On June 7, 2010, Jesus Mesa Jr., a U.S. Border Patrol agent, shot and killed Sergio Adrián Hernández Güereca in the cement culvert separating Ciudad Juarez, Chihuahua, Mexico, and El Paso, Texas.

[1] The shooting led to a protracted court case which has examined whether the due process clause of the 5th Amendment to the U.S. Constitution protected Hernández Güereca's life even though he was not standing on U.S. soil, and whether Mesa could claim qualified immunity for his actions as a U.S. law enforcement officer.

"[9] There was then a rehearing by the full panel en banc in the Fifth Circuit, which reversed the prior panel and unanimously reaffirmed the District Court's dismissal of the case, saying that regardless of whether Hernández Güereca had 5th Amendment rights or not, Mesa was entitled to qualified immunity because he could not have been aware that his actions would not qualify for immunity under the circumstances, since there had not been prior case law to settle the issue.

[13] Writing for a 5–4 majority, Justice Samuel Alito ruled against Hernandez and held that the Court's precedent under Bivens did not extend to cross-border shootings.

The Court concluded that the petitioners Bivens claim arose under a new and significantly different context (a cross-border shooting) than in previous claims by other defendants and also concluded that expanding Bivens would interfere with the executive branch's lead role in setting foreign policy and also interfere with border security.

[14] Writing separately, Justice Clarence Thomas concurred with the majority opinion but also said that Bivens may have been wrongly decided and should be discarded as a precedent.

In his concurrence, he said that in recent years the Supreme Court has been less and less willing to create or expand implied causes of action beyond what Congress has explicitly authorized by statute.

In her dissent, Ginsburg stated that the circumstances of the cross-border shooting were not in fact a "new" context under the Bivens analysis and that the majority opinion was incorrect in suggesting that foreign policy or national security would be impaired by allowing the litigation to go forward.