The agents arrested Bivens, threatened to arrest his assembled family members, and transported Bivens to a federal office. Once there, he was interrogated and subjected to “a visual search of his private parts.” The narcotics case against Bivens was never prosecuted.
Nearly two years later, he filed a handwritten pro se complaint against federal agents in the U.S. District Court for the Eastern District of New York. Bivens alleged that the agents used “unreasonable force” in his arrest and caused him “great humiliation, embarrassment, and mental suffering.”
In 1971, the U.S. Supreme Court ruled in Bivens’ favor, holding that his novel complaint created a judicial remedy for civil damages under the Fourth Amendment’s protection against unreasonable searches and seizures.
No federal statute provided for this kind of claim against federal authorities, but Section 1983 of Title 42 of the U.S. Code created a cause for civil damages against state law enforcement. The court looked at the Section 1983 protection and concluded that a similar implied cause of action existed to provide redress of Bivens’ alleged harms.
In 2010, a 15-year-old Mexican national, Sergio Adrián Hernández Güereca, was with a group of friends in a concrete culvert on the Mexican side of the U.S.-Mexico border near El Paso, Texas.
The teenagers were allegedly playing a game, running toward the U.S. side of the culvert, touching a fence, and then running back. Standing on U.S. soil, U.S. Border Patrol Agent Jesus Mesa Jr. fired two shots at Sergio, killing the boy as he ran in the opposite direction.
Following Hernández Güereca’s death, the U.S. Department of Justice investigated Mesa and declined to bring any action against him. The Mexican government requested Mesa’s extradition to face criminal charges in Mexico. The U.S. denied that request. 
With all other legal avenues foreclosed, Sergio’s parents sued in federal district court seeking civil damages against Mesa for their son’s death. Citing to the authority established in Bivens’ case, Sergio’s parents alleged that in killing their son, Mesa violated Sergio’s Fourth and Fifth Amendment rights.
Last week, the Supreme Court held in Hernandez v. Mesa that the Hernández family has no remedy against federal agent Mesa for any violation of their son’s constitutional rights. Along the way — and raising a question not presented by the litigation — the court also cast doubt on the merit of Bivens original claim.
In a 5-4 decision authored by Justice Samuel Alito, the court’s conservative majority ruled that Bivens’ v. Six Unknown Federal Narcotics Agents does not extend to claims based on a cross-border shooting.
While at first glance the case may seem a typical limitation on the rights of noncitizens — a philosophy the court has endorsed for generations — the Hernández decision sweeps more broadly toward curtailing the rights of U.S. citizens aggrieved by the actions of federal officers.
The court relied heavily on many of the principles underlying its earlier jurisprudence in cases involving noncitizens, including concerns of national security, foreign relations and separation of powers. This was the second time the court reviewed the Hernández case.
The first occasion was Hernandez’s appeal from the U.S. Court of Appeals for the Fifth Circuit’s 2015 holding that as a Mexican citizen with no voluntary connection to the U.S., Sergio was not entitled to Fourth Amendment protection, and that Mesa’s qualified immunity defense overcame any Fifth Amendment due process protection.
In that decision, Sergio’s status as a noncitizen formed an operative element of the Fifth Circuit’s analysis in denying him Fourth Amendment rights. Yet on review, the court remanded Hernández and directed the Fifth Circuit to reexamine the case in view of its holding in Abbasi v. Ziglar.
That case, also involving the rights of noncitizens, did not rely on citizenship status to find that Bivens did not extend to a class of former detainees suing federal officials. Instead, the court found that the plaintiffs’ unauthorized immigration status in conjunction with the unique considerations of an executive policy fashioned in the immediate aftermath of the Sept. 11 terror attacks created a new context that distinguished it from Bivens.
Further, the court determined that the unique circumstances of the case arising in the executive branch’s response to the events of Sept. 11 also constituted special factors, counseling judicial hesitance to extend a remedy outside of Congress’s statutory authority.
Yet, it was of some moment in Abbasi that there were alternative remedies available to the plaintiffs. Indeed, the court found that unlike Bivens’ “damages or nothing” proposition, the plaintiffs in Abbasi had alternative remedies available including under habeas corpus.
Returning to Hernández, the Fifth Circuit Court of Appeals applied the new context/special factors test from Abbasi and found that the Hernández claim failed on both prongs. Last week, the Supreme Court affirmed that decision, closing the court’s doors to the Hernández family.
Though this case may seem at first a pragmatic limitation to the extraterritorial context affecting the rights of a noncitizen, the court’s analysis reveals a more fundamental limitation.
The court did not address the citizen/noncitizen distinction raised in the 2015 Fifth Circuit opinion. Instead, the court’s opinion made plain its view that the judiciary-fashioned remedy in Bivens was uniquely bound to the facts of that case and declined to extend Bivens without congressional legislative authority. In support of this holding, the court re-opened its earlier analysis in Bivens, questioning the propriety of that ruling.
In particular, the court focused on the absence of statutory authority under which federal agents may be liable for civil damages of the kind contemplated not only by the family of Sergio Hernandez, but also by Bivens.
Abbasi took pains to highlight that “this opinion is not intended to cast doubt on the continued force, or even the necessity of, of Bivens in the search-and-seizure context in which it arose.” Indeed, the Hernández dissent authored by Justice Ginsburg, underscores this language from Abbasi.
Yet, the Hernández majority characterizes Abbasi as standing for the proposition that if Bivens “’[had] been decided today,’ it is doubtful that we would have reached the same result.”
The court’s dicta on this point is stunning and Justice Clarence Thomas’ Hernández concurrence (joined by Justice Neil Gorsuch) only furthers the point:
Without his novel complaint for a judicial remedy, Bivens would have had no recourse against the federal agents he alleged violated his constitutional rights. This week, Sergio Hernández Güereca’s family find themselves in just that predicament.
[I]t appears that we have already repudiated the foundation of the Bivens doctrine; nothing is left to do but overrule it.
The court’s result in Hernández suggests uncertainty for noncitizens and citizens alike, and regardless of their placement in relation to an international border. Will the remedy that bears Bivens name survive? The court’s decision in Hernández signals its hesitance to continue to provide that remedy without specific congressional authority.
Cori Alonso-Yoder is the practitioner-in-residence with the immigrant justice clinic at American University Washington College of Law.
"Perspectives" is a regular feature written by guest authors from the access to justice field. To pitch article ideas, email email@example.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 James E. Pfander, The Story of Bivens v. Six Unknown-Named Agents of the Federal Bureau of Narcotics 5 (Northwestern School of Law Faculty Working Papers, Paper 189, 2009).
 Lyle Deniston, "Webster Bivens’ Story — an update after half a century," Constitution Daily (Oct. 12, 2016), https://constitutioncenter.org/blog/webster-bivens-story-an-update-after-a-half-century.
 Pfander, supra note 1.
 Bivens v. Six Unknown Fed. Narcotics Agents , 403 U.S. 388, 389 (1971).
 Id. at 388.
 Hernandez et al. v. Mesa , No. 17-1678, slip op. at 1 (U.S. Feb. 25, 2020)(Ginsburg, J. dissenting).
 Hernandez, slip op. at 2.
 Id at 2-3.
 Id. at 3.
 Id. at 4 - 20.
 See Chae Chan Ping v. U.S. , 130 U.S. 581 (1889); Harisiades v. Shaughnessy , 342 U.S. 580 (1952).
 Hernández at 12 -14.
 Id. at 9-12.
 Id. at 19.
 Id. at 3 (citing Hernández v. U.S. , 785 F. 3d 117, 119 (CA5 2015) (per curiam)).
 Ziglar v. Abbasi , 582 U. S. ___ (2017).
 Id. at 16-17.
 Id. at 17-18.
 Id. at 22.
 885 F. 3d 811 (CA5 2018).
 Abbasi at 11.
 Hernández, slip op. at 6-7 (Ginsburg, J., dissenting).
 Hernandez, slip op. at 7 (citing Abbasi at 11).
 Hernández, slip op. at 4 (Thomas, J., concurring).