Why It’s Hard to Sue ICE Over Civil Rights Claims

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A lawsuit accusing an Immigration and Customs Enforcement (ICE) officer of an unconstitutional arrest can end without a decision on whether the arrest was lawful. The court may first decide that the law does not allow that particular demand for compensation from the officer. Other routes remain, each with its own limits: a claim for money against the United States, a court order against government action, court review of detention and a misconduct complaint.

A rights violation and a damages claim are different questions

The Fourth Amendment protects people and their homes against unreasonable searches and seizures. Congress gives immigration officers specified arrest powers, including warrantless immigration arrests when the officer has reason to believe a noncitizen is unlawfully present and likely to escape before a warrant can be obtained. Having that authority does not answer whether a particular arrest or home entry met constitutional requirements.

Constitutional protection inside the United States is not limited to citizens. The Supreme Court has explained that the Due Process Clause, the guarantee of fair legal process, applies to people within the United States, including noncitizens whose presence is lawful, unlawful, temporary or permanent. Immigration status and the availability of a particular damages remedy are distinct questions.

A familiar civil-rights statute, section 1983, provides a lawsuit for violations of federal rights by someone acting under the authority of state or territorial law. It does not generally cover officers acting under federal authority, such as ICE officers. For federal officers, the Supreme Court in 1971 allowed a lawsuit for damages against the officers personally in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. That remedy runs against individual officers; the Court declined to extend it directly to a federal agency in FDIC v. Meyer.

So a person cannot bring the same Bivens lawsuit against ICE itself instead of an officer. A different kind of claim may name the United States, but it needs its own legal basis.

How the Supreme Court narrowed Bivens

Bivens permitted a damages claim for an alleged Fourth Amendment violation by federal agents. In Davis v. Passman, the Court recognized a Fifth Amendment gender-discrimination damages remedy for a congressional administrative assistant who alleged in her lawsuit that she had been fired because she was a woman. In Carlson v. Green, the Court recognized an Eighth Amendment damages remedy in a lawsuit alleging that federal jailers failed to provide adequate medical treatment to a prisoner. Those three cases are the only ones in which the Supreme Court has approved an implied damages remedy under the Constitution itself, meaning one that no act of Congress spells out.

The rule now asks whether a claim presents a new context, meaning a situation meaningfully different from those recognized cases. Differences can include the officer’s legal mandate, the constitutional right involved, the officer’s rank and the risk of interfering with another branch of government. An allegation about a search is therefore not enough by itself to put every federal search case inside Bivens.

In Egbert v. Boule, issued on June 8, 2022, the Supreme Court refused to create Bivens claims for alleged excessive force under the Fourth Amendment and retaliation under the First Amendment. The case involved a U.S. Border Patrol agent, rather than an ICE officer: the man who sued alleged that the agent entered his property without a warrant and assaulted him. Its test nevertheless addresses when courts may create new constitutional damages remedies against federal officers.

Under Egbert, even one reason to think Congress might be better equipped to create a damages remedy can prevent a court from recognizing one in a new context. The majority explained that, except in the most unusual circumstances, creating a cause of action, a legal basis for suing, is Congress’s job. The central question is who gets to design the remedy, not just how serious the alleged injury was.

An alternative government process, such as the Border Patrol’s grievance process in Egbert, can also block a new Bivens remedy even when a court considers that process less effective than individual damages. The Egbert majority said courts cannot add a Bivens remedy on top of a process Congress or the Executive considers sufficient to deter violations. That is a rule about the availability of a lawsuit; it does not promise the injured person compensation through the alternative process.

Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Elena Kagan, dissented on the Fourth Amendment claim, arguing that existing precedent permitted compensation. The disagreement was over whether a damages lawsuit is available, not over whether federal officers must follow the Constitution.

What happened when people sued ICE officers

The Fourth Circuit hears federal appeals from Maryland, Virginia, West Virginia, North Carolina and South Carolina.

One federal appeals court applied the new-context test to ICE officers in Tun-Cos v. Perrotte, in which the plaintiffs challenged ICE stops and home entries in 2017. According to the complaint recounted in the court’s opinion, agents stopped one plaintiff outside his home in February 2017, showed him a photograph and demanded to enter after he said he did not know the pictured man. The complaint alleged that agents arrested six residents, took them to an ICE facility and released them on bond after ten hours.

The plaintiffs alleged unreasonable searches and seizures under the Fourth Amendment and discrimination under the Fifth Amendment; one plaintiff was a U.S. citizen. The U.S. Court of Appeals for the Fourth Circuit issued its decision on April 26, 2019. It reversed the district court, which had refused to dismiss the case, and directed dismissal of the damages action. Like Bivens, the case alleged unconstitutional searches and seizures by federal officers, but that resemblance did not settle the legal question.

The appeals court emphasized that ICE officers were enforcing immigration law under the Immigration and Nationality Act, a different mandate from the criminal-law enforcement in Bivens. It treated the proposed remedy as an extension into a new context and declined to permit it. This was a rejection of the legal vehicle for damages, rather than a finding that the alleged conduct was lawful. The dismissal covered the whole action, including the claims of the plaintiff who was a U.S. citizen.

The court expressly did not reach the ICE officers’ qualified-immunity defense. Qualified immunity generally protects officials performing discretionary functions from civil damages unless their conduct violates clearly established statutory or constitutional rights a reasonable person would have known. The two barriers are separate: recognizing a damages cause of action does not resolve immunity, and denying the cause of action can make an immunity decision unnecessary.

In Enriquez-Perdomo v. Newman, the Sixth Circuit on August 20, 2025, rejected Fourth and Fifth Amendment damages claims against ICE agents. The court treated the immigration-enforcement arrest outside the home as a new Bivens context and identified the INA complaint process and habeas review as alternative remedies.

Other lawsuits have different defendants and limits

A demand for money and a request to change what the government is doing should not be treated as interchangeable.

The Federal Tort Claims Act, or FTCA, allows certain damages claims against the United States for federal employees’ negligent or wrongful acts within the scope of their employment. The relevant question generally is whether a private person would be liable under the law of the place where the act occurred. In Meyer, the Supreme Court explained that this means state law; a federal constitutional violation alone is not an FTCA cause of action.

The FTCA has an exception for intentional torts, or deliberate wrongs, and a law-enforcement proviso inside that exception permits claims for assault, battery, false imprisonment, false arrest, abuse of process and malicious prosecution by qualifying federal investigative or law-enforcement officers. The qualifying officers are those legally empowered to conduct searches, seize evidence or make arrests for violations of federal law.

The Act also excludes claims based on a discretionary government function, even when the discretion is abused. That exception concerns government decisions involving protected judgment or choice. In Martin v. United States, decided on June 12, 2025, the Supreme Court held that the law-enforcement proviso modifies only the intentional-tort exception in which it appears. The proviso therefore does not erase the separate discretionary-function barrier. Whether that barrier actually covers particular conduct is a further legal question, not something the officer’s job title answers.

For a qualifying FTCA claim, the defendant in court is the United States, rather than ICE as an agency. Ordinarily, the claimant must first present the claim to the appropriate federal agency and obtain its written final denial before suing. The claim must be presented in writing to the agency within two years after the claim’s legal starting date. The legal term for that starting date is accrual; the general rule starts the clock when the injury happens. The agency must receive a completed Standard Form 95 or other written notice of the incident, accompanied by a demand for a specified amount of money. ICE directs claimants to submit a completed and signed form or written notification, with supporting documentation, to its Office of the Principal Legal Advisor’s District Court Litigation Division at 500 12th Street, SW, Mailstop 5900, Washington, DC 20536, or OPLA-DCLD-TortClaims@ice.dhs.gov.

A lawsuit must then be filed within six months after the agency mails its final denial by certified or registered mail. If the agency has not finally resolved the claim within six months, the claimant may treat that inaction as a denial and file suit. Keep the receipt and denial notice, and get legal advice about when the two-year clock starts and which deadline applies.

For claims seeking relief other than money, section 702 of the Administrative Procedure Act removes a sovereign-immunity objection, the government’s protection against being sued without legal permission, for qualifying lawsuits about official agency or officer action. That provision preserves other limits on judicial review and does not authorize relief another statute forbids.

Immigration law adds special restrictions: section 1252(g) of Title 8 of the U.S. Code limits review of specified decisions to commence proceedings, adjudicate cases or execute removal orders, subject to the section’s exceptions. A petition for review in the appropriate federal court of appeals is generally the exclusive route for reviewing a removal order, with a statutory exception for section 1252(e). A request to halt removal therefore requires attention to the correct court and the specific jurisdictional rules.

Section 1252(e) concerns narrow review of certain removal orders issued under a procedure that ordinarily skips a hearing. It permits limited habeas review of individual orders and certain challenges to the removal system in the federal district court in Washington, DC.

The federal habeas corpus statute allows challenges to custody that violates the Constitution or federal law. Habeas corpus, a request for a court to examine the legal basis for detention, serves a different purpose from compensation for a completed injury. Detention review and review of a removal order should not be assumed to use the same procedure.

Complaints and the next practical step

The Department of Homeland Security (DHS) directs civil-rights and civil-liberties allegations to its Office for Civil Rights and Civil Liberties, which offers an online complaint portal and reviews allegations about DHS policies and personnel. DHS’s complaint form asks what happened, when it happened and where, including the facility or other location and the agency involved. Preserve a dated account of the encounter and the documents connected with it before trying to reconstruct those details later.

The DHS Office of Inspector General also accepts allegations through its online hotline form or by phone at 1-800-323-8603. An oversight complaint and an FTCA administrative claim are different submissions with different purposes; do not treat reporting misconduct as a substitute for the required damages claim.

Before choosing a route, identify the result needed: payment for an injury, review of detention or an order affecting government action. Bring the chronology, notices and any previous filings to a lawyer who can assess the specific claims and deadlines.