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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0600%3A28

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

LED

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0600%3A28. Public record. Not legal advice.