Federal court ruled that even though teen was on Mexican soil when he was shot, he was protected by US constitution
July 1 2014
A federal appeals court ruled Monday that a Mexican teenager killed by a Border Patrol agent was protected by the US constitution, even though the teen was on Mexican soil when he was shot.
The ruling from the fifth US circuit court of appeals means the family of 15-year-old Sergio Adrian Hernandez Guereca can move forward with a civil lawsuit against the agent.
“This recognizes human rights belong to everyone. Not just American citizens,” or human beings standing on US soil, said Bob Hilliard, one of the lawyers representing the family.
The original lawsuit was filed against the Border Patrol, the Department of Homeland Security, Customs and Border Protection agent Jesus Mesa and the US Department of Justice. But part of the ruling relieves the agent’s supervisors and the agencies from responsibility.
“The appellants (do not point to) any other evidence that would suggest that the supervisors were personally responsible for the alleged constitutional violation,” the ruling says.
Hilliard said the family will likely appeal that part of the ruling.
Both the government and Mesa can also appeal the ruling. The Border Patrol said they would not comment on the matter as it opens the possibility of litigation. Mesa’s attorney did not immediately respond to requests for comment from The Associated Press.
Mesa shot Hernandez in 2010 near a border bridge between El Paso and Ciudad Juarez while trying to arrest immigrants who crossed illegally into the United States. Mesa said he was attacked by rock throwers. Border Patrol agents are allowed to shoot at rock throwers if they feel their lives or those in their custody are at risk.
US District Judge David Briones found in 2011 that the family could not sue because the shooting’s effects were “felt in Mexico.” But the appeals court said that “territorial approach” would allow agents to establish “zones of lawlessness.”
It “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,” the appeals court ruling said. It also said that giving people standing on Mexican soil protection from “conscience shocking” actions by border agents, such as the shooting of Hernandez Guereca, is not a new policy. Immigrants who are inside the US, even those who are to be removed from the country, “are entitled to feel free of gross physical abuse by federal agents,” it says.
Extending that right to people injured across the border by US agents standing on US soil, would inform the officials that they are not allowed to arbitrarily inflict harm in this “new, but similar, context,” the court said.
“Today the fifth circuit helped ensure that CBP agents are held accountable for shocking and outrageous abuse, even when their victims aren’t inside the US … The fifth circuit clearly signaled that Border Patrol cannot operate with impunity,” American Civil Liberties Union senior staff attorney Adriana Pinon said in a statement. The ACLU was not directly involved in the case, but filed a friend of the court brief.
Don Winslow, author of The Cartel, on how America’s drug problem relates to Mexico’s drug problem:
“We are the largest drug market in the world. We’re five percent of the world’s population — we consume 25 percent of the world’s illegal drugs. Mexico has the misfortune to share a 2,000 mile border with the largest drug market in the world. … At the end of the day, they’ll run out of products. It’s the illegality that makes those territories so valuable. If you criminalize anything only criminals can sell it. If only criminals can sell it, there’s no recourse to law, there’s only recourse to violence. That’s created the cartels. It’s our simultaneous appetite for — and prohibition of — drugs that makes those border territories worth killing for.”
Mass Graves of Immigrants Found in Texas, But State Says No Laws Were Broken
Texas says there is “no evidence” of wrongdoing after mass graves filled with bodies of immigrants were found miles inland from the U.S.-Mexico border. The bodies were gathered from the desert surrounding a checkpoint in Falfurrias, Texas, in Brooks County. An investigation was launched after the mass graves were exposed last November in a documentary by The Weather Channel in partnership with Telemundo and The Investigative Fund. The report also found many of the migrants died after crossing into the United States and waiting hours for Border Patrol to respond to their 911 calls. We speak with reporter John Carlos Frey, who found rampant violations of the law.
Jose Antonio Vargas, who has chronicled in minute detail the twists and turns of his life as a Filipino living illegally for years in the United States, was detained by the Border Patrol for most of the day on Tuesday and then released with a notice to appear before an immigration judge.
The detention of Mr. Vargas, probably the most high-profile leader of the immigrant rights movement, posed an awkward dilemma for the Obama administration. The surge of Central Americans, including many children, crossing the border illegally — saying they are fleeing criminal violence at home — has made all decisions about immigration politically fraught, and administration officials were keenly aware that the backdrop to their decision to release Mr. Vargas was a border where thousands of migrants are being held.
Mr. Vargas was detained at a Border Patrol checkpoint in the airport of this city in the Rio Grande Valley before he was to board a flight to Houston, on his way to Los Angeles. In a terse statement, Department of Homeland Security officials said they had released Mr. Vargas because he had no prior immigration or criminal record. They said their focus was on deporting immigrants who posed security threats.
It was the first time Mr. Vargas, who has been living without papers in the United States since 1993, had been arrested by immigration authorities. Lawyers assisting him said that they would seek to have the action against him suspended, and that it was unlikely he would be deported.
Mr. Vargas insisted that he never intended to be detained when he came to South Texas. But he and his supporters wasted no time turning his arrest into a day of high drama, using it to publicize their cause on social media and at a news conference in front of the Border Patrol station where he was held.
“I was released today because I am a low priority and not considered a threat,” Mr. Vargas said by telephone shortly after his release. “I would argue that the 11 million undocumented immigrants in this country are not a threat either.”
I’ve been leading the fight in the senate to triple our border control, create funds for walls, armed patrols and bio metrics.
Ted Cruz before being cut off (even though the United States spent $18 Billion on border patrol in 2014). We need rational immigration policy that helps lift people up, not one which wastes money forcing them out. Bernie Sanders 2016!