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

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2, ——

No. 15-118

er aa & i. *

‘In the Supreme Court of the United States

JESUS C. HERNANDEZ, eT AL.,

Petitioners,

Vv.

JESUS MESA, JR.,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF OF MEXICAN JURISTS, PRACTITIONERS,

AND SCHOLARS AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

CARMINE D. Boccuzzi, JR.

Counsel of Record

Howarp S. ZELBO

WruiaM R. THomas

Davin I. FEINSTEIN

CLEARY GOTTLIEB STEEN

& HamiLTon LLP

One Liberty Plaza

New York, NY 10006

212-225-2000

cboccuzzi@cgsh.com

Counsel for Amici Curiae

Becker Gallagher - Cincinnati, OH + Washington, D.C. ~- 800.890.5001

i

TABLE OF CONTENTS

py SOP Be WN bys 6) yy | -. ii

INTEREST OF AMICI CURIAE ............... 1

SUMMARY OF ARGUMENT .................. 2

HE 3 6s hk sce 0 obs oe eN eos de Khe 3

I. A Mexican Court Has Authority to Impose a

Remedy for the Unlawful Killing of a Mexican

Citizen by a Foreign Citizen Only to the Extent

that the Foreign Citizen Submits to the Court’s

I 86 bu a Fee oo eo RS be 4

A. Mexican Federal Criminal Law Precludes

Criminal Proceedings Where a Defendant is

Not Physically Present in Mexico ......... 5

B. Mexican Civil Courts Do Not Have

Jurisdiction over Agents of Foreign

Sovereigns Who Are Not Domiciled in Mexico

ee mr Pre wale peep Cage we Bintan ee 6

1. Mexican Civil Law Limits Jurisdiction to

Courts Sitting in the Domicile of the

ED, orn do 0b Uae cso birs cae ee 8

2. Mexican Law Provides Immunity to

Agents of Foreign Sovereigns, and that

Immunity Extends to Agent Mesa ...... 9

Il. Even Assuming Petitioners Could Obtain a

Judgment from a Mexican Court, a Texas Court

Would Not Enforce the Judgment Against Agent

EP aise cahs comet ck + haea a tk beater ehe ct 11

ii

TABLE OF AUTHORITIES

CASES

Bivens v. Six Unknown Federal Narcotics Agents,

a ED ob kv abe ae cee e canes 3,4

Southwest Livestock & Trucking Co., Inc. v. Ramon,

Be ae Ces Ga. BOD nv cc ccc vcccace 13

Wilkie v. Robbins,

Bs Ee er eee, ae an ee ee 3

Winters v. Diamond Shamrock Chem. Co.,

941 F. Supp. 617 (E.D. Tex. 1996), affd, 149

Fae Oe Ce GE. BO) 6 we ccccce menses 11

CONSTITUTION

Political Constitution of the United Mexican States

(Mexican Constitution) Art. 20(c)(iv) ......... 4

Mexican Constitution, Art. 104(ii) .............. 7

STATUTES

en Se eae ie ee ee 11

Chihuahua Civil Code, Art. 1800 ............... 8

Chihuahua Civil Code, Art. 1801 ............... 8

Chihuahua Code of Civil Procedure, Art. 161 ..... 8

Chihuahua Code of Civil Procedure, Art. 167(iv) .. 8

Mexican Federal Civil Code, Art. 1910 .......... 7

Mexican Federal Civil Code, Art. 1915 ........ 7,8

Mexican Federal Civil Code, Art. 1916 .......... 8

iii

Mexican Federal Code of Civil Procedure, Art. 14 .. 8

Mexican Federal Code of Civil Procedure,

NN ae oat) 5 aia ae oie kN ee eed Scere ae Ga 8

Mexican Federal Criminal Code, Art.2 .......... 5

Mexican Federal Criminal Code, Art. 2(i) ........ 5

Mexican Federal Criminal Code, Art.4 ........ 5,6

Mexican Federal Criminal Code, Art. 4(i) ........ 6

Mexican Federal Criminal Code, Art. 34 ......... 7

Tex. Civ. Prac. & Rem. Code Ann. § 36.001—008

CE cool eee se ears aes 12

Tex. Civ. Prac. & Rem. Code Ann. § 36.002

ED Ga ky RU aod Gc ketene ee Kes eee 12

Tex. Civ. Prac. & Rem. Code Ann. § 36.005

DCE. .ccntcuweewekews nee} bye’ 12,13

RULES

I ne oer Snes he Ee oo 1

OTHER BINDING AUTHORITIES

Inmunidad Jurisdiccional Internacional. No Es

Prerrogativa Ilimitada, Second Chamber of the

Mexican Supreme Court of Justice of the Nation,

Federal Judicial Weekly Report, IV

Administrativa Primera Parte, Jurisprudence

1007037 (2011), http://sjf.scjn.gob.mx/sjfsist/

Documentos/Tesis/1007/1007037.pdf ........ 10

1Vv

Responsibilidad Civil. Competencia para Conocer de

la Derivada del Delito, Tribunal Colegiados de

Circuito (Federal Circuit Court), Federal

Judicial Weekly Report, Volume XIV, Thesis

2002190. 1.40.C.14 C (10a.)(2012),

http://200.38.163.178/sjfsist/Documentos/Tesis/

6 to eo nt Garnere os

OTHER AUTHORITIES

Loretta Ortiz Ahlf, Mexican Practice in Immunity,

in Derecho Internacional Ptiblico § 7.4 (Harla 2d

ie So oes eG wes eb eee Ek.

Brief for the United States in Opposition,

Herndndez v. Mesa, No. 15-118, 2016 WL

WE «nat cine sages alas yy «cer ed ie ee vkls

Brief of the Government of the United Mexican

States as Amicus Curiae in Support of the

Petitioners, Herndndez v. Mesa, No. 15-118,

ee a ccc ek hn eckbddé hekcas

Case No. 17498, Amparo en Revisién 348/2001,

Second Chamber of the Mexican Supreme Court

of Justice of the Nation, Federal Judicial Weekly

Report, Volume XVII (2003), http://sjf.scjn.gob.

mx/sjfsist/Documentos/Ejecutorias/17498.pdf_ .

Restatement (Third) of Foreign Relations Law of

the United States § 482 cmt. c (1987) ........

Restatement (Third) of Foreign Relations Law of

the United States § 482(1)(b) (1987) .........

10

10

1

INTEREST OF AMICI CURIAE'

Amici curiae are Mexican jurists, practitioners, and

scholars, who respectfully submit this brief in support

of Petitioners.

Amici consist of the Honorable Guillermo Iberio

Ortiz Mayagoitia, former Chief Justice of the Mexican

Supreme Court and Of Counsel! of Von Wobeser y

Sierra, S.C.; the Honorable Bernardo Sepulveda Amor,

former Mexican Ambassador to the United States and

the United Kingdom, former Secretary of Foreign

Affairs of Mexico, former Judge and Vice President of

the International Court of Justice, and Professor of

Law at El Colegio de México; Radl Contreras

Bustamante, Dean of the Law School of Universidad

Nacional Auténoma de México (UNAM); José Joaquin

Zapata Altamirano, Partner at Zapata Velasco G6mez

Mont and Professor at Escuela Libre de Derecho; Pedro

Salazar Ugarte, Professor and Director of the Institute

of Legal Studies (Instituto de Investigaciones

Juridicas) at UNAM; Fernando Del Castillo E, Partner

at Santamarina y Steta; Luis Enrique Graham,

Partner at Hogan Lovells; Juan Francisco Torres

Landa R, Partner at Hogan Lovells; Tania Gabriela

Rodriguez Huerta, Professor at the Instituto

Tecnolégico Aut6énomo de México (ITAM); Oscar

Fernando Vazquez Cardozo, Partner at Vazquez

' All parties have consented to the filing of this amici curiae brief

pursuant to Rule 37.3 of the Rules of the Supreme Court. No

counsel for a party authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to fund

the preparation or submission of this brief. No person other than

the amici curiae or their counsel made a monetary contribution to

the brief’s preparation or submission.

2

Cardozo Abogados, S.C. and Professor of Law at ITAM;

Julieta Ovalle Piedra, Partner at Bufete Ovalle Favela,

S.C.; Gabriel Cavazos Villanueva, Professor at the

Escuela de Ciencias Sociales y Gobierno del Instituto

Tecnolégico y de Estudios Superior de Monterrey

(ITESM); Raul Gonzalez Salas Campos, Attorney and

Member of the Mexican Academy of Penal Science; Luis

Manuel Jard6én-Pina, Lecturer at the Law School of the

Centro de Investigacion y Docencia Econémicas (CIDE);

Juan Carlos Zamora-Miiller, Attorney at Baker &

McKenzie and Professor at the Law School of CIDE;

and Leyla Bello-Escobar, Attorney at Baker &

McKenzie.

Together, amici bring a wealth of experience and

are well-respected experts in the fields of Mexican

criminal law, civil procedure, constitutional law, and

remedies.

Amici submit this brief in response to a

misunderstanding of Mexican law asserted by the

United States in its Brief in Opposition. Beyond

amici’s interest in objectively correcting the record in

this case, they are also some of the many members of

the Mexican legal community with grave concerns

about the nature, frequency, and unremedied state of

violence at Mexico’s border with the United States.

Amici urge the Court to consider the consequences of

failing to provide the Hernandez family with a remedy.

SUMMARY OF ARGUMENT

Contrary to suggestions by the United States, a

Mexican court will not be able to provide one of its

citizens a remedy against Agent Mesa. A Mexican

criminal court’s ability to pursue an ordinary criminal,

3

or supplementary civil, action against any individual

who is not present in Mexico would require the

defendant to voluntarily submit to the criminal court’s

jurisdiction. Meanwhile, both state and federal codes

bar a civil court’s jurisdiction to hear a claim against a

defendant domiciled outside Mexico, even when the

injury occurs inside Mexico. Even in the unlikely event

that a Mexican court could maintain jurisdiction,

respect for the United States’ sovereign immunity

would bar any court proceedings in Mexico against

Agent Mesa, as the agent of a foreign state.

ARGUMENT

The first step in analyzing whether this Court

should recognize a private cause of action under Bivens

v. Six Unknown Federal Narcotics Agents, 403 U.S. 388

(1971), is determining “whether any alternative,

existing process for protecting the interest amounts to

a convincing reason for the Judicial Branch to refrain

from providing a new and freestanding remedy in

damages.” Wilkie v. Robbins, 551 U.S. 537, 550 (2007).

While the United States has asserted in this case that

“the Mexican courts have jurisdiction over any tort or

crime arising from a fatal injury in Mexico,” Brief for

the United States in Opposition at 7, Herndndez v.

Mesa, No. 15-118, 2016 WL 806897, this ignores the

fact that Mexican courts lack jurisdiction over the

defendant. Amici submit this brief to provide the Court

with a complete understanding of applicable Mexican

law, specifically as to the definitive limitations that

foreclose relief to the Hernandez family or any

similarly situated plaintiff in Mexico.

As presented in the analysis below, the Hernandez

family has no avenue for recourse against Agent Mesa

4

in Mexico because Mexican criminal and civil courts

lack capacity to proceed against Agent Mesa and, even

if they did have such capacity, Agent Mesa would be

immune from suit in Mexico. Here, as in Bivens, it is

“damages or nothing.” Bivens, 403 U.S. at 410

(Harlan, J., concurring). Indeed, even if an avenue of

relief were available under Mexican law, a remedy

obtained there would be fruitless. Unless Agent Mesa

has property in Mexico against which a Mexican

judgment could be enforced, the Hernandez family

would not be able to enforce their judgment there, nor

would they be able to enforce such a judgment in the

courts of the United States.

I. A Mexican Court Has Authority to Impose a

Remedy for the Unlawful Killing of a Mexican

Citizen by a Foreign Citizen Only to the

Extent that the Foreign Citizen Submits to the

Court’s Jurisdiction

As a general matter, Mexican civil courts hear cases

regarding relations among natural persons, such as

family law, contracts, and damages, whereas Mexican

criminal courts hear cases that arise from violations of

the state or federal penal code. Under ordinary

circumstances, both criminal and civil courts are

competent to hear claims for damages against a

defendant accused of committing a tortious or criminal

act.

Under the Mexican Constitution, a victim of a crime

has a fundamental right to “reparation [for] the

damage suffered.” Political Constitution of the United

Mexican States (Mexican Constitution) Art. 20(c)(iv).

In order to ensure respect for this fundamental right,

federal legislators, “for reasons of procedural economy,

5

allow criminal judges to hear civil liability actions

derived from a criminal act.” However, the instant

case presents a situation where neither a civil nor

criminal court would have authority to hear a claim for

damages.

A. Mexican Federal Criminal Law Precludes

Criminal Proceedings Where a Defendant

is Not Physically Present in Mexico

Article 2 of the Federal Criminal Code of Mexico

specifies that it shall apply to “crimes that are

initiated, prepared or committed abroad, when they

produce or intend to have an effect in Mexico.”

Mexican Federal Criminal Code, Art. 2(i). Article 2 is

the only basis for cross-border criminal jurisdiction

under Mexican law. Because Agent Mesa’s actions

were initiated within Texas, and produced an effect in

Mexico, the Federal Criminal Code applies to the facts

of this case.

Article 4 of the Federal Criminal Code provides

Mexican federal courts with the capacity to hear

actions under Article 2. Specifically, a federal criminal

court’s capacity to hear such a case exists only when all

of the following elements are present: (i) the defendant

is in Mexico; (ii) the defendant has not been definitively

tried in the country where he committed the crime; and

(iii) the alleged infraction constitutes a crime both in

* Responsibilidad Civil. Competencia para Conocer de la Derivada

del Delito, Tribunal Colegiados de Circuito (Federal Circuit Court),

Federal Judicial Weekly Report, Volume XIV, Thesis 2002190.

I.40.C.14 C (10a.), pg. 1932 (2012), http://200.38.163.178/sjfsist/

Documentos/Tesis/2002/2002190. pdf.

6

the country where it was committed and in Mexico.

Mexican Federal! Criminal Code, Art. 4.

Where, as here, a federal criminal court lacks

capacity to hear a case under Article 4(i) because the

defendant is not physically present in Mexico, criminal

proceedings that might otherwise be brought are

suspended until such time as the court can obtain

personal jurisdiction over the defendant. In short, the

Hernandez family will not have any right to seek

redress against Agent Mesa in a Mexican criminal

court as long as he avoids traveling to Mexico.

The United States has denied Mexico’s request for

extradition of Agent Mesa. The analysis presented

here accordingly assumes that Agent Mesa will not

travel to Mexico voluntarily, the only other means by

which he could subject himself to the jurisdiction of

Mexican federal criminal courts. Unless Agent Mesa

travels to Mexico, any criminal proceedings against

him will remain suspended—or may be dismissed in

the interim—meaning that Mexican criminal courts

will lack capacity to render a judgment or grant a

rem.edy to the Hernandez family. Jd. As a result, no

Mexican court has jurisdiction to impose criminal

penalties on Agent Mesa, and the Hernandez family is

unable to pursue related private damages in a Mexican

criminal court.

B. Mexican Civil Courts Do Not Have

Jurisdiction over Agents of Foreign

Sovereigns Who Are Not Domiciled in

Mexico

When, as in the instant case, a criminal court is

unable to grant damages for reasons unrelated to the

7

ultimate liability of the defendant, Article 34 of the

Federal Criminal Code provides that the plaintiff may

under certain circumstances seek damages in civil

court. Mexican Federal Criminal! Code, Art. 34; see

also Mexican Federal Civil Code, Art. 1915 (providing

the basis for a Mexican civil court to grant damages).

Thus, a victim or his survivors may seek damages in

the form of reparations for what the Mexican legal

system describes as “an unlawful act.” Mexican

Federal Civil Code, Art. 1910.* The actions of Agent

Mesa, as alleged in Petitioners’ complaint, clearly rise

to the level of a criminal offense under the Federal

Criminal Code, and would therefore constitute an

unlawful act.

Under the Mexican Constitution, federal courts

have jurisdiction over controversies arising from the

application and enforcement of federal law. Mexican

Constitution, Art. 104(ii). However, when a civil

controversy affects only the interests of private parties,

the Mexican Constitution provides that a plaintiff may

file in either federal or state court. See id. (providing

for concurrent federal and state court jurisdiction).

The “interests of private parties” include claims for

damages resulting from bodily injury or death. Thus,

a civil action could ordinarily be filed in either

Chihuahua state court (the state where Sergio

Hernandez was shot and killed by Agent Mesa) or

Mexican federal court. The Mexican Federal Civil Code

* Mexican Federal Civil Code, Art. 1910 (“Anyone who acts

unlawfully or against good customs and causes harm to another is

obliged to repair the harm, unless it is proven that the damage

occurred as a result of the inexcusable fault or negligence of the

victim.”).

8

and Chihuahua Civil Code are substantively similar for

purposes of this case, and would both preclude

Petitioners from having their day in court on their

claim against Agent Mesa for the reasons set forth

below. See Mexican Federal Civil Code, Art. 1915-16;

Chihuahua Civil Code, Art. 1800—01; Mexican Federal

Code of Civil Procedure, Art. 24(iv); Chihuahua Code of

Civil Procedure, Art. 167(iv).

1. Mexican Civil Law Limits Jurisdiction

to Courts Sitting in the Domicile of the

Defendant

Federal law and Chihuahua state law both require

that claims be filed with a competent authority.

Mexican Federal Code of Civil Procedure, Art. 14;

Chihuahua Code of Civil Procedure, Art. 161. At issue

here is the standard, mandated by state and federal

civil law, for there to be a “competent authority” with

respect to personal private actions seeking damages.

Under both the Federal Code of Civil Procedure and

the Chihuahua Code of Civil Procedure, the “competent

authority” for a claim sounding in personal injury or

wrongful death is the court sitting in the domicile of

the defendant. Mexican Federal Code of Civil

Procedure, Art. 24(iv); Chihuahua Code of Civil

Procedure, Art. 167(iv). That is, only a court sitting in

the defendant’s state of domicile is competent to hear

a civil action for damages.

As a result, Mexican civil courts will inevitably lack

jurisdiction to hear civil claims of the type the

Hernandez family has against defendants domiciled

outside Mexico. See Mexican Federal Code of Civil

Procedure, Art. 24(iv). As Agent Mesa is domiciled

9

outside Mexico, no Mexican civil court has jurisdiction

to hear Petitioners’ claim against him.

In its amicus brief, the Mexican government

correctly states that, “when an illegal act is committed

in one country and has a direct effect in another

country ... both countries have jurisdiction.” Brief of

the Government of the United Mexican States as

Amicus Curiae in Support of the Petitioners at 10,

Hernandez v. Mesa, No. 15-118 (on petition for writ of

certiorari) 2015 WL 5071997. However, it is necessary

to distinguish between a Mexican court’s jurisdiction

and its capacity to proceed, which function for these

purposes similarly to the distinction between subject

matter jurisdiction and personal jurisdiction under

U.S. law. For example, while the Federal Criminal

Code grants jurisdiction to hear cases fitting the

subject matter described in the Code, it also deprives

Mexican courts of capacity to proceed with such cases

when the defendant is not present in Mexico. This

distinction explains why the Mexican government’s

amicus brief, after stating that a Mexican court could

have jurisdiction, also concludes that “if Agent Mesa

avoids travel to Mexico, any effective and enforceable

remedy against him can only come from the U.S.

courts.” Jd. at 11.

2. Mexican Law Provides Immunity to

Agents of Foreign Sovereigns, and that

Immunity Extends to Agent Mesa

A Mexican court is further unable to provide a

remedy to Petitioners in light of the fact that Agent

Mesa, as an agent of a foreign state, would be entitled

to jurisdictional immunity from any civil action brought

in Mexico.

10

In accordance with a widely accepted principle of

public international law, Mexico grants jurisdictional

immunity to foreign sovereigns, thereby depriving its

courts of jurisdiction to sit in judgment of the acts of a

sovereign power.‘ This principle, while not unlimited,

applies broadly in determining what entities and

individuals fall under the umbrella of a foreign

sovereign. Accordingly, when a claim is levied against

a foreign sovereign, an instrumentality of the

sovereign, or an individual acting in his or her official

capacity, the default position of Mexican courts is to

grant immunity.”

At the time of the shooting, Agent Mesa was on duty

and actively serving within the scope of his

employment. Moreover, the United States exercised its

prerogative to substitute itself for Agent Mesa under

the Westfall Act for Petitioners’ non-constitutional

claims against him. On these facts, and in light of the

wide scope given to sovereign immunity principles with

respect to a foreign state’s actors, a Mexican court

would conclude that Agent Mesa had acted within the

* Inmunidad Jurisdiccional Internacional. No Es Prerrogativa

llimitada, Second Chamber of the Mexican Supreme Court of

Justice of the Nation, Federal Judicial Weekly Report, IV

Administrativa Primera Parte, Jurisprudence 1007037, pg. 141

(2011), http://sjf.scjn.gob.mx/sjfsist/Documentos/Tesis/1007/

1007037. pdf.

° See Case No. 17498, Amparo en Revisién 348/2001, Second

Chamber of the Mexican Supreme Court of Justice of the Nation,

Federal Judicial Weekly Report, Volume XVII, pg. 55—57 (2003)

(citing Loretta Ortiz Ahlf, Mexican Practice in Immunity, in

Derecho Internacional Publico § 7.4, pg. 129 (Harla 2d ed. 1993)),

http://sjf.scjn.gob.mx/sjfsist/ Documentos/Ejecutorias/17498. pdf.

11

scope of his official capacity. Accordingly, a Mexican

court would be obliged to immunize Agent Mesa from

independent private-actor liability in light of his status

as an agent of a foreign state.

Il. Even Assuming Petitioners Could Obtain a

Judgment from a Mexican Court, a Texas

Court Would Not Enforce the Judgment

Against Agent Mesa

Even if Petitioners were to obtain an adequate

judgment in Mexico, it is unlikely that such a judgment

would provide an enforceable remedy. Presumably,

Agent Mesa does not hold property in Mexico that could

be used to satisfy a Mexican judgment. Accordingly,

Petitioners would need to resort to the judgment

recognition and enforcement mechanisms available

under the relevant U.S. state law, presumably Texas,

where Agent Mesa resides. While amici do not purport

to speak to the full contours of U.S. state and federal

law, they address below two aspects of Texas law as to

which the application of Mexican law is particularly

relevant.

Any proceeding to enforce a Mexican judgment,

whether in state or federal court, would be governed by

Texas law.° Once a judgment creditor has filed a

foreign country judgment that is, on its face, “final and

conclusive and enforceable where rendered,”

enforcement is governed by Texas’s implementation of

* 28 U.S.C. § 1442(a)(1) provides federal officials with a right of

removal to federal court. With respect to choice-of-law principles,

a federal court sits in diversity where jurisdiction is derived from

§ 1442(a)(1). See Winters v. Diamond Shamrock Chem. Co., 941 F.

Supp. 617,620 (E.D. Tex. 1996), affd, 149 F.3d 387 (5th Cir. 1998).

12

the Uniform Foreign Country Money-Judgments

Recognition Act. Tex. Civ. Prac. & Rem. Code Ann.

§§ 36.002, 36.001—008 (West 2012) [hereinafter Texas

Recognition Act]. Although defendants bear the burden

of demonstrating why such a judgment should not be

enforced, the Texas Recognition Act offers ten grounds

for non-recognition that, if present, preclude or

otherwise counsel against enforcement of a foreign

court’s judgment in Texas. Texas Recognition Act

§ 36.005.

A number of these enumerated grounds would apply

in this context, rendering the prospect of enforcement

of a Mexican judgment against Agent Mesa in Texas

simply implausible. The following describes those

issues where Mexican law and practice bear particular

relevance.

First, it is well-established that the absence of a

foreign court’s personal jurisdiction over the judgment

debtor renders any resulting judgment void, and

precludes a state or federal court from enforcing it.

Restatement (Third) of Foreign Relations Law of the

United States § 482(1)(b) (1987). As described above,

Mexican law provides no reasonable basis for either a

Mexican criminal or civil court to assert jurisdiction

over Agent Mesa with respect to damages claims. Even

if a court were to find grounds to exercise jurisdiction,

a Texas court hearing a claim for enforcement may

“scrutinize the basis for asserting jurisdiction . . . on its

merits.” Restatement (Third) of Foreign Relations Law

of the United States § 482 cmt. c (1987).

The Texas Recognition Act also provides that a

court hearing an enforcement claim has discretion to

decline to enforce a foreign country judgment if the

13

underlying cause of action is repugnant to Texas public

policy. Texas Recognition Act § 36.005; see also

Southwest Livestock & Trucking Co., Inc. v. Ramon,

169 F.3d 317, 321 (5th Cir. 1999) (considering whether

Mexican usury laws are repugnant to Texas public

policy). Mexican courts will treat claims against U.S.

government agents acting in their official capacities as

void for lack of jurisdiction. See supra Part I.

Accordingly, an action brought under Mexican law, and

enforced in a U.S. court against that same federal

official, would seem to run afoul of the United States’

sovereign immunity. Unless it were within the scope of

Texas public policy to enforce the judgments of foreign

nations against U.S. federal agents acting in their

official capacities, then enforcement of any judgment

Petitioners could obtain would almost certainly violate

Texas public policy.

CONCLUSION

Mexican law provides victims of cross-border

violence no avenue for relief in Mexican courts against

defendants like Agent Mesa. Defendants such as Agent

Mesa, who are neither present nor domiciled in Mexico,

are not subject to the jurisdiction of Mexican courts.

Furthermore, officers of the United States acting in

their official capacity are immune from suit in Mexican

courts. For these reasons, the Hernandez family has

no remedy against Agent Mesa in the courts of Mexico.

14

Respectfully submitted,

CARMINE D. BOCCUZZI, JR.

Counsel of Record

HOWARD S. ZELBO

WILLIAM R. THOMAS

DAVID I. FEINSTEIN

CLEARY GOTTLIEB STEEN

& HAMILTON LLP

One Liberty Plaza

New York, NY 10006

212-225-2000

cboccuzzi@cgsh.com

Counsel for Amici Curiae