## Facts

- A U.S. Border Patrol agent, standing in the United States, shot and killed a 15-year-old Mexican national who was standing in Mexico near the border.
- The decedent’s parents alleged the boy was unarmed and posed no threat when the agent fired across the border.
- The Department of Justice investigated and declined to prosecute the agent; the United States declined to extradite him.
- The parents sued for damages, asserting an implied cause of action under Bivens for alleged Fourth and Fifth Amendment violations.
- The district court dismissed; the Fifth Circuit ultimately affirmed dismissal after remand to apply the post-*Abbasi* Bivens framework.

## Issues

1. Whether federal courts should recognize a Bivens damages remedy for a cross-border shooting by a federal officer.
2. Whether the cross-border shooting claim arises in a “new context” under the Bivens analysis.
3. Whether “special factors” counsel hesitation such that courts should defer to Congress to create (or decline to create) a damages remedy.

## Decision

- The Supreme Court affirmed dismissal and held that Bivens does not extend to claims based on a cross-border shooting.
- The Court treated the claim as arising in a new Bivens context, even though excessive-force claims can involve the same constitutional provisions as prior cases.
- The Court found multiple special factors counseling hesitation, including foreign-relations consequences, border-security and national-security implications, and separation-of-powers concerns.
- The Court emphasized Congress’s extensive regulation of immigration and border enforcement without creating a comparable damages remedy, viewing that legislative silence as a reason not to create one judicially.
- The Court did not resolve the underlying extraterritorial scope of the Fourth or Fifth Amendments, disposing of the case on the absence of a Bivens remedy.

## Legal Principles

- Extending Bivens to a new context is disfavored; a context is “new” if it differs meaningfully from prior recognized Bivens settings, even when the same constitutional amendment is invoked.
- If a case presents a new Bivens context, courts must ask whether special factors counsel hesitation before implying a damages remedy.
- Foreign relations and national security implications are special factors that strongly counsel hesitation, particularly where judicial intervention could affect border enforcement and international incidents.
- Where Congress has legislated extensively in a field but has not authorized a damages remedy, courts should be reluctant to create one.

## Conclusion

The Court declined to create an implied federal damages action for a cross-border shooting by a Border Patrol agent, holding that the case presented a new Bivens context and that special factors—especially foreign relations, national security, and congressional primacy over remedial schemes—required dismissal.


Hernandez v. Mesa, 589 U.S. 93 (2020)