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CAIR Files SCOTUS Amicus Brief in Support of Right to Sue Border Agents, Federal Government Over Constitutional Violations

“Without a Bivens remedy, nothing will stop Border Patrol agents from trampling on our freedom” – CAIR Trial Attorney Justin Sadowsky.

(WASHINGTON, D.C., 8/9/19) -The Council on American-Islamic Relations (CAIR), the nation’s largest Muslim civil rights and advocacy organization, today announced the filing of an amicus brief in the U.S. Supreme Court in the case of Hernandez v. Mesa in support of the right to sue border agents and the federal government over violations of constitutional rights. 

SEE: Brief of Council on American-Islamic Relations and Anas Elhady as Amici Curiae in Support of Neither Party

In Hernandez, a Border Patrol agent shot Jesus Hernandez, an unarmed Mexican citizen, from across the border in violation of the Constitution. The question before the Supreme Court is whether Hernandez’s family may bring a damages action, known as a Bivens action, against the Border Patrol agent.

CAIR supports Bivens actions. They are often the only way for Americans to vindicate their constitutional rights. As CAIR’s brief explains, Bivens actions against Border Patrol agents do not generally raise questions of national security or foreign relations.

As CAIR’s brief makes clear, “Border Patrol agents may commit constitutional violations in situations that are no different than other Bivens actions. And when they do, nothing about the Border Patrol agent’s title or employer implicates national security concerns or otherwise counsels against extending Bivens liability.” 

The brief also warns the court against creating a rule that would allow Hernandez’s case to proceed but forbid Bivens actions in other cases when another remedy might be available.  

Remedies such as the Federal Tort Claims Act are not in themselves always sufficient to protect or compensate Americans from constitutional violations. As CAIR’s brief explains, “Congress intended the FTCA and Bivens to serve as parallel and complementary sources of liability.” 

“A recent government report found that Border Patrol employees are not held accountable,” said CAIR Senior Litigation Attorney Gadeir Abbas. “That must stop.” 

CAIR Trial Attorney Justin Sadowsky added, “Without a Bivens remedy, nothing will stop Border Patrol agents from trampling on our freedom.”   

The brief is filed on behalf of itself and Anas Elhady, an American Muslim who was detained while returning from Canada without cause and ultimately hospitalized for life-threatening hypothermia in light of the dangerous conditions of his improper confinement. 

“Jesus Hernandez deserves a right to hold his government accountable, but so does Anas Elhady, and so does everyone else whose rights are trampled on by government officials,” said CAIR National Legal Director Lena Masri. 

CAIR is America’s largest Muslim civil liberties and advocacy organization. Its mission is to enhance understanding of Islam, protect civil rights, promote justice, and empower American Muslims. 

La misión de CAIR es proteger las libertades civiles, mejorar la comprensión del Islam, promover la justicia, y empoderar a los musulmanes en los Estados Unidos 


CONTACT: CAIR National Litigation Director Lena Masri,, 202-742-6420; CAIR Senior Litigation Attorney Gadeir Abbas,, 720-251-0425; CAIR Trial Attorney Justin Sadowsky,, 202-742-6440

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