Actions for Damages – Generally and Private Causes of Action - dhw
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Actions for Damages - Generally and Private Causes of Action

There are at least four types of actions for damages that may be brought by aliens as a result of their alleged treatment by governmental officials: (1) claims under the Federal Tort Claims Act; (2) actions under the federal civil rights statutes; (3) Bivens actions; and (4) private causes of action. These different theories of recovery differ in many ways, including what prerequisites exist before a lawsuit may be pursued, who may be sued, and what may be recovered.

The first three of these types of suits are the most successful. They each have well-defined components, theories of recovery, and defenses. However, a private cause of action could potentially succeed against government officials or the government itself. For this to occur, an alien would have to request a court to imply a federal cause of action from the federal immigration statutes. This is because the immigration laws do not expressly create a remedy for aggrieved parties to pursue.

The relevant criteria in determining whether a private remedy is implicit in a statute that does not expressly establish a private cause of action were established by the United States Supreme Court. They are as follows: (1) do the statutes, here the immigration statutes, demonstrate legislative intent to create a private cause of action, either explicitly or implicitly; (2) would it be consistent with the underlying legislative scheme of the immigration laws to imply a private remedy; (3) does the requested cause of action fall within the realm of state law, rendering it potentially inappropriate to imply a separate cause of action under the federal immigration laws; and (4) does the person requesting the creation of a cause of action fall within the class the immigration laws were designed to protect?

At least three federal circuits have considered whether implied private causes of action might be available to aliens, and all have rejected the existence of such remedies. However, at least theoretically, an alien might succeed in the future in demonstrating that these four criteria exist relative to his or her claimed damage, so private causes of action should be considered one of potential avenues of recovery for aggrieved aliens.