Amicus Curiae Brief — Hernandez v. Mesa, 136 S. Ct. 567 (2015) (No. 15-118)

No. 15-118 DEC - 9 2016

—« LOFFICE OF THE CLErve |

au The

Supreme Court of the Anited States

- —

JESUS C. HERNANDEZ, ET AL..,

Petitioners,

v.

JESUS MESA, JR.,

Respondent.

oe

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

+

BRIEF OF BORDER ACTION NETWORK, BORDER

NETWORK FOR HUMAN RIGHTS, EQUALITY

NEW MEXICO, SAN DIEGO IMMIGRANT RIGHTS

CONSORTIUM, SOUTHERN BORDER

COMMUNITIES COALITION, AND TEXAS

CIVIL RIGHTS PROJECT AS AMICI CURIAE

IN SUPPORT OF PETTITIONERS

e

NANCY WINKELMAN

Counsel of Record

EMILY DALY

SCHNADER HARRISON SEGAL & LEwis LLP

1600 Market Street, Suite 3600

Philadelphia, PA 19103

(215) 751-2000

nwinkelman@schnader.com

Counsel for Amici Curiae

December 9, 2016

i

TABLE OF CONTENTS

Page

Identity and Interests of Amici Curiae ............... 1

Summary of the Argument ..................cccceceeeeee sees 4

PAI oiccovesccrcstiaccsssinitebinubiememeaeidainiean eens 7

I. Border Patrol Injustices Against Mexican

and Other Citizens Have Occurred in the

Past and Will Continue to Occur — Without

Redress — if the Fifth Circuit’s Decision Is

pL) Ree Ale 7

Il. Because Border Residents Are Under the

Control of the Border Patrol, They Must Not

Be Denied Constitutional Protections......... 13

Ill. Cartographic Borders Should Not Signify

Where Constitutional Rights End Because

They Are Arbitrary ..................... Pea LS, 17

CSIR, «cc cccecvodeconsconsoncevsabdasatesesidiaesnnaaee 19

i

TABLE OF AUTHORITIES

Page

STATUTES AND REGULATIONS

EEE TC 18

a saesssmnmnosmnnnogunae 15

ae EY GD ccc cccccccasccescccsccncseesecesesevenesecs 19

Books, ARTICLES, AND OTHER AUTHORITIES

A Culture of Cruelty: Abuse and Impunity in

Short-Term U.S. Border Patrol Custody, No

More Deaths, 42 (2011), http://forms.nomore

deaths.org/wp-content/uploads/2014/10/Culture

OfCruelty-full.compressed. pdf.....................cc.cc000: 14,15

Andrew Kennis, Supreme Court to Decide Fate

of Case That Challenges Cross-Border Kill-

ings by U.S. Agents, Vice News (Mar. 30, 2016),

https://news.vice.com/article/supreme-court-

cross-border-killing-patrol-agent-usa-mexico ........ 14

Ayelet Shachar, The Shifting Border of Immi-

gration Regulation, 3 Stan. J.C.R. & C.L. 165,

Backgrounder: Southwest Border Security Op-

erations, National Immigration Forum, 5-7

(Dec. 30, 2010), https:/immigrationforum.org/

il

TABLE OF AUTHORITIES — Continued

Best Time to Cross the Border, Calit2, http://

traffic.calit2.net/border/border-crossing-wait-

times.php (last visited Oct. 26, 2016).............-....+-. 16

Border Crossing/Entry Data: Query Detailed

Statistics, Bureau of Transp. Statistics, https://

transborder.bts.gov/programs/international/

transborder/TBDR_BC/TBDR_BCQ. html (last

visited) Cut. 81. BBRE)..ccccccscecceccccesecesscescssesscescecssocens 16

Border Patrol Abuse Since 2010, Southern Bor-

der Communities Coalition (Mar. 2016), http://

southernborder.org/border-patrol-brutality-

Border Patrol Agent Staffing by Fiscal Year, United

States Border Patrol (Sept. 19, 2015), https://

www.cbp.gov/sites/default/files/documents/BP

%20Staffing%20FY 1992-FY2015. pdf..............0000» 15

Border Patrol Overview, U.S. Customs and Bor-

der Protection (Jan. 27, 2015), https//www.

cbp.gov/border-security/along-us-borders/over-

CRD... snsundeanenimenedbennnieensseamannennanenabaeangunatain 14, 16

Border People, The University of Arizona Press,

http://www. uapress.arizona.edu/Books/bid289.

htm (last visited Nov. 7, 2016) ............c--:ccseeeeeerereees 17

Border Region, United States-Mexico Border

Health Commission, http://www.borderhealth.

org/border_region.php (last visited Nov. 7, 2016)....5, 18

IV

TABLE OF AUTHORITIES ~— Continued

Brian Epstein, Crossing the Line at the Border,

Need to Know (on PBS), 4:40-6:05 (Apr. 20,

2012), available at http/Awww.pbs.org/wnet/need-

to-know/security/video-first-look-crossing-the-

BGT BOE cencececccsnevesssneseseoseccensipennansooosnsasssoupooves

Dave Rice, 50 Murders by the Border Patroi?,

San Diego Reader (Nov. 14, 2016), http://www.

sandiegoreader.com/news/2016/nov/14/ticker-

50-murders-border-patrol/# ....................seeeeeeee

Deaths and Injuries in CBP Encounters Since

January 2010, American Civil Liberties Un-

ion of New Mexico, 24 (May 19, 2016), availa-

ble at https://www.aclu.org/sites/default/files/

field_document/may_2016_dead_and_injured_

Be, RN IEE csncccrvenisnnestebessnnntenstescnionesitiess

Delegaticn of Immigration Authority Section

287(g) Immigration and Nationality Act, U.S.

Immigration and Customs Enforcement, https://

www.ice.gov/287¢g (last visited Oct. 26, 2016) ...

Garrett M. Graff, The Green Monster: How the

Border Patrol Became America’s Most Out-of-

Control Law Enforcement Agency, Politico

Magazine (Nov/Dec. 2014), available at http://

www.politico.com/magazine/story/2014/10/

border-patrol- -monster-112220?0=2 ....

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-

holding-his-3848597.php ..........c..ece-sesseeseeeeeesees

eases 15

v

TABLE OF AUTHORITIES — Continued

Jonathon Shacat, Waiting for Answers One Year

After Border Shooting, Douglas Dispatch

(Mar. 21, 2012), http:/Awww.douglasdispatch.

com/news/waiting-for-answers-one-year-after-

border-shooting/article_30e6022e-a49e-5adc-

9dcd-2c86a565315c.html...............cccccceceeeeeeeeees

Joshua Breisblatt, Forum Statement for Record

on Fencing, Infrastructure and Technology Bor-

der Hearing, National Immigration Forum, 1

(May 13, 2015), https:/Ammigrationforum.org/

blog/forum-statement-for-record-on-fencing-

Kristina Davis, Border Chief Sued in Rock-

Throwing Death, San Diego Union-Tribune

(May 13, 2015), http:/Awww.sandiegounion

tribune.com/sdut-border-patrol-chief-fisher-

lawsuit-yanez-rocking-2015may13-story.htm] .....

Mark Binelli, 10 Shots Across the Border, N.Y.

Times (Mar. 3, 2016), http:/Awww.nytimes.

com/2016/03/06/magazine/10-shots-across-the-

A EE NOE ele aca

Melissa del Bosque, Federal Officials Investigate

Fatal Border Patrol Shootings, Texas Observer

(June 18, 2015), https://www.texasobserver.

org/federal-officials-probe-fatal-border-patrol-

inne 9

vi

TABLE OF AUTHORITIES — Continued

Michael Marizco, Autopsy Suggests Boy Shot by

Border Patrol Was Already Down, Fronteras

(Feb. 7, 2013), http://Awww.fronterasdesk.org/

content/autopsy-suggests-boy-shot-border-

patrol-was-already-dowM .........0....c:ccecceseceeeeeseens

Michael Marizco, Border Patrol Shootings Going

Unresolved, Fronteras (Oct. 26, 2012), http://

www.fronterasdesk.org/news/2012/oct/26/

border-patrol-shootings-going-unresolved/ .......

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-

IE cesrcccencensncsnnnsencetncecesssnesnetennees

Notice to Nonimmigrant Aliens Subject to Be

Enrolled in the United States Visitor and Im-

migrant Status Indicator Technology System,

Department of Homeland Security, 69 Fed.

Reg. 482, 482 (Jan. 5, 2004), available ai

https://www.dhs.gov/xlibrary/assets/usvisit/

US Visitnotice1-5-04. pdf... ccc ceceeeeeeeeeeeeeeeee

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.

eg NID crc ntctetceripeiminininintingsnnsintnbanidtinienanens

Page

vii

TABLE OF AUTHORITIES — Continued

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.

IEE Nechiesshinsiasieiseiniatienssibhathdilishdatuiaionddaidadhidanais Ah cial iabSintwctaidaniie

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/

a alta ne

Rob O’Dell, Supreme Court Vacancy Ripples

Through Case Involving Cross-Border Shoot-

ing 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-

border-shooting-teen-mexico-border-patrol/

REISER SCRE Rs. SSE ene ER aN OnE Ne

Sasha von Oldershausen, Crossing Over: For

Families Living on Both Sides of the U.S.-Mex-

ico Border, Breaching the Divide Is a Way of

Life, Texas Observer (Oct. 10, 2016), https://

www.texasobserver.org/candelaria-crossing-

I attest ctisccddccustonsseciavadtbatmimiunsindidieiedisc

1

IDENTITY AND INTERESTS

OF AMICI CURIAE'

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 Bor-

der Patrol.

Border Action Network was formed in 1999 and

is a human rights community organization based in

immigrant and border communities throughout Ari-

zona. Border Action Network is unique in that it not

only builds the capacity of on-the-ground organizing

and leadership within heavily militarized, criminal-

ized, and marginalized immigrant and border commu-

nities, but also carries the local lessons from the border

directly to policymakers at a state and national level.

Border Action Network’s ability, through organizing,

research, communications, and advocacy, enables it to

expose the ineffectiveness, high cost, and inhumanity

of border and immigration enforcement, and its dedi-

cation to policy change enables Border Action Network

* 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 prepara-

tion 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

to put concrete, winnable solutions on policymakers’

tables.

Border Network for Human Rights (““BNHR”)

was founded in 1998 for the general purpose of facili-

tating the education, organization, and participation of

marginalized border communities to defend and pro-

mote human and civil rights, and to work to create po-

litical, economic, and social conditions where every

human being is equal in dignity and rights. Most of

BNHR’s strategies and activities are directed to ac-

complish four general goals: (1) to strengthen the ca-

pacity and organization of impacted border and

immigrant communities to voice their opinions, con-

cerns, and solutions on issues such as immigration and

enforcement; (2) to establish clear mechanisms for bor-

der and immigrant communities to engage in perma-

nent dialogues with policymakers and administration

at the local, state, regional, and national levels; (3) for

these communities to educate policymakers, stake-

holders, and the public on the need for a comprehen-

sive review and reaffirmation of our immigration laws;

and (4) to work with and encourage policymakers to

enact and implement effective oversight and account-

ability mechanisms for enforcement policies and prac-

tices at the border and in the interior.

Equality New Mexico is a non-profit organiza-

tion that uses advocacy, outreach, education, and com-

munity support to improve the lives of LGBTQ New

Mexicans and their families. Through its work, Equal-

ity New Mexico helps create a reality of equity, full ac-

cess, and sustainable wellness. Equality New Mexico

3

believes that the health and wellbeing of LGBTQ New

Mexicans is crucial to creating a stronger, more bal-

anced world.

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 is comprised of over 40 organiza-

tions throughout San Diego County who consist of

leaders from the immigrant and refugee communities.

Southern Border Communities Coalition

(“SBCC”) brings together 60 organizations across the

border 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 un-

armed border residents and has focused on advocating

for border enforcement policies and practices that are

accountable and fair, respect human dignity and hu-

man rights, and prevent the loss of life in the region.

SBCC has engaged in advocacy demanding justice for

Sergio Adrian Hernandez Giiereca, Anastasio Hernan-

dez Rojas, and several other victims of violence at the

hands of federal immigration enforcement officers.

Texas Civil Rights Project (““TCRP”) is a non-

profit organization that uses legal advocacy to defend

voting rights, fight institutional discrimination, reform

systems of criminal justice, and protect First Amend-

ment values. With over 25 years of experience, TCRP’s

4

efforts focus 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 El Paso and Alamo, Texas

offices. The outcome of this case will have a direct im-

pact on TCRP’s clients and their families.

¢

SUMMARY OF THE ARGUMENT

A United States Border Patrol agent on the U.S.

side of the U.S.-Mexico border shot and killed an un-

armed teenage boy on the Mexican side. The boy was

playing a game with his friends when the agent started

shooting. The boy tried to take cover behind a pillar,

but the agent shot him in the face, killing him.

Significantly, every operative fact, except the im-

pact of the bullet that caused the child’s death, was

committed on United States soil: the Border Patrol

agent formed the intent; un-holstered his weapon; took

aim; placed his finger on the trigger; squeezed the trig-

ger; discharged his weapon; and the bullet left the

chamber. 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 be-

cause the boy, Sergio Adrian Hernandez Giiereca, was

a Mexican citizen who was killed on the Mexican side

of the border. A deeply-divided Fifth Circuit Court of

Appeals affirmed. If allowed to stand, the import of

5

the Fifth Circuit’s decision is that along the United

States-Mexico border, a coin flip will determine

whether legal recourse exists. This Court should re-

verse.

Amici are advocates for the southern border re-

gion, which encompasses 2,000 miles of international

border along four U.S. states and six Mexican states

and extends 62.5 miles inland on either side.” Amici

believe that the implications of this case are best un-

derstood with knowledge of the current state of affairs

at the United States-Mexico border. Specifically, amici

write to highlight three points:

First, Sergio’s death cannot be viewed in isolation.

Amici are painfully familiar with other tragedies in-

volving Border Patrol abuses with facts disconcert-

ingly similar to Sergio’s. 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. This

Court’s decision will affect not just Sergio’s family, but

also other people injured or killed by the Border Patrol

along the entire 2,000 mile length of the border.

Second, the Constitution should protect residents

on both sides of the southern border because individu-

als on both sides are subject to the consequences of the

constant presence and far-reaching control of the

United States Border Patrol, even when those initial

2 Border Region, United States-Mexico Border Health Com-

mission, http:/Avww.borderhealth.org/border_region.php (last vis-

ited Nov. 7, 2016) [hereinafter Border Health Commission].

6

actions occur entirely on the U.S. side of the border. To

achieve the United States’ goals of 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 au-

thority extends, the Constitution should be a check on

Border Patrol actions and a shield for Border Patrol

victims.

Third, Constitutional protections should not be

limited by cartographic borders because such borders

are arbitrary and unclear; they are simply legal con-

structs. Cartographic borders are neither rational nor

practical determiners of a person’s Constitutional

rights.

Amici therefore submit that the Court should con-

sider 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 Border Patrol abuses should be enti-

tled to Fourth and Fifth Amendment protections.

Sf

7

ARGUMENT

I. Border Patrol Injustices Against Mexican

and Other Citizens Have Occurred in the

Past and Will Continue to Occur - Without

Redress - if the Fifth Circuit’s Decision Is

Allowed to Stand.

Many people of the border region have suffered

under the United States Border Patrol’s regime. Be-

tween January 2010 and March 2016, at least 46 peo-

ple died as a result of an encounter with the Border

Patrol. In addition to the 46 deaths, at least 26 people

were seriously injured by Border Patrol agents, includ-

ing a minor who was punched in the stomach and a

pregnant woman who lost her unborn child after being

beaten at a border crossing.’

Some of the people targeted by the Border Patrol

were attempting to cross the border into the U.S.; oth-

ers, like Sergio, were not. None should have been sub-

ject to lethal force wielded by Border Patrol agents

who, under the Fifth Circuit’s decision, would be im-

mune from liability. Consider the following examples:

8 Border Patrol Abuse Since 2010, Southern Border Commu-

nities Coalition (Mar. 2016), http://southernborder.org/border-

patrol-brutality-since-2010/. 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].

8

~® Ramses Barron Torres. A Border Pa-

trol agent shot and killed Ramses on Jan-

uary 5, 2011. He was 17 years old. Border

Patrol agents were chasing drug smug-

glers 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. 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.* The Bor-

der Patrol agent was not criminally

charged.*

~® Guillermo Arévalo Pedroza. Border

Patrol agents killed Guillermo on Sep-

tember 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, opened fire

onto the Mexican park and killed

Guillermo. The Border Patrol agents later

alleged that the people in the park had

* More Accounts Emerge Following Deadly Border Shooting,

Nogales Intl (Jan. 6, 2011), http:/Awww.nogalesinternational.com/

news/more-accounts-emerge-following-deadly-border-shooting/

article_998a497 1-235 1-5f03-a8f3-c43dd1d65cfe.html.

5 Rob O'Dell, 7 Times Rock-Throwing Ended in Deadly Force

by U.S. Border Patrol Agents, AZ Central (Oct. 12, 2016), hitp://

www.azcentral.com/story/news/politics/border-issues/20 16/10/10/

us-border-patrol-rock-throwing-killing-cases/85670112/.

9

been throwing rocks at them. No crim-

inal charges have been brought against

Guillermo’s killer.®

*® José Antonio Elena Rodriguez. In Oc-

tober 2012, in an incident strikingly sim-

ilar to Sergio’s, a Border Patrol agent shot

and killed José when the agent suspected

the teen was part of a group throwing

rocks.’ José was on a busy Mexican street

40 feet from the border and carrying only

a cell phone.* He was shot as many as

seven times, with at least eight additional

bullets striking an adjacent wall. An au-

topsy revealed the youth may have been

shot in the back or even after he had al-

ready fallen to the ground. José’s family

brought a case similar to this one that is

§ Jason Buch, Mexican Girl Clutched Her Dying Father, San

Antonio Express-News (Sept. 8, 2012), http:/Awww.mysanantonio.

com/news/locel_news/article/Father-shot-by-border-agent-while-

holding-his-5848597.php.

? Michael Marizco, Border Patrol Shootings Going Unre-

solved, Fronteras (Oct. 26, 2012), http://www.fronterasdesk.org/

news/2012/oct/26/border-patrol-shootings-going- unresolved/.

8 José was in Nogales, Sonora across from its American coun-

terpart, Nogales, Arizona. Many residents refer to them as a sin-

gle 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-the-border.html.

® Michael Marizco, Autopsy Suggests Boy Shot by Border Pa-

trol Was Already Down, Fronteras (Feb. 7, 2013), http-//www.

ronterasdesk.org/content/autopsy-suggests-boy-shot-border-patrol-

was-already-down.

10

currently on appeal to the United States

Court of Appeals for the Ninth Circuit."°

*® Juan Pablo Perez Santillan. A Border

Patrol agent shot and killed Juan on July

7, 2012."" He was standing on the Mexi-

can side of the Rio Grande River acting as

a lookout while others swam across. A

Border Patrol agent using a long-range ri-

fle 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.”

The agent was not criminally charged.

*® Anastasio Hernandez Rojas.” Border

Patrol agents killed Anastasio on May 28,

2010. He was attempting to cross the bor-

der to return to his family in San Diego

when Border Patrol agents detained him,

© Rob O'Dell, Supreme Court Vacancy Ripples Through Case

Involving Cross-Border Shooting of Teen in Mexico by Border Pa-

trol, AZ Central (Oct. 24, 2016), http://Awww.azcentral.com/

story/news/politics/border-issues/20 16/10/2 1/court-jose-antonio-

elena-rodriguez-cross-border-shooting-teen-mexico-border-patrol/

92490696/.

'! Melissa del Bosque, Federal Officials Investigate Fatal Bor-

der Patrol Shootings, Texas Observer (June 18, 2015), https://

www.texasobserver.org/federal-officials-probe-fatal-border-patrol-

shootings/.

= supra note 5.

'S The remaining examples are factually different than Ser-

gio’s case because they were not cross-border shootings. We in-

clude them to bring the Court’s attention to the extent of the

problem of cross-border violence by Border Patrol agents.

11

beat him with a baton, and electrocuted

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 sta-

tion."* 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 Ana-

stasio while he was lying prone on the

ground, handcuffed and not resisting.”

The autopsy report ruled Anastasio’s

death a homicide, but the agent was not

criminally charged.**

*® Carlos La Madrid. A Border Patrol

agent shot and killed 19-year-old Carlos

near Douglas, Arizona on March 21, 2011.

Carlos was driving a car containing mari-

juana when the Border Patrol agents ar-

rived. He attempted to flee across the

border into Mexico, but one of the agents

fired three shots, striking him in the back

and killing him. Carlos posed no threat to

‘* Brian Epstein, Crossing the Line at the Border, Need to

Know (on PBS), 4:40-6:05 (Apr. 20, 2012), available at http://www.

pbs.org/wnet/need-to-know/security/video-first-look-crossing-the-

line/13597/.

8 Td. at 7:46-9:38.

*® Dave Rice, 50 Murders by the Border Patrol?, San Diego

Reader (Nov. 14, 2016), http://Awww.sandiegoreader.com/news/

2016/now/14/ticker-50-murders-border-patrol/#.

12

the Border Patrol at the time he died;

early allegations of rock throwing were

determined to be unfounded."

~*® Alfredo Yanez Reyes. A Border Patrol

agent shot and killed Alfredo on June 21,

2011. Alfredo and another individual

were attempting to cross the border iiear

San Diego, California when the Border

Patrol spotted them and began a pur-

suit.'* As with Ramses, Carlos, and ini-

tially with Sergio, the agent who killed

Alfredo claimed that he had been forced

to shoot because rocks had been thrown

at him.” However, it is unknown whether

any rocks were thrown at all, nor whether

Alfredo was the person who threw any-

thing.”

7 Jonathon Shacat, Waiting for Answers One Year After Bor-

der Shooting, Douglas Dispatch (Mar. 21, 2012), http://www.

douglasdispatch.com/news/waiting-for-answers-one-year-after-

border-shooting/article_30e6022e-a49e-5adc-9dcd-2c86a5653 15c.

html.

’ 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.sandiego

uniontribune.com/sdut-border-patrol-chief-fisher-lawsuit-yanez-

rocking-2015may13-story.html. The tree was on the Mexican side

of the fence but technically on U.S. soil. Jd.

® 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 3, at 25.

2” R. Stickney, ACLU Calls for Probe in Border Shooting,

NBC San Diego (June 22, 2011), http://www.nbcsandiego.com/

13

As these examples illustrate, Sergio’s death was

far from an isolated tragedy. If recent history tells its

tale, Sergio unfortunately will not be the last victim of

the Border Patrol’s unfettered control over the border-

lands. Under the Fifth Circuit’s decision, those who

come after Sergio will have no Constitutional protec-

tions unless they are fortuitous enough to be standing

on American soil when American agents kill them.

This approach has the absurd result of protecting

those who unlawfully enter into the United States

while denying rights to law-abiding Mexican citizens

standing in their own country.

Il. 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 Bor-

der 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 demon-

strates, the Border Patrol exerts its power over the

entire area. Where the Border Patrol exercises its

news/local/ACLU-Calls-for-Probe-in-Border-Shooting-124372389.

html.

14

authority, those harmed by that authority should not

be left without recourse.

The growing influence of the Border Patrol began

in the 1990s when the United States increased its fo-

cus on immigration policies. The strategy at the border

shifted from apprehending individuals who crossed

into the United States without permission to prevent-

ing anyone from trying, causing the Border Patrol’s fo-

cus to extend past the border into Mexican territory.”'

With this strategy of deterrence came a series of ag-

gressive immigration policies such as Operations

Gatekeeper, Safeguard, Rio Grande, and Hold the

Line.”

United States Customs and Border Protection is

now the largest law enforcement agency in the coun-

try.~ There are four times as many agents stationed on

2! See A Culture of Cruelty: Abuse and Impunity in Short-

Term U.S. Border Patrol Custody, No More Deaths, 42 (2011), http://

forms.nomoredeaths.org/wp-content/uploads/2014/10/CultureOf

Cruelty-full.compressed.pdf [hereinafter A Culture of Cruelty).

The Border Patrol’s primary mission is “reducing the likeli-

hood that dangerous people and capabilities enter the United

States between the ports of entry.” Border Patrol Overview, U.S.

Customs and Border Protection (Jan. 27, 2015), https://www.cbp.

gov/border-security/along-us-borders/overview [hereinafter Bor-

der Patrol Overview}.

22 Backgrounder: Southwest Border Security Operations, Na-

tional Immigration Forum, 5-7 (Dec. 30, 2010), https//Ammigration

forum.org/blog/backgrounder-southwest-border-security-operations/

{hereinafter Backgrounder).

8 Andrew Kennis, Supreme Court to Decide Fate of Case

That Challenges Cross-Border Killings by U.S. Agents, Vice News

15

the southern border today than there were in 1992.

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. § 13857(g).” The in-

flux 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.

There is little question that the 15 million people

who live in the borderlands acutely feel the presence

(Mar. 30, 2016), https://news.vice.com/article/supreme-court-cross-

border-killing-patrol-agent-usa-mexico.

* There were 17,522 Border Patrol agents stationed at the

southern border as of the 2015 Fiscal Year and only 3,555 in 1992.

Border Patrol Agent Staffing by Fiscal Year, United States Border

Patrol (Sept. 19, 2015), https://www.cbp.gov/sites/default/files/

documents/BP%20Staffing%20F Y1992-F Y2015.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: ‘low the Border Patrol Became America’s

Most Out-of-Control Law Enforcement Agency, Politico Magazine

(Nov/Dec. 2014), available at http://www.politico.com/magazine/

story/2014/10/border-patrol-the-green-monster-11222070=2.

% See A Culture of Cruelty, supra note 21, 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 im-

migration 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 Oct.

26, 2016).

16

and power of the United States Border Patrol.” Inter-

actions with Border Patrol agents are inevitable in the

border region. A legal crossing takes an average of 45

minutes; almost 500,000 people legally cross the south-

ern border each day to work, shop, or visit with friends

and family.”” After crossing, border residents are

subjected to random checkpoint stops, searches, and

interrogations by the Border Patrol.” In this context of

cross-border life, border residents understand that

American border authorities closely monitor their ac-

tions.

The Fifth Circuit’s decision ignores the realities of

the region and cannot be rationally applied. While

amici recognize that Border Patrol agents have a diffi-

cult and important job and that the majority of agents

carry out their duties responsibly, the Fifth Circuit’s

decision upholds a Constitutional loophole that may

6 Joshua Breisblatt, Forum Statement for Record on Fenc-

ing, Infrastructure and Technology Border Hearing, National Im-

migration Forum, 1 (May 13, 2015), https:/Ammigrationforum.org/

blog/forum-statement-for-record-on-fencing-infrastructure-and-

technology-border-hearing/.

27 Waiting times vary among the different crossing stations,

ranging from 0 to 90 minutes. See Best Time to Cross the Border,

Calit2, http~//traffic.calit2.net/border/border-crossing-wait-times. php

(last visited Oct. 26, 2016). 178,717,453 train passengers, bus pas-

sengers, personal vehicle passengers, and pedestrians legally

crossed the southern border in 2015. Border Crossing/Entry Data:

Query Detailed Statistics, Bureau of Transp. Statistics, https://

transborder.bts.gov/programs/international/transborder/TBDR_

BC/TBDR_BCQ.html (last visited Oct. 31, 2016).

28 See Backgrounder, supra note 22; Border Patrol Overview,

supra note 21.

17

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 Should Not Signify

Where Constitutional Rights End Because

They Are Arbitrary.

On a 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. Yet

the real world is not so clearly defined, so 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 culture, policy, and landscape

redefine the lines.

Border residents’ lives do not fit neatly into one

side of the border line or the other, so their location in

relation to the border at any given time is not a ra-

tional determiner of their Constitutional rights.”

Many border residents grew up during a time when the

29 “While the U.S.-Mexico borderlands resemble border re-

gions 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 Uni-

versity of Arizona Press, http:/Awww.uapress.arizona.edu/Books/

bid289.htm (last visited Nov. 7, 2016).

18

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. Today a steel fence and rigid mind-

set 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 communi-

ties.*° Under the Fifth Circuit’s decision, border residents

who are part of the same community are treated dif-

ferently due to an arbitrary, invisible line.

Additionally, cartographic borders should not de-

fine where Constitutional protections exist because the

United States frequently ignores or redefines its bor-

ders to further its immigration policies.** Under Sec-

tion 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

%° See Border Health Commission, supra note 2. Another ex-

ample 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/.

81 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”).

19

some cases residing on, United States land.*” Addition-

ally, the United States creates “polka-dot borders” in

places like foreign airports where United States offi-

cials can collect information from non-citizens under

the US-VISIT program.* In a similar vein, the Immi-

gration and Nationality Act allows immigration offic-

ers 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.” As these exam-

ples 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 — Ameri-

can and Mexican citizens alike, regardless of which

side of the border they are located on — deserve certain

basic Constitutional protections. The fortuity of where

an aggressor and victim happen to find themselves

32 See id. at 171.

33 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;

see also Philip Mayor, Note, Borderline Constitutionalism: Recon-

structing and Deconstructing Judicial Justifications for Constitu-

tional Distortion in the Border Region, 46 Harv. C.R.-C.L. L. Rev.

647, 668 (2011) (using the term “polka-dot borders”).

5 8 C_FR. § 235.5(b) (2006); see also Shachar, supra note 31,

at 176.

20

with respect to an invisible and arbitrary line should

not determine whether the victim’s Constitutional

rights are protected.

December 9, 2016

Respectfully submitted,

NANCY WINKELMAN

Counsel of Record

EMILY DALY

SCHNADER HARRISON SEGAL

& Lewis LLP

1600 Market Street, Suite 3600

Philadelphia, PA 19103

(215) 751-2000

nwinkelman@schnader.com

Counsel for Amici Curiae