IMMIGRATION LAW: Gang Violence and Relief from Removal Fourth Circuit Update

Suzanne Bailey—Senior Attorney

          With the widely reported drama surrounding escalated enforcement by Immigration and Customs Enforcement, it is easy to lose sight of the fact that not every apprehension is the end-of-the line for non-citizens who have unlawfully entered the United States. Some non-citizens are permitted by U.S. law to remain in the United States.

           A recent decision from the Fourth Circuit Court of Appeals addresses two potential avenues of relief for those for whom a return to their homeland would pose a danger that could not be alleviated by their own governments. See Ramos Marquez v. Bondi, No. 24-1842, ___ F.4th ___, 2025 U.S. App. LEXIS 30262, 2025 WL 3223424 (4th Cir. Nov. 19, 2025).

Suzanne Bailey, Senior Attorney

            In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the U.S. Supreme Court recognized an implied right of action for damages by a victim of a constitutional violation by a federal agent against that federal agent in federal court. In that case, the plaintiff sought damages for a violation of his Fourth Amendment rights when federal narcotics agent conducted a warrantless search of his apartment, arrested him for alleged narcotics violations, and subjected him to excessive force by conducting a visual strip search. Since Bivens, the Supreme Court has recognized an implied right of action against a federal agent committing a constitutional violation in only two other cases, Davis v. Passman, 442 U.S. 228 (1979) (woman discharged from employment by U.S. Congressman a right of action, arising directly under Fifth Amendment due process clause, to recover damages for Congressman's alleged sex discrimination), and Carlson v. Green, 446 U.S. 14 (1980) (administratrix of deceased federal prisoner's estate had cause of action against federal prison officials for violation of deceased's Eighth Amendment right to be free from cruel and unusual punishment by failing to give him proper medical attention). More recently, in Ziglar v. Abbasi, 582 U.S. 120 (2017), the Court stated that recognizing implied causes of action was now a "disfavored judicial activity," noting its consistent refusal "to extend Bivens to any new context or new category of defendants." Id. at 135 (internal quotation marks omitted). Before implying a cause of action, courts must engage in a two-step inquiry: (1) determine whether the claim presents a new Bivens context not previously recognized by the Supreme Court and, if so, (2) determine whether there are special factors counseling judicial hesitation absent action from Congress. Id. at 136-140.

Suzanne L. Bailey—Senior Attorney, National Legal Research Group

            It is well-established law that when a federal court reviews a federal agency's construction of a statute it administers, the court will look to whether Congress has addressed the precise question at issue. If the court determines that Congress has not directly addressed the issue, rather than imposing its own construction of the statute, the court will defer to the administrative agency's permissible construction of the statute. This standard of review is called Chevron deference, after the U.S. Supreme Court decision that articulated it. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). While application of Chevron deference frequently results in a decision upholding the agency's interpretation of its own statute, a recent decision from the Fourth Circuit Court of Appeals demonstrates that when the agency's interpretation is unreasonable, its interpretation will not prevail.

            In Amaya v. Rosen, No. 19-1619, 2021 WL 232554 (4th Cir. Jan. 25, 2021), a case that will be of interest to immigration practitioners specifically and administrative law practitioners generally—the Fourth Circuit held that even if Chevron deference applies to the Board of Immigration Appeals ("BIA") decisions interpreting provisions of the Immigration and Nationality Act ("INA") on a case-by-case basis, the BIA's interpretation cannot be sustained if it is unreasonable.