Amicus Curiae Brief — Jesus C. Hernández, et al., Petitioners v. Jesus Mesa, Jr.
Supreme Court briefAug 9, 2019
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No. 17-1678
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In The
Supreme Court of the United States
-----------------------------------------------------------------JESUS C. HERNÁNDEZ, ET AL.,
Petitioners,
v.
JESUS MESA, JR.,
Respondent.
-----------------------------------------------------------------On Writ Of Certiorari To The
United States Court Of Appeals
For The Fifth Circuit
-----------------------------------------------------------------BRIEF OF BORDER NETWORK FOR
HUMAN RIGHTS, SAN DIEGO IMMIGRANT
RIGHTS CONSORTIUM, SOUTHERN BORDER
COMMUNITIES COALITION, AND TEXAS
CIVIL RIGHTS PROJECT AS AMICI CURIAE
IN SUPPORT OF PETITIONERS
-----------------------------------------------------------------ARLEIGH P. HELFER III
STEPHEN A. FOGDALL
Counsel of Record
SCHNADER HARRISON SEGAL
& LEWIS LLP
1600 Market Street, Suite 3600
Philadelphia, PA 19103
(215) 751-2430; 2581
sfogdall@schnader.com
Counsel for Amici Curiae
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
Identity and Interests of Amici Curiae ...............
1
Summary of the Argument ..................................
3
Argument .............................................................
8
I.
Border Patrol Injustices Against Mexican
and Other Citizens Have Occurred in the
Past and Will Continue to Occur—Without
Redress—if This Court Allows the Fifth
Circuit’s Decision To Stand .......................
8
II.
Because Border Residents Are Under the
Control of the Border Patrol, They Must Not
Be Denied Constitutional Protections ......... 15
III.
Cartographic Borders, Which Are Arbitrary and Unclear, Should Not Determine
Where Constitutional Rights End ............. 19
Conclusion............................................................ 22
ii
TABLE OF AUTHORITIES
Page
CASES
Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics,
403 U.S. 388 (1971) ......................................... passim
Hernández v. Mesa,
137 S. Ct. 2003 (2017) ........................................... 3, 7
Rodriguez v. Swartz,
899 F.3d 719 (9th Cir. 2018) ................................. 11
Ziglar v. Abbasi,
137 S. Ct. 1843 (2017) ...............................................4
STATUTES AND REGULATIONS
8 U.S.C. § 1182 ............................................................21
8 U.S.C. § 1357(g) ........................................................17
8 C.F.R. § 235.5(b) (2006) ............................................22
BOOKS, ARTICLES, AND OTHER AUTHORITIES
A Culture of Cruelty: Abuse and Impunity in
Short-Term U.S. Border Patrol Custody, No More
Deaths (2011), http://forms.nomoredeaths.org/
wp-content/uploads/2014/10/CultureOfCrueltyfull.compressed.pdf ............................................. 16, 17
iii
TABLE OF AUTHORITIES—Continued
Page
A.C. Thompson, Inside the Secret Border Patrol
Facebook Group Where Agents Joke About Migrant Deaths and Post Sexist Memes, ProPublica (July 1, 2019), https://www.propublica.org/
article/secret-border-patrol-facebook-groupagents-joke-about-migrant-deaths-post-sexistmemes ......................................................................18
Andrew Kennis, Supreme Court to Decide Fate
of Case That Challenges Cross-Border Killings
by U.S. Agents, Vice News (Mar. 30, 2016),
https://news.vice.com/article/supreme-courtcross-border-killing-patrol-agent-usa-mexico ........16
Ayelet Shachar, The Shifting Border of Immigration Regulation, 3 Stan. J. C.R. & C.L. 165
(2007) ................................................................. 21, 22
Border Crossing/Entry Data: Query Detailed
Statistics, Bureau of Transp. Statistics,
https://explore.dot.gov/t/BTS/views/BTSBorder
CrossingAnnualData/BorderCrossingTable
Dashboard?:isGuestRedirectFromVizportal=
y&:embed=y (last visited Aug. 8, 2019) ..................18
Border Patrol Abuses, Southern Border Communities Coalition (July 2019), http://southernborder.org/border-patrol-abuses/ ..............................8
Border Patrol Agent Staffing by Fiscal Year,
United States Border Patrol (Sept. 19, 2015),
https://www.cbp.gov/sites/default/files/documents/
BP%20Staffing%20FY1992-FY2015.pdf .................16
iv
TABLE OF AUTHORITIES—Continued
Page
Border Patrol Overview, U.S. Customs and Border
Protection (Jan. 27, 2015), https://www.cbp.gov/
border-security/along-us-borders/overview ............16
Border People, The University of Arizona Press,
http://www.uapress.arizona.edu/Books/bid289.
htm (last visited Aug. 8, 2019) ................................20
Border Region, United States-Mexico Border Health
Commission, https://www.hhs.gov/about/agencies/
oga/about-oga/what-we-do/international-relationsdivision/americas/border-health-commission/
us-mexico-border-region/index.html .................. 5, 20
Brian Epstein, Crossing the Line at the Border,
Need to Know (ON PBS) (Apr. 20, 2012),
available at http://www.pbs.org/wnet/needto-know/security/video-first-look-crossing-theline/13597/ ...............................................................12
CBT Border Wait Times, https://bwt.cbp.gov/
(last visited Aug. 8, 2019)........................................18
Dave Rice, 50 Murders by the Border Patrol?,
San Diego Reader (Nov. 14, 2016), http://www.
sandiegoreader.com/news/2016/nov/14/ticker50-murders-border-patrol/# ....................................12
Deaths and Injuries in CBP Encounters Since
January 2010, American Civil Liberties Union
of New Mexico (May 19, 2016), available at
https://www.aclu.org/sites/default/files/field_
document/may_2016_dead_and_injured_by_
cbp_officials.pdf ................................................... 8, 13
v
TABLE OF AUTHORITIES—Continued
Page
Delegation of Immigration Authority Section
287(g) Immigration and Nationality Act,
U.S. Immigration and Customs Enforcement,
https://www.ice.gov/287g (last visited Aug. 8,
2019) ........................................................................17
Elizabeth Aguilera, No Charges in Border Patrol
Shooting Deaths, San Diego Union-Tribune (Aug.
9, 2013) http://www.sandiegouniontribune.com/
news/immigration/sdut-border-patrol-shootinglamadrid-ramses-border-immi-2013aug09-story.
html ............................................................................9
Garrett M. Graff, The Green Monster: How the
Border Patrol Became America’s Most Out-ofControl Law Enforcement Agency, Politico
Magazine (Nov./Dec. 2014), available at
http://www.politico.com/magazine/story/2014/
10/border-patrol-the-green-monster-112220?o=2 ......16
Jason Buch, Mexican Girl Clutched Her Dying
Father, San Antonio Express-News (Sept. 8, 2012),
http://www.mysanantonio.com/news/local_news/
article/Father-shot-by-border-agent-while-holdinghis-3848597.php .......................................................10
Jeremy Raff, The Border Patrol’s Corruption
Problem, The Atlantic (May 5, 2017), https://www.
theatlantic.com/politics/archive/2017/05/notone-bad-apple/525327/............................................18
vi
TABLE OF AUTHORITIES—Continued
Page
Jonathon Shacat, Waiting for Answers One
Year After Border Shooting, Douglas Dispatch
(Mar. 21, 2012), http://www.douglasdispatch.com/
news/waiting-for-answers-one-year-after-bordershooting/article_30e6022e-a49e-5adc-9dcd2c86a565315c.html .................................................13
Joshua Breisblatt, Forum Statement for Record
on Fencing, Infrastructure and Technology
Border Hearing, National Immigration Forum
(May 13, 2015), https://immigrationforum.org/
blog/forum-statement-for-record-on-fencinginfrastructure-and-technology-border-hearing/ .......17
Joshua Breisblatt, Two Border Patrol Agents
Charged with Murder Highlights the Need for
Robust Hiring Standards, Immigration Impact
(Sept. 19, 2018), http://immigrationimpact.com/
2018/09/19/border-patrol-agents-murder-hiringstandards .................................................................17
Julianne Hing, 17-Year-Old Killed by Border Patrol for Allegedly Throwing Rocks, ColorLines
(Jan. 7, 2011), http://www.colorlines.com/articles/
17-year-old-killed-border-patrol-allegedly-throwingrocks ...........................................................................9
Kristina Davis, Border Chief Sued in RockThrowing Death, San Diego Union-Tribune (May
13, 2015), http://www.sandiegouniontribune.com/
sdut-border-patrol-chief-fisher-lawsuit-yanezrocking-2015may13-story.html ...............................13
vii
TABLE OF AUTHORITIES—Continued
Page
Manny Fernandez, They Were Stopped at the
Texas Border. Their Nightmare Had Only Just
Begun, New York Times (Nov. 12, 2018), https://
www.nytimes.com/2018/11/12/us/rape-texasborder-immigrants-esteban-manzanares.html .......14
Mark Binelli, 10 Shots Across the Border, N.Y.
Times (Mar. 3, 2016), http://www.nytimes.com/
2016/03/06/magazine/10-shots-across-the-border.
html .........................................................................10
Melissa del Bosque, Federal Officials Investigate
Fatal Border Patrol Shootings, Texas Observer
(Jun. 18, 2015), https://www.texasobserver.org/
federal-officials-probe-fatal-border-patrolshootings/.................................................................11
Michael Marizco, Autopsy Suggests Boy Shot
by Border Patrol Was Already Down, KJZZ
(Feb. 7, 2013), https://kjzz.org/content/6895/
autopsy-suggests-boy-shot-border-patrol-wasalready-down ...........................................................10
Michael Marizco, Border Patrol Shootings Going
Unresolved, Fronteras (Oct. 26, 2012), https://
fronterasdesk.org/content/7301/border-patrolshootings-going-unresolved ....................................10
More Accounts Emerge Following Deadly Border
Shooting, Nogales Int’l (Jan. 6, 2011), http://www.
nogalesinternational.com/news/more-accountsemerge-following-deadly-border-shooting/article_
998a4971-2351-5f03-a8f3-c43dd1d65cfe.html .........9
viii
TABLE OF AUTHORITIES—Continued
Page
Notice to Nonimmigrant Aliens Subject to Be
Enrolled in the United States Visitor and Immigrant Status Indicator Technology System,
Department of Homeland Security, 69 Fed. Reg.
482 (Jan. 5, 2004), available at https://www.
dhs.gov/xlibrary/assets/usvisit/USVisitnotice
1-5-04.pdf .................................................................21
NPR Staff, 50 Years Ago, A Fluid Border Made
The U.S. 1 Square Mile Smaller, All Things
Considered (Sept. 25, 2014), available at https://
www.npr.org/2014/09/25/350885341/50-yeaqrsago-a-fluid-border-made-the-u-s-1-square-milesmaller (last visited Aug. 7, 2019) ...........................21
Philip Mayor, Note, Borderline Constitutionalism:
Reconstructing and Deconstructing Judicial
Justifications for Constitutional Distortion in
the Border Region, 46 Harv. C.R.-C.L. L. Rev.
647 (2011) ................................................................22
R. Stickney, ACLU Calls for Probe in Border
Shooting, NBC San Diego, June 22, 2011,
http://www.nbcsandiego.com/news/local/ACLUCalls-for-Probe-in-Border-Shooting-124372389.
html .........................................................................13
Rob O’Dell, 7 Times Rock-Throwing Ended in
Deadly Force by U.S. Border Patrol Agents, AZ
Central (Oct. 12, 2016), http://www.azcentral.com/
story/news/politics/border-issues/2016/10/10/
us-border-patrol-rock-throwing-killing-cases/
85670112/ ............................................................ 9, 11
ix
TABLE OF AUTHORITIES—Continued
Page
Rob O’Dell, Supreme Court Vacancy Ripples
Through Case Involving Cross-Border Shooting
of Teen in Mexico by Border Patrol, AZ Central (Oct. 24, 2016), http://www.azcentral.com/
story/news/politics/border-issues/2016/10/21/
court-jose-antonio-elena-rodriguez-cross-bordershooting-teen-mexico-border-patrol/92490696/ .......... 11
Samantha Schmidt, ‘They Killed my child’: Border Patrol shooting of Guatemalan woman
stirs protests, The Washington Post (May 29,
2018), https://www.washingtonpost.com/news/
morning-mix/wp/2018/05/29/why-did-you-killmy-child-border-patrol-shooting-of-guatemalanwoman-stirs-protests/ .............................................14
Sasha von Oldershausen, Crossing Over:
For Families Living on Both Sides of the
U.S.-Mexico Border, Breaching the Divide
Is a Way of Life, Texas Observer (Oct. 10,
2016), https://www.texasobserver.org/candelariacrossing-over-border/ ...............................................20
Timothy J. Dunn, José Palafox, “Militarization
of the Border,” The Oxford Encyclopedia of
Latinos and Latinas in the United States
(2005) ................................................................. 16, 18
1
IDENTITY AND INTERESTS
OF AMICI CURIAE1
Amici are non-profit organizations that advocate
for members of the Mexican-American community in
Texas and elsewhere in the border region, particularly
on border and civil rights-related concerns. Through
this work and their interactions with members of the
border community, amici can provide important input
about the ways in which members of the community
are affected by the operations of the United States Border Patrol.
Border Network for Human Rights (“BNHR”)
was founded in 1998 for the general purpose of facilitating the education, organization, and participation
of marginalized border communities to defend and
promote human and civil rights, and to work to create political, economic, and social conditions where
every human being is equal in dignity and rights.
Most of BNHR’s strategies and activities are directed
to accomplish four general goals: (1) to strengthen the
capacity and organization of impacted border and immigrant communities to voice their opinions, concerns,
and solutions on issues such as immigration and enforcement; (2) to establish clear mechanisms for border
and immigrant communities to engage in permanent
dialogues with policymakers and administration at the
1
No counsel for any party authored the brief in whole or in
part and no person or entity, other than the amici, their members,
or their counsel, made any monetary contribution to the preparation or submission of this brief. This brief is filed with the written
consent of all parties pursuant to this Court’s Rule 37.2(a).
2
local, state, regional, and national levels; (3) for these
communities to educate policymakers, stakeholders,
and the public on the need for a comprehensive review
and reaffirmation of our immigration laws; and (4) to
work with and encourage policymakers to enact and
implement effective oversight and accountability
mechanisms for enforcement policies and practices at
the border and in the interior.
Since 2007, the San Diego Immigrant Rights
Consortium (“SDIRC”) has worked to bring together
faith, labor, legal and community leaders to advocate
for policies that promote the civil and human rights of
immigrants. SDIRC comprises more than 40 organizations throughout San Diego County that include leaders from the immigrant and refugee communities.
Southern Border Communities Coalition
(“SBCC”) brings together more than 60 organizations
from San Diego, California, to Brownsville, Texas, and
advances the common goal of promoting a safe and
strong community for border residents. The coalition
was formed in March 2011 as a response to a rash of
Border Patrol-perpetrated violence against unarmed
border residents and has focused on advocating for border enforcement policies and practices that are accountable and fair, respect human dignity and human
rights, and prevent the loss of life in the region. SBCC
has engaged in advocacy demanding justice for Sergio
Adrián Hernández Güereca, Anastasio Hernandez Rojas, and several other victims of violence at the hands
of federal immigration and border enforcement officers.
3
Texas Civil Rights Project (“TCRP”) boldly
serves the movement for equality and justice in and
out of the courts. They are Texas lawyers for Texas
communities, and they use the tools of litigation and
legal advocacy to protect and advance the civil rights
of everyone in Texas. They undertake their work with
a vision of a Texas in which all communities can thrive
with dignity, justice, and without fear. In its almost 30
years of existence, TCRP’s efforts have focused on representing low-income and otherwise marginalized
members of society. TCRP’s interest in this case stems
from its years-long work on behalf of victims of civil
rights violations at the hands of federal agencies, including the United States Border Patrol, particularly
out of TCRP’s border offices. The outcome of this case
will have a direct impact on TCRP’s clients and their
families.
------------------------------------------------------------------
SUMMARY OF THE ARGUMENT
This case arises from a United States Border Patrol agent’s fatal act of violence against Sergio Adrián
Hernández Güereca, an unarmed teenage boy who was
playing with friends mere feet from the U.S.-Mexico
border. That Border Patrol agent, Jesus Mesa, Jr.,
standing on the U.S. side of the border, drew his
sidearm, fired bullets across the border, and, while Sergio sought cover, shot Sergio in the face, killing him. It
was, as this Court described, “a disturbing incident resulting in a heartbreaking loss of life.” Hernández v.
Mesa, 137 S. Ct. 2003, 2007 (2017) (per curiam).
4
Significantly, every operative fact—except the impact of the bullet that caused the child’s death—occurred on U.S. soil: the Border Patrol agent formed the
intent; unholstered his pistol; took aim; placed his finger on the trigger; squeezed the trigger; discharged his
weapon; and set the irrevocable fatal bullet in flight.
Even though all of this happened on United States soil,
the District Court held that it did not have jurisdiction
over the boy’s parents’ civil rights suit because Sergio
was a Mexican citizen who was killed on the Mexican
side of the border. A deeply-divided Fifth Circuit Court
of Appeals affirmed. This Court, observing that the
Fifth Circuit had not had the opportunity to assess
Sergio’s parents’ claim in light of the teachings of
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), vacated the
judgment and remanded the case to the Court of Appeals with instructions to apply Abbasi’s guidance and
determine whether a Bivens2 claim would be appropriate here.
Sitting en banc on remand, the Fifth Circuit ruled
that Sergio’s parents’ claim against Mesa for damages
could not proceed because it presented a “new context”
and, independently, because “special factors,” including
extraterritorial application of Bivens, barred the claim.
If allowed to stand, the Fifth Circuit’s decision would
mean that, along the United States-Mexico border, victims would have no legal recourse for—and there
would be no civil liability deterrent to prevent—the
abusive acts of Border Patrol agents, including
2
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
5
specifically any future fatal shootings of innocent bystanders in Mexican territory.
Amici are advocates for persons in the southern
border region, which encompasses 2,000 miles of international border bounding four U.S. states and six Mexican states and extends 62.5 miles inland into the U.S.
and Mexico on either side.3 As such, amici have intimate knowledge about the conditions along the U.S.Mexico border, which have changed considerably since
this Court last considered this case. Most significant is
the deterioration in the Border Patrol’s treatment of
some of the most vulnerable persons in the Americas.
The grievous harms inflicted on these individuals are
often dismissed as the actions of an apparently everincreasing number of “rogue” Border Patrol agents. As
discussed below, however, the border violence at issue
here is, sadly, not unique.
The Fifth Circuit’s decision (and the purported
“special factors” it identified as reasons not to extend
Bivens) ignores the realities of the region, leaves noncitizens on the Mexican side of the border who are injured by federal officers no legal recourse or remedy to
redress their injuries, and eliminates a significant deterrent to federal officer misconduct against individuals, a core goal of Bivens.
3
Border Region, United States-Mexico Border Health Commission, https://www.hhs.gov/about/agencies/oga/about-oga/whatwe-do/international-relations-division/americas/border-healthcommission/us-mexico-border-region/index.html (last visited Aug.
8, 2019) [hereinafter Border Health Commission].
6
Specifically, amici write to highlight three points:
First, Sergio’s death cannot be viewed as an isolated incident. Amici are painfully familiar with other
tragedies involving Border Patrol abuses with facts
disconcertingly similar to Sergio’s. Such tragedies
caused by individual agents are not sanctioned by U.S.
policy. Neither would the availability of a monetary
damages remedy for Sergio’s parents against Mesa
raise a challenge to U.S. policy or national security. The
common thread among these incidents is that the victims and their families are at once the most vulnerable
to Border Patrol abuses and the most powerless to stop
them. Deterrence of unconstitutional conduct is the
keystone in the Court’s Bivens jurisprudence, which allows civil suits for money damages against federal officers. Thus, this Court’s decision will affect not just
Sergio’s family, but also other non-citizens injured,
raped, abducted, or killed by Border Patrol agents
along the entire 2,000 mile length of the border who,
absent a Bivens remedy, have no remedy at all, especially if the agents victimized them on the Mexican
side of the border.
Second, Bivens claims should be available to
those who suffer abusive conduct at the hands of Border Patrol agents. The Constitution should protect residents on both sides of the southern border because
individuals on both sides are subject to the consequences of the constant presence and far-reaching control of the United States Border Patrol, even when
agents’ initial actions occur entirely on the U.S. side
of the border. To achieve the United States’ goals of
7
sealing the border, the Border Patrol’s authority necessarily extends into the gray area just beyond the southern border into Mexico, allowing U.S. agents to monitor
and control residents on both sides of the border. Wherever this authority extends, and wherever Border Patrol agents act pursuant to their ostensible authority,
the Constitution should check Border Patrol agents’
actions and, via Bivens claims, offer a deterrent to protect and compensate their victims.
Third, Constitutional protections should not be
limited by cartographic borders. Such borders are arbitrary and unclear; they are legal constructs. Cartographic borders are neither rational nor practical
“bright line” determiners of a person’s Constitutional
rights. As Justice Breyer observed, the area around the
border is a “limitrophe” area, a liminal frontier region
where special legal rules based on practical considerations apply. Hernández, 137 S. Ct. at 2009–10.
Amici therefore submit that the Court should consider the realities of the border region when deciding
Sergio’s case. United States agents should not get a
free pass to violate the Constitution so long as their
targets happen to be on the other side of the border.
Those injured by abusive Border Patrol conduct should
be entitled to Fourth and Fifth Amendment protections
and to vindicate those protections through claims for
compensation for their injuries.
------------------------------------------------------------------
8
ARGUMENT
I.
BORDER PATROL INJUSTICES AGAINST
MEXICAN AND OTHER CITIZENS HAVE
OCCURRED IN THE PAST AND WILL
CONTINUE TO OCCUR—WITHOUT REDRESS—IF THIS COURT ALLOWS THE
FIFTH CIRCUIT’S DECISION TO STAND.
Many persons in the border region have suffered
at the hands of Border Patrol agents. Between January
2010 and July 2019 at least 90 people have died as the
result of an encounter with U.S. border agents. Many
more have been brutalized, in some cases causing lifealtering injuries, including a minor who was punched
in the stomach and a pregnant woman who lost her
unborn child after being beaten at a border crossing.4
Some of these victims targeted by Border Patrol
agents were attempting to cross the border into the
U.S.; others, like Sergio, were not. None should have
been subject to lethal force wielded by Border Patrol
agents who, under the Fifth Circuit’s decision, would
be immune from civil liability. Consider the following
examples:
4
Border Patrol Abuses, Southern Border Communities Coalition (July 2019), http://southernborder.org/border-patrol-abuses/.
In addition to her miscarriage, the woman suffered malformations and is disabled as a result of the Border Patrol beating.
Id.; see also Deaths and Injuries in CBP Encounters Since January 2010, American Civil Liberties Union of New Mexico, 24 (May
19, 2016), available at https://www.aclu.org/sites/default/files/
field_document/may_2016_dead_and_injured_by_cbp_officials.pdf
[hereinafter ACLU Report].
9
Ramses Barron Torres. A Border Patrol agent
shot and killed Ramses on January 5, 2011.5 He was 17
years old. Border Patrol agents were chasing drug
smugglers on the U.S. side of the border when one
agent fired a shot that passed through the metal fence
into Mexico and killed Ramses.6 The Border Patrol
agent who fired claimed Ramses and his friends were
throwing rocks at him but Ramses’ friend, who witnessed his death, stated that the Border Patrol agent’s
safety had not been threatened in any way.7 The Border Patrol agent was not criminally charged.8
Guillermo Arévalo Pedroza. Border Patrol
agents killed Guillermo on September 3, 2012, while
he was picnicking at a Mexican riverfront park with
his wife and two daughters. A Border Patrol boat on
the American side of the Rio Grande River, apparently
chasing a young man swimming across the river,
5
Julianne Hing, 17-Year-Old Killed by Border Patrol for Allegedly Throwing Rocks, ColorLines (Jan. 7, 2011), http://www.
colorlines.com/articles/17-year-old-killed-border-patrol-allegedlythrowing-rocks.
6
Elizabeth Aguilera, No Charges in Border Patrol Shooting
Deaths, San Diego Union-Tribune (Aug. 9, 2013), http://www.
sandiegouniontribune.com/news/immigration/sdut-border-patrolshooting-lamadrid-ramses-border-immi-2013aug09-story.html.
7
More Accounts Emerge Following Deadly Border Shooting,
Nogales Int’l, (Jan. 6, 2011), http://www.nogalesinternational.com/
news/more-accounts-emerge-following-deadly-border-shooting/
article_998a4971-2351-5f03-a8f3-c43dd1d65cfe.html.
8
Rob O’Dell, 7 Times Rock-Throwing Ended in Deadly Force
by U.S. Border Patrol Agents, AZ Central (Oct. 12, 2016),
http://www.azcentral.com/story/news/politics/border-issues/2016/
10/10/us-border-patrol-rock-throwing-killing-cases/85670112/.
10
opened fire onto the Mexican park and killed
Guillermo. The Border Patrol agents later alleged that
the people in the park had been throwing rocks at
them. No criminal charges were brought against
Guillermo’s killer.9
José Antonio Elena Rodríguez. In October
2012, in an incident strikingly similar to Sergio’s, an
agent shot and killed José when the agent suspected
the teen was part of a group throwing rocks.10 José was
on a busy Mexican street 40 feet from the border and
carrying only a cell phone.11 He was shot as many as
seven times, with at least eight additional bullets
striking an adjacent wall. An autopsy revealed the
youth may have been shot in the back or even after he
had already fallen to the ground.12 José’s family
brought a case similar to this one in which the United
9
Jason Buch, Mexican Girl Clutched Her Dying Father, San
Antonio Express-News (Sept. 8, 2012), http://www.mysanantonio.com/
news/local_news/article/Father-shot-by-border-agent-while-holdinghis-3848597.php.
10
Michael Marizco, Border Patrol Shootings Going Unresolved, Fronteras (Oct. 26, 2012), https://fronterasdesk.org/content/
7301/border-patrol-shootings-going-unresolved.
11
José was in Nogales, Sonora across from its American
counterpart, Nogales, Arizona. Many residents refer to them as
a single town of Ambos Nogales meaning Both Nogales. Mark
Binelli, 10 Shots Across the Border, N.Y. Times (Mar. 3, 2016),
http://www.nytimes.com/2016/03/06/magazine/10-shots-across-theborder.html.
12
Michael Marizco, Autopsy Suggests Boy Shot by Border
Patrol Was Already Down, KJZZ (Feb. 7, 2013), https://kjzz.org/
content/6895/autopsy-suggests-boy-shot-border-patrol-was-alreadydown.
11
States Court of Appeals for the Ninth Circuit decided
a Bivens claim exists.13 See Rodriguez v. Swartz, 899
F.3d 719, 748 (9th Cir. 2018), petition for cert. filed (U.S.
Sept. 7, 2018) (No. 18-309).
Juan Pablo Perez Santillán. A Border Patrol
agent shot and killed Juan on July 7, 2012.14 He was
standing on the Mexican side of the Rio Grande River
acting as a lookout while others swam across. A Border
Patrol agent using a long-range rifle with a high-powered scope shot Juan at least five times. The agent
claimed to have seen Juan waiving a gun and also reported rock throwing, but Juan was holding only a
sweat rag when he died.15 The agent was not criminally
charged.
Anastasio Hernández-Rojas.16 Border Patrol
agents and Customs and Border Protection (“CBP”)
agents killed Anastasio on May 28, 2010. He was attempting to cross the border to return to his family in
13
Rob O’Dell, Supreme Court Vacancy Ripples Through Case
Involving Cross-Border Shooting of Teen in Mexico by Border
Patrol, AZ Central (Oct. 24, 2016), http://www.azcentral.com/story/
news/politics/border-issues/2016/10/21/court-jose-antonio-elenarodriguez-cross-border-shooting-teen-mexico-border-patrol/92490696/.
14
Melissa del Bosque, Federal Officials Investigate Fatal
Border Patrol Shootings, Texas Observer (Jun. 18, 2015),
https://www.texasobserver.org/federal-officials-probe-fatal-borderpatrol-shootings/.
15
O’Dell, supra note 8.
16
The remaining examples are factually different than Sergio’s case because they were not cross-border shootings. We include them to bring the Court’s attention to the extent of the
problem of cross-border violence abuses by Border Patrol agents.
12
San Diego where he had lived for 25 years when Border Patrol agents detained him and beat him with a
baton, and CBP agents shocked him with a Taser. Anastasio informed the agents that he wished to file a
complaint, and the agents brought him alone to an isolated area outside the crossing station.17 The agents
later reported that they were then required to subdue
Anastasio because he was resisting. However, an amateur video of those events recorded the voice of Anastasio pleading for help; the eyewitness who recorded the
video stated that the agents were beating Anastasio
while he was lying prone on the ground, handcuffed
and not resisting.18 The autopsy report ruled Anastasio’s death a homicide, but the agent was not criminally charged.19
Carlos La Madrid. A Border Patrol agent shot
and killed nineteen-year-old Carlos near Douglas, Arizona on March 21, 2011. Carlos was driving a car containing marijuana when the Border Patrol agents
arrived. He attempted to flee across the border into
Mexico, but one of the agents fired three shots, striking
17
Brian Epstein, Crossing the Line at the Border, Need to
Know (ON PBS), embedded video 4:40–6:05, (Apr. 20, 2012),
available at http://www.pbs.org/wnet/need-to-know/security/videofirst-look-crossing-the-line/13597/.
18
Brian Epstein, Crossing the Line at the Border, Need to
Know (ON PBS), embedded video 4:40–6:05, 7:46–9:38 (Apr. 20, 2012),
available at http://www.pbs.org/wnet/need-to-know/security/videofirst-look-crossing-the-line/13597/.
19
Dave Rice, 50 Murders by the Border Patrol?, San Diego
Reader (Nov. 14, 2016), http://www.sandiegoreader.com/news/
2016/nov/14/ticker-50-murders-border-patrol/#.
13
him in the back and killing him. Carlos posed no threat
to the Border Patrol at the time he died; early allegations of rock throwing were determined to be unfounded.20
Alfredo Yañez Reyes. A Border Patrol agent shot
and killed Alfredo on June 21, 2011. Alfredo and another individual were attempting to cross the border
near San Diego, California when the Border Patrol
spotted them and began a pursuit.21 As with Ramses,
Carlos, and initially with Sergio, the agent who killed
Alfredo claimed that he had been forced to shoot because rocks had been thrown at him.22 However, it is
unknown whether any rocks were thrown at all, nor
whether Alfredo was the person who threw anything.23
J.E., M.E., and N.C. Border Patrol Agent Esteban
Manzanares abducted a 14-year old, her teenage
20
Jonathon Shacat, Waiting for Answers One Year After
Border Shooting, Douglas Dispatch (Mar. 21, 2012), http://www.
douglasdispatch.com/news/waiting-for-answers-one-year-afterborder-shooting/article_30e6022e-a49e-5adc-9dcd-2c86a565315c.html.
21
Reports say that Alfredo climbed a tree before being
shot. Kristina Davis, Border Chief Sued in Rock-Throwing
Death, San Diego Union-Tribune (May 13, 2015), http://www.
sandiegouniontribune.com/sdut-border-patrol-chief-fisher-lawsuityanez-rocking-2015may13-story.html. The tree was on the Mexican side of the fence but technically on U.S. soil. Id.
22
The ACLU reported that in at least 9 Border Patrol deaths
and one serious injury between January 2010 and May 2016, the
Border Patrol alleged that rocks had been thrown at them. ACLU
Report, supra note 4, at 25.
23
R. Stickney, ACLU Calls for Probe in Border Shooting,
NBC San Diego, June 22, 2011, http://www.nbcsandiego.com/
news/local/ACLU-Calls-for-Probe-in-Border-Shooting-124372389.html.
14
friend, and her teenage friend’s mother just after they
crossed the Rio Grande and arrived in Texas.24 He
drove them to an isolated wooded area where he sexually assaulted them and physically brutalized them.
After leaving the friend and her mother for dead in the
brush, he took the 14-year old to his apartment, where
he repeatedly assaulted her before killing himself as
the authorities arrived.
Claudia Patricia Gómez González. A Border
Patrol agent shot and killed an undocumented 19-yearold woman from Guatemala on the U.S. side of the border, claiming that she and others had attacked him by
throwing projectiles.25 However, his story changed as
he came under scrutiny. A later Border Patrol report
no longer claimed that Claudia was one of the assailants and also dropped all mention of thrown objects.26
These examples show that Sergio’s death was not
an isolated tragedy. As Border Patrol agents’ abuses of
authority increase, Sergio unfortunately will not be the
last victim of the Border Patrol’s unfettered control
over the borderlands. Under the Fifth Circuit’s decision, those who come after Sergio and their families
24
Manny Fernandez, They Were Stopped at the Texas Border.
Their Nightmare Had Only Just Begun, New York Times (Nov.
12, 2018), https://www.nytimes.com/2018/11/12/us/rape-texas-borderimmigrants-esteban-manzanares.html.
25
Samantha Schmidt, ‘They Killed my child’: Border Patrol
shooting of Guatemalan woman stirs protests, The Washington
Post (May 29, 2018), https://www.washingtonpost.com/news/
morning-mix/wp/2018/05/29/why-did-you-kill-my-child-border-patrolshooting-of-guatemalan-woman-stirs-protests/.
26
Id.
15
will have no way of vindicating their Constitutional
rights. This approach has the absurd result failing to
uphold the fundamental goal of Bivens: deterring federal law enforcement officers from abusing their authority.
II.
BECAUSE BORDER RESIDENTS ARE UNDER THE CONTROL OF THE BORDER
PATROL, THEY MUST NOT BE DENIED
CONSTITUTIONAL PROTECTIONS.
The tragedies in the borderlands are a product of
aggressive American policies aimed at securing the
southern border. These policies have sent 17,500 Border Patrol agents to the region, equipping them with
guns and the power to effectively control wide swaths
of Mexican territory. Sadly, as described above, Sergio’s
death is but one example. Sergio was killed on Mexican
soil in the deep cement culvert of a dried-up river. On
paper, the Border Patrol controls only the area at the
top of one side of the culvert, but as this case demonstrates, the Border Patrol agents exert their authority
over the entire area. And where Border Patrol agents
exercise their authority, those harmed by federal
agents’ actions should not be left without recourse.
The growing influence of the Border Patrol began
in the 1990s when the United States increased its focus on immigration. The strategy at the border shifted
from apprehending individuals who crossed into the
United States without permission to preventing anyone from trying, causing the Border Patrol’s focus to
16
extend past the border into Mexican territory.27 With
this strategy of deterrence came a series of aggressive
immigration policies such as Operations Gatekeeper,
Safeguard, Rio Grande, and Hold the Line.28
United States Customs and Border Protection is
now the largest law enforcement agency in the country.29 There are four times as many agents stationed on
the southern border today than there were in 1992.30
27
See A Culture of Cruelty: Abuse and Impunity in ShortTerm U.S. Border Patrol Custody, No More Deaths, 42 (2011),
https://archive.org/details/pdfy-y1yNVbQxW6lEOI2B [hereinafter
A Culture of Cruelty]. The Border Patrol’s primary mission is
“reducing the likelihood that dangerous people and capabilities
enter the United States between the ports of entry.” Border Patrol
Overview, U.S. Customs and Border Protection (Apr. 26, 2018),
https://www.cbp.gov/border-security/along-us-borders/overview
[hereinafter Border Patrol Overview].
28
Timothy J. Dunn, José Palafox, “Militarization of the Border,” The Oxford Encyclopedia of Latinos and Latinas in the
United States (2005) [hereinafter Oxford Encyclopedia], available at https://www.uua.org/sites/live-new.uua.org/files/documents/
washingtonoffice/immigration/studyguides/handout4.1.pdf.
29
Andrew Kennis, Supreme Court to Decide Fate of Case
That Challenges Cross-Border Killings by U.S. Agents, Vice News
(Mar. 30, 2016), https://news.vice.com/article/supreme-courtcross-border-killing-patrol-agent-usa-mexico.
30
There were 16,608 Border Patrol agents stationed at the
southern border as of the 2018 Fiscal Year and only 3,555 in 1992.
Border Patrol Agent Staffing by Fiscal Year, United States Border
Patrol (Mar. 8, 2019), https://www.cbp.gov/sites/default/files/assets/
documents/2019-Mar/Staffing%20FY1992-FY2018.pdf. The rapid
growth of Border Patrol agents has caused quality concerns
and led to problems with training and supervision. See Garrett
M. Graff, The Green Monster: How the Border Patrol Became
America’s Most Out-of-Control Law Enforcement Agency, Politico
17
Additionally, state and local law enforcement officers
join in, enforcing federal immigration law under the
power granted in Section 287 of the Immigration and
Nationality Act, codified at 8 U.S.C. § 1357(g).31 The influx of agents at the southern border and the power
they are granted allow the Border Patrol to control the
land and people on both sides of the border.
In recent years, abuses by Border Patrol agents
have increased as the government has relaxed hiring
standards as it struggles to hire enough agents to meet
President Trump’s increasing demands for additional
agents.32
There is little question that the 15 million people
who live in the southern borderlands acutely feel
the presence and power of the United States Border
Patrol.33 Interactions with Border Patrol agents are
Magazine (Nov./Dec. 2014), available at http://www.politico.com/
magazine/story/2014/10/border-patrol-the-green-monster-112220?o=2.
31
See A Culture of Cruelty, supra note 27, at 43. Under the
287(g) program, U.S. Immigration and Customs Enforcement can
enter into a joint Memorandum of Agreement with state and local
law enforcement to delegate the authority of enforcing federal
immigration laws. Delegation of Immigration Authority Section
287(g) Immigration and Nationality Act, U.S. Immigration and
Customs Enforcement, https://www.ice.gov/287g (last visited
Aug. 8, 2019).
32
See Joshua Breisblatt, Two Border Patrol Agents Charged
with Murder Highlights the Need for Robust Hiring Standards,
Immigration Impact (Sept. 19, 2018), http://immigrationimpact.com/
2018/09/19/border-patrol-agents-murder-hiring-standards/.
33
Joshua Breisblatt, Forum Statement for Record on Fencing, Infrastructure and Technology Border Hearing, National Immigration Forum, 1 (May 13, 2015), https://immigrationforum.org/
18
inevitable in the border region. A legal crossing takes
an average of 45 minutes; almost 500,000 people legally cross the southern border each day to work, shop,
or visit with friends and family.34 After crossing, Border
Patrol agents subject border residents to random
checkpoint stops, searches, and interrogations.35 In
this context of cross-border life, border residents understand that American border authorities closely
monitor their actions. At the same time, a rise in animus and chauvinistic attitudes among Border Patrol
agents towards immigrants, when coupled with the increasing number of agents on the ground, many of
whom the government hired under relaxed standards,
are key ingredients in a recipe for abusive, unlawful
actions by individual federal agents.36
blog/forum-statement-for-record-on-fencing-infrastructure-andtechnology-border-hearing/.
34
Waiting times vary among the different crossing stations,
ranging from 0 to 90 minutes. See CBT Border Wait Times (last
visited Aug. 8, 2019), https://bwt.cbp.gov/. 192,913,686 train passengers, bus passengers, personal vehicle passengers, and pedestrians legally crossed the southern border in 2018. Border
Crossing/Entry Data: Query Detailed Statistics, Bureau of Transp.
Statistics, https://explore.dot.gov/t/BTS/views/BTSBorderCrossing
AnnualData/BorderCrossingTableDashboard?:isGuestRedirectFrom
Vizportal=y&:embed=y (last visited Aug. 8, 2019).
35
See Oxford Encyclopedia, supra note 28; Border Patrol
Overview, supra note 27.
36
A.C. Thompson, Inside the Secret Border Patrol Facebook
Group Where Agents Joke About Migrant Deaths and Post Sexist
Memes, ProPublica (July 1, 2019), https://www.propublica.org/article/
secret-border-patrol-facebook-group-agents-joke-about-migrantdeaths-post-sexist-memes; Jeremy Raff, The Border Patrol’s
19
While amici recognize that some Border Patrol
agents carry out their duties responsibly, the Fifth
Circuit’s decision upholds a Constitutional loophole
that may only increase the likelihood of future abuse.
Amici submit that if American policy grants the Border Patrol de facto authority over both U.S. and Mexican land, then all citizens within the de facto
American-controlled area (both American and Mexican) deserve Fourth and Fifth Amendment protections.
III. CARTOGRAPHIC BORDERS, WHICH ARE
ARBITRARY AND UNCLEAR, SHOULD NOT
DETERMINE WHERE CONSTITUTIONAL
RIGHTS END.
On a political map, the border between the U.S.
and Mexico is a sharp black line. The land on one side
of that line is one color; the land on the other side is
another. But the real world is not so clearly defined.
The border cannot be the end-all stopping point for
Constitutional protections. In addition to being blurred
by the de facto control of the U.S. Border Patrol over
parts of Mexico, the cartographic border is especially
arbitrary at the southern border where cultural intersectionality, policy, and landscape define the limitrophe
area.
Corruption Problem, The Atlantic (May 5, 2017), https://www.
theatlantic.com/politics/archive/2017/05/not-one-bad-apple/525327/.
20
Border residents’ lives are not binary. They do not
fit neatly on one side of the border line or the other, so
their location in relation to the border at any given
time is not a rational determiner of their Constitutional rights.37 Many border residents grew up during
a time when the border was more like a bridge than a
wall; crossing over for a few hours was an unremarkable part of life. Communities organically sprang up
along both sides of the Rio Grande River without much
attention paid to the invisible border. It is not uncommon for many who live on one side of the border to grocery shop on the other. Today a steel fence and rigid
mindset bisect the lives of borderland residents, but 15
pairs of sister cities such as San Diego-Tijuana and El
Paso-Ciudad Juarez still flourish as symbiotic communities.38 Under the Fifth Circuit’s decision and its ruling that “extraterritoriality” is a special factor against
extending Bivens, border residents who are part of
37
“While the U.S.-Mexico borderlands resemble border regions in other parts of the world, nowhere else do so many millions of people from two dissimilar nations live in such close
proximity and interact with each other so intensely.” Border
People, The University of Arizona Press, http://www.uapress.
arizona.edu/Books/bid289.htm (last visited Aug. 8, 2019).
38
See Border Health Commission, supra note 3. Another example is the community spread between Candelaria in Texas and
San Antonio del Bravo in Mexico. For generations, families have
lived on both sides of the river and “[m]any people in Candelaria
view the two towns as one, with a river running through it.” Sasha
von Oldershausen, Crossing Over: For Families Living on Both
Sides of the U.S.-Mexico Border, Breaching the Divide Is a Way of
Life, Texas Observer (Oct. 10, 2016), https://www.texasobserver.org/
candelaria-crossing-over-border/.
21
the same community are treated differently due to an
arbitrary, fluid, and invisible line that has moved as
the Rio Grande has shifted.39
Additionally, cartographic borders should not define where Constitutional protections exist because
the United States frequently ignores or redefines its
borders to further its immigration policies.40 Under
Section 212 of the Immigration and Nationality Act, 8
U.S.C. § 1182, for example, individuals who cross the
border without permission are treated as if they never
actually crossed the border, despite standing on, and
in some cases residing on, United States land.41 Additionally, the United States creates “polka-dot borders”
in places like foreign airports where United States
officials can collect information from non-citizens under the US-VISIT program.42 In a similar vein, the
39
The border has shifted as the Rio Grande has shifted, including in the location where Agent Mesa killed Sergio. See NPR
Staff, 50 Years Ago, A Fluid Border Made The U.S. 1 Square Mile
Smaller, All Things Considered (Sept. 25, 2014), available at
https://www.npr.org/2014/09/25/350885341/50-yeaqrs-ago-a-fluidborder-made-the-u-s-1-square-mile-smaller (last visited Aug. 7,
2019).
40
See Ayelet Shachar, The Shifting Border of Immigration
Regulation, 3 Stan. J. C.R. & C.L. 165, 177 (2007) (“[D]ecoupling
of legal authority from the geographic borders of the nationstate”
extends the state’s power “far away from [its] own geographical
boundaries”).
41
See id. at 171.
42
See id. at 174–75; see also Notice to Nonimmigrant Aliens
Subject to Be Enrolled in the United States Visitor and Immigrant
Status Indicator Technology System, Department of Homeland
Security, 69 Fed. Reg. 482, 482 (Jan. 5, 2004), available at
https://www.dhs.gov/xlibrary/assets/usvisit/USVisitnotice1-5-04.pdf;
22
Immigration and Nationality Act allows immigration
officers to search ships in foreign ports before they
travel to the United States “as though made at the
destined port-of-entry in the United States.”43 As
these examples illustrate, a cartographic test for Constitutional protection, like the one applied by the Fifth
Circuit, makes little sense in the border region.
------------------------------------------------------------------
CONCLUSION
The residents of the border community—American citizens and foreign nationals alike, whether located on one side of the border or the other—deserve
certain basic Constitutional protections from abusive
acts of federal agents. At bottom, the fortuity of where
an aggressor and victim happen to find themselves
with respect to an invisible and arbitrary line should
Philip Mayor, Note, Borderline Constitutionalism: Reconstructing
and Deconstructing Judicial Justifications for Constitutional Distortion in the Border Region, 46 Harv. C.R.-C.L. L. Rev. 647, 668
(2011) (using the term “polka-dot borders”).
43
8 C.F.R. § 235.5(b) (2006); see also Shachar, supra note 40,
at 176.
23
not determine whether the victim’s Constitutional
rights are protected.
Respectfully submitted,
ARLEIGH P. HELFER III
STEPHEN A. FOGDALL
Counsel of Record
SCHNADER HARRISON SEGAL
& LEWIS LLP
1600 Market Street, Suite 3600
Philadelphia, PA 19103
(215) 751-2430; 2581
sfogdall@schnader.com
Counsel for Amici Curiae
August 9, 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.