decisions have responded cautiously to suggesting that Bivensremedies be extended into new contexts”).In its last term, the Supreme Court again rejected an attempt to create a new Bivensremedy, reiterating that a damages remedy “is not an automatic entitlement ... and in most18
Case 3:07-cv-01436-RNC Document 51-2 Filed 02/01/2008 Page 19 of 32instances we have found a Bivens remedy unjustified.” Wilkie v. Robbins, 127 S. Ct. 2588, 2597(2007). The Supreme Court explained that a Bivens remedy should only be inferred if (1) thereis no alternative, existing process for protecting a constitutional interest, and (2) if there are nospecial factors counseling hesitation against a judicially created remedy. Id. In this case, theINA addresses the very subject of Plaintiffs’ complaints, and it provides an alternative, existingprocess to protect aliens’ constitutional interests. In addition, Congress’s plenary power overimmigration is another special factor counseling hesitation. Taken together, these mutuallyreinforcing special factors preclude a Bivens remedy in this case for claims relating toPlaintiffs’s arrest and detention.A. The Comprehensive Administrative and Judicial Review Scheme Of TheINA Is An Existing Process For Protecting Aliens Constitutional Rights WhichPrecludes A Bivens RemedyThe presence of a deliberately crafted statutory remedial system is a “special factor” thatprecludes a Bivens remedy because it demonstrates that Congress has not intended to allow aprivate right of action for damages. Schweiker, 487 U.S. at 421-25. That is, because there aremeaningful administrative and judicial remedies available to aliens like Plaintiffs in dealing withgovernment employees, this Court should refrain from providing a cause of action for allegedconstitutional violations. In this case, Plaintiffs’ arrest and detention are governed by the INA,which the Supreme Court itself has characterized as “the comprehensive federal statutoryscheme for regulation of immigration and naturalization.” De Canas v. Bica, 424 U.S. 351, 353(1976). In the INA, Congress has broadly provided that all aliens are subject to detention duringtheir removal proceedings. See 8 U.S.C. §1226(a). Congress has also delineated the types ofremedies available to aliens, taking into account their status in the United States and the19
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Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction

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