Are U.S. Agents Who Shoot Mexicans Across the Border Above the Law?

In the past month, U.S. Border Patrol agents have fatally shot two Mexican nationals standing on Mexican territory, which makes this the sixth fatal shooting on Mexican soil by U.S. agents since 2010. The shootings seem to be without precedent since the Mexican Revolution nearly a century ago.

The Mexican government has lodged several diplomatic complaints with the U.S. government against the “disproportionate use of lethal force” by U.S. agents and has even helped families of the victims find U.S. lawyers—because these are such novel legal cases, though, it’s uncertain whether Mexican families will ever get a hearing in a U.S. courtroom.  And U.S. government officials refuse to extradite U.S. Border Patrol agents to be tried in Mexican courts. The legal standoff is worsening an already tense diplomatic relationship between Mexico and the United States over the shootings.

Footage taken by witness of fatal shooting of Guillermo Arévalo Pedroza in September in Nuevo Laredo The latest fatal shooting occurred on October 12th in Nogales, Sonora, across the border from Arizona. Jose Antonio Elena Rodríguez, 16, was shot several times by U.S. Border Patrol agents who say he was part of a group throwing rocks from the Mexican side of the border fence. Border Patrol agents in many of these cases have claimed men were throwing rocks, and the agents feared for their lives, justifying the use of lethal force. Elena Rodriguez’s death this month is the sixth fatal shooting in two years by a U.S. border agent. Others include:

• Guillermo Arévalo Pedroza, 36, was shot in Nuevo Laredo in September 2012
• Juan Pablo Santillan was killed in Matamoros in July 2012
• Ramses Torres, 17, was shot in Nogales, Sonora, in 2011
• Jose Yañez Reyes was killed in 2011 in Tijuana
• Sergio Hernandez Guereca, 15, was killed in Juarez in 2010.

The shootings are unprecedented, say legal experts, and there is no legal roadmap for Mexican families to pursue their cases against the federal agents in a U.S. court.

A lawsuit currently before the 5th Circuit Court of Appeals could change all of that. The suit was filed by the family of 15-year-old Sergio Hernandez Guereca, who was fatally shot in Juarez by U.S. Border Patrol agent Jesus Mesa in 2010. The family, represented by Houston attorney Robert Hilliard, had filed a wrongful death lawsuit against Mesa and the U.S. government, but it was dismissed by a federal district judge in Texas. Since Hernandez was a Mexican national on Mexican soil, the judge reasoned, he had no right to legal protections under the U.S. Constitution. The Mexican government requested that Mesa’s extradition be tried in a Mexican court, but the U.S. government refused to hand Mesa over. Undeterred, the Hernandez family is appealing their personal injury suit before the 5th Circuit, which has a reputation as the most conservative federal appeals court in the nation. The American Civil Liberties Union and the Mexican government have filed amicus briefs supporting the Hernandez case.

“There cannot be a free zone to kill people without any recourse, and that’s what is going on right now,” says Robert Hilliard, lead attorney for the Hernandez family. “Can you imagine if a federale stood on the Mexican side of the border and shot a high school student in the head standing in El Paso? We would be at war right now.” Esha Bhandari, an attorney with the ACLU’s Immigrants’ Rights Project, helped file ACLU’s brief in support of the Hernandez family. “A lot of what’s happening now unfortunately comes from the stepped-up enforcement at the border with little oversight. The same thing that’s happening on the southern border could happen on the Canadian border. They could shoot Canadian citizens as well.”

The ACLU is arguing that cross-border enforcement activity should fall within U.S. Constitutional limits. “The law can’t say that constitutional rights for non-citizens literally stop at the border line,” she says. “Otherwise there will never be any recourse for people who happen to be standing on the wrong side of that line.”

Extending constitutional rights to the victims would also do a lot to relieve the growing diplomatic  friction between the United States and Mexico over the fatal shootings, she says. “Mexican families will have some legal recourse,” she says. “Right now there’s no way to hold the executive branch accountable.”

In the amicus brief filed by the Mexican government, attorneys argue that the United States needs to honor its international treaties and respect for human rights. Attorneys argue in the brief: “Mexico respects the United States’ interpretation of its own Constitution and laws. But it is vital to Mexico that the United States respect the binding international obligations that the United States has voluntarily undertaken to Mexico and its nationals. When agents of the United States Government violate fundamental rights of Mexican nationals, it is one of Mexico’s priorities to ensure that the United States has provided adequate means to hold the agents accountable and compensate the victims. The United States would expect the same and more if the situation were reversed and a Mexican government agent, standing in Mexico and shooting across the border, had killed a U.S. national standing on U.S. soil.”

If the appeals court decides to hear the case, judges will most likely set an oral argument date in the upcoming months, says ACLU attorney Esha Bandari. Hilliard is not so confident, however. “They have a rightly deserved reputation as being a conservative circuit court,” he says. If the 5th Circuit denies the case, then Hilliard says he will file it with the U.S. Supreme Court. “If the 5th Circuit doesn’t address the problem, I think SCOTUS will recognize there are legal consequences. You can’t always assume there was just cause and you should be able to argue to a judge and jury that there wasn’t just cause. It isn’t right that you can’t even argue it,” he says. The case could take years, he says, but if it’s successful, Mexican families will finally get their day in a U.S. court.