"The plenary power that the political branches of government exercise over the admission and exclusion of noncitizens does not compel a different conclusion. In the first place, this case does not involve the admission or exclusion of noncitizens. It involves an excessive force claim. In any event, where constitutional rights do exist notwithstanding plenary power—as here, for the reasons set forth in Petitioners’ brief, see Br. 14-27—then the Court should recognize a cause of action that allows a remedy for violation of those rights.... Recognizing a Bivens cause of action in this context will not lead to a deluge of new claims. To the contrary, numerous Courts of Appeals have long recognized the availability of a Bivens cause of action in the border patrol and immigration enforcement context, and lower courts have not been inundated with litigation as a consequence of this recognition. Nor is there any evidence that legitimate immigration enforcement interests have been unduly constrained as a result. Accordingly, this Court should permit a Bivens cause of action in this case."
Brief of the American Immigration Council, the National Immigration Project of the National Lawyers Guild, the National Police Accountability Project, and the Northwest Immigrant Rights Project in Support of Petitioner David White. Authored by Mary Kenney, American Immigration Council; Matthew E. Price, Counsel of Record; Marina K. Jenkins, Tassity S. Johnson, and Michael E. Stewart, Jennifer & Block LLP; Trina Realmuto, National Immigration Project of the National Lawyers Guild; Julia Yoo and Eugene Iredale, Iredale and Yoo, APC, Counsel for National Police Accountability Project; Matt Adams, Northwest Immigration Rights Project; Johnathan H. Feinberg, Kairys, Rudovsky, Messing & Feinberg LLP, Counsel for National Police Accountability Project.