Accountability at the U.S.-Mexico Border: How Far Do Rights Extend?

Guest post by Lynn Ta, an attorney and affiliated scholar with the Security and Political Economy Lab at the University of Southern California. Lynn served as a judicial law clerk on the U.S. Court of Appeals for the Ninth Circuit and was an attorney fellow at the American Civil Liberties Union of San Diego and Imperial Counties. While at UC Berkeley School of Law, Lynn was part of the litigation team that drafted a successful appeal on behalf of genocide survivors at the Extraordinary Chambers in the Courts of Cambodia, a hybrid United Nations war crimes tribunal. Lynn holds a Ph.D. from the University of California, San Diego, and a J.D. from UC Berkeley School of Law. She currently works as an attorney for the National Labor Relations Board.

On June 7, 2010, fifteen-year-old Sergio Hernandez, a Mexican national, and his friends were playing in a cement culvert that separates Ciudad Juarez, Mexico from El Paso, Texas in the United States. The boys amused themselves with a game: they would run up to the U.S. barbed wire fence that separated Mexico from the U.S., touch it, and then run away from the fence. While they played, Jesus Mesa, a U.S. federal border patrol agent, appeared on his bicycle and detained one of the boys. Observing this incident, Hernandez retreated beneath a pillar. Standing on the U.S. side, Mesa then aimed his gun across the border and fired at least twice; one of the shots hit Hernandez in the face. Hernandez was pronounced dead by Mexican police shortly thereafter.

Hernandez’s parents sued Mesa for civil penalties, arguing that Mesa violated Hernandez's rights under the U.S. Constitution. The case moved through the federal court system for several years until it made its way to the U.S. Supreme Court. In June 2017, the Supreme Court sent the case back down to a lower appeals court without making a clear decision on the merits.

The critical question in this case, which the Supreme Court chose not to answer, is: did Hernandez, a Mexican national standing a mere 60 feet south of the border when he was killed by an agent of the U.S. government, have any rights that were protected by the U.S. Constitution? For the lower appeals court, the answer was no. It previously decided, en banc, that ‘Hernandez, a Mexican citizen . . . who was on Mexican soil at the time he was shot, cannot assert a claim.

But all is not lost: the Supreme Court has also handed down decisions that reject the status-or-presence logic. In 2008, the Supreme Court in Boumediene v. Bush extended the constitutional right of habeas corpus to non-citizens outside of U.S. territory, declaring that foreign inmates held at Guantanamo Bay in Cuba could challenge their detention in federal court.  In reaching its decision, the Supreme Court did not rely on a single factor­­­—either the citizenship of the litigant or the location of the offense­—to ultimately grant rights to the Guantanamo detainees.  The Supreme Court held that the U.S. exercised sufficient control over the naval base at Guantanamo to give rise to habeas corpus rights. Rather than looking simply at de jure, or by law, sovereignty (in this case, Cuba­—and not the U.S.­—retains de jure control of Guantanamo), the Court saw it necessary to move beyond technical considerations of sovereignty, and instead ‘inquire into the objective degree of control the [U.S.] asserts over foreign territory.’   

When an armed federal border patrol agent detains a small group of Mexican kids, there is no doubt who has the objective degree of control. This framework of control is a better alternative to the status-or-presence model, and at the very least, should be a critical component of any judicial analysis dealing with extraterritorial violations of foreign nationals at the hands of the government. If an agent acts under the color of U.S. law to exert control over private citizens, then this control should be sufficient to trigger constitutional protection, regardless of nationality or territory. After all, for all of the law’s pronouncements about the significance of territoriality, the U.S. has repeatedly disregarded the jurisdictional integrity of national borders. Mesa’s attorney, in rhetorically questioning the reach of the U.S. Constitution, raised the specter of U.S. drone attacks abroad, suggesting that a ruling in favor of Hernandez would mean that foreign civilians could sue over a drone attack. But this suggestion is hardly as absurd as he attempts to make it out to be. Legal scholars have discussed the use of an ‘effective control’ model to constrain state action in extraterritorial contexts, including in the context of drone strikes. Through the lens of a control paradigm, it is clear that Mesa controlled the circumstances when he detained Hernandez, and thus, U.S. constitutional rights should have attached immediately.  

The Supreme Court sent Hernandez’s case back to the lower appeals court to re-decide the issues in consideration of the Supreme Court’s recent ruling in Ziglar v. Abbasi. This decision held that a group of non-citizen Muslim men could not assert claims against the federal agents who, knowing that the men did not have terrorist connections, nonetheless detained them in harsh conditions after the 9/11 attacks. If Hernandez’s case is to be determined in light of Abbasi, there is little hope for recourse. Hernandez’s case pushed, quite literally, the borders of individual rights, only to find that justice fell short. By 60 feet.

Note: The views expressed in this article are the author's views alone and not those of the National Labor Relations Board or the United States Government.

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How to cite this blog post (Harvard style)

Ta, L. (2017) Accountability at the U.S.-Mexico Border: How Far Do Rights Extend?. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/10/accountability-us (Accessed [date]).