    Case: 11-50792   Document: 00512681077   Page: 1   Date Filed: 06/30/2014




       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                Fifth Circuit

                                                              FILED
                                                             June 30, 2014

                              No. 11-50792                   Lyle W. Cayce
                                                                  Clerk

JESUS C. HERNANDEZ, Individually and as the surviving father of Sergio
Adrian Hernandez Guereca, and as Successor-in-Interest to the Estate of
Sergio Adrian Hernandez Guereca; MARIA GUADALUPE GUERECA
BENTACOUR, Individually and as the surviving mother of Sergio Adrian
Hernandez Guereca, and as Successor-in-Interest to the Estate of Sergio
Adrian Hernandez Guereca,
                                        Plaintiffs–Appellants
v.

UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF
HOMELAND SECURITY; UNITED STATES BUREAU OF CUSTOMS AND
BORDER PROTECTION; UNITED STATES BORDER PATROL; UNITED
STATES IMMIGRATION AND CUSTOMS ENFORCEMENT AGENCY;
UNITED STATES DEPARTMENT OF JUSTICE,
                               Defendants–Appellees

consolidated with 12-50217

JESUS C. HERNANDEZ, Individually and as the surviving father of Sergio
Adrian Hernandez Guereca, and as Successor-in-Interest to the Estate of
Sergio Adrian Hernandez Guereca; MARIA GUADALUPE GUERECA
BENTACOUR, Individually and as the surviving mother of Sergio Adrian
Hernandez Guereca, and as Successor-in-Interest to the Estate of Sergio
Adrian Hernandez Guereca,
                                        Plaintiffs–Appellants
v.

JESUS MESA, JR.,
                                       Defendant–Appellee
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                                 No. 11-50792

consolidated with 12-50301

JESUS C. HERNANDEZ, Individually and as the surviving father of Sergio
Adrian Hernandez Guereca, and as Successor-in-Interest to the Estate of
Sergio Adrian Hernandez Guereca; MARIA GUADALUPE GUERECA
BENTACOUR, Individually and as the surviving mother of Sergio Adrian
Hernandez Guereca, and as Successor-in-Interest to the Estate of Sergio
Adrian Hernandez Guereca,
                                        Plaintiffs–Appellants
v.

RAMIRO CORDERO; VICTOR M. MANJARREZ, JR.,
                              Defendants–Appellees



                Appeals from the United States District Court
                      for the Western District of Texas



Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      This case involves a foreign national’s attempt to invoke constitutional
protection for an injury that occurred outside the United States. United States
Border Patrol Agent Jesus Mesa, Jr. (“Agent Mesa”), standing in the United
States, shot and killed Sergio Adrian Hernandez (“Hernandez”) Guereca, a
Mexican citizen, standing in Mexico. Hernandez’s family sued, asserting a
number of claims against the United States, the border patrol agent, and the
agent’s supervisors. For the following reasons, we AFFIRM the judgments in
favor of the United States and the supervisors, but we REVERSE the judgment
in favor of the border patrol agent.
                              I. BACKGROUND
      Appellants’ complaint sets forth the following factual allegations. On June
7, 2010, Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national,


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                                        No. 11-50792

was gathered with a group of friends on the Mexican side of a cement culvert
that separates the United States and Mexico.1 Hernandez and his friends were
playing a game that involved running up the incline of the culvert, touching the
barbed-wire fence separating Mexico and the United States, and then running
back down the incline. As they were playing, United States Border Patrol Agent
Jesus Mesa, Jr. arrived on the scene and detained one of Hernandez’s friends,
causing Hernandez to retreat “beneath the pillars of the Paso del Norte Bridge”
in Mexico to observe. Agent Mesa, still standing in the United States, then fired
at least two shots at Hernandez, one of which struck him in the face and killed
him.
       Hernandez’s parents, Jesus C. Hernandez and Maria Guadalupe Guereca
Bentacour (“the Appellants”), sued, asserting eleven claims against the United
States, Agent Mesa, and unknown federal employees. They brought the first
seven claims under the Federal Tort Claims Act (“FTCA”) based on multiple
allegations of tortious conduct.2 Their next two claims asserted that the United
States and the unknown federal employees had violated Hernandez’s Fourth and
Fifth Amendment rights by knowingly adopting inadequate procedures
regarding the use of deadly force and by failing to adopt adequate procedures
regarding the use of reasonable force in effecting arrests. Their tenth claim
asserted that Agent Mesa was liable under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for violating
Hernandez’s Fourth and Fifth Amendment rights through the use of “excessive,


       1
           The culvert is located near the Paso del Norte Bridge in El Paso, Texas.
       2
         Specifically, the FTCA claims were based on (1) assault and battery, (2) negligence,
(3) Agent Mesa’s use of excessive and deadly force, (4) the negligent adoption of policies that
violated Hernandez’s rights, (5) the negligent failure to adopt policies that would have
protected Hernandez’s rights, (6) the intentional adoption of policies that violated Hernandez’s
rights, and (7) the intentional failure to adopt policies that would have protected Hernandez’s
rights.

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                                  No. 11-50792

deadly force.” Finally, for their eleventh claim, the Appellants invoked the
district court’s jurisdiction under the Alien Tort Statute (“ATS”), alleging that
Hernandez “was shot in contravention of international treaties, conventions and
the Laws of Nations.”
      The United States moved to dismiss the claims against it, which included
all claims except for the Bivens action against Agent Mesa. As a preliminary
matter, the district court determined that under the Westfall Act, 28 U.S.C.
§ 2679, the United States was the only proper defendant for the common law tort
claims because Agent Mesa was acting in the course and scope of his
employment. The Appellants did not dispute this determination, and the court
substituted the United States as the only party-defendant for those claims. See
28 U.S.C. § 2679(b)(1) (establishing an FTCA claim against the United States as
the exclusive remedy for any tort claim based on the acts of a government
employee acting in the course and scope of his employment). The district court
then granted the motion to dismiss, holding that the United States had not
waived sovereign immunity for these claims under either the FTCA or the ATS.
      After the court dismissed the claims against the United States, the
Appellants amended their complaint to add four Bivens actions against Agent
Mesa’s supervisors—Ramiro Cordero, Scott Luck, Victor Manjarrez, Jr., and
Carla Provost.    The Appellants asserted that these supervisors violated
Hernandez’s Fourth and Fifth Amendment rights “by tolerating and condoning
a pattern of brutality and excessive force by Border Patrol agents; systematically
failing to properly and adequately monitor and investigate incidents of brutality
or supervise and discipline officers involved in such misconduct; creating an
environment to shield agents from liability for their wrongful conduct; and
inadequately training officers and agents regarding the appropriate use and
restraint of their firearms as weapons.” Additionally, the Appellants alleged
that the supervisors “had actual and/or constructive knowledge” that Agent

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                                  No. 11-50792

Mesa’s conduct “posed [a] pervasive and unreasonable risk of constitutional
injury” and that their response to such knowledge was “so inadequate as to show
deliberate indifference or tacit authorization of alleged offensive practices.”
      Shortly thereafter, Agent Mesa moved to dismiss the claims against him,
asserting qualified immunity and arguing that Hernandez, as an alien injured
outside the United States, lacked Fourth or Fifth Amendment protections. The
district court agreed and dismissed the claims against Agent Mesa. Specifically,
the court relied on United States v. Verdugo–Urquidez, 494 U.S. 259 (1990), to
hold that Hernandez could not invoke the Fourth Amendment’s protection
because he was an alien with no voluntary ties to the United States. The court
found Boumediene v. Bush, 553 U.S. 723 (2008), inapplicable because
Boumediene said nothing about “the Fourth Amendment right against
unreasonable searches and seizures.” The court then dismissed the Appellants’
Fifth Amendment claim, holding under Graham v. Connor, 490 U.S. 386 (1989),
that excessive force claims should be analyzed only under the Fourth
Amendment.
      Finally, the supervisors sought dismissal of, or alternatively summary
judgment on, the remaining Bivens action against them. The supervisors argued
that the Appellants had failed to adequately allege a violation of clearly
established Fourth or Fifth Amendment rights and that, even if they had, the
supervisors were not personally responsible for any constitutional violation. The
Appellants responded by voluntarily dismissing Agent Luck and Agent Provost.
The district court then granted summary judgment for the remaining
defendants, Agent Cordero and Agent Manjarrez, holding that the Appellants
had failed to show “that the Defendants were personally involved in the June 7
incident” or that there was a causal link “between the Defendants’ acts or




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                                       No. 11-50792

omissions and a violation of Hernandez’s rights.”3 The court noted that Agent
Cordero had not supervised agents in Agent Mesa’s position “since 2006—four
years before the June 7 incident.”                 Additionally, Agent Manjarrez was
transferred to a different sector from Agent Mesa’s “eight months before the
June 7 incident.” The court found both of these gaps created “too remote a time
period to raise a genuine issue of material fact that [the supervisors’] actions or
omissions proximately caused [the Appellants’] harm.”4
       The Appellants timely appealed each adverse judgment, and we
consolidated the appeals for review.5
                 II. CLAIMS AGAINST THE UNITED STATES
A. Federal Tort Claims Act
       We begin with the claims asserted against the United States, specifically
those asserted under the FTCA. The FTCA “is a limited waiver of sovereign
immunity, making the Federal Government liable to the same extent as a
private party for certain torts of federal employees acting within the scope of
their employment.” United States v. Orleans, 425 U.S. 807, 813 (1976). The
FTCA accordingly gives federal courts jurisdiction over claims against the
United States for “personal injury or death caused by the negligent or wrongful
act or omission of any employee of the Government while acting within the scope
of his office or employment, under circumstances where the United States, if a


       3
        The court assumed for the sake of argument that the Appellants were entitled to
invoke Fourth and Fifth Amendment protections in their claims against the supervisors.
       4
        The district court also denied the Appellants’ request to seek discovery for the limited
purpose of uncovering the names of other individuals who had supervised Agent Mesa so that
they could file a fourth amended complaint naming the new defendants. Appellants do not
argue on appeal that the court abused its discretion in denying their request.
       5
        We have jurisdiction over all three appeals under 28 U.S.C. § 1291. Both the decision
to grant a motion to dismiss and the decision to grant summary judgment are reviewed de
novo. Bass v. Stryker Corp., 669 F.3d 501, 506 (5th Cir. 2012); Buffalo Marine Servs. Inc. v.
United States, 663 F.3d 750, 753 (5th Cir. 2011).

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                                  No. 11-50792

private person, would be liable to the claimant in accordance with the law of the
place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). The FTCA
“also limits its waiver of sovereign immunity in a number of ways.” Sosa v.
Alvarez–Machain, 542 U.S. 692, 700 (2004). The relevant limitation on the
waiver of immunity here is the FTCA exception for “[a]ny claim arising in a
foreign country.” 28 U.S.C. § 2680(k).
      The Supreme Court analyzed the scope of the FTCA’s foreign country
exception in Sosa. There, the DEA hired Mexican nationals to seize a Mexican
physician believed to have participated in the interrogation and torture of a DEA
agent. Sosa, 542 U.S. at 697–98. The physician was abducted from his house
in Mexico, held overnight in a motel, and then brought to El Paso, where he was
arrested by federal officers. Id. at 698. Upon his return to Mexico, the physician
sued the United States for false arrest under the FTCA. Id. The Ninth Circuit
held the United States liable under California law because the DEA had no
authority to effect the physician’s arrest and detention in Mexico. Id. at 699.
      The Supreme Court reversed, holding that the FTCA’s foreign country
exception barred the claim. See id. at 712. The Court noted that some courts of
appeals had allowed similar actions to proceed under what was known as the
“headquarters doctrine,” which provided that “the foreign country exception
[would] not exempt the United States from suit for acts or omissions occurring
here which have their operative effect in another country.” Id. at 701 (internal
quotation marks omitted).      The Court, however, viewed this doctrine as
inconsistent with the plain language of the foreign country exception. See id.
Specifically, the Court found good reason “to conclude that Congress understood
a claim ‘arising in a foreign country’ to be a claim for injury or harm occurring
in a foreign country.” Id. at 704. When the FTCA was passed, “the dominant
principle in choice-of-law analysis for tort cases was lex loci delicti: courts
generally applied the law of the place where the injury occurred.” Id. at 705.

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Thus, for plaintiffs injured in a foreign country, “the presumptive choice in
American courts under the traditional rule would have been to apply foreign law
to determine the tortfeasor’s liability.” Id. at 706. This was the exact result
“Congress intended to avoid by the foreign country exception.” Id. at 707. The
headquarters doctrine, then, was inappropriate because its application would
“result in a substantial number of cases applying the very foreign law the foreign
country exception was meant to avoid.” Id. at 710. As a result, the Court
rejected the headquarters doctrine and held “that the FTCA’s foreign country
exception bars all claims based on any injury suffered in a foreign country,
regardless of where the tortious act or omission occurred.” Id. at 712.
       Here, it is undisputed that Hernandez was standing in Mexico when he
was shot. Nevertheless, the Appellants argue that Hernandez’s injury occurred
in the United States. Specifically, the Appellants assert an assault claim and
contend that “once the gun has been cocked and aimed and the finger is on the
trigger, it is not necessary to wait until the bullet strikes to invoke assault.” But
at all relevant times, Hernandez was standing in Mexico. Any claim will
therefore necessarily be based on an injury suffered in a foreign country.
Accordingly, these tort claims are barred by the foreign country exception under
Sosa.6
B. Alien Tort Statute
       The final claim against the United States was brought under the Alien
Tort Statute (“ATS”), 28 U.S.C. § 1350. The ATS provides that “[t]he district
courts shall have original jurisdiction of any civil action by an alien for a tort
only, committed in violation of the law of nations or a treaty of the United



       6
        The Appellants also asserted in their eighth and ninth claims that the United States
was liable under the U.S. Constitution. The district court correctly determined that the
United States has not waived sovereign immunity for constitutional torts, and the Appellants
have not addressed the constitutional claims against the United States on appeal.

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States.” 28 U.S.C. § 1350. The Supreme Court has held that the ATS is a
jurisdictional statute only and does not create a new cause of action for torts in
violation of international law. Sosa, 542 U.S. at 713–14. The fact that the ATS
does not establish a cause of action does not mean that the ATS has no effect.
See id. at 714 (rejecting the argument that “the ATS was stillborn . . . without
a further statute expressly authorizing adoption of causes of action”). Instead,
courts are authorized under the ATS to “recognize private causes of action for
certain torts in violation of the law of nations.” Id. at 724. This authorization
reflects the Supreme Court’s belief that the First Congress enacted the ATS “on
the understanding that the common law would provide a cause of action for the
modest number of international law violations with a potential for personal
liability at the time.”    Id.   Courts must exercise restraint, however, in
considering these causes of action and “should require any claim based on the
present-day law of nations to rest on a norm of international character accepted
by the civilized world and defined with a specificity comparable to the features
of the 18th-century paradigms” the Court recognized. Id. at 725.
      The Appellants believe they have satisfied this standard by alleging that
the United States violated the international prohibition against “extrajudicial
killings.” Even assuming that to be the case, the Appellants still must show that
the United States has waived sovereign immunity for this claim. Other courts
to address this issue have held that the ATS does not imply any waiver of
sovereign immunity. See, e.g., Tobar v. United States, 639 F.3d 1191, 1196 (9th
Cir. 2011) (“[T]he Alien Tort Statute has been interpreted as a jurisdiction
statute only—it has not been held to imply any waiver of sovereign immunity.”
(alteration in original)); Goldstar (Pan.) S.A. v. United States, 967 F.2d 965, 968
(4th Cir. 1992) (same); Sanchez–Espinoza v. Reagan, 770 F.2d 202, 207 (D.C. Cir.
1985) (“The Alien Tort Statute itself is not a waiver of sovereign immunity.”).
These courts have held that “any party asserting jurisdiction under the Alien

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                                   No. 11-50792

Tort Statute must establish, independent of that statute, that the United States
has consented to suit.” Tobar, 639 F.3d at 1196 (quoting Goldstar, 967 F.3d at
968.).
         We agree with this interpretation of the ATS. “The basic rule of federal
sovereign immunity is that the United States cannot be sued at all without the
consent of Congress.” Freeman v. United States, 556 F.3d 326, 334–35 (5th Cir.
2009) (quoting Block v. N.D. ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287
(1983)) (internal quotation marks omitted). Because sovereign immunity is
jurisdictional in nature, “Congress’s ‘waiver of [it] must be unequivocally
expressed in statutory text and will not be implied.’” Id. at 335 (alteration in
original) (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)). Nothing in the ATS
indicates that Congress intended to waive the United States’ sovereign
immunity. The ATS simply provides, in full, as follows: “The district courts shall
have original jurisdiction of any civil action by an alien for a tort only, committed
in violation of the law of nations or a treaty of the United States.” 28 U.S.C.
§ 1350. This language contains no explicit waiver of sovereign immunity and
does nothing more than establish that district courts have original jurisdiction
to consider a discrete set of cases.
         The Appellants must establish, independent of the ATS, that the United
States has consented to suit. They have failed to do so. Though they reference
several treaties to support their claim, the Appellants have not referenced any
language indicating that the United States has consented to suit under any of
these treaties. Accordingly, the district court properly dismissed the claim
brought under the ATS.
                III. BIVENS ACTION AGAINST AGENT MESA
         We turn now to the Bivens action against Agent Mesa, which requires an
analysis of Agent Mesa’s entitlement to qualified immunity. See, e.g., Wilson v.
Layne, 526 U.S. 603, 609 (1999). The doctrine of qualified immunity, which

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operates the same under both § 1983 and Bivens, “protects public officials from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Brown v. Strain, 663 F.3d 245, 249 (5th Cir. 2011) (internal
quotation marks omitted). In assessing qualified immunity, we determine
“(1) whether the facts that the plaintiff has alleged make out a violation of a
constitutional right; and (2) whether the right at issue was clearly established
at the time of the defendant’s alleged misconduct.” Ramirez v. Martinez, 716
F.3d 369, 375 (5th Cir. 2013) (quoting Brown, 663 F.3d at 249) (internal
quotation marks omitted). “A right is clearly established when ‘it would be clear
to a reasonable officer that his conduct was unlawful in the situation he
confronted.’” Id. (quoting Jones v. Lowndes Cnty., 678 F.3d 344, 351 (5th Cir.
2012)).
      Agent Mesa attacks the Appellants’ claims on both prongs of the qualified
immunity analysis.     His first argument, that there was no constitutional
violation, is relatively straightforward: (1) any constitutional injury would have
occurred in Mexico; (2) the Constitution does not guarantee rights to foreign
nationals injured outside the sovereign territory of the United States;
(3) therefore the Appellants cannot state a constitutional violation.        This
uncomplicated presentation of the Constitution’s extraterritorial application,
however, no longer represents the Supreme Court’s view.
      In Boumediene v. Bush, 553 U.S. 723 (2008), the Supreme Court provided
its clearest articulation of the standards governing the application of
constitutional principles abroad.      The Court addressed whether aliens
designated as enemy combatants and detained at Guantanamo Bay had the
constitutional privilege of habeas corpus. 553 U.S. at 732.
      In addressing this question, the Court first discussed its sparse precedent
on the Constitution’s geographic scope and found it to undermine “the

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Government’s argument that, at least as applied to noncitizens, the Constitution
necessarily stops where de jure sovereignty ends.” Id. at 755. For example, the
Insular Cases7 addressed “whether the Constitution, by its own force, applies in
any territory that is not a State.” Id. at 756. In those cases, the Court held that
the Constitution has independent force in newly acquired territories but
recognized the inherent difficulties of imposing a new legal system onto these
societies. Id. at 757. “These considerations resulted in the doctrine of territorial
incorporation, under which the Constitution applies in full in incorporated
Territories surely destined for statehood but only in part in unincorporated
Territories.” Id. This doctrine illustrated that “the Court took for granted that
even in unincorporated Territories the Government of the United States was
bound to provide to noncitizen inhabitants ‘guaranties of certain fundamental
personal rights declared in the Constitution,’” while still recognizing the
“inherent practical difficulties of enforcing all constitutional provisions ‘always
and everywhere.’” Id. at 758–59 (quoting Balzac, 258 U.S. at 312).
       Similar practical considerations were apparent in Reid v. Covert, 354 U.S.
1 (1957). Id. at 759. There, the Boumediene Court explained, six Justices held
that civilian spouses of U.S. servicemen stationed abroad could not be tried
before military courts for murder and were instead entitled to a trial by jury.
See id. at 760–61. The key disagreement between the plurality of four and the
two concurring justices was over the continued precedential value of In re Ross,
140 U.S. 453 (1891), in which the Court had held “that under some
circumstances Americans abroad have no right to indictment and trial by jury.”
Id. at 760. The four-Justice plurality sought to overrule Ross as “insufficiently


       7
         “The term Insular Cases refers to the series of cases from De Lima v. Bidwell, 182
U.S. 1 (1901), to Balzac v. Porto Rico, 258 U.S. 298 (1922), that established the framework for
selective application of the Constitution to ‘unincorporated’ overseas territories.” Gerald L.
Neuman, The Extraterritorial Constitution After Boumediene v. Bush, 82 S. Cal. L. Rev. 259,
263 n.22 (2009).

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protective of the rights of American citizens,” whereas the two concurring
Justices sought simply to distinguish it based on “practical considerations that
made jury trial a more feasible option for [the civilian spouses] than it was for
the petitioner in Ross.” Id. at 761. The Boumediene Court noted that if practical
considerations were irrelevant and citizenship had been the only relevant factor
in Reid, “it would have been necessary for the Court to overturn Ross,”
something the two concurring justices were unwilling to do. Id. at 761–62.
      Practical considerations “weighed heavily as well in Johnson v.
Eisentrager, 339 U.S. 763 (1950), where the Court addressed whether habeas
corpus jurisdiction extended to enemy aliens who had been convicted of violating
the laws of war.” Id. at 762. There, the prisoners were detained in Germany,
and the Eisentrager Court “stressed the difficulties of ordering the Government
to produce the prisoners in a habeas corpus proceeding,” explaining that it
“‘would require allocation of shipping space, guarding personnel, billeting and
rations’ and would damage the prestige of military commanders at a sensitive
time.” Id. at 762 (quoting Eisentrager, 339 U.S. at 779). Though the prisoners
were denied access to the writ, the Boumediene Court did not view the decision
as having adopted “a formalistic, sovereignty-based test for determining the
reach of the Suspension Clause.” Id. Instead, the Court noted that practical
considerations were integral to Eisentrager and stated that “[n]othing in
Eisentrager says that de jure sovereignty is or has ever been the only relevant
consideration in determining the geographic reach of the Constitution or of
habeas corpus.” Id. at 764.
      The Court ultimately determined that all of these cases shared a common
thread: “the idea that questions of extraterritoriality turn on objective factors
and practical concerns, not formalism.”         Id. at 764.    Based on these
considerations, the Court concluded that at least three factors were relevant in
determining the reach of the Suspension Clause:

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       (1) the citizenship and status of the detainee and the adequacy of
       the process through which that status determination was made; (2)
       the nature of the sites where apprehension and then detention took
       place; and (3) the practical obstacles inherent in resolving the
       prisoner’s entitlement to the writ.

Id. at 766. After analyzing these factors and finding “few practical barriers to
the running of the writ,” the Court held that the Suspension Clause “has full
effect at Guantanamo Bay.” Id. at 770–71.
       Thus, Boumediene precludes the categorical test Agent Mesa suggests.
Whatever else we may derive from the decision, one principle is clear: de jure
sovereignty is not “the only relevant consideration in determining the geographic
reach of the Constitution.” Id. at 764. Instead, Boumediene and the cases cited
therein indicate that our inquiry involves the selective application of
constitutional limitations abroad, requiring us to balance the potential of such
application against countervailing government interests.8 In other words, our
inquiry is not whether a constitutional principle can be applied abroad; it is
whether it should. See Reid v. Covert, 354 U.S. 1, 75 (1957) (Harlan, J.,
concurring) (“But, for me, the question is which guarantees of the Constitution
should apply in view of the particular circumstances, the practical necessities,
and the possible alternative which Congress had before it. The question is one
of judgment, not of compulsion.” (emphasis added)).
       The district court concluded that Boumediene had no bearing on this case
because it did not specifically address “the Fourth Amendment right against
unreasonable searches and seizures.” We disagree. Though Boumediene’s
underlying facts concerned the Suspension Clause, its reasoning was not so
narrow.     The Court surveyed extraterritoriality cases involving myriad


       8
         See Gerald L. Neuman, Strangers to the Constitution 8 (1996) (associating this
approach with the concurring Justices in Reid v. Covert and suggesting that it “boil[s] down
to a single right: the right to ‘global due process’”).

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constitutional rights and spoke to the extraterritorial application of the
Constitution, not simply the Suspension Clause. See Boumediene, 553 U.S. at
764 (“Nothing in Eisentrager says that de jure sovereignty is or has ever been the
only relevant consideration in determining the geographic reach of the
Constitution or of habeas corpus.” (emphasis added)); id. (“[Q]uestions of
extraterritoriality turn on objective factors and practical concerns, not
formalism.”).      Our     extraterritoriality   analysis   must   therefore    track
Boumediene’s.
      Specifically, three “objective factors and practical concerns” are relevant
to our extraterritoriality determination: (1) the citizenship and status of the
claimant, (2) the nature of the location where the constitutional violation
occurred, and (3) the practical obstacles inherent in enforcing the claimed right.
Cf. id. at 766–71. The relevant practical obstacles include the consequences for
U.S. actions abroad, the substantive rules that would govern the claim, and the
likelihood that a favorable ruling would lead to friction with another country’s
government.     See id.; Verdugo–Urquidez, 494 U.S. at 273–74; id. at 278
(Kennedy, J., concurring). These factors are not exhaustive, as the relevant
considerations may change with the facts of an individual case, but they do
provide a baseline for addressing questions of extraterritoriality.
      The above factors do not obviate our reliance on the text of the
Constitution itself.      Not all constitutional provisions will have equal
extraterritorial application, if any. Some contain geographical references, but
others do not.     Compare U.S. Const. amend. XIII (“Neither slavery nor
involuntary servitude[] . . . shall exist within the United States, or any place
subject to their jurisdiction.”), with U.S. Const. amend. V (“No person shall be
. . . deprived of life, liberty, or property, without due process of law . . . .”). In
Boumediene, the “importance of the habeas right itself was an unlisted factor
that . . . argued in favor of broader reach.” Neuman, The Extraterritorial

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                                  No. 11-50792

Constitution, supra, at 287. Accordingly, as with any case of constitutional
interpretation, extraterritoriality determinations require an analysis of the
operation, text, and history of the specific constitutional provision involved.
      With these principles in mind, we analyze whether the Constitution may
be held to apply to the Appellants’ claims, beginning with those asserted under
the Fourth Amendment.
                        IV. FOURTH AMENDMENT
      The Fourth Amendment provides, “The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.” U.S. Const. amend. IV. In United States v.
Verdugo–Urquidez, 494 U.S. 259 (1990), the Supreme Court, in a 5–4 decision,
addressed the question of the Fourth Amendment’s extraterritorial reach.
There, the DEA cooperated with Mexican police officers to apprehend
Verdugo–Urquidez, a citizen and resident of Mexico. Verdugo–Urquidez, 494
U.S. at 262.      Mexican officials then authorized the DEA to search
Verdugo–Urquidez’s Mexican residences, and DEA agents seized a tally sheet
believed to reflect the quantities of marijuana Verdugo–Urquidez had smuggled
into the United States.        Id. at 262–63.      The district court granted
Verdugo–Urquidez’s motion to suppress this evidence, and the Ninth Circuit
affirmed, concluding that the Fourth Amendment applied extraterritorially to
the searches and that the DEA agents had failed to justify their warrantless
search of the premises. Id. at 263.
      On appeal, the Supreme Court began its review of the Ninth Circuit’s
decision by focusing on the text of the Fourth Amendment. The Court noted that
the Fourth Amendment “extends its reach only to ‘the people,’” which “seems to
have been a term of art employed in select parts of the Constitution,” including
the Preamble, Article I, and the First, Second, Fourth, Ninth, and Tenth
Amendments. Id. at 265. Although not conclusive, the Court found this “textual

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                                  No. 11-50792

exegesis” to suggest that “the people” in the Constitution “refers to a class of
persons who are part of the national community or who have otherwise
developed sufficient connection with this country to be considered part of that
community.” Id. The Court then examined the history of the drafting of the
Fourth Amendment and concluded that “[t]he available historical data shows . . .
that the purpose of the Fourth Amendment was to protect the people of the
United States against arbitrary action by their own Government; it was never
suggested that the provision was intended to restrain the actions of the Federal
Government against aliens outside of the United States territory.” Id. at 266.
      The Court next determined that the Ninth Circuit’s global view was
contrary to the Court’s precedent, citing the same cases on which it would later
rely in Boumediene. See id. at 268–70. The Court distinguished the cases
Verdugo–Urquidez relied on, noting that those cases “establish[ed] only that
aliens receive constitutional protections when they have come within the
territory of the United States and developed substantial connections with this
country.” Id. at 271. Verdugo–Urquidez, by contrast, had no “significant
voluntary connection” to the United States. Id.
      Finally, the Court addressed the practical problems with the Ninth
Circuit’s ruling. The Court noted that the Ninth Circuit’s global rule “would
apply not only to law enforcement operations abroad, but also to other foreign
policy operations which might result in ‘searches or seizures.’” Id. at 273.
Because the United States “frequently employs Armed Forces outside of this
country,” the application of the Fourth Amendment “to those circumstances
could significantly disrupt the ability of the political branches to respond to the
foreign situation involving our national interest.” Id. at 273–74. Additionally,
the Court cautioned that the Ninth Circuit’s rule would plunge government
officials “into a sea of uncertainty as to what might be reasonable in the way of
searches and seizures conducted abroad.” Id. at 274.

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                                  No. 11-50792

      Based on all of the above considerations, the Court rejected the application
of the Fourth Amendment to Verdugo–Urquidez’s case:
      We think that the text of the Fourth Amendment, its history, and
      our cases discussing the application of the Constitution to aliens and
      extraterritorially require rejection of respondent’s claim. At the
      time of the search, he was a citizen and resident of Mexico with no
      voluntary attachment to the United States, and the place searched
      was located in Mexico. Under these circumstances, the Fourth
      Amendment has no application.
Id. at 274–75.
      Justice Kennedy, one of the five Justices to join the opinion, agreed that
no Fourth Amendment violation had occurred but wrote separately to explain his
views, even though he did not believe them to “depart in fundamental respects
from the opinion of the Court.” Id. at 275 (Kennedy, J., concurring). Specifically,
Justice Kennedy believed that “[t]he force of the Constitution is not confined
because it was brought into being by certain persons who gave their immediate
assent to its terms.” Id. at 276. As a result, he could not “place any weight on
the reference to ‘the people’ in the Fourth Amendment as a source of restricting
its protections.” Id. Instead, Justice Kennedy concluded that the “restrictions
that the United States must observe with reference to aliens beyond its territory
or jurisdiction depend[] . . . on general principles of interpretation, not on an
inquiry as to who formed the Constitution or a construction that some rights are
mentioned as being those of ‘the people.’” Id.
      For Justice Kennedy, the lesson from the Court’s prior cases was “not that
the Constitution ‘does not apply’ overseas, but that there are provisions in the
Constitution which do not necessarily apply in all circumstances in every foreign
place.” Id. at 277 (quoting Reid, 354 U.S. at 74 (Harlan, J., concurring)). “In
other words, . . . there is no rigid and abstract rule that Congress, as a condition
precedent to exercising power over Americans overseas, must exercise it subject
to all the guarantees of the Constitution, no matter what the conditions and

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                                    No. 11-50792

considerations are that would make adherence to a specific guarantee altogether
impracticable and anomalous.” Id. at 277–78 (citation omitted). Based on this
reasoning, Justice Kennedy agreed with the Court’s outcome because “[t]he
conditions and considerations of this case would make adherence to the Fourth
Amendment’s warrant requirement impracticable and anomalous.” Id. at 278.
He noted that the “absence of local judges or magistrates available to issue
warrants, the     differing   and    perhaps   unascertainable     conceptions    of
reasonableness and privacy that prevail abroad, and the need to cooperate with
foreign officials all indicate that the Fourth Amendment’s warrant requirement
should not apply in Mexico as it does in this country.” Id. Thus, “[f]or this
reason, in addition to the other persuasive justifications stated by the Court,”
Justice Kennedy agreed that no violation of the Fourth Amendment had
occurred. Id.
      The district court here relied on Verdugo–Urquidez to hold that Hernandez
could not invoke the Fourth Amendment’s protection because he was an alien
without sufficient, voluntary connections to the United States. The Appellants
rely on Justice Kennedy’s concurrence to challenge this ruling. Because Justice
Kennedy did not “place any weight on the reference to ‘the people’ in the Fourth
Amendment,” the Appellants argue that only a plurality of the Court agreed that
aliens must have sufficient connections to the United States to be able to invoke
the Fourth Amendment’s protection.           Rather than apply this nonbinding
“sufficient connections” test, the Appellants urge us to rely on the “practical and
functional” test articulated in Justice Kennedy’s concurrence, which they believe
was confirmed as the appropriate test in Boumediene.
      Despite the Appellants’ arguments to the contrary, we cannot ignore a
decision from the Supreme Court unless directed to do so by the Court itself. See
Ballew v. Cont’l Airlines, 668 F.3d 777, 782 (5th Cir. 2012).            While the
Boumediene Court appears to repudiate the formalistic reasoning of

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                                  No. 11-50792

Verdugo–Urquidez’s sufficient connections test, courts have continued to rely on
the sufficient connections test and its related interpretation of the Fourth
Amendment text.         Other circuits have relied on Verdugo–Urquidez’s
interpretation to limit the Fourth Amendment’s extraterritorial effect. See, e.g.,
Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983, 997 (9th Cir. 2012) (applying
the sufficient connections test in conjunction with Boumediene’s functional
approach); United States v. Emmanuel, 565 F.3d 1324, 1331 (11th Cir. 2009)
(“Aliens do enjoy certain constitutional rights, but not the protection of the
Fourth Amendment if they have ‘no previous significant voluntary connection
with the United States . . . .’” (alteration in original) (quoting Verdugo–Urquidez,
494 U.S. at 271)).      In addition, just two weeks after the Court issued
Boumediene, which Appellants argue essentially overrules Verdugo–Urquidez,
the Court decided District of Columbia v. Heller, 554 U.S. 570 (2008), and
favorably cited Verdugo–Urquidez’s definition of “the people.” The Heller Court
explained that “the people” referred “to a class of persons who are part of a
national community or who have otherwise developed sufficient connection with
this country to be considered part of that community.” Id. at 580 (citing
Verdugo–Urquidez, 494 U.S. at 265)). Indeed, our own court has relied on
Verdugo–Urquidez’s definition of “the people” in the context of the Second
Amendment. See United States v. Portillo–Munoz, 643 F.3d 437, 440 (5th Cir.
2011). These examples undercut the Appellants’ attempt to discredit
Verdugo–Urquidez.
      We also reject the Appellants’ argument that Chief Justice Rehnquist’s
opinion in Verdugo–Urquidez represented only a plurality view on the sufficient
connections requirement. Justice Kennedy expressed no disagreement with the
majority’s justifications, instead describing them as “persuasive,” 494 U.S. at 278
(Kennedy, J., concurring), and finding that his views did not “depart in
fundamental respects” from those of the majority, id. at 275.              This is

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                                  No. 11-50792

unsurprising considering that Justice Kennedy joined the opinion of the Court.
Id. We reject the Appellants’ invitation to parse those writings in search of
conflicts to nullify the Court’s holding.
      In sum, we are bound to apply the sufficient connections requirement of
Verdugo–Urquidez, and we must do so in light of Boumediene’s general
functional approach. Reconciling these approaches is not an impossible task,
though, because the Verdugo–Urquidez Court relied on more than just the text
of the Fourth Amendment to reach its holding. See Verdugo–Urquidez, 494 U.S.
at 265 (recognizing that its “textual exegesis [was] by no means conclusive”). It
relied on the history of the Amendment, id. at 266, prior precedent, id. at
268–73, and practical consequences, id. at 273–75—all factors that we must
consider after Boumediene.
      Under this approach, we conclude that Hernandez lacked sufficient
voluntary connections with the United States to invoke the Fourth Amendment.
Though Hernandez’s lack of territorial presence does not place a categorical bar
on the Appellants’ Fourth Amendment claims, the Appellants nevertheless do
not show that Hernandez formed sufficient connections with the United States.
See Boumediene, 553 U.S. at 762–764 (rejecting formalistic, sovereignty-based
test for determining extraterritorial reach); see also Ibrahim, 669 F.3d at 997
(noting that activities abroad can contribute to forming sufficient connections to
United States). Hernandez was a citizen of Mexico, not the United States. See
Boumediene, 553 U.S. at 766 (weighing citizenship and status of detainee in
determining the reach of the Suspension Clause); Verdugo–Urquidez, 494 U.S.
at 273 (citing cases that accord different protections to aliens than to citizens).
This fact alone is not dispositive, see Boumediene, 553 U.S. at 766; based on the
facts alleged, Hernandez lacked a sustained connection with the United States
sufficient to invoke protection. Appellants only allege that Hernandez played a
game that involved touching the border fence and “had no interest in entering

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                                  No. 11-50792

the United States.” See Boumediene, 553 U.S. at 766 (noting that detainees at
Guantanamo Bay have been held “for the duration of a conflict that . . . is
already among the longest wars in American history”); Verdugo–Urquidez, 494
U.S. at 272 (noting that Verdugo–Urquidez was in the United States “for only
a matter of days”); see also Ibrahim, 669 F.3d at 997 (holding that Ibrahim
established a sufficient connection as a result of her four years studying in the
United States). Appellants do not suggest that Hernandez “accepted some
societal obligations,” including even the obligation to comply with our
immigration laws, that might have entitled him to constitutional protection. See
Verdugo–Urquidez, 494 U.S. at 273; Martinez–Aguero, 459 F.3d at 625 (holding
that alien’s “regular and lawful entry of the United States pursuant to a valid
border-crossing card and . . . acquiescence in the U.S. system of immigration
constitute[d] voluntary acceptance of societal obligations, rising to the level of
‘substantial connections’”). Therefore, Hernandez’s voluntary connections with
the United States were insufficient to invoke the Fourth Amendment.
      Finally, our reluctance to extend the Fourth Amendment on these facts
reflects a number of practical considerations. “The 2,000-mile-long border
between Mexico and the United States is the busiest in the world, with over 350
million crossings per year.” Br. of Gov’t of the United Mexican States as Amicus
Curiae in Support of Appellants, 2. We have long recognized this area is unique
for Fourth Amendment purposes. For instance, we allow broader search powers
at our international borders and their functional equivalents because “national
self protection reasonably requir[es] one entering the country to identify himself
as entitled to come in, and his belongings as effects which may be lawfully
brought in.” Almeida–Sanchez v. United States, 413 U.S. 266, 272 (1973)
(quoting Carroll v. United States, 267 U.S. 132, 154 (1925)) (internal quotation
marks omitted). In the past decade, “the number of Border Patrol agents has
doubled from approximately 10,000 to more than 21,000 agents,” with most of

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                                  No. 11-50792

these agents working along the Southwest border. Border Security, Economic
Opportunity, and Immigration Modernization Act: Hearing on S. 744 Before the
S. Comm. on the Judiciary, 113th Cong. 6 (2013). The Department of Homeland
Security now uses advanced technologies to monitor our borders, “including
mobile surveillance units, thermal imaging systems, and large- and small-scale
non-intrusive inspection equipment,” as well as “124 aircraft and six Unmanned
Aircraft Systems operating along the Southwest border.” Id. at 6–7. These
sophisticated systems of surveillance might carry with them a host of
implications for the Fourth Amendment, cf. Kyllo v. United States, 533 U.S. 27,
40 (2001) (holding that when the government “uses a device that is not in
general public use, to explore details of the home that would previously have
been unknowable without physical intrusion, the surveillance is a ‘search’ and
is presumptively unreasonable without a warrant”), and they do not look strictly
inward. We cannot know all of the circumstances in which these tools will be
used to effect a search or seizure outside our borders. But we do know that, as
in Verdugo–Urquidez, “[a]pplication of the Fourth Amendment to [these]
circumstances could significantly disrupt the ability of the political branches to
respond to foreign situations involving our national interest” and could also
plunge Border Patrol agents “into a sea of uncertainty as to what might be
reasonable in the way of searches and seizures conducted abroad.” 494 U.S. at
273–74.
      Thus, under the Supreme Court’s directives and considering the national
interests at stake along our borders, we hold that, under the circumstances
presented here—an alleged seizure occurring outside our border and involving
a foreign national—the Fourth Amendment does not apply.
                           V. FIFTH AMENDMENT
      We turn now to the Appellants’ Fifth Amendment claim. The Due Process
Clause of the Fifth Amendment provides, “No person shall be . . . deprived of life,

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                                  No. 11-50792

liberty, or property, without due process of law.” U.S. Const. amend. V. This
constitutional protection contains both a substantive and a procedural
component.    The substantive component “prevents the government from
engaging in conduct that ‘shocks the conscience’ or interferes with rights
‘implicit in the concept of ordered liberty,’” whereas the procedural component
ensures that any government action surviving substantive due process scrutiny
is “implemented in a fair manner.” United States v. Salerno, 481 U.S. 739, 746
(1987) (citations omitted).
      The Appellants’ claim implicates the substantive component of the Fifth
Amendment’s Due Process Clause. Specifically, the Appellants allege that Agent
Mesa showed callous disregard for Hernandez’s Fifth Amendment rights by
using excessive, deadly force when Hernandez was unarmed and presented no
threat. This type of claim is unusual because excessive-force claims are typically
analyzed under the Fourth Amendment. Indeed, when the Fourth Amendment
applies, excessive-force claims must be analyzed under that amendment.
Graham v. Connor, 490 U.S. at 395. But when a claim is not covered by the
Fourth Amendment, we have recognized that an excessive-force claim may be
asserted as a violation of due process. See, e.g., Petta v. Rivera, 143 F.3d 895,
900 (5th Cir. 1998) (concluding that the plaintiffs had “asserted a valid claim
under § 1983 for a constitutional violation for excessive force under the
Fourteenth Amendment”). The question now is whether this constitutional
protection can be applied extraterritorially.
A. Extraterritorial Application
      The Appellants’ Fifth Amendment claim is not constrained by prior
precedent on extraterritoriality, unlike their claim under the Fourth
Amendment. First, the Fifth Amendment’s text does not limit the category of
individuals entitled to protection. See, e.g., Lynch v. Cannatella, 810 F.2d 1363,
1374–75 (5th Cir. 1987). Whereas the Fourth Amendment applies only to “the

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                                   No. 11-50792

people,” a term of art, the Fifth Amendment applies by its express terms to “any
person.” Id. Therefore, our court has concluded that “[e]xcludable aliens are not
non-persons.”     Id.   This significantly different language leads us to the
conclusion that Verdugo–Urquidez’s sufficient connections test, which provides
a gloss for the term “the people,” does not apply in interpreting the
extraterritorial application of the Fifth Amendment. Additionally, the Supreme
Court     has   recognized    some    Fifth    Amendment       protections    apply
extraterritorially. See, e.g., Reid, 354 U.S. at 18–19 (plurality opinion); id. at 49
(Frankfurter, J., concurring) (concluding that, at least as to capital cases
overseas, “the exercise of court-martial jurisdiction over civilian dependents in
time of peace cannot be justified by Article I, considered in connection with the
specific protections of Article III and the Fifth and Sixth Amendments”). Thus,
whether the Fifth Amendment applies here depends on the objective factors and
practical concerns we recognized above. See Boumediene, 553 U.S. at 766.
        The first relevant factor is the citizenship and status of the claimant.
Inside U.S. territory, a claimant’s citizenship will ordinarily have no impact on
whether the claimant is entitled to constitutional protection. But “[i]n cases
involving the extraterritorial application of the Constitution, [the Court has]
taken care to state whether the person claiming its protection is a citizen or an
alien.” Verdugo–Urquidez, 494 U.S. at 275 (Kennedy, J., concurring) (citations
omitted).    “The distinction between citizens and aliens follows from the
undoubted proposition that the Constitution does not create, nor do general
principles of law create, any juridical relation between our country and some
undefined, limitless class of noncitizens who are beyond our territory.” Id.
Boumediene teaches that a claimant’s citizenship is not dispositive, as it
provided an example of a limited “class of noncitizens” entitled to constitutional
protection, i.e., those detained at Guantanamo Bay. But the focus on citizenship
is still important given the significance of applying constitutional protections

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                                   No. 11-50792

abroad at all, let alone to noncitizens. Here, it is undisputed that Hernandez
was a Mexican citizen with no connection to the United States. Yet, unlike the
“enemy aliens” detained during the Allied Powers’ post-World War II occupation
in Eisentrager, 339 U.S. at 765–66, or the “enemy combatants” held pursuant to
the Authorization for Use of Military Force in Boumediene, 553 U.S. at 734, 767,
Hernandez was a civilian killed outside an occupied zone or theater of war.
Thus, while Hernandez’s citizenship weighs against extraterritorial application,
his status does not.
      The second factor requires us to look at the “nature of the sites” where the
alleged violation occurred.    In Boumediene, the Court examined the level of
control the United States exerted over the site where the individual’s
apprehension and detention occurred. The Court concluded that, although
Guantanamo Bay was “technically outside the sovereign territory of the United
States,” the United States “has maintained complete and uninterrupted control
of the bay for over 100 years.” Boumediene, 553 U.S. at 764, 768. The court
looked to the “political history” of Guantanamo and took into consideration the
lease agreement permitting the United States to maintain control over
Guantanamo. Id. at 764–65. By contrast, the Court reasoned that the United
States control over Landsberg Prison in occupied Germany in the Eisentrager
case was transient and that the United States was accountable to its “Allies for
all activities occurring there.” Id. at 768.
      We therefore reject Agent Mesa’s argument that Eisentrager—which held
that enemy aliens beyond the territorial jurisdiction of any court of the United
States could not invoke the protections of the Fifth Amendment—compels a
result in his favor. As mentioned above, Boumediene rejected such a formalistic
reading of Eisentrager. Although de jure sovereignty “is a factor that bears upon
which constitutional guarantees apply,” nothing “in Eisentrager says that de jure



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                                         No. 11-50792

sovereignty is or has ever been the only relevant consideration in determining
the geographic reach of the Constitution.” Boumediene, 553 U.S. at 764.
       Based on the nature of the border area where the shooting occurred, we
cannot say that the United States exercises no control.                           Unlike both
Guantanamo and Landsberg Prison, this is not a case requiring constitutional
application in a far-away location. Agent Mesa was standing inside the United
States, an area very much within U.S. control, when he committed the act.
Border Patrol agents exercise their official duties within feet of where the
alleged constitutional violation occurred. In fact, agents act on or occasionally
even across the border they protect. Amici for Appellants inform us that Border
Patrol agents have reportedly fatally shot and killed individuals across the
border in several incidents. See Br. of Amici Curiae Border Network for Human
Rights, et al., in Support of Appellants, 8–12.9 Therefore, in a very blunt sense,
Border Patrol agents exercise hard power across the border at least as far as
their U.S.-based use of force injures individuals.
       Boumediene further instructs us to look at the political history of a location
to understand how the United States might exercise control. Here, the control
exercised in cross-border shootings reflects broader U.S. customs and border
protection policies that expand U.S. control beyond the nation’s territorial


       9
         See also More Accounts Emerge Following Deadly Border Shooting, Nogales
International, Jan. 6, 2011, http://perma.cc/Q335-QL34 (reporting that a Border Patrol agent
shot and killed Mexican national Ramses Barron Torres, 17, who was standing in Nogales,
Mexico); Office of Public Affairs, Dep’t of Justice, Federal Officials Close the Investigation into
the Death of Ramses Barron-Torres, Aug. 9, 2013, http://perma.cc/6Z3U-4MWJ (concluding
that Barron-Torres was “on the Mexico side of the border fence when he was shot”); Office of
Public Affairs, Dep’t of Justice, Federal Officials Close the Investigation into the Death of
Carlos LaMadrid, Aug. 9, 2013, http://perma.cc/H64L-AYD4 (declining to prosecute Border
Patrol agent who fired at individual across border shot and killed U.S. citizen Carlos Madrid,
19, who was in the line of fire); R. Stickney, ACLU Calls for Probe in Border Shooting, NBC
San Diego, June 22, 2011, http://perma.cc/TMD5-EMAQ (reporting that Border Patrol agent
shot and killed Mexican national Jose Alfredo Yanez Reyes on Mexican side of border fence
near San Diego, California).

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                                  No. 11-50792

borders. The Chief of the U.S. Border Patrol explains that U.S. border security
policy “extends [the nation’s] zone of security outward, ensuring that our
physical border is not the first or last line of defense, but one of many.” Securing
Our Borders—Operational Control and the Path Forward: Hearing Before the
Subcomm. on Border and Maritime Security of the H. Comm. on Homeland
Security, 112th Cong. 8 (2011) (prepared statement of Michael J. Fisher, Chief
of U.S. Border Patrol). For example, Bureau of Customs and Border Protection
officials are authorized to conduct “preinspection” examination and inspection
of passengers for final determination of admissibility and crew “at the port or
place in foreign territory.” 8 C.F.R. § 235.5(b); see also Ayelet Shachar, The
Shifting Border of Immigration Regulation, 3 Stan. J. C.R. & C.L. 165, 174–77
(2007). Moreover, this recent articulation of extraterritorial policy appears to be
only the latest manifestation in a long history of United States involvement
beyond the U.S.-Mexico border. See Eva Bitran, Note, Boumediene at the
Border? The Constitution and Foreign Nationals on the U.S.-Mexico Border, 49
Harv. C.R.-C.L. L. Rev. 229, 244–47 (2014) (collecting historical examples
showing that United States “exerts and has exerted powerful influence over
northern Mexico”).
      The Border Patrol’s exercise of control through its use of force at and
across the border more closely resembles the control the United States exercised
in Guantanamo than it does the control over Landsberg Prison in Eisentrager.
First, U.S. power at the border is not transient. Boumediene distinguished
Eisentrager because the control the United States exercised in Landsberg Prison
in Eisentrager was transient.        But here, Border Patrol agents are not
representatives of a temporary occupational force. They are influential repeat
players in a “constant” border relationship. See Boumediene, 553 U.S. at 768–69.
Second, U.S. officers at the border are not “answerable to” U.S. border partners
in the way Landsberg jailers were to Allied authorities. Id. at 768. In fact, the

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                                  No. 11-50792

Mexican government requests that U.S. government actors are held accountable
in U.S. courts for actions on Mexican territory. Br. of Gov’t of the United
Mexican States as Amici Curiae in Support of Appellants, 16. Therefore, this
situation is different from the Allied occupation of Germany, where authorities
shared accountability.
      In sum, even though the United States has no formal control or de facto
sovereignty over the Mexican side of the border, the heavy presence and regular
activity of federal agents across a permanent border without any shared
accountability weigh in favor of recognizing some constitutional reach.
      Finally, we address the practical obstacles and other functional
considerations extraterritorial application would present. We recognized some
of the practical concerns already: the national interest in self-protection; the
constant need for surveillance, often with advanced technologies; and concerns
over varying degrees of reasonableness depending on an agent’s location at any
given time.    While these practical concerns counsel against the Fourth
Amendment’s application, they do not carry the same weight in the Fifth
Amendment context because different standards govern the respective claims.
      The Fourth Amendment protects against unreasonable searches and
seizures, while, in this context, the Fifth Amendment protects against arbitrary
conduct that shocks the conscience. The level of egregiousness required to
satisfy the latter standard militates against protecting conduct that reaches it.
We abstained from placing Fourth Amendment limits on actions across the
border in part to allow officials to preserve our national interest in self-
protection. A reasonableness limitation would have injected uncertainty into the
government’s    decision-making    process,   perhaps       resulting   in   adverse
consequences for U.S. actions abroad. That interest, however, plays no role in
determining whether an alien is entitled to protection against arbitrary,
conscience-shocking conduct across the border.        This principle protecting

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                                        No. 11-50792

individuals from arbitrary conduct is consistent with those our government has
recognized internationally,10 and applying it here would hardly cause friction
with the host government. The Mexican government submitted a brief seeking
to “allay any concerns that . . . a ruling in the plaintiffs’ favor would interfere
with Mexico’s sovereignty or otherwise create practical difficulties.” Br. of Gov’t
of the United Mexican States as Amici Curiae in Support of Appellants 3.
       Because Agent Mesa was inside our territory when he allegedly acted
unconstitutionally, the United States, like in Boumediene, “is, for all practical
purposes, answerable to no other sovereign for its acts.” 553 U.S. at 770. If the
Constitution does not apply here, the only check on unlawful conduct would be
that which the Executive Branch provides. Cf. Boumediene, 553 U.S. at 765
(noting a concern that “the political branches have the power to switch the
Constitution on or off at will” and would represent “a striking anomaly in our
tripartite system of government”). Indeed, a strict, territorial approach would
allow agents to move in and out of constitutional strictures, creating zones of
lawlessness. That approach would establish a perverse rule that would treat
differently two individuals subject to the same conduct merely because one
managed to cross into our territory.
       Significantly, recognizing extraterritorial application of the Fifth
Amendment for conscience-shocking conduct would not force agents to change
their conduct to conform to a newly articulated standard. We have already
recognized that aliens inside our borders, even those found to be excludable, are
entitled “to be free of gross physical abuse at the hands of state or federal
officials.” Lynch, 810 F.2d at 1374; see also Martinez–Aguero, 459 F.3d at 626
(“Lynch plainly confers on aliens in disputes with border agents a right to be free


       10
         See, e.g., International Covenant on Civil and Political Rights art. 6(1), Mar. 23, 1976,
999 U.N.T.S. 171 (“Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life.”).

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                                   No. 11-50792

from excessive force, and no reasonable officer would believe it proper to beat a
defenseless alien without provocation, as Martinez–Aguero alleges.”). To extend
that right to those injured across the border by U.S. officers located in the
United States would have the unremarkable effect of informing federal officials
that they are also prohibited from arbitrarily inflicting harm in this new, but
similar, context.
      We will enforce the applicable constitutional principle, unless textual,
precedential, or practical barriers bar judicial redress of constitutional
violations—that is, when enforcing it is not “impracticable and anomalous.”
Boumediene, 553 U.S. at 759 (quoting Reid, 354 U.S. at 74 (Harlan, J.,
concurring)). Here it is not. We therefore hold that a noncitizen injured outside
the United States as a result of arbitrary official conduct by a law enforcement
officer located in the United States may invoke the protections provided by the
Fifth Amendment.
B. Bivens Action
      Next, we must address whether Appellants have a cause of action against
Agent Mesa for the violations they allege. “Under Bivens a person may sue a
federal agent for money damages when the federal agent has allegedly violated
that person’s constitutional rights.” Martinez–Aguero, 459 F.3d at 622 n.1. Yet
Bivens is “not an automatic entitlement.” Wilkie v. Robbins, 551 U.S. 537, 550
(2007). The Supreme Court has “consistently refused to extend Bivens liability
to any new context or new category of defendants.” Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 68 (2001).
      1. New Context
      As a preliminary matter, then, we must decide whether this case presents
a “new context” in which Bivens might apply. The district court concluded that
this case did not present an extension of Bivens, because the Supreme Court had
previously recognized a Bivens action for a claim under the Fifth Amendment.

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                                  No. 11-50792

See Davis v. Passman, 442 U.S. 228, 248–49 (1979) (extending Bivens action for
employee’s Fifth Amendment Due Process Clause unconstitutional gender
discrimination action against congressional employer). But the district court’s
conclusion overlooks the context-specific approach the Supreme Court has
adopted in deciding whether to extend a Bivens action. See Malesko, 534 U.S.
at 68. After all, the Supreme Court has since rejected implying a Bivens action
in a different Fifth Amendment Due Process case. See Wilkie, 551 U.S. at 562.
(declining to recognize a Bivens action under the Fifth Amendment for a
landowner against federal land management agents accused of harassment).
Instead of an amendment-by-amendment ratification of Bivens actions, we are
bound to examine each new context—that is, each new “potentially recurring
scenario that has similar legal and factual components.” Arar v. Ashcroft, 585
F.3d 559, 572 (2d Cir. 2009) (en banc). In defining that context, we describe a
scenario neither too general, nor too specific. Id.
      This case appears to present a new context, though the category of federal
defendants is not new. In Bivens itself, the Supreme Court recognized a Fourth
Amendment claim for unreasonable search and seizure against federal law
enforcement agents. 403 U.S. 388, 397. In addition, our Court has permitted a
non-citizen to bring a Bivens action against Border Patrol agents for false arrest
and excessive use of force under the Fourth Amendment for events occurring at
the border. Martinez–Aguero, 459 F.3d at 625. Finally, our Court implicitly
recognized noncitizens’ rights against federal officials for Fifth Amendment gross
physical abuse claims, but did not explicitly discuss whether the extension of
Bivens in that case was appropriate. Lynch, 810 F.2d 1363, 1374. Because
Lynch “gave the matter only cursory attention,” we still need to conduct “a more
complete analysis of the question.” See Engel v. Buchan, 710 F.3d 698, 703 (7th
Cir. 2013) (conducting Bivens analysis even though a prior court had implicitly
extended Bivens in the same context). In sum, faced with a new situation, we

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must analyze whether an individual should have a Bivens remedy arising under
the Fifth Amendment against a federal law enforcement agent for his
conscience-shocking use of excessive force across our nation’s borders.
      2. Extending Bivens Action
      Having determined that this case raises a new context, we must decide
whether to extend a Bivens remedy. We first ask “whether any alternative,
existing process for protecting the constitutionally recognized interest amounts
to a convincing reason for the Judicial Branch to refrain from providing a new
and freestanding remedy in damages.” Minneci v. Pollard, 132 S. Ct. 617, 621
(2012) (quoting Wilkie, 551 U.S. at 550) (alterations and internal quotation
marks omitted). Then, we ask whether, in our own judgment, “special factors
counsel[] hesitation in the absence of affirmative action by Congress.” Bivens,
403 U.S. at 396; see also Minneci, 132 S. Ct. at 621.
            a. Alternative Remedies
      There is no question that Appellants lack any alternative remedy for their
Fifth Amendment right. An alternative, existing process merely has to “provide
roughly similar incentives for potential defendants to comply with [the
constitutional requirements] while also providing roughly similar compensation
to victims of violations.” Engel, 710 F.3d at 705 (alteration in original) (quoting
Minneci, 132 S. Ct. at 625).      According to the Mexican government, the
Appellants cannot sue Agent Mesa in Mexican courts, because, as long as “Agent
Mesa avoids travel to Mexico, any effective and enforceable remedy against him
can only come from the U.S. courts.” Br. of Gov’t of the United Mexican States
as Amicus Curiae for Appellants 16. The Appellants may not sue Agent Mesa
under state law either, because plaintiffs “ordinarily cannot bring state-law tort
actions against employees of the Federal Government.” Minneci, 132 S. Ct. at
623 (citing 28 U.S.C. §§ 2671, 2679(b)(1) (“the Westfall Act”) (substituting the
United States as defendant in tort action against federal employee)); Osborn v.

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                                        No. 11-50792

Haley, 549 U.S. 225, 238, 241 (2007). Besides, as discussed above, an individual
in Hernandez’s position will never be able to recover under the FTCA because
of the application of the foreign-country exception. See supra Part II.A.11
        Appellants also do not appear to lack an alternative remedy as a result of
Congress’s deliberate choice. Congress has not chosen to skip over a remedy
within an “elaborate, comprehensive scheme” that otherwise would cover
Appellants’ alleged constitutional violation. See Bush v. Lucas, 462 U.S. 367,
385 (1983); see also Zuspann v. Brown, 60 F.3d 1156, 1161 (5th Cir. 1995)
(holding that Congress created a comprehensive review of veterans’ benefits
disputes and explicitly precluded judicial review of veterans’ benefits disputes,
so that Congress’s failure to create a remedy against individual Veterans Affairs
employees was “not an oversight”). In particular, the elaborate system of
remedies and procedures under the immigration system are not relevant to this
case.
        In Arar v. Ashcroft, the Second Circuit suggested but did not decide that
Congress’s “substantial, comprehensive, and intricate remedial scheme in the

        11
           The Westfall Act also shows that Congress intended to make a Bivens remedy
available in most circumstances. The Westfall Act of 1988 expanded officer immunity by
making an FTCA claim against the United States an exclusive remedy, see 28 U.S.C.
§ 2679(b)(1), but Congress also implicitly ratified the availability of an action for damages
against federal officers for constitutional violations—that is, a Bivens action—even where
FTCA claims are available, see 28 U.S.C. § 2679(b)(2)(A) (the exclusiveness of a remedy under
the FTCA “does not extend or apply to a civil action against an employee of the Government
. . . which is brought for a violation of the Constitution of the United States.”). Courts have
recognized that this provision expresses Congress’s intent to preserve Bivens actions. See, e.g.,
Simpkins v. D.C. Gov’t, 108 F.3d 366, 371–72 (D.C. Cir. 1997) (noting that § 2679(b)(2)(A)
provides an “exception for Bivens actions against government employees”); Vance v. Rumsfeld,
701 F.3d 193, 208 (7th Cir. 2012) (en banc) (Wood, J., concurring in the judgment), cert. denied,
133 S. Ct. 2796 (2013); see also James E. Pfander and David Baltmanis, Rethinking Bivens:
Legitimacy and Constitutional Adjudication, 98 Geo. L.J. 117, 132–38 (2009) (arguing that
Congress “joined the Court as a partner in recognizing remedies in the nature of a Bivens
action [based on] the Westfall Act’s preservation of suits for violation of the Constitution and
[on] the considerations that led to its adoption.”). As a result, Congress has indicated an
intent to preserve the availability of Bivens actions at least in those instances where an
alternative remedial scheme does not preclude it.


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                                  No. 11-50792

context of immigration” might preclude a Bivens remedy for a noncitizen who
alleged that federal officials illegally detained him, ordered his removal to Syria,
and encouraged and facilitated his interrogation under torture. 585 F.3d at 572.
In Mirmehdi v. United States, the Ninth Circuit held that “Congress’s failure to
include monetary relief [ under the Immigration and Nationality Act for
constitutionally invalid detention] can hardly be said to be inadvertent” in light
of the frequent attention Congress has given the statute. 689 F.3d 975, 982 (9th
Cir. 2011) cert. denied, 133 S. Ct. 2336 (2013).               But unlike those
contexts—extraordinary rendition and wrongful detention pending removal
proceedings, respectively—it is far from clear that Congress intended for the
Immigration and Nationality Act to provide remedies (or purposefully omit
them) for a situation like that in the case presented. Quite plainly, even though
Agent Mesa is an immigration law enforcement officer, see 8 U.S.C. § 1357
(providing law enforcement powers of immigration officers); 8 C.F.R. § 287.5
(giving law enforcements power to border patrol agents), this is not an
immigration case.     After all, Agent Mesa’s alleged conduct foreclosed any
possibility that Hernandez would access the remedial system for removal that
Congress designed. Even had Hernandez survived, he could not have been
detained by a U.S. immigration official, because he was in Mexico. Congress has
not made it clear through its regulation of immigration that it intends for
persons injured by Border Patrol agents—be they citizens or not—to lack a
damages remedy for unconstitutional uses of force.
      Defendants Cordero and Manjarrez alternatively contend that federal law
enforcement    agencies    provide   some    remedy    by    conducting   criminal
investigations of the incidents. They point to federal homicide statutes, 18
U.S.C. §§ 1111, 1112, and criminal civil rights statutes, id. § 242. Far from an
adequate alternative, these procedures fail to redress the alleged harm to
Appellants, and at most represent a mere “patchwork” of remedies insufficient

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                                   No. 11-50792

to overcome Bivens.     See Wilkie, 551 U.S. at 554. Thus, for those in the
Hernandez family’s shoes, it is a Bivens remedy or nothing. See Bivens, 403 U.S.
at 410 (Harlan, J., concurring).
            b. Special Factors Counseling Hesitation
      We proceed to step two of the Bivens framework, which requires us to
exercise our judgment in determining whether “any special factors counsel
hesitation.” We see none.
      Bivens itself provided little guidance on what qualifies as a special factor.
Bivens, 403 U.S. at 396. Since then the Supreme Court and our sister circuits
have identified a handful of “special factors.”      See Arar, 585 F.3d at 573
(describing “special factors” as “an embracing category, not easily defined”). For
example, one class of special factors focuses on Congress’s express or implied
“concerns about judicial intrusion into the sensitive work of specific classes of
federal defendants.” Engel, 710 F.3d at 707. The Supreme Court has especially
emphasized this rationale in military contexts. See United States v. Stanley, 483
U.S. 669, 683–84 (1987) (no Bivens action for injuries arising out of or in the
course of activity incident to military service); Chappell v. Wallace, 462 U.S. 296,
300 (1983) (holding that “necessarily unique structure of the military” is a
special factor counseling against providing Bivens remedy). Other circuits have
relied on that rationale to refuse to extend Bivens suits in a variety of cases
arising from actions taken by our government in its War on Terror. See, e.g.,
Lebron v. Rumsfeld, 670 F.3d 540, 548 (4th Cir. 2012), cert. denied, 132 S. Ct.
2751 (2012) (holding that constitutional separation of powers and lack of judicial
competence counsel hesitation in implying Bivens action for enemy combatants
held in military detention); accord Vance v. Rumsfeld, 701 F.3d 193, 200 (7th
Cir. 2012) (en banc); Ali v. Rumsfeld, 649 F.3d 762, 773 (D.C. Cir. 2011). One
circuit has even extended that reasoning to immigration-related cases.
Mirmehdi, 689 F.3d at 982. Another species of special factor is the workability

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                                    No. 11-50792

of the cause of action. See Wilkie, 551 U.S. at 555 (doctrinal workability of cause
of action).
      This case does not implicate any of these special factors. Agent Mesa did
not act in a military setting; nor did his actions implicate national security.
Given the similarity of this case to the original Bivens remedy and the relative
workability of the doctrine, we find no reason to hesitate in extending Bivens to
this new context. The only argument that might cause us to decline to extend
a Bivens remedy is the Ninth Circuit’s identification of “immigration issues” writ
large as necessarily creating a special factor counseling hesitation. Mirmehdi,
689 F.3d at 982. Yet, as our discussion of alternative remedies indicates,
however, we think this case does not present an “immigration” context.
Moreover, even if we did treat this case as involving an “immigration issue,” we
would not follow Mirmehdi’s analysis.
      In a case brought by aliens challenging their illegal detention prior to
removal proceedings, the Ninth Circuit concluded that claims pertaining to
immigration “‘have the natural tendency to affect diplomacy, foreign policy, and
the security of the nation,’ which further ‘counsels hesitation’ in extending
Bivens.” Id. (quoting Arar, 585 F.3d at 574). First, we decline to follow
Mirmehdi, because the opinion unjustifiably extends the special factors
identified in Arar well beyond that decision’s specific national security “context
of extraordinary rendition.” Arar, 585 F.3d at 574. As the Second Circuit
remarked with more than a dash of understatement, Arar “is not a typical
immigration case.” Id. at 570. In fact, the government’s treatment of Arar was
so anomalous that the court concluded it could not rely on the provisions of the
governing immigration statute, the Immigration and Nationality Act, for any of
its holding. See id. at 571, 573.
      Second, even while we acknowledge Congress’s significant interest in
shaping matters of immigration policy, which “can affect trade, investment,

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                                         No. 11-50792

tourism, and diplomatic relations for the entire Nation,” Arizona v. United
States, 132 S. Ct. 2492, 2498 (2012), that fact alone does not give us cause to
hesitate, let alone halt, in granting a Bivens remedy. The Supreme Court has
recently written to emphasize the strong national interest Congress has in
protecting aliens from mistreatment.12                 See id.      The Court noted that
immigration policy concerns the “perceptions and expectations of aliens in this
country who seek the full protection of its laws,” acknowledged that the
“mistreatment of aliens in the United States may lead to harmful reciprocal
treatment of American citizens abroad,” and reaffirmed that “‘[o]ne of the most
important and delicate of all international relationships . . . has to do with the
protection of the just rights of a country’s own nationals when those nationals
are in another country.’” Id. at 2498–99 (alteration in original) (quoting Hines
v. Davidowitz, 312 U.S. 52, 64 (1941)).13 This strong national commitment to
aliens’ rights not only militates in favor of a uniform, federal policy, as the Court
concluded in Arizona v. United States; it also militates in favor of the availability
of some federal remedy for mistreatment at the hands of those who enforce our

       12
          We note that Sergio’s alienage does not amount to a special factor counseling
hesitation. Our circuit has previously recognized that an alien may be entitled to a damages
remedy against federal officers. See Martinez–Aguero, 459 F.3d at 621–22 & n.1 (recognizing
a Bivens remedy for an alien); see also Vance, 701 F.3d at 203 (rejecting alienage as special
factor). The reason for this position is clear: to treat alienage as a special factor for not
providing a damages remedy would be to double count our reasons for not providing a
substantive right: having settled that Appellants are entitled to bring a claim for substantive
due process under the Fifth Amendment even though Hernandez was an alien, we see no
additional reason to hesitate in granting a remedy for that right. See Davis, 442 U.S. at 246
(“[A]lthough a suit against a Congressman for putatively unconstitutional actions taken in the
course of his official conduct does raise special concerns counseling hesitation, we hold that
these concerns are coextensive with the protections afforded by the Speech or Debate
Clause.”). The same goes for extraterritoriality. Having already concluded that the right
applies extraterritorially, we think it is improper to treat the location of the injury as a factor
counting against extension of the remedy.
       13
          Although the Supreme Court was not called upon to decide whether these same
interests also extend to aliens outside the United States who are under the control of U.S.
officers within the United States, we think the principle would be no different. The same
concern for the protection of the rights of aliens applies with equal force here.

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                                    No. 11-50792

immigration laws. Where those who allege mistreatment have a right but lack
a remedy, as here, the Supreme Court suggests that Congress would want some
remedy to be available.
        Third, the case before us involves questions of precisely Bivens-like
domestic law enforcement and nothing more. Mirmehdi implies that cases in the
immigration context necessarily involve more than the “mere ‘disclosure of
normal domestic law-enforcement priorities and techniques,’” 689 F.3d at 983
(quoting Reno v. Am.-Arab Anti–Discrim. Comm., 525 U.S. 471, 490 (1999)). The
Mirmehdi court asserts such cases “often involve ‘the disclosure of foreign-policy
objectives and . . . foreign-intelligence products.’” Id. (quoting Reno, 525 U.S. at
490).    But nothing in this case bears out that assertion.         To accept that
conclusion would require us to abandon our prior case law, in which we have
permitted Bivens actions to proceed against immigration officers.                See
Martinez–Aguero, 459 F.3d at 621–25; Lynch, 810 F.2d at 1374. We find no
reason for giving immigration officers special solicitude now.
        In fact, this case presents a scenario not unlike that in Bivens. Just as the
Seventh Circuit explained in extending a Bivens remedy for alleged Brady
violations under the Due Process Clause, providing a remedy for a claim of gross
physical abuse by a federal law enforcement officer presents “no great problem
of judicial interference with the work of law enforcement, certainly no greater
than the Fourth Amendment claim in Bivens.” See Engel, 710 F.3d at 708; cf.
Malesko, 534 U.S. at 75 (Scalia, J., concurring) (arguing that the Supreme Court
should cease to extend Bivens actions beyond the “precise circumstances that
[Bivens] involved”). In Bivens, the plaintiff brought his lawsuit against federal
agents for their warrantless search of his apartment, but also for the
unreasonable use of force in arresting him. See 403 U.S. 388, 389 (“[Bivens’s]
complaint asserted that the arrest and search were effected without a warrant,
and that unreasonable force was employed in making the arrest; fairly read, it

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                                      No. 11-50792

alleges as well that the arrest was made without probable cause.” Here, too,
Appellants allege the use of unreasonable force by federal agents. The only
difference is that—for the reasons stated above—the Appellants must avail
themselves of the Fifth Amendment rather than the Fourth Amendment.
       Moreover, “the legal standards for adjudicating the claim are well
established and easily administrable.” Engel, 710 F.3d at 708; see Wilkie, 551
U.S. at 555 (“defining a workable cause of action” may be a special factor).
Relatedly, we foresee no “deluge” of potential claimants availing themselves of
this particular Bivens action. See Davis, 442 U.S. at 248 (rejecting argument
that implying Bivens action would cause a deluge of claims). The standards for
extraterritorial application of the constitutional right and the substantive
definition of that right are so stringent that the creation of a damages remedy
will already limit the size of any potential class of claimants under this Bivens
action.
       Therefore, we extend a Bivens action in this specific context in which an
individual located abroad asserts a right to be free from gross physical abuse
under the Fifth Amendment against federal law enforcement agents located in
the United States based on their conscience-shocking, excessive use of force
across our nation’s borders.14
C. Qualified Immunity
       Having concluded that the Fifth Amendment does apply in this particular
extraterritorial context and that Bivens provides a remedy, we resume the
familiar qualified immunity analysis, beginning with whether Appellants have
alleged a constitutional right.
       1. Constitutional right
       We first address whether the Appellants have sufficiently alleged a Fifth
       14
        We do not rule on whether a Bivens action will be available beyond the scenario here.
For example, we do not suggest that a Bivens action would be available where military
personnel had allegedly violated the individual’s right.

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                                  No. 11-50792

Amendment violation. The district court determined that Graham v. Connor
precluded the Appellants’ Fifth Amendment claim because Agent Mesa’s
“apprehension by the use of deadly force” amounted to a seizure to be analyzed
under the Fourth Amendment. As mentioned above, although it is true that
Graham requires most excessive force claims to be pursued under the Fourth
Amendment rather than under the more general substantive due process
standard of the Fifth and Fourteenth Amendments, that rule is not absolute.
Graham “does not hold that all constitutional claims relating to physically
abusive government conduct must arise under either the Fourth or Eighth
Amendments.” United States v. Lanier, 520 U.S. 259, 272 n.7 (1997). Instead,
“Graham simply requires that if a constitutional claim is covered by a specific
constitutional provision, such as the Fourth or Eighth Amendment, the claim
must be analyzed under the standard appropriate to that specific provision, not
under the rubric of substantive due process.” Id.; see also Petta, 143 F.3d at 900
(explaining that Graham rejected the substantive due process standard “only in
cases in which the alleged excessive use of force arguably violated a specific right
protected under the Bill of Rights”). “Substantive due process analysis is
therefore inappropriate in this case only if [the Appellants’] claim is ‘covered by’
the Fourth Amendment.” See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 843
(1998).
      The inapplicability of the Fourth Amendment in this case establishes that
the Appellants’ claim is not “covered by” the Fourth Amendment. Thus, Graham
does not preclude the Appellants from asserting their claim under the Fifth
Amendment. Additionally, the facts alleged in the complaint, if proven, would
be sufficient to establish a Fifth Amendment violation.
      To state a valid claim for a violation of substantive due process, a plaintiff
must establish that the officer’s actions (1) caused an injury, (2) were grossly
disproportionate to the need for action under the circumstances, and (3) were

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                                  No. 11-50792

inspired by malice rather than merely careless or unwise excess of zeal so that
it amounted to an abuse of official power that shocks the conscience. Petta, 143
F.3d at 902; cf. Lewis, 523 U.S. at 836 (holding that a state police officer did not
violate the Fourteenth Amendment’s guarantee of substantive due process by
causing a person’s death in a high-speed automobile chase because “only a
purpose to cause harm unrelated to the legitimate object of arrest will satisfy the
element of arbitrary conduct shocking to the conscience, necessary for a due
process violation”); Salerno, 481 U.S. at 746 (noting that the substantive due
process component of the Fifth Amendment “prevents the government from
engaging in conduct that shocks the conscience” (citations and internal quotation
marks omitted)). “[O]nly the most egregious official conduct can be said to be
‘arbitrary in the constitutional sense’ . . . .” Lewis, 523 U.S. at 846 (quoting
Collins v. Harker Heights, 503 U.S. 115, 129 (1992)).
      But if ever a case could be said to present an official abuse of power so
arbitrary as to shock the conscience, the Appellants have alleged it here.
According to the Appellants’ complaint, Hernandez had retreated behind the
pillars of a bridge when, unprovoked, Agent Mesa fired two gunshots in his
direction. One of the gunshots struck him in the face and killed him. On these
facts, Agent Mesa had no reason to suspect that Hernandez had committed any
crime or engaged in any conduct that would justify the use of any, let alone
deadly, force. With no apparent justification for this action, a reasonable trier
of fact could conclude that Agent Mesa “acted out of conscience-shocking malice
or wantonness rather than merely careless or excessive zeal.” Petta, 143 F.3d
at 902–03. We therefore conclude that the Appellants have satisfied the first
prong of the qualified immunity analysis by adequately alleging a constitutional
violation.
D. Clearly Established Law
      Finally, we must determine whether Hernandez’s rights were “clearly

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                                   No. 11-50792

established” at the time of the incident. According to Agent Mesa, they were not,
because the uncertainty in the law surrounding the availability of constitutional
rights abroad ensured that any right we might recognize could not have been
clearly established at the time of the shooting.         This argument, however,
misconstrues qualified immunity doctrine. “Clearly established” in this context
does not refer to whether Hernandez, specifically, had the clearly established
right to invoke Fifth Amendment protection at the time of the incident. It refers
instead to the “objective legal reasonableness” of Agent Mesa’s action, “assessed
in light of the legal rules that were ‘clearly established’ at the time it was taken.”
Anderson v. Creighton, 483 U.S. 635, 639 (1987) (citing Harlow v. Fitzgerald, 457
U.S. 800, 818–19 (1982)). In other words, qualified immunity does not shield
conduct that is known to be unlawful merely because it is unclear that such
unlawful conduct can be challenged.           That is, whether the right applied
extraterritorially to Hernandez and thus whether Hernandez could assert the
Fourth or Fifth Amendment right does not alter the standard for conduct under
those rights. “Qualified immunity shields an officer from suit when she makes
a decision that, even if constitutionally deficient, reasonably misapprehends” the
law governing the “circumstances she confronted.” Brosseau v. Haugen, 543 U.S.
194, 198 (2004) (per curiam). Thus, “[t]he relevant, dispositive inquiry in
determining whether a right is clearly established is whether it would be clear
to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001).
      No reasonable officer would have understood Agent Mesa’s alleged conduct
to be lawful. The obvious wrongfulness of the alleged conduct but also our
precedents concerning the rights of aliens confirm this conclusion. As mentioned
above, we have already recognized that aliens inside our border are entitled “to
be free of gross physical abuse at the hands of state or federal officials.” Lynch,
810 F.2d at 1374; see also Martinez–Aguero, 459 F.3d at 626–27 (“Lynch plainly

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                                  No. 11-50792

confers on aliens in disputes with border agents a right to be free from excessive
force, and no reasonable officer would believe it proper to beat a defenseless
alien without provocation, as Martinez–Aguero alleges.”).
      Agent Mesa argues that his alleged conduct was acceptable as long as its
impact was felt outside our borders. This is not a reasonable misapprehension
of the law entitled to immunity. It does not take a court ruling for an official to
know that no concept of reasonableness could justify the unprovoked shooting
of another person. See Hope v. Pelzer, 536 U.S. 730, 741, 745 (2002) (noting that
cases involving fundamentally similar facts “are not necessary” to finding a right
clearly established and holding that “obvious cruelty inherent in [prison
official’s] practice should have provided respondents with notice that their
alleged conduct violated Hope’s constitutional protection.”). Accordingly, we hold
that the facts alleged by the Appellants defeat Agent Mesa’s claim of qualified
immunity.
               VI. CLAIMS AGAINST THE SUPERVISORS
      Finally, we address the constitutional claims against Agent Mesa’s
supervisors. “Because vicarious liability is inapplicable to Bivens . . . suits, a
plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.” Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009). The Appellants allege that the supervisors
promulgated policies they knew were inadequate regarding the use of deadly
force and also failed to train officers regarding the appropriate use of their
firearms.   As the district court noted, however, neither of the remaining
supervisors was shown to have any personal involvement in the alleged
constitutional violation. Specifically, the district court found that Agent Cordero
“had not served as a line supervisor for agents in Agent Mesa’s position since
2006”—four years before the incident—and that it had been at least eight
months since Agent Manjarrez had supervised Agent Mesa. The Appellants do

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                                 No. 11-50792

not challenge these findings and point to no specific policy nor any other
evidence that would suggest that the supervisors were personally responsible for
the alleged constitutional violation. Under these circumstances, the district
court properly granted summary judgment in favor of the supervisors.
                             VII. CONCLUSION
      Because the United States has not waived sovereign immunity for any of
the claims asserted against it, we AFFIRM the judgment in favor of the United
States. Similarly, we AFFIRM the judgment in favor of the supervisors because
the Appellants have failed to establish that either supervisor was personally
responsible for the alleged constitutional violations. But because we hold that
the Appellants can assert a Fifth Amendment claim against Agent Mesa and
that they have alleged sufficient facts to overcome qualified immunity, we
REVERSE the judgment in favor of Agent Mesa and REMAND for further
proceedings consistent with this opinion.




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                                  No. 11-50792

JAMES L. DENNIS, Circuit Judge, concurring in part and concurring in the
judgment:
      I join the court’s opinion in its entirety except for Part IV, with which I
agree in part and in result. In United States v. Verdugo-Urquidez, 494 U.S. 259
(1990), the Supreme Court apparently ruled that the phrase “the people” in the
Fourth Amendment “refers to a class of persons who are part of a national
community or who have otherwise developed sufficient connection with this
community to be considered part of that community.” Id. at 265. I am inclined
to agree, however, with those who have suggested that the Verdugo-Urquidez
view cannot be squared with the Court’s later holding in Boumediene v. Bush,
553 U.S. 723 (2008), that “questions of extraterritoriality turn on objective
factors, and practical concerns, not formalism.” Id. at 764; see WAYNE R. LAFAVE
ET AL., 2 CRIM . PROC. § 3.1(i) n.237.1 (3d ed. 2014) (citing Gerald L. Neuman, The

Extraterritorial Constitution After Boumediene v. Bush, 82 S. CAL. L. REV. 259,
259, 272 (2008); Ellen S. Podgor, Welcome to the Other Side of the Railroad
Tracks: A Meaningless Exclusionary Rule, 16 SW. J. INT’L L. 299, 310 (2010));
Baher Azmy, Executive Detention, Boumediene, and the New Common Law of
Habeas, 95 IOWA L. REV. 445, 465 (2010); Christina Duffy Burnett, A Convenient
Constitution? Extraterritoriality After Boumediene, 109 COLUM. L. REV. 973,
1044 (2009); Timothy Zick, Territoriality and the First Amendment: Free Speech
at—and Beyond—Our Borders, 85 NOTRE DAME L. REV. 1543, 1614 (2010).
      The Mexican government has indicated that our adjudication of the
Appellants’ claims, whether under the Fourth or Fifth Amendment, in this
particular case would not cause any friction with its sovereign interests.
However, it appears that our judicial entanglement with extraterritorial Fourth
Amendment excessive-force claims would be far more likely to involve
impracticable and anomalous factors than would a “shocks the conscience” Fifth
Amendment claim. For these reasons, I agree with the opinion of the court in

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                                  No. 11-50792

declining to apply the Fourth Amendment in adjudicating the Appellants’ claims
but I do so out of concern for pragmatic and political questions rather than on
a formal classification of the litigants involved.




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                                    No. 11-50792

HAROLD R. DeMOSS, JR., Circuit Judge, concurring in part and dissenting in
part:
        I join in Parts I, II, and VI of the court’s opinion and I concur in the result
of Part IV. For the reasons stated below, I dissent from Part V.
        The majority recognizes that “it is undisputed that Hernandez was a
Mexican citizen with no connection to the United States.” Majority Op. at 26.
Additionally, the majority states “[a]ny claim . . . [is] based on an injury suffered
in a foreign country[,]” id. at 8, a place the majority acknowledges “the United
States has no formal control or de facto sovereignty.” Id. at 29. Nevertheless,
the majority determined that the Fifth Amendment is applicable in this case.
At its heart, this determination is based on the dubious assessment that there
is an undefined area on the Mexican side of the U.S.–Mexico border which is
analogous to the United States Naval Station at Guantanamo Bay, Cuba.
        The United States’ presence at Guantanamo Bay, Cuba, is based on both
a lease and a treaty. Boumediene v. Bush, 553 U.S. 723, 764 (2008).
Furthermore, “the United States ‘has maintained complete and uninterrupted
control of [Guantanamo Bay] for over 100 years.’” Majority Op. at 26 (quoting
Boumediene, 553 U.S. at 768). The same cannot be said of the Mexican side of
the border. I reject the proposition that occasional exercises of “hard power
across the border,” id. at 27, and practices such as “‘preinspection’ examination
and inspection of passengers,” id. at 28, have somehow transformed a portion
of northern Mexico into anything resembling the Naval Station at Guantanamo
Bay. If the fact that the “United States exerts and has exerted powerful
influence over northern Mexico,” id. (internal quotation marks and citation
omitted), justifies application of the Fifth Amendment in a strip along the
border, how wide is that strip? Is the Fifth Amendment applicable in all of
Ciudad Juarez or even the entire state of Chihuahua? Ultimately, the majority’s
approach devolves into a line drawing game which is entirely unnecessary

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                                No. 11-50792

because there is a border between the United States and Mexico.
      To be clear, the majority’s opinion represents a significant expansion of
Fifth Amendment protections which is not supported by precedent. Because I
am persuaded that the Fifth Amendment does not protect a non–citizen with no
connections to the United States who suffered an injury in Mexico where the
United States has no formal control or de facto sovereignty, I would affirm the
district court’s judgment in favor of Agent Mesa on the Fifth Amendment claim.




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