Mexicans Shot by BP Given Hope for Justice | News | HMG LLP

Mexicans Shot on Own Soil by Border Patrol Given Hope in Legal Quest for Justice

August 31, 2017

Source: Telesur by Andrew Kennis

Over the last four years, a half dozen Mexican families have suffered the loss of one of their family members as a result of Border Patrol shootings. All of the fatalities were of unarmed men, were Mexican and in Mexican territory. The Supreme Court will likely decide the fate of legal efforts to hold the CBP legally accountable for these killings.

Border wall

[A woman walks near the border fence between Mexico and the United States in Nogales, as a U.S. border patrol vehicle is parked on the U.S. side of the border (Reuters)]

El Paso, Texas: A slender 15-year-old boy who loved soccer and aspired to be a police officer, was shot through his left eye with the bullet entering his brain causing cardiac arrest and his eventual death. A 37-year-old long-time construction worker, who was in the midst of a family picnic and birthday celebration, bled to death from gunshot wounds while being held in his 10-year-old daughter's arms. A 16-year-old taking an evening walk to pick up a hot dog at a local food stand succumbed to an unexpected death after being shot at least 10 times. A man collecting firewood stared down a large rifle across a river with a scope pointed at him, while his 30-year-old brother bled profusely from a gunshot wound. While taking cover alongside his dying brother, he realized that there was no one he could appeal to help him, and shouted directly toward the Border Patrol agent holding the rifle pointed at him, only to hear the agent yell back, “Let the dog die.â€

The common links between all of these deaths is that they occurred on Mexican soil, the victims were all Mexican nationals, all were unarmed and according to background checks, only one of the victims even had a criminal record. The shooters were all Border Patrol agents who fired their weapons from the U.S. side of the border either from CBP river boats, through steal-beamed border fences or even from patrol bicycles. At least a half a dozen of these CBP perpetuated, cross-border killings have occurred during a bloody four-year span dating back to 2010.

CBP killings of civilians on either side of the border were virtually unheard of before the post 9-11 era. However, since that time, a steep increase in such shooting fatalities has occurred, resulting in 40 deaths on the U.S. side of the border, 15 of which have been U.S. citizens. Among these incidents we can count several unarmed people who were beaten to death, a Mexican citizen who was ordered to drink a highly concentrated liquid methamphetamine which killed him, and other civilians who were shot, pepper-sprayed or shocked with stun guns. A previous investigation by teleSUR revealed a sharp air of impunity and corruption throughout the CBP, as based on hundreds of pages of legal documents, numerous interviews with border patrol agents and supervisors, civil rights attorneys, family members of CBP shooting victims and immigration rights activists.

Considering that all of the CBP victims killed in Mexico since 2010 were Mexican nationals and not U.S. citizens, an ongoing legal quandary has been fought out in the courts. The outcome is one that lawyers are expecting to be decided by nothing less than the Supreme Court. The legal debacle boils down to whether non-U.S. citizens are entitled to constitutional rights which would afford them legal protections from the kind of harrowing fatal shootings that have become strikingly more common along the increasingly militarized U.S.-Mexico border.

Several years ago, the stroke of a district court judge's pen caused the families of the fatally shot victims to all but end their aspirations to realize any kind of legal justice. A key civil suit filed on behalf of the family Sergio Adrian Hernandez Guereca, the 15-year-old who was fatally shot through the eye in Ciudad Juarez, was dismissed. Even though the decision had already admitted that an “excessive use of force†was at stake in the “wrongful taking of life,†the judge deferred to the reasoning that since, “the victim was not a U.S. citizen and incurred the injury in Mexico,†the case had to be dismissed.

Much to the surprise of the Mexican families of the victims, matters were drastically changed in June. A three judge panel of the 5th Federal Circuit Court of Appeals partially reversed the district court's ruling on the Hernandez Guereca case. The ruling stated that, “If ever a case could be said to present an official abuse of power so arbitrary as to shock the conscience, the Appellants have alleged it here.â€

The recent decision, in effect, gave the right for the family of Sergio to sue the government for wrongful death. Suddenly and unexpectedly, new life was breathed into the families' aspirations for justice.

When asked about the new legal possibilities, Araceli Rodriguez Salazar sighed, reflected for a moment, and speculated that, “Maybe, just maybe because of the death of my son, all of this mess will change. I don't want any other parents to suffer in the manner in which I have.â€

Rodriguez is the mother of Jose Antonio Elena Rodriguez, the 16-year-old who was shot unarmed no less than 10 times by an agent in Nogales who had unloaded 12 rounds of his .40 caliber firearm. The two-year anniversary of his death came just earlier this month.

Mexican Families of Shooting Victims dub CBP “Racist,†“Poorly Trainedâ€

At the time of his death, Sergio was living with his mother and siblings in a cinder block home in the periphery of Ciudad Juarez. He was the youngest of three other siblings, including a brother and several sisters.

Nowadays, Maria Guadalupe Guereca Bentancourt, Sergio's mother, lives in a still modest home closer to the border, not far away from where her son was tragically shot and killed while watching children play in the dried-up concrete river area between the Mexican and U.S. border near downtown Juarez.

“Sergio's killer must have been a racist,†Guereca told teleSUR with a tone of voice rife with anger and disgust. Like many other family members of CBP victims, Guereca's grieving for her late son has long turned into indignation.

“How could he have not known that he was a child? He had to have been a racist. He didn't even have a weapon on him. He had his hands clean. Why did he do it? He must have been sick and racist. I don't have any other explanation,†Guereca said.

Other families of fatally shot cross-border victims, concurred. “I think they must be racists, or that they're sick in the head,†Rodriguez told teleSUR, in the wake of the two-year anniversary of her teenage son's death. Rodriguez added, “I believe that for this position, you need preparation, education and psychological capacities. But instead, this agency is full of murderers. How many Mexicans have they murdered? And how many have been prosecuted?â€

A previous investigation by teleSUR unearthed a pattern of inadequate training and significantly scaled-down screening practices for hiring as partially responsible for both cross-border shootings, as well as a number of civilian deaths at the hands of the CBP inside U.S. territory. The scaled-down hiring practices and recruitment occurred during a number of hiring drives to add on some 8,000 new CBP personnel to keep up with funding level raises to further militarize the border.

Currently, Guereca finds herself unemployed and tells teleSUR that she has not received any support from local officials or even community organizations. Meanwhile, Guereca routinely finds herself correcting rumors that she won a sizable cash award from her and other families' ongoing legal efforts.

Guereca's situation is similar to a number of the other border-based Mexican families who have also lost a family member to the CBP. “Most of the families are humble and are also dealing with the realities of living in impoverished border towns,†explained Oscar Huerta, the co-founder of Angel Paisanos, a community organization that helps immigrant families cope with abuses.

Adding salt to the families' wounds, news reports have revealed harassment of some of the families of the cross-border victims. Threats have been lobbied from local gangs attempting to extort money from families who are falsely perceived as having won large cash pay outs from non-existent court settlements. In fact, however, none of the families have garnered a settlement with the government as a result of their ongoing legal efforts.

“Rockersâ€

Rock-throwing is the most common defense of Border Patrol agents for the over three dozen civilian killings that have occurred over the last decade. “Rockers,†as agents call them, have not only been an issue along the Mexican-U.S. border, but also in other areas abroad. The difference is that the other areas are rife with international conflict and military occupation, such is the case in Israel and Palestine, or in Egypt.

In these areas, as opposed to the border, U.S. officials have condemned the use of fatal force against “rockers.†In one instance, Secretary of State Hillary Clinton criticized fatal force being used against stone-throwing protesters by the long-time U.S. supported Hosni Mubarak regime shortly before its demise. At the international level, condemnations against fatal force being used against rock-throwers has been issued by past U.N. Commissioners of Human Rights, and civil rights groups such as the American Civil Liberties Union. Even the U.S. State Department has condemned fatal force against rock-throwers.

To date, however, the CBP has not backed down from any agent's incident reports, some of which have been roundly proven as being false from video footage and by eye-witnesses. This notwithstanding, the “rockers†justification flies in the face of both prior bi-national agreements between the U.S. and Mexico, as well as the CBP's own internal policies, which were recently revealed under pressure.

“I don't understand how they can kill children, without giving any time for them to run,†Rodriguez, the mother of Jose Antonio in Nogales, lamented.

Rodriguez's comment “without giving any time for them to run†actually has a basis steeped on internal CBP rules and regulations, which normally are secret, but have been obtained under pressure through Freedom of Information Act requests and leaks to the press. In several instances, CBP “Use-of-Force†manuals and guidelines have been shown to prohibit shootings across the border without a clear verbal warnings being given to anyone within ear's shot of an agent. In none of the six cases, however, were such warnings ever given or permission from Mexican authorities granted.

As one would expect for two allied nations which share a border, an agreement with Mexican law enforcement is in place which requires notice to be given by U.S. Border Patrol agents about any suspicious or troubling incident on the Mexican side of the border. The firing of weapons into Mexican territory is strictly prohibited by the agreement, without any exceptions.

At this point, even former CBP officials have spoken out against the rock-throwing defense. “I don't think [agents] should be shooting people when they're chucking a rock across the border,†Robert Timmel told the Los Angeles Times. Timmel was a deputy Internal Affairs official who served under James Tomsheck, the former Internal Affairs director of the CBP. Tomsheck was forced into a demotion after efforts against CBP impunity and corruption were largely derailed, according to a far-reaching and unauthorized interview Tomsheck gave this past August to the Center for Investigative Reporting.

James Wong, another one of Tomsheck's deputies, told the Arizona Republic, “Border Patrol agents would say, 'They were throwing rocks.' I'd say, 'Why didn't you back up?' They'd say, 'You've never been an agent; you don't know what being rocked is like.' But the physical requirement of running in one direction and throwing hard enough behind you to cause physical injury... confused me [and] was disturbing.â€

Legal Efforts Bound for Supreme Court

Guillermo Arevalo Pedroza was “a happy person, a playful father and a family man. He liked to play and watch soccer,†Nora Isabel Lam told teleSUR, describing her late husband who was killed by the CBP while at a birthday picnic with his two daughters. The older of his two daughters, Priscila, aged 10 at the time of his death, held her bleeding father in her arms before he succumbed to gunshot wounds.

“Nobody expected it and I never thought they were going to kill my husband,†the soft-spoken Isabel told teleSUR. “I am not sure if the case will be treated, simply pray that good news will come out of this case.â€

Arevalo is one of Bob Hilliard's three clients, as he represents half of the six families whose members were victims of CBP cross-border killings. Hilliard has never argued a case in front of the Supreme Court of the United States. However, if the full weight of the government and its legal efforts challenging the recent victory of the Hernandez Guereca case fail, the hopes of a half dozen Mexican families will likely ride on Hilliard's debut Supreme Court case.

Hilliard told teleSUR that he feels “comfortable and confident†if the case went to the Supreme Court, which he predicted would very likely happen. Colleagues commended his court-room abilities, saying that Hilliard has been known to “bring courtrooms to tears.†The Supreme Court, however, is a “different beast,†the colleague admitted, and the power of the forces Hilliard will be taking on are far from insignificant.

The defendants undertaking the legal appeal to the recent June victory of the Hernandez Guereca case reflect just what kind of forces Hilliard will be up against. The appeal is being waged by not only the lawyers for Jesus Mesa Jr., the agent who shot the 16-year-old to death, but by a wide swath of powerful and federal-level governmental agencies, which include the Customs and Border Patrol itself, the Department of Homeland Security under which the CBP is housed, the Department of Justice, and the Immigration and Customs Enforcement.

The appeal against the June decision by the three federal level judge panel to have the landmark civil case re-heard by the full court and its fifteen judges, called En Banc in legalese terminology, is a rare legal move. Such appeals are only granted in less than 1 percent of cases petitioned on this basis, but given which institutions the defendants are representing, what is normally a one-day response period has turned into a month-long delay.

“They can rule today or they can rule tomorrow,†said Hilliard, whose legal associates estimate another six months before the Supreme Court could agree to consider the case. Given the weight the government has already put into the case, even if the full 5th Circuit Court turns down the re-hearing request, as is expected by Hilliard, there is little doubt that it will then appeal to the Supreme Court.

Will the Supreme Court agree to hear the case? Less than 10 percent of cases brought to the court are even heard and considered by the selective and busy court. But if the court did turn down a probable governmental appeal, it would still be a victory of sorts to Hilliard and his clients, considering that the most recent ruling is largely in their favor. The chances of this happening, according to Hilliard and his colleagues, are quite low, as all agreed that a Supreme Court case is virtually imminent.

Hilliard is representing half of the six Mexican families afflicted by fatal cross-border Border Patrol agent shootings, including the families of Sergio Adrian Hernandez Guereca, Jose Alfredo Yanez Reyes and Guillermo Arevalo Pedroza. But Luis Parra, a Nogales and Tuscon, Arizona-based lawyer, is representing the family of another one of the teenagers killed by the CBP, that of Jose Antonio Elena Rodriguez, who was only 16 years old when he was killed. The teenager was shot at least 10 times by an agent on the U.S. side of the border while taking a night-time stroll down International Avenue in Nogales, Mexico, just over two years ago.

Luis Parra's voice beams with optimism during his daily trek from Nogales to Tuscon. “Just one moment,†Parra says to me in a cell phone interview during his commute, as he stopped at one of the immigration checkpoints that are common in the southwest United States. “Yes, I am a United States citizen, sir,†he tells a Border Patrol agent.

The fact that the client that Parra represents, in a key and parallel case to the Hernandez Guereca lawsuit, is not a United States citizen, is not relevant to the greater implications at stake, the lawyer argued to teleSUR.

“There was a boy who was shot with 10 bullets in his own country and he was not committing any crimes. What gives them the right to spray 10 bullets in a boy in his own country?†Parra's said, with his voice turning from optimism to disdain.

Hilliard, like Parra, is confident about the chances of his case. He feels that the Supreme Court will come to see that “you can’t have a free killing zone or a place where law enforcement agents are allowed to shoot and murder innocent Mexican nationals without civil recourse.†As for rock-throwing defenses, Hilliard dubbed that as a mere “red herring†which he felt would also be deemed as such by upcoming legal rulings.

Parra and Hilliard are more optimistic than the families they represent. But the previously diminished hopes of the families of Mexican victims, as well as their present-day guarded optimism following this past summer's ruling and legal reversal, are not without reason. After all, their legal efforts have been going up against a law-enforcement agency that has been roundly criticized by human and civil rights groups as being fundamentally tinged with impunity. The impunity, according to advocates, has been steeped on a lack of judicial oversight.

“It is the largest law enforcement agency in the country, but [the CBP] doesn't nearly have the commensurate oversight and accountability it needs,†Chris Rickerd, a staff attorney of the American Civil Liberties Union who has long been monitoring Border Patrol impunity, told teleSUR.

Others, such as Ricardo Favela, the Communications Director for the Southern Border Communities Coalition, went farther with their criticisms of the CBP, “From the top to the bottom, the entire agency is out of control,†Favela told teleSUR, explaining that the agency was not accountable to the legal system or to elected officials, much less to the public itself.

Huerta, of Angeles Paisanos, did not mince words when describing the CBP, which he considered, “to be crossing the line between protecting the U.S. border and moving into abusing and killing Mexicans, or what some agents wrongly perceive as enemies, as if they were at war or in combat.†If Canada was the legal case in question, as opposed to Mexico, Huerta added, “they would have a totally different criteria and type of engagement and behavior.â€

Mark Morgan, the newly appointed Internal Affairs director, admitted just last month of being unaware of any agents who had ever been punished, much less prosecuted, for any of the fatal shootings, cross-border or otherwise. Whether such comments like that will change or not will largely depend on a case that the Supreme Court will likely consider and decide upon. Whatever legal decision is reached will surely have significant and far-reaching implications for families on both sides of the border far into the future.

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