This Comment assesses whether noncitizens can sue in U.S. courts when they have sustained an injury outside of U.S. territory. This Comment assumes the underlying merits of the Hernandez’s claim that Agent Mesa used excessive force when shooting at Sergio. It will not address whether Agent Mesa acted in self-defense. Part II will discuss the context of the Hernandez litigation and its claims against the U.S. Government, its agencies, and employees for the use of excessive force against a noncitizen. It will also discuss the legal requirements for bringing an excessive force claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics for violations of Sergio’s Fourth and Fifth Amendment rights. Bivens provides a cause of action in U.S. courts for damages remedies for constitutional violations committed by federal agents. Part III will discuss the direct and extraterritorial application of the U.S. Constitution to provide standing for an excessive force claim on the border. Part IV will explore the viability and obstacles of pursuing a Bivens claim on the border. Part V will discuss the possibility of alternative non-judicial remedies to addressing civil rights violations by Customs and Border Patrol (“CBP”) agents. Also discussed is whether existing international agreements may provide the basis for judicial redress.
Breaking Legal Ground: A Bivens Action for Noncitizens for Trans-border Constitutional Torts Against Border Patrol Agents,
San Diego Int'l L.J.
Available at: http://digital.sandiego.edu/ilj/vol15/iss1/5