Maria Del Socorro Quintero Perez v. United States of America

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
M ARIA DEL S OCORRO QUINTERO
P EREZ; B RIANDA ARACELY YANEZ
QUINTERO ; C AMELIA ITZAYANA
YANEZ QUINTERO; J.Y., a minor,
Plaintiffs-Appellants,
v.
UNITED S TATES OF A MERICA; U.S.
DEPARTMENT OF HOMELAND
S ECURITY; UNITED S TATES C USTOMS
AND B ORDER P ROTECTION; UNITED
S TATES OFFICE OF B ORDER P ATROL;
J ANET A. NAPOLITANO ; T HOMAS S.
WINKOWSKI; DAVID A GUILAR ; ALAN
B ERSIN; KEVIN K. M C ALEENAN;
M ICHAEL FISHER ; P AUL B EESON;
R ODNEY S. S COTT; C HAD M ICHAEL
NELSON; DORIAN DIAZ; DOES , 1–50,
Defendants-Appellees.
No. 17-56610
D.C. No.
3:13-cv-01417-
WQH-BGS
OPINION
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding

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2 QUINTERO P EREZ V. UNITED S TATES
Argued and Submitted November 5, 2018
Submission Withdrawn May 28, 2019
Resubmitted August 9, 2021
Seattle, Washington
Filed August 16, 2021
Before: M. Margaret McKeown and Michelle T. Friedland,
Circuit Judges, and Fernando J. Gaitan, Jr.,* District Judge.
Opinion by Judge McKeown;
Concurrence by Judge Friedland
SUMMARY**
Civil Rights
The panel affirmed the district court’s (1) dismissal on
the pleadings of plaintiff’s claims brought under the Alien
Tort Statute and the Federal Tort Claims Act; and (2) grant
of summary judgment for defendants on plaintiff’s claims
under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), in an action
arising from the fatal shooting of a Mexican national by the
U.S. Border Patrol on the U.S.-Mexico border fence.
* The Honorable Fernando J. Gaitan, Jr., United States District Judge
for the Western District of Missouri, sitting by designation.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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QUINTERO P EREZ V. UNITED S TATES 3
The panel first rejected plaintiff’s argument that the
shooting and Border Patrol’s Rocking Policy, authorizing
deadly force in response to rock throwing, violated an
international jus cogens norm against extrajudicial killing
and thus was a tort actionable under the Alien Tort Statute
(“ATS”). Citing this court’s decision in Tobar v. United
States, 639 F.3d 1191 (9th Cir. 2011), and consistent out-of-
circuit authority, the panel held that the ATS does not waive
sovereign immunity, even for jus cogens violations. Without
a waiver of sovereign immunity by the United States,
plaintiff’s ATS claim against the United States failed and
was properly dismissed.
The panel held that the claims brought under the Federal
Tort Claims Act (“FTCA”) were time-barred and equitable
tolling was not available under the circumstances. Plaintiff
initially did not pursue an FTCA claim because she believed
that, under Ninth Circuit authority in effect at the time,
specifically Pesnell v. Arsenault, 543 F.3d 1038 (9th Cir.
2008), judgment on an FTCA claim would have foreclosed
her Bivens claims. Plaintiff amended her complaint to assert
FTCA claims after the Supreme Court abrogated Pesnell in
Simmons v. Himmelreich, 136 S. Ct. 1843 (2016). The panel
explained that under Kreines v. United States, 959 F.2d 834
(9th Cir. 1992), the FTCA’s judgment bar did not foreclose
a contemporaneously filed Bivens claim when the
government had prevailed on the FTCA claim. Thus, the
Supreme Court’s abrogation of Pesnell was largely
irrelevant to plaintiff’s situation. Plaintiff’s seeming lack of
awareness of Kreines constituted a mistake of law that was
not outside of her control and therefore did not qualify as an
extraordinary circumstance supporting equitable tolling.
Addressing the Bivens cause of action, and applying
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), and Hernandez v.

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4 QUINTERO P EREZ V. UNITED S TATES
Mesa, 140 S. Ct. 735 (2020), the panel first concluded that
the Bivens claims, involving a fatal shooting at the border by
a federal agent of a Mexican national who had crossed into
the United States, arose in a new context. The panel next
determined that plaintiff had no adequate alternative remedy
because even if plaintiff could bring a timely FTCA claim,
the FTCA on its own would not have afforded comparable
deterrence and compensation options. Finally, the panel
determined that a special factor counseled against extending
the Bivens remedy to the Border Patrol Chief, because doing
so would challenge a high-level executive policy. As to the
Border Patrol agent involved in the shooting, applying
Hernandez, the panel concluded that the Bivens claim
implicated the special factor of national security and was
therefore foreclosed.
Judge Friedland concurred other than concurring only in
the judgment as to Part I. Judge Friedland would affirm the
dismissal of plaintiff’s ATS claim on the ground that
plaintiff had not satisfied the required elements of her claim,
namely that the Rocking Policy authorized extrajudicial
killing, that this particular type of extrajudicial killing was a
jus cogens violation, and that this particular type of
extrajudicial killing constituted an actionable ATS tort. She
therefore would not reach the broader question of whether
the United States has sovereign immunity for claims of jus
cogens violations that are brought under the ATS.
COUNSEL
Steve D. Shadowen (argued) and Matthew Charles Weiner,
Hilliard & Shadowen LLP, Austin, Texas; Gerald Singleton
and Brody A. McBride, Singleton Law Firm, Solana Beach,
California; for Plaintiffs-Appellants.

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QUINTERO P EREZ V. UNITED S TATES 5
Mark B. Stern (argued), Nitin Shah, and Casen B. Ross,
Appellate Staff; Robert S. Brewer Jr., United States
Attorney; Civil Division, United States Department of
Justice, Washington, D.C.; for Defendants-Appellees.
OPINION
McKEOWN, Circuit Judge:
This case illustrates the law’s inability to remedy certain
wrongs. Jose Alfredo Yañez Reyes (“Yañez”) was shot and
killed by a U.S. Border Patrol agent while on the U.S.-
Mexico border fence. Although these events unfolded at the
border, the parties agree that the fencing was in the United
States and that the shooting happened on American soil.
Mexican territory was involved only when, after being shot,
Yañez fell and landed halfway across the international
border. Yañez’s widow, Maria del Socorro Quintero Perez
(“Quintero Perez”), and children, brought civil claims
against the U.S. government and individual federal agents
under a variety of theories. We withdrew submission of this
case pending the Supreme Court’s decision in Hernandez v.
Mesa, which involved an analogous, but not identical,
situation: a cross-border shooting of a Mexican citizen by a
border patrol agent. 140 S. Ct. 735 (2020).
Without doubt, Yañez’s death is tragic, as are the
circumstances that caused it. We conclude, however, that
the relief his family pursues is foreclosed by the holding of
Hernandez, the constraints imposed by various statutes, and
by the limits of equitable tolling. We regret that the law
compels this result.

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B ACKGROUND
In 2011, U.S. Border Patrol Agent Dorian Diaz (“Diaz”)
shot and killed Yañez, a Mexican national, while Yañez was
on the U.S.-Mexico border fence. The events leading up to
the fatal moment began when Yañez and Jose Ibarra
Murietta (“Murietta”), also a Mexican national, crossed the
border, entering near the San Ysidro port of entry through a
hole in a drainage grate that forms part of the border fence.
Diaz spotted them and radioed for assistance from another
agent, Chad Nelson (“Nelson”). Seeing the agents, Yañez
and Murietta tried to return to Mexico. Yañez made it back
through the hole in the drainage grate, but Murietta did not.
When the agents attempted to arrest Murietta, he fled, then
resisted, and an altercation ensued.
The parties offer differing accounts of Yañez’s actions
while the agents engaged Murietta near the border fence.
The agents testified that Yañez swung a table leg studded
with nails at Nelson through grating in the fence and then
mounted the fence to throw rocks at him. Diaz said he
warned Yañez to get down from the fence after he threw
rocks, but Yañez appeared above the fence for a second time
and threw the table leg at Nelson, which the agents testified
hit Nelson in the head. As Diaz described the incident,
Yañez “thr[ew] down the table leg . . . and hit[] Nelson in
the back of the head,” after which he saw “Nelson kind of
jolt his head.” Diaz testified he again told Yañez to get off
the fence, and when Yañez appeared for the third time on the
fence, Diaz shot him. Diaz said that, just before he fired the
shot, he saw Yañez “cocking [his arm] back to throw
something,” and though Diaz “couldn’t see [Yañez’s] hand,”
he “kn[e]w [Yañez] had it in a fist.”
Quintero Perez offers a different account of the killing,
based primarily on Murietta’s testimony. Murietta testified

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QUINTERO P EREZ V. UNITED S TATES 7
that he saw Yañez appear over the fence, but that he never
saw him throw rocks or anything else. Instead, Murietta
recalled in a deposition that Yañez was holding onto the
fence with one hand and holding his cell phone in the other,
which Yañez may have used to record the agents’ altercation
with Murietta. Murietta also testified that Yañez had told the
agents that “he had recorded” them, and that Agent Diaz
responded by pointing his gun at Yañez and saying, “I kill
you motherfucker.”
Despite their divergent accounts of the killing, the parties
agree that Diaz was on American soil when he shot Yañez
and that Yañez was on the border fence when he was shot,
which is also within the United States. The parties also agree
that after Yañez was fatally shot, his body fell such that it
was partially in the United States and partially in Mexico.
Quintero Perez brought claims against the United States
under the Alien Tort Statute (“ATS”) and the Federal Tort
Claims Act (“FTCA”), and Fourth Amendment Bivens
claims against Diaz and former Border Patrol Chief Michael
Fisher (“Fisher”), who was in charge of border patrol
policies when Yañez was shot. See Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,
389 (1971). The district court dismissed the ATS and FTCA
claims on the pleadings, and, following discovery, entered
summary judgment in favor of the defendants on the Bivens
claims. We affirm.
ANALYSIS
I. JUS C OGENS CLAIM UNDER THE ALIEN TORT
S TATUTE
The ATS provides that “[t]he district courts shall have
original jurisdiction of any civil action by an alien for a tort

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8 QUINTERO P EREZ V. UNITED S TATES
only, committed in violation of the law of nations or a treaty
of the United States.” 28 U.S.C. § 1350. It is a purely
jurisdictional statute that creates no new causes of action.
Sosa v. Alvarez-Machain, 542 U.S. 692, 724 (2004). Rather,
the “very limited category” of claims actionable under the
ATS must be “defined by the law of nations and recognized
at common law.” Id. at 712. The paradigmatic historical
examples are “violation of safe conducts, infringement of the
rights of ambassadors, and piracy,” id. at 724, but the Court
recognized that the ATS also supports claims “based on the
present-day law of nations,” so long as they “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” that the Court had listed. Id.
at 725.
Quintero Perez argues that the shooting amounted to an
extrajudicial killing that violates an international jus cogens
norm and that fits within Sosa’s definition of torts actionable
under the ATS. A jus cogens norm, also known as a
“peremptory norm” of international law, “is a norm accepted
and recognized by the international community of States as
a whole as a norm from which no derogation is permitted
and which can be modified only by a subsequent norm of
general international law having the same character.”
Vienna Convention on the Law of Treaties, art. 53, May 23,
1969, 1155 U.N.T.S. 332, 8 I.L.M. 679. Quintero Perez
claims that Border Patrol’s “Rocking Policy” violates a jus
cogens norm against extrajudicial killing. The district court
dismissed the claim, holding that the United States did not
waive its sovereign immunity for this norm. We review de
novo, and we affirm. See Elmakhzoumi v. Sessions, 883 F.3d
1170, 1172 (9th Cir. 2018).

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QUINTERO P EREZ V. UNITED S TATES 9
Quintero Perez asserts an ATS claim only against the
United States. We addressed the interplay between the
ATS’s jurisdictional grant and sovereign immunity in Tobar
v. United States, 639 F.3d 1191 (9th Cir. 2011). Joining
three of our sister circuits, we concluded that the ATS does
not “imply any waiver of sovereign immunity.” Id. at 1196
(quoting Goldstar (Panama) S.A. v. United States, 967 F.2d
965, 968 (4th Cir. 1992)). This analysis was consistent with
a position we took nearly twenty years earlier in Koohi v.
United States, in which we noted that the ATS “does not
waive sovereign immunity.” 976 F.2d 1328, 1332 n.4 (9th
Cir. 1992) (citing Canadian Transp. Co. v. United States,
663 F.2d 1081, 1092 (D.C. Cir. 1980)). Following Tobar,
“any party asserting jurisdiction under the [ATS] must
establish, independent of that statute, that the United States
has consented to suit.” 639 F.3d at 1196 (quoting Goldstar,
967 F.2d at 968).
The D.C., Second, and Fourth Circuits are in accord.
The D.C. Circuit has repeatedly held that the ATS “itself is
not a waiver of sovereign immunity.” Sanchez-Espinoza v.
Reagan, 770 F.2d 202, 207 (D.C. Cir. 1985); see also
Canadian Transp. Co., 663 F.2d at 1092. As we noted in
Tobar, the Fourth Circuit similarly concluded that the ATS
“has not been held to imply any waiver of sovereign
immunity.” Goldstar, 967 F.2d at 968. The Second Circuit
agreed that the ATS does not waive sovereign immunity.
Arar v. Ashcroft, 532 F.3d 157, 175 n.12 (2d Cir. 2008)
(addressing the Torture Victim Protection Act, which is
codified as a note to the ATS), vacated on other grounds,
585 F.3d 559 (2d Cir. 2009).
In the face of this authority, Quintero Perez urges that jus
cogens violations do not warrant sovereign immunity.
Although Tobar did not implicate a jus cogens violation, its

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10 QUINTERO P EREZ V. UNITED S TATES
language is unequivocal and does not permit an exception to
the waiver requirement for jus cogens violations. Tobar,
639 F.3d at 1196. Though Quintero Perez points to a Fourth
Circuit decision, Yousuf v. Samantar, which stated that “jus
cogens violations are, by definition, acts that are not
officially authorized by the Sovereign” such that immunity
was not available, that case rejected foreign official
immunity, applicable to high-ranking foreign officials.
699 F.3d 763, 776–78 (4th Cir. 2012). Notably, the Fourth
Circuit did not disturb or even discuss its precedent in
Goldstar concluding that the United States must consent to
suit under the ATS. Goldstar, 967 F.2d at 968.
For similar reasons, Quintero Perez’s effort to apply
principles from a Ninth Circuit Foreign Sovereign
Immunities Act case to the ATS construct is not persuasive
because that case did not involve the sovereign immunity of
the United States. See Siderman de Blake v. Republic of
Argentina, 965 F.2d 699 (9th Cir. 1992). Nor does our
circuit’s decision in Sarei v. Rio Tinto, PLC, which involved
a private rather than a U.S. government defendant, resonate
here. 671 F.3d 736 (9th Cir. 2011) (en banc), judgment
vacated, 569 U.S. 945 (2013). Without a waiver of
sovereign immunity by the United States, Quintero Perez’s
ATS claim against the United States fails and was properly
dismissed.
II. FEDERAL T ORT CLAIMS ACT CLAIMS
Unlike in the ATS, in the FTCA the United States waives
sovereign immunity for certain tort claims against the United
States, including those that challenge the actions of federal
law enforcement agents. 28 U.S.C. §§ 1346(b)(1), 2674,
2680(h). Initially, however, Quintero Perez did not pursue
an FTCA claim. She harbored doubts about the viability of

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QUINTERO P EREZ V. UNITED S TATES 11
such a claim1 and thought that, under Ninth Circuit authority
in effect at the time, judgment on an FTCA claim would have
foreclosed her Bivens claims. By the time she amended her
complaint to assert FTCA claims, the statute of limitations
had expired, and Quintero Perez was left to rely on equitable
tolling.
Our decision in Pesnell v. Arsenault guided Quintero
Perez’s initial strategy. 543 F.3d 1038 (9th Cir. 2008),
abrogated by Simmons v. Himmelreich, 136 S. Ct. 1843
(2016). In Pesnell, we held that the FTCA’s judgment bar,
which provides that “[t]he judgment in an action under [the
FTCA] shall constitute a complete bar to any action by the
claimant, by reason of the same subject matter, against the
employee of the government whose act or omission gave rise
to the claim,” 28 U.S.C. § 2676, prevented a plaintiff from
bringing a subsequent Bivens action based in part on the
same facts underlying his earlier FTCA action. Pesnell,
543 F.3d at 1042. Quintero Perez assumed that, under
Pesnell, the judgment bar would apply if she pursued FTCA
and Bivens claims in the same action and a judgment was
rendered on her FTCA claims.
1 Quintero Perez thought the FTCA’s foreign country exception,
which excludes claims “arising in a foreign country,” might apply.
28 U.S.C. § 2680(k). In Sosa, the Court explained that the exception
“bars all claims based on any injury suffered in a foreign country,
regardless of where the tortious act or omission occurred.” Sosa,
542 U.S. at 712. Following Sosa (and after Quintero Perez eventually
filed her FTCA claims), we held that an “injury is suffered where the
harm first impinges upon the body.” S.H. by Holt v. United States,
853 F.3d 1056, 1058 (9th Cir. 2017) (quotation marks and alteration
omitted); see also id. at 1060–62. Here, the injury took place in the
United States, so the foreign country exception does not apply to
Quintero Perez’s claim.

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Several years after the statute of limitations ran on
Quintero Perez’s potential FTCA claims, 28 U.S.C.
§ 2401(b), the Supreme Court abrogated Pesnell. Simmons,
136 S. Ct. at 1845–48, 1846 n.1. The Court held that a
judgment on an FTCA claim would not bar some Bivens
actions, even if based on the same facts, because the bar does
not apply to claims that fall within the statute’s exceptions—
of which one is the foreign country exception. See id.
at 1847–48.
Following Simmons, Quintero Perez promptly sought
leave to amend her complaint to assert FTCA claims arising
from Yañez’s death, presumably because a dismissal based
on the foreign country exception, which she thought might
apply, would no longer harm her other claims. The district
court permitted her to add FTCA claims but later granted the
government’s motion to dismiss the claims as untimely, an
order that we review do novo. See Elmakhzoumi, 883 F.3d
at 1172.2
Quintero Perez bears the burden of establishing two
elements for equitable tolling: (1) diligent pursuit of her
rights, and (2) an extraordinary circumstance that prevented
timely filing. Menominee Indian Tribe of Wis. v. United
States, 577 U.S. 250, 255 (2016). Extraordinary
circumstances must be “both extraordinary and beyond [the
litigant’s] control.” Id. at 257. Quintero Perez satisfied the
first element by seeking leave to amend her complaint
2 The district court’s dismissal of Quintero Perez’s FTCA claims as
untimely does not itself trigger the judgment bar. The FTCA’s statute of
limitations is a “claim-processing rule,” Kwai Fun Wong v. Beebe,
732 F.3d 1030, 1035 (9th Cir. 2013) (en banc), and dismissal for failing
to comply with it is not a merits judgment of the type that triggers the
judgment bar.

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QUINTERO P EREZ V. UNITED S TATES 13
immediately after the Court overruled Pesnell, but she
cannot show an extraordinary circumstance.
In Menominee, the Court assumed that extraordinary
circumstances might exist when a litigant relies on “actually
binding precedent that is subsequently reversed.” Id. at 258
& n.4. The Court did not define what constitutes actually
binding precedent. Because such precedent creates an
extraordinary circumstance only when it prevents timely
filing, it follows that precedent was actually binding either
when it foreclosed a factual or legal argument that later
becomes available upon the change in law, or when it
allowed a factual or legal argument that later becomes
foreclosed upon the change in law (for example, when
intervening authority makes untimely a claim that had been
timely when it was filed).
Unfortunately for Quintero Perez, in her circumstances
under this standard, Pesnell does not qualify as actually
binding precedent because it did not clearly foreclose her
ability to bring FTCA and Bivens claims based on the same
facts in the same suit. In Pesnell, a plaintiff brought an
FTCA action that was dismissed, and later brought an action
alleging Bivens and Racketeer Influenced and Corrupt
Organizations Act (RICO) claims. 543 F.3d at 1040–41.
Because his RICO claims were based in part on the same
facts underlying his earlier FTCA action, we held that those
claims in his second action were foreclosed by the FTCA’s
judgment bar. Id. at 1042. But Pesnell did not address
whether the judgment bar applied to bringing factually
overlapping FTCA and Bivens claims in the same suit.
Pesnell’s focus on the judgment bar’s application to
sequential claims did not encompass claims filed in the same
suit. To the contrary, the precedent that was actually
relevant to Quintero Perez’s situation did not stand in the

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14 QUINTERO P EREZ V. UNITED S TATES
way of her filing simultaneous claims. In Arevalo v. Woods,
811 F.2d 487 (9th Cir. 1987), we held that an FTCA
judgment against the United States barred a Bivens action
that was filed in the same case and based on the same
conduct as that underlying the FTCA action, apparently with
both claims brought simultaneously. Id. at 489–90. But a
few years later, in Kreines v. United States, 959 F.2d 834
(9th Cir. 1992), we distinguished Arevalo and held that the
judgment bar did not foreclose a contemporaneously filed
Bivens claim when the government had prevailed on the
FTCA claim, reasoning that the purpose of the judgment bar
was to prevent dual recovery. Id. at 838.
Accordingly, whether the judgment bar would have
applied to Quintero’s Bivens claims had they been filed in
the same lawsuit as her FTCA claims was contingent on
whether the government had prevailed on the FTCA claims.
Thus, the Court’s abrogation of Pesnell does not amount to
an “extraordinary circumstance” supporting equitable
tolling, because Pesnell was largely irrelevant to Quintero
Perez’s situation. Instead, Quintero Perez’s seeming lack of
awareness of Kreines constitutes a mistake of law that was
not outside of her control, which the Court has confirmed
does not qualify as an extraordinary circumstance.
Menominee, 577 U.S. at 257 n.3.3
3 Notably, Simmons did not actually reverse any precedent that was
binding on Quintero Perez: Simmons held only that the judgment bar
does not apply to FTCA claims dismissed under statutory exceptions,
and Quintero Perez’s claim was ultimately not subject to the foreign
country exception. Because we conclude that Pesnell does not qualify
as actually binding precedent, we need not consider Quintero Perez’s
reliance on Simmons based on her ultimately mistaken understanding of
the foreign country exception.

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QUINTERO P EREZ V. UNITED S TATES 15
Additionally, the purpose of equitable tolling would not
be vindicated in Quintero Perez’s situation. Equitable
tolling is designed “to soften the harsh impact of technical
rules which might otherwise prevent a good faith litigant
from having a day in court.” Harris v. Carter, 515 F.3d
1051, 1055 (9th Cir. 2008) (citation and quotation marks
omitted). Harris is a good example. The plaintiff’s habeas
petition became time barred when the Supreme Court
overruled a previously controlling Ninth Circuit case. Id.
at 1052–54. Because the plaintiff diligently pursued his
rights and “had no control over the operative fact that caused
his petition to become untimely,” we concluded that “[t]hese
[we]re precisely the circumstances in which equitable
principles justify tolling of the statute of limitations.” Id.
at 1056. The same cannot be said here. Quintero Perez
overlooked a binding precedent and made a strategic
litigation decision that turned out to be a misguided
judgment based on a certain reading of unclear precedent.
Equitable tolling does not extend to that circumstance.
III. FOURTH AMENDMENT B IVENS CLAIMS
Because we are being asked to apply Bivens to the
circumstances here, we engage in a two-part analysis: “We
first inquire whether the request involves a claim that arises
in a ‘new context’ or involves a ‘new category of
defendants.’” Hernandez, 140 S. Ct. at 743 (quoting Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)). If it does,
we then consider “whether there are any special factors that
counsel hesitation about granting the extension.” Id.
(cleaned up). On de novo review, we affirm the entry of
summary judgment on Quintero Perez’s Bivens claims
against Fisher and Diaz. S.B. v. County of San Diego,
864 F.3d 1010, 1013 (9th Cir. 2017).

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16 QUINTERO P EREZ V. UNITED S TATES
A. T HE CLAIMS AGAINST FISHER AND DIAZ
PRESENT A NEW B IVENS CONTEXT
While we are now very familiar with the Supreme
Court’s decision in Bivens, the Court has counseled that the
“watchword is caution” in extending a Bivens remedy to
“new” contexts. Hernandez v. Mesa, 140 S. Ct. at 742. As
the Court advised in Hernandez, “for almost 40 years, we
have consistently rebuffed requests to add to the claims
allowed under Bivens.” Id. at 743. The Court “expressed
doubt” regarding its authority to “recognize any causes of
action not expressly created by Congress.” Id. at 742. A
Bivens claim arises in a “new” context when the claim
“differ[s] in a meaningful way” from earlier Bivens cases in
which the Court approved a remedy. Id. (quoting Ziglar v.
Abbasi, 137 S. Ct. 1843, 1859 (2017)) (“We regard a context
as new if it is different in a meaningful way from previous
Bivens cases decided by this Court.” (emphasis added)
(internal quotation marks omitted)). At least the following
differences would qualify as “meaningful”:
the rank of the officers involved; the
constitutional right at issue; the generality or
specificity of the official action; the extent of
judicial guidance as to how an officer should
respond to the problem or emergency to be
confronted; the statutory or other legal
mandate under which the officer was
operating; the risk of disruptive intrusion by
the Judiciary into the functioning of other
branches; or the presence of potential special
factors that previous Bivens cases did not
consider.
Abbasi, 137 S. Ct. at 1860.

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QUINTERO P EREZ V. UNITED S TATES 17
Here we confront a new Bivens context because the
claims against Fisher and Diaz “differ[] in a meaningful
way” from prior Bivens cases. The most analogous Supreme
Court case—and the only one to approve a Bivens remedy
for an excessive force claim—is Bivens itself.4 There, the
plaintiff alleged that federal narcotics agents violated his
Fourth Amendment rights by arresting him, handcuffing him
in his home, and searching his home without probable cause
or a search warrant. Bivens, 403 U.S. at 389–90. This case,
by contrast, involves a fatal shooting, at the border, by a
federal agent, of a Mexican national who crossed into the
United States. The shooting allegedly occurred pursuant to
the “Rocking Policy,” an executive policy authorizing
deadly force in response to rock throwing. Though there are
similarities between this case and Bivens, the differences
suffice to satisfy the Court’s permissive test for what makes
a context “new.”
B. S PECIAL FACTORS COUNSEL AGAINST
E XTENDING THE B IVENS REMEDY H ERE
Presented with a new context, we next consider whether
there are “special factors” supporting the conclusion that
“whether a damages action should be allowed [here] is a
decision for the Congress to make, not the courts.” Abbasi,
137 S. Ct. at 1860.
4 The Supreme Court has approved a Bivens cause of action in only
two other cases, one for “a claim against a Congressman for firing his
female secretary” and a second for “a claim against prison officials for
failure to treat an inmate’s asthma.” Abbasi, 137 S. Ct. at 1860
(describing Davis v. Passman, 442 U.S. 228 (1979) and Carlson v.
Green, 446 U.S. 14 (1980)). Both cases are clearly dissimilar from
Quintero Perez’s Bivens claims against Fisher and Diaz.

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18 QUINTERO P EREZ V. UNITED S TATES
1. Quintero Perez has no adequate
alternative remedy.
A Bivens cause of action cannot be extended if “any
alternative, existing process for protecting the
[constitutional] interest amounts to a convincing reason for
the Judicial Branch to refrain from providing a new and
freestanding remedy in damages.” Wilkie v. Robbins,
551 U.S. 537, 550 (2007). The alternative remedy must
offer “deterrence and compensation” that is “roughly
similar” to what is available under Bivens. Minneci v.
Pollard, 565 U.S. 118, 120, 130 (2012). Importantly, Bivens
claims serve a deterrent function because they are
“recoverable against individuals,” and provide the
possibility of generous compensation by allowing for
punitive damages and a jury trial. Carlson, 446 U.S. at 20–
23.
Quintero Perez has no adequate alternative remedy.
Though she may have been able to bring a viable claim under
the FTCA if she had asserted it in a timely fashion, the FTCA
on its own does not suffice because it would not have
afforded comparable deterrence and compensation options.
The Supreme Court has been unequivocal on this point: the
FTCA, which provides “the threat of suit against the United
States,” is “insufficient to deter the unconstitutional acts of
individuals.” Malesko, 534 U.S. at 68. That deficiency
explains why the Supreme Court “inferred a right of action
against individual prison officials where the plaintiff’s only
alternative was a Federal Tort Claims Act (FTCA) claim
against the United States.” Id. at 67–68 (describing the
holding in Carlson).
Just because there is no adequate alternative remedy does
not imply that we “should award money damages against the
officers responsible for the violation.” Schweiker v.

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QUINTERO P EREZ V. UNITED S TATES 19
Chilicky, 487 U.S. 412, 421–22 (1988). Rather, as Abbasi
requires, we next examine whether special factors counsel
against extending a Bivens remedy.
2. Quintero Perez’s Bivens claim against Fisher
implicates a special factor.
Before turning to Quintero Perez’s claim against Diaz,
we can dispense with her claim against Fisher. To
demonstrate liability, Quintero Perez must show “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). Fisher was the Border
Patrol Chief at the time of the shooting, but he had no direct
involvement in the shooting. Quintero Perez instead argues
that Fisher is directly liable for his failure to reverse the
Rocking Policy that led to Yañez’s death. Even if that
conduct is sufficiently direct, a Bivens claim is not “a proper
vehicle for altering an entity’s policy.” Abbasi, 137 S. Ct.
at 1860 (quoting Malesko, 534 U.S. at 74). This is because
such a legal inquiry into the “formulation and
implementation” of policy would impose too high a burden
on officials’ ability to effectively discharge their duties. Id.
“These consequences counsel against allowing a Bivens
action against” executive officials such as Fisher when the
action challenges a high-level policy such as the Rocking
Policy. Id.
3. Quintero Perez’s Bivens claim against Diaz
implicates a special factor.
Unlike Fisher, Diaz did have direct involvement in the
shooting. But the presence of a special factor still counsels
against extending Bivens to the claim against him.
Hernandez guides our analysis. The Court considered
whether to extend Bivens to a claim where a border patrol

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20 QUINTERO P EREZ V. UNITED S TATES
agent, standing on U.S. soil, shot and killed a fifteen-year-
old standing on Mexican soil. Hernandez, 140 S. Ct. at 740.
The Court declined the extension, noting that “[t]here is a
world of difference between [earlier Bivens] claims and
petitioners’ cross-border shooting claims, where ‘the risk of
disruptive intrusion by the Judiciary into the functioning of
other branches’ is significant.” Id. at 744 (quoting Abbasi,
137 S. Ct. at 1860). The Court particularly emphasized two
special factors: the potential effect on national security and
the potential effect on foreign relations. Id. at 744–50.
Because the national-security special factor applies here to
preclude the extension of Bivens, we need not consider
whether the foreign-relations factor also applies. Id. at 747
(concluding that “the risk of undermining border security”
alone “provides reason to hesitate before extending Bivens
into this field”).
As to the national-security factor, Hernandez held that
because “regulating the conduct of agents at the border
unquestionably has national security implications, the risk of
undermining border security provides reason to hesitate
before extending Bivens into this field.” Id. The Court
explained that the responsibility for “attempting to prevent
the illegal entry” of persons and goods “rests primarily with
the U.S. Customs and Border Protection Agency.” Id.
at 746. Most explicitly, the Court recognized that “the
conduct of agents positioned at the border has a clear and
strong connection to national security.” Id. (emphasis
added).
The facts here fall squarely under Hernandez. Because
Agent Diaz was an “agent[] positioned at the border,” with
“the responsibility of attempting to prevent illegal entry,”
and his use of force was in direct response to an actual illegal
entry, the national-security factor applies. Indeed, the

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QUINTERO P EREZ V. UNITED S TATES 21
Department of Homeland Security, which includes U.S.
Customs and Border Protection, was one of five different
executive branch agencies that undertook an investigation of
the shooting.5 Future cases may require further examination
of what it precisely means to be “at the border,” or to be
engaged in an effort to prevent illegal entry, but this case
presents no such complication: as in Hernandez, Diaz was
patrolling the border, standing directly at the border, and
engaged in an active, ongoing enforcement action to respond
to an illegal entry.
In concluding that the national-security factor applies,
we recognize that “national-security concerns must not
become a talisman used to ward off inconvenient claims.”
Abbasi, 137 S. Ct. at 1862. But there is no risk of that
happening here because we do not identify any new national-
security concerns. Rather, we apply the Court’s conclusion
that regulating the conduct of agents at the border is a
genuine national-security concern, not simply a useful
talisman.
CONCLUSION
This case is a paradigmatic example of congressional
parameters and Supreme Court precedent defining the scope
of relief. The Alien Tort Statute does not reach the
challenged conduct and the request for relief under the
Federal Tort Claims Act came too late. And in accord with
5 Investigatory steps were taken by the Department of Homeland
Security’s Office of the Inspector General, the Department of Justice
Civil Rights Division, the Federal Bureau of Investigation; the
Department of Homeland Security Office of Professional Responsibility;
and the Customs and Border Protection Discipline Review Board.

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22 QUINTERO P EREZ V. UNITED S TATES
Abbasi and Hernandez, we conclude that a special factor
precludes relief under Bivens.
AFFIRMED.
FRIEDLAND, Circuit Judge, concurring in the judgment as
to Part I:
I join the majority opinion other than Part I, in which I
concur only in the judgment. I would affirm the dismissal of
Quintero Perez’s Alien Tort Statute (“ATS”) claim on other
grounds.
Quintero Perez argues that Border Patrol’s Rocking
Policy—which characterized all rock-throwing as deadly
force and authorized the use of deadly force in response—
authorized extrajudicial killing. She asserts that this
extrajudicial killing is a jus cogens violation for which the
United States may not assert sovereign immunity, relying on
our precedent acknowledging that international law, from
which sovereign immunity derives, “does not recognize an
act that violates jus cogens as a sovereign act.” Siderman de
Blake v. Republic of Argentina, 965 F.2d 699, 718 (9th Cir.
1992). The majority rejects this argument under Tobar v.
United States, 639 F.3d 1191 (9th Cir. 2011), but I do not
read Tobar to have considered this question. To be sure, we
stated in Tobar that “any party asserting jurisdiction under
the [ATS] must establish . . . that the United States has
consented to suit.” Id. at 1196 (quoting Goldstar (Panama)
S.A. v. United States, 967 F.2d 965, 968 (4th Cir. 1992)). But
we never mentioned jus cogens, suggesting that we did not
contemplate whether sovereign immunity is available at all
for such violations.

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QUINTERO P EREZ V. UNITED S TATES 23
And we need not decide that question here. Even
assuming arguendo that the United States cannot invoke
sovereign immunity for jus cogens violations, to prevail on
her ATS claim, Quintero Perez would need to establish that:
(1) the Rocking Policy authorized extrajudicial killing;
(2) this particular type of extrajudicial killing is a jus cogens
violation; and (3) she can satisfy the Supreme Court’s “two-
step test” for creating a cause of action under the ATS—
namely, that she show both that the tort can “be ‘defined with
a specificity comparable to’ the three international torts
known in 1789” and that “courts should exercise ‘judicial
discretion’ to create [such] a cause of action rather than defer
to Congress.” Nestlè USA, Inc. v. Doe, 141 S. Ct. 1931, 1938
(2021) (quoting Sosa v. Alvarez-Machain, 542 U.S. 692,
725, 736 n.27 (2004)). Quintero Perez has not met this high
burden, so I would reject her claim on that basis and not
reach the broader question whether the United States has
sovereign immunity for claims of jus cogens violations that
are brought under the ATS.

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