ICE and federal officers
Section 1983 reaches a person acting under color of the law of a State. An ICE agent, a Border Patrol officer, a Marshal or an FBI agent acts under federal law, and the statute does not reach them. The damages remedy the Supreme Court once implied against federal officers, called Bivens, has been cut back to almost nothing. What remains is the Federal Tort Claims Act: a claim against the United States for assault, battery, false arrest, false imprisonment, abuse of process or malicious prosecution by a federal law enforcement officer, presented in writing to the agency within two years, with suit only after the agency denies it or six months pass. This page goes through each step and hands off detention and removal to the firm's immigration sites.
Most of this site is about officers who work for a city, a county or a state. This page is about the officers who do not: ICE, Customs and Border Protection, the Marshals, the FBI, the DEA and the rest. The same arrest, the same force, the same cell, but a different statute, a different defendant, a different clock and a different form of notice. The mistake people make is to wait for the immigration case to end before thinking about the arrest. The immigration case can take years; the claim against the United States has two.
Why Section 1983 stops at the state line
The statute makes liable "every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State" subjects a person to the deprivation of a federal right (42 U.S.C. § 1983). The words are "of any State." A federal officer enforcing federal immigration law is not acting under color of state law, and the statute does not reach the officer, however plainly the conduct would have been a violation if a police officer had done it. The under color of law page goes through the phrase.
Your status is not the obstacle. The Supreme Court said in Plyler v. Doe, 457 U.S. 202 (1982), that "whatever his status under the immigration laws, an alien is surely a 'person'," and Section 1983 protects "any citizen of the United States or other person within the jurisdiction thereof." A person without status who is arrested by the NYPD has the same Section 1983 claim as anyone else. The immigration status page goes through what an arrest does to an immigration case and how the two are handled together.
Mixed teams: who employed the officer decides
Immigration arrests are often made with local police present, at a courthouse, on a traffic stop, or in a joint operation. The claim against each officer follows that officer's employer. The NYPD officer who made the stop or held your arms is reached by Section 1983 and, for a stop or search, by the City's 2021 civil rights law; the ICE agent beside him is not. The rule for a local officer formally deputized onto a federal task force is not in this site's verified ledger and is not published here; it is a question for the first conversation, and the names and agencies of every officer present are the facts it turns on.
What is left of Bivens
For fifty years the courts implied a damages claim against federal officers directly from the Constitution, named for the case that created it. In Egbert v. Boule, 596 U.S. 482 (2022), the Supreme Court held that no Bivens remedy lies for a Fourth Amendment excessive force claim against a Border Patrol agent, or for a First Amendment retaliation claim, and described extending Bivens to any new context as "a disfavored judicial activity." The claim that is closest to a police abuse case, force by a federal immigration officer during an arrest, is the one the Court refused. A Bivens claim may still lie in narrow circumstances, and where one does, it generally borrows the forum state's personal injury limitation period, on the reasoning the circuits have applied from Owens v. Okure: three years in New York, two in New Jersey, four in Florida. We evaluate it in every federal-officer case. We plan the case around the claim below.
The Federal Tort Claims Act route
The Federal Tort Claims Act lets a person sue the United States for the torts of its employees, and it generally excludes intentional torts. The exclusion has a proviso written for exactly this situation: the intentional-tort exception does not apply to "investigative or law enforcement officers," meaning officers empowered to execute searches, seize evidence or make arrests, for claims of assault, battery, false imprisonment, false arrest, abuse of process and malicious prosecution (28 U.S.C. § 2680(h)). An ICE or CBP officer who makes arrests is such an officer. So the force used in the arrest is an assault and battery claim against the United States, an arrest without cause is a false arrest and false imprisonment claim, and a proceeding begun without cause is an abuse of process or malicious prosecution claim, each judged under the tort law of the state where it happened.
Two years, then six months, then six months
A tort claim against the United States must be presented in writing to the appropriate federal agency within two years after the claim accrues (28 U.S.C. § 2401(b)). No suit may be filed until the agency has finally denied the claim, and the agency's failure to dispose of the claim within six months may be treated as a final denial (§ 2675(a)). Once the agency mails a final denial, suit must be filed within six months of the mailing (§ 2401(b)). The two-year clock is not extended by an open immigration case, and it is not extended by detention.
| Step | Clock | Authority |
|---|---|---|
| Written claim presented to the agency (ICE, CBP, the Marshals, the FBI) | 2 years from accrual | 28 U.S.C. § 2401(b) |
| Wait for the agency's final denial | No suit before it; 6 months of inaction may be treated as a denial | 28 U.S.C. § 2675(a) |
| Suit against the United States | 6 months from the mailing of the final denial | 28 U.S.C. § 2401(b) |
| Claims covered for law enforcement officers | Assault, battery, false imprisonment, false arrest, abuse of process, malicious prosecution | 28 U.S.C. § 2680(h) |
Which agency receives the claim is a fact question with a hard consequence: a claim presented to the wrong agency is not presented. The officers' agency is identified from the paperwork you were given, the vehicle, the facility you were taken to, and the names on any form. The deadlines page puts this clock beside the state ones, and the deadline tool counts it from your date.
Detention, bond and removal are different cases
This page is about damages for what an officer did. It is not about getting out of detention or staying in the country. Those are handled on the firm's immigration sites, by the same office, and they come first: the damages claim can wait two years, and the bond hearing cannot wait a week. If you or a family member is in ICE custody now, or has a hearing date, start there.
ICE detention, bond hearings and habeas. Where the detained person's case starts, and the site to use while someone is still in custody.
Go to icebail.com →
immigrationtrial.comRemoval proceedings in immigration court: the hearing, the relief, the appeal. Where an arrest by ICE leads next.
Go to immigrationtrial.com →
The record, and the open charge
The rules that help in an NYPD case do not apply here. The Right to Know Act business card, the CCRB, and the City's 2021 law all reach NYPD officers only. What you have is what you keep: every form you were handed, with the agency name and the officer's name or number on it; the date, time and place of the arrest; the names and agencies of every officer present, including any local police; the facility you were taken to and when; any injury and any medical care; the names of witnesses; and your own written account, dated, written as soon as you can and shown only to a lawyer. Where local police took part, their body-worn camera footage is requested by FOIL as it would be in any other case, and in New Jersey the retention floor is 180 days (N.J.S.A. 40A:14-118.5). The evidence page goes through each request, and the first week page is the checklist.
If a criminal charge is pending, federal or state, talk to your defense lawyer before describing the arrest to anyone, and do not name officers in writing. An immigration arrest often follows a criminal one, and the criminal case, the immigration case and the damages claim are three accounts of the same event that have to agree. The criminal case and civil case page explains how they are sequenced, and for a noncitizen weighing a plea, myimmigrationplea.com explains what the plea does to status.
New Jersey and Florida
The route against a federal officer is federal and does not change at the state line: the same written claim within two years, the same six-month wait, the same suit against the United States, whether the arrest was in Brooklyn, Newark or Miami. Two things do change. A Bivens claim, where one lies, generally borrows the state's period: two years in New Jersey (N.J.S.A. 2A:14-2) and four years in Florida (Fla. Stat. § 95.11(3)). And any state or local officers who took part keep their own state's clocks: in New Jersey a Tort Claims Act notice within 90 days (N.J.S.A. 59:8-8) and a Civil Rights Act claim within two years (N.J.S.A. 10:6-2), with no notice required for the Civil Rights Act claim (Owens v. Feigin, 194 N.J. 607 (2008)); in Florida a written claim to the agency within three years with a six-month wait (Fla. Stat. § 768.28(6)) and damages against the agency capped at $200,000 per person and $300,000 per incident, which are statutory caps (§ 768.28(5)(a)). The New Jersey and Florida pages go through each, and Florida matters are handled through the firm's Aventura office.
Status and the lawsuit
A person without status can sue. What an arrest does to an immigration case, and how the two are handled together.
Immigration status →Every clock, by agency
The federal two-year claim beside the New York, New Jersey and Florida rules, in one table.
Deadlines →If local police made the arrest
Probable cause, the defenses, and why the New York clock runs before the criminal case ends.
False arrest →Common questions
ICE arrested me without a warrant and used force. Can I sue under Section 1983?
Not the ICE officers. Section 1983 applies to a person acting under color of the law of a State, and a federal officer acts under federal law. The claim for what a federal law enforcement officer did during an arrest is brought against the United States under the Federal Tort Claims Act, which expressly allows claims for assault, battery, false arrest, false imprisonment, abuse of process and malicious prosecution by investigative or law enforcement officers. If local police took part in the arrest, the Section 1983 claim against those officers still exists.
Does my immigration status matter?
Not to the right to sue. The Supreme Court said in Plyler v. Doe that whatever a person's status under the immigration laws, the person is a person under the Constitution, and Section 1983 protects any person within the jurisdiction. The obstacle in a case against ICE is the employer, not your status. Whether a lawsuit affects an open immigration case is a separate question, handled with your immigration lawyer, and the immigration status page goes through it.
What is Bivens, and is it still available?
Bivens is the name for a damages claim against a federal officer implied directly from the Constitution. In Egbert v. Boule in 2022 the Supreme Court refused to extend it to an excessive force claim against a Border Patrol agent or to a First Amendment retaliation claim, and called extending Bivens a disfavored judicial activity. A Bivens claim may still lie in narrow circumstances, and where one does it generally borrows the state's personal injury limitation period. We evaluate it, but the Federal Tort Claims Act claim is the one that is planned around.
How long do I have?
The written claim to the federal agency must be presented within two years of the date the claim accrued. No suit may be filed until the agency finally denies the claim, and if the agency does not act within six months you may treat that as a denial. Once a final denial is mailed, suit must be filed within six months. The deadline tool counts the two years and the six months from the date you enter.
Tell us what happened.
One conversation with an attorney, in your language. We tell you which claims the facts support, which deadline runs first for the agency involved, what evidence to preserve this week, and whether a pending criminal case changes the timing. If it is not a case we can take, we say so and tell you where to go.
(718) 484-7510If a criminal charge is still open, talk to your defense lawyer before you describe the arrest to anyone, including us. English, Russian and Spanish in-house; an interpreter for any other language. Contingency fee, confirmed in writing before we begin.