Ashcroft v. Abbasi (formerly Turkman v. Ashcroft) – U.S. Supreme Court

Preserving Federal Court Review in Bivens/FTCA cases


October 4, 2013

The Council, along with the National Immigration Project of the National Lawyers Guild (NIPNLG), is seeking to preserve federal court review of damages actions brought by noncitizens for abuse of authority by immigration agents. In actions brought under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the government routinely moves to dismiss these cases on a variety of jurisdictional grounds, including by arguing that INA § 242(g) bars the court’s review of damages claims in any case involving removal procedures, and that a remedy under Bivens is not available in immigration-related actions. In essence, the government is attempting to deprive those who have been harmed by immigration agents of any remedy in federal court.

We have filed amicus briefs which counter these arguments in various federal district and circuit courts. One such case is Ashcroft v. Abbasi, No. 15-1359 (S.Ct. amicus brief filed Dec. 27, 2016) (Turkman v. Ashcroft when it was pending at the Second Circuit below). The Council and NIPNLG filed an amicus brief while this case was pending at the Second Circuit, in support of eight noncitizens of Arab and South Asian descent who sued individual federal officials for physical and emotional abuse that they suffered when detained on immigration charges in the aftermath of September 11. These plaintiffs were held in particularly egregious conditions while the FBI decided whether they were terrorists, or had any value to the 9/11 investigation. In the decision below, the Second Circuit accepted amici's argument that the Supreme Court has provided a remedy for the type of constitutional misconduct by federal agents suffered by the plaintiffs in this case. Turkman v. Ashcroft, 789 F.3d 218 (2d Cir. 2015). Former Attorney General Ashcroft and the other defendants filed a petition for certiorari to the Supreme Court, which granted review. The Council, joined by NIPNLG, ACLU Immigrant Rights Project, Northwest Immigrant Rights Project, and the National Police Accountability Project, filed an amicus brief arguing, among other things, that the immigration context of the case is not a basis for denying a damages remedy for the plaintiffs. The Court held oral argument on January 18, 2017.  

For more information about these amicus briefs, please contact the Council's legal department.

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