THURSDAY, JUNE 9 , 2022. THE WASHINGTON POST EZ RE A
politics & the nationBY ANN E. MARIMOWA divided Supreme Court on
Wednesday sided with a Border
Patrol agent accused of using
excessive force during a confron-
tation, an outcome that will fur-
ther limit lawsuits against law
enforcement officials accused of
constitutional violations.
In a 6-to-3 decision, the court’s
conservative majority reinforced
protections for government offi-
cials who are generally immune
from civil lawsuits when it is
determined they have acted in
good faith while carrying out
their duties.
Justice Clarence Thomas, writ-
ing for the majority, said that in
rare instances such claims had
been allowed to proceed without
explicit authorization from Con-
gress and that the court should
not second-guess lawmakers re-
sponsible for deciding when indi-
viduals can seek damages for
constitutional violations.
“Because our cases have made
clear that, in all but the most
unusual circumstances, prescrib-
ing a cause of action is a job for
Congress, not the courts, we re-
verse,” wrote Thomas, who was
joined by Chief Justice John G.
Roberts Jr. and Justices Samuel
A. Alito Jr., Brett M. Kavanaugh
and Amy Coney Barrett.
Justice Neil M. Gorsuch wrote
separately agreeing with the
judgment.
In dissent, the court’s three
liberal justices said they would
have allowed the Washington
state man’s lawsuit to proceed
against the federal agent.
Justice Sonia Sotomayor wrote
that the court had “absolutely
immunized from liability” thou-
sands of Border Patrol agents “no
matter how egregious the mis-
conduct or resultant injury.”
Such cases “play a critical role
in deterring unconstitutional
conduct by federal law enforce-
ment officers,” wrote Sotomayor,
who was joined by Justices Ste-
phen G. Breyer and Elena Kagan.
The case was brought in 2017
by Robert Boule, who owned the
Smuggler’s Inn, a bed-and-break-
fast located in Washington state
along the Canadian border.
Boule had a complicated rela-
tionship with federal agents, ac-
cording to the court’s opinion. He
sometimes served as a paid, con-
fidential informant, helping
agents identify people crossing
the border illegally near his prop-
erty.
He also provided lodging and
shuttle service to those crossing
illegally, driving a black SUV with
the license plate “SMUGLER.”
Agents had seized from the inn
shipments of illegal drugs, the
opinion states, and Boule was
recently convicted in a Canadian
court on human trafficking
charges.
Boule sued a Border Patrol
agent whom he accused of unlaw-
fully entering his property, and
shoving and pushing him to the
ground during a 2014 encounter
involving a guest of Boule’s from
Turkey.
The agent, Erik Egbert,
checked the guest’s immigration
papers, which were up to date,
and the guest unlawfully crossed
the border into Canada that eve-
ning, the court’s opinion states.
Boule alleged that the agent vio-
lated his constitutional rights by
using excessive force and retaliat-
ing against Boule for complain-
ing to the agent’s superiors.
Central to the case is a 1971
ruling in Bivens v. Six Unknown
Named Agents of the Federal Bu-
reau of Narcotics in which the
Supreme Court recognized that
federal officers can be sued in
some instances, even if such law-
suits had not been explicitly au-
thorized by Congress.
But since then, the court has
moved to restrict when individu-
als can bring such federal law-
suits. Two years ago, a divided
court ruled that the family of a
Mexican teenager killed by a Bor-
der Patrol agent in a cross-border
shooting could not sue in U.S.
courts. Before that, the court said
in 2017 that senior U.S. govern-
ment officials cannot be held
liable for the alleged unconstitu-tional treatment of noncitizens
detained after 9/11.
Sotomayor wrote in her dissent
that the majority on Wednesday
had rewritten and stretched its
own legal standard “beyond rec-
ognition” to “close the door on
Boule’s claim.” The conduct at
issue, she noted, took place on
U.S. soil and the injury was to a
U.S. citizen.
“This case does not remotely
implicate national security,” she
wrote, adding that “Congress has
not provided that federal law
enforcement officers may enter
private property near a border at
any time or for any purpose.”
But Thomas said the reasoning
in earlier decisions involving na-
tional security applies to Boule’s
case because the Border Patrol
agent was carrying out his duty to
stop people from illegally enter-
ing or leaving the United States.
Boule, he said, had other ways to
address his concerns about the
agent’s conduct and noted that he
had filed a complaint that led to a
year-long internal investigation.
The majority stopped short of
overruling Bivens , but Gorsuch
wrote separately to emphasize
that the court should not leave
the false impression that future
claims will be viable.
“Weighing the costs and ben-
efits of new laws is the bread and
butter of legislative committees.
It has no place in federal courts
charged with deciding cases and
controversies under existing law,”
he wrote.
The court’s decision reverses a
unanimous ruling from a three-
judge panel of the U.S. Court of
Appeals for the 9th Circuit.
Egbert’s lawyer argued that
allowing Boule’s claims would
undermine the ability of Border
Patrol agents to engage in search-
es as part of their immigration-
enforcement responsibilities.
The Biden administration backed
the agent’s position.
Boule’s attorney did not im-
mediately respond to a request
for comment. In court filings,
Boule said his claims did not raise
national security or immigration
concerns and simply sought to
address the misconduct against
him.
The case is Egbert v. Boule.Supreme Court backs border agent
J ustices side 6 to 3
with man a ccused of
u sing excessive forceBY MARIA SACCHETTIWeeks into the Trump adminis-
tration’s family-separation policy,
immigration officials fired off
emails saying something was
awry.
The children were being re-
united too quickly with their par-
ents, an official wrote on a Friday
night in late May 2018.
“What a fiasco,” Tae Johnson,
an official with U.S. Immigration
and Customs Enforcement (ICE),
wrote to other officials at 8:
p.m. that Memorial Day weekend.
Johnson is currently the acting
ICE director.
The email exchanges are part of
a massive cache of internal docu-
ments the Biden administration
turned over to lawyers for mi-
grants this year after settlement
talks broke down in December,
forcing both sides to litigate in
open court. Families who were
separated have filed more than 20
lawsuits seeking millions of dol-
lars for their pain and suffering.
The May 2018 passages came to
light Tuesday as part of a court
filing seeking more records to
bolster a pair of lawsuits in U.S.
District Court in Arizona.
Lawyers for the migrants have
said the Biden administration’s
decision to end settlement talks
means that far fewer families are
likely to get compensation for the
separations, but it also is making
more information public, putting
high- and middle-ranking offi-
cials — including some who are
still in the government — under
scrutiny.
Immigration and border offi-
cials and the Department of
Homeland Security did not r e-
spond to requests for comment
about the filing. The Justice De-
partment, which represents the
government in the lawsuits, de-
clined to comment.
The U.S. government separated
more than 3,000 children from
their parents along the Mexican
border in May and June 2018, the
peak of President Donald Trump’s
“zero tolerance” policy to pros-
ecute adults for the misdemeanor
offense of crossing the border ille-
gally. DHS officials say more than
5,500 children were separated in
all.
The Trump administration ar-
gued that the increase in migrant
families that year was a scheme
driven by smugglers, since adults
traveling with children were more
likely to be released into the Unit-
ed States.
President Biden said on the
campaign trail that he abhorred
the separations, and he has vowed
to reunite the still-separated fam-
ilies, but the president balked at a
proposed settlement that would
have paid family members up to
$450,000 apiece.
Trump’s attorney general, Jeff
Sessions, and Homeland Security
Secretary Kirstjen Nielsen repeat-
edly said at the time that the goal
was to punish migrant adults for
breaking the law. But migrants’
lawyers argue that the new disclo-
sures show the government in-
tended to separate families and
deter others, and they say that
bolsters their claim that the gov-
ernment intended to inflict harm.
Many parents were separated but
never prosecuted.
“Although the government told
the public that family separation
was merely a byproduct of a ‘pros-
ecution’ policy, in fact it imple-mented a far broader policy of
separating all families appre-
hended at the border regardless of
whether the parents were pros-
ecuted or even referred for pros-
ecution,” lawyers for the migrants
wrote in the court filing Tuesday.
Under the zero-tolerance pol-
icy, U.S. Customs and Border Pro-
tection (CBP) would transport mi-
grant parents to federal court for
prosecution and then to ICE to
face deportation. Their children
would be declared “unaccompa-
nied” and sent to U.S. Health and
Human Services’ Office of Refu-
gee Resettlement (ORR), where
caseworkers would house them in
shelters and try to place them
with a parent or guardian.
The process did not go smooth-
ly: Hundreds of parents were de-
ported without their children,
others remain separated to this
day, and many others were apart
for weeks or months. Officials
have said the system was unpre-
pared to quickly reunite families,
but migrants’ lawyers said the
emails show that federal officials
knew in early May, if not earlier,
that migrant families were beingreunited quickly and worked to
prevent that from happening.
On May 10, 2018, Matthew Al-
bence, then a high-ranking offi-
cial at ICE, wrote in a memo to
other officials at the agency that
he was worried that parents
would be returned to their chil-
dren in Border Patrol stations too
quickly after going to criminal
court. Such prosecutions are typi-
cally quick: The offenses are so
minor that migrants often plead
guilty in groups and are sen-
tenced to time served that day.
CBP has 72 hours to transfer unac-
companied minors to govern-
ment shelters.
“This will result in a situation
in which the parents are back in
the exact same facility as their
children — possibly in a matter of
hours — who have yet to be placed
into ORR custody,” Albence wrote
to then-acting ICE director Thom-
as Homan and other officials.
Albence said CBP should work
with ICE “to prevent this from
happening,” such as by taking the
children themselves to ORR “at an
accelerated pace” or bringing the
adults directly to ICE from crimi-
nal court, instead of returning
them to their children.
Albence’s concern hit a fever
pitch that Memorial Day week-
end, when his fears were realized
in South Texas.
In the May 25, 2018, email,
Johnson wrote to Albence and
another official saying CBP was
“reuniting adults with kids” after
parents being prosecuted in
McAllen, a city in the Rio Grande
Valley, which was the busiest
stretch of the border at the time.
Johnson, then a top official in
ICE’s custody management divi-
sion, said the children had al-
ready been designated as unac-
companied but that ORR refused
to take them to shelters once their
parents returned from court.
“Transportation arrangements
are now being canceled and pre-
sumably the males (heads of
households) are being released,”
Johnson wrote to Albence. “What
a fiasco.”
“We can’t have this,” Albence,
then the ICE executive associate
director, shot back one minute
later.Another ICE official, David Jen-
nings, wrote a few minutes later
that ORR wouldn’t take an accom-
panied child.
“No consequence at this point,”
Jennings wrote. “ORR needs arm
twisted.”
Albence’s concerns reached the
Border Patrol, the part of CBP that
carried out most of the separa-
tions and transported parents to
criminal court.
Sandi Goldhamer, a CBP offi-
cial, said in a 10:04 p.m. email
among Border Patrol officials that
night that officials should “cease
the reunification process” in bor-
der stations.
“If you are concerned with ap-
pearances than (sic) do not return
the family unit adult back to the
CPC,” she said, apparently refer-
ring to a central processing center
in the Rio Grande Valley. She said
they should take adults to an
alternate holding facility, with a
handout to help them reunite
with their children, and have ICE
pick them up.
Around 2 a.m. the next day,
Albence messaged CBP Commis-
sioner Kevin McAleenan, his dep-
uty, Ron Vitiello, and acting ICE
director Homan that it appeared
that ORR was refusing to take
children whose parents had re-
turned from court in Texas. Offi-
cials heard the same in Arizona.
“This obviously undermines
the entire effort and the Dept is
going to look completely ridicu-
lous if we go through the effort of
prosecuting only to send them to
a FRC (family residential center)
and out the door,” he wrote.
Trump ended the policy amid
international outcry on June 20,
and days later, Albence said in an
internal email that HHS would
want to know what ICE could do
“to facilitate immediate reunifica-
tion” of the families. Albence said
“that wasn’t going to happen un-
less we are directed by the Dept to
do so.”
“We are moving forward w re-
unification only for the purposes
of removal,” he said.
A few days later, a federal judge
in San Diego ordered the govern-
ment to reunite the families.Nick Miroff contributed to this report.Lawyers: O∞cials slowed migrant family reunifications
Emails detail efforts by
ICE, others under 2018
‘zero tolerance’ policySALWAN GEORGES/THE WASHINGTON POST
A toddler hugs her migrant mother after they were detained in 2017 by the Border Patrol in McAllen,
Tex., after crossing illegally into the United States. Family separations began the following year.The U.S. governmentseparated more than3,000 children fromtheir parents along theMexican border in Mayand June 2018, the peakof President DonaldTrump’s “zerotolerance” policy toprosecute adults for themisdemeanor offense ofcrossing the borderillegally. DHS officialssay more than 5,children were separatedin all.Get $20 o your first class with code ENJOYoutschool.com/postWith over 140k live online classes,learning knows no boundaries.Setlearningfree.