Thursday, January 10, 2019
Immigration Article of the Day: Ninth Circuit Extends Bivens Remedy to Mexican Citizen Killed in Mexico by Cross-Border Agent Standing in America by the Harvard Law Review
This "Recent Case" piece in the Harvard Law Review looks at Rodriguez v. Swartz, in which the Ninth Circuit extended a Bivens remedy to a Mexican citizen shot and killed in Mexico by a U.S. border patrol agent standing on American soil. The Ninth Circuit’s extension of Bivens to the extraterritorial domain departs from the Supreme Court’s traditional treatment of Bivens as a disfavored remedy and creates a circuit split. However, as Bivens remains good law, the Ninth Circuit’s approach highlights the value of Bivens remedies in redressing egregious constitutional harms affecting millions along the U.S.-Mexico border.
The Ninth Circuit had withdrew this case from submission pending the Supreme Court’s decision in Hernandez v. Mesa, 137 S. Ct. 2003 (2017) (per curiam), and supplemental briefing on the effect of that decision.