Supreme Court

The Supreme Court Case That Could Change Immigrant Representation in U.S. Courts

Nine years after his shooting death on the border, the family of Sergio Adrian Hernandez Guereca may finally get a chance to hold the border agent accountable.

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The U.S. Supreme Court has agreed to hear the case of a Mexican family suing a U.S. Border Patrol agent who shot and killed the family's teenage son from the U.S. side of the border. The decision could set a precedent for the way foreign nationals are represented in American courts.

CNN reported in June 2010 that Jesus Mesa Jr. responded to reports of human smuggling near the Paso del Norte port of entry, which separates El Paso, Texas, and Ciudad Juarez, Mexico. He approached a small group of Mexican nationals, which included Sergio Adrian Hernandez Guereca, on a bicycle in a culvert on the border. Mesa dismounted his bicycle to detain members of the group. After dragging one of those individuals on the American side of the border, he pointed his gun toward another person on the Mexican side and fired.

FBI Special Agent Andrea Simmons later claimed that Mesa gave verbal commands to stop and retreat. She said that he didn't fire until he was surrounded and being hit with rocks.

Cell phone video from the incident challenges Simmons' claims of Mesa being surrounded.

Shortly after the incident, Customs and Border Protection (CBP) spokesperson Mark Qualia said that Hernandez Guereca had gotten into trouble with CBP before for being involved with smuggling, but was never charged. The lawyer representing Hernandez Guereca's family later said that American officials explained that Hernandez Guereca was not among those throwing rocks. The family also argued that he was playing a game with his friends to try to touch a fence on the American side of the border.

Mexican officials accused Mesa of using disproportionate force and charged him with murder.

The Mexican government submitted a brief in 2015, saying that the United States has a duty to hold Mesa accountable for his actions. The Mexican government also documented 51 shooting deaths involving border patrol agents and Mexican nationals, from 2005 to 2015, to argue that these occurrences are not rare.

The Obama administration, which chose not to extradite Mesa, asked the Supreme Court in 2016 to deny an appeal in the case. The administration wrote in a brief that Hernandez Guereca was not covered by the Fourth Amendment protections against unreasonable searches and seizures because he was a Mexican national with no connection to the United States.

The Supreme Court decided to send the case back to an appeals court in 2017 for another review. The appeals court previously decided that the shooting violated Hernandez Guereca's Fifth Amendment rights, but that he did not have any Fourth Amendment rights, which would have given leverage to challenge the qualified immunity granted to Mesa. The opinion stated that the lower court made an error by granting Mesa qualified immunity on the basis of Hernandez Guereca being a foreign national since Mesa had no way of knowing Hernandez Guereca's nationality at the time of the shooting. The Supreme Court also challenged the lower court to reassess the arguments in light of another case, Ziglar v. Abbasi, involving the qualified immunity of government officials.

The Hernandez Guereca case was eventually dismissed in the lower court.

The Supreme Court accepted the case again on Tuesday. It will explore whether the family of Hernandez Guereca has a legal right to sue Mesa for damages in violation of constitutional rights.

The outcome of the case could set an important precedent for foreign nationals seeking representation in American courts. Depending on the outcome of the case and language used by the court, it is possible that international targets of internet surveillance could also be represented in court. The decision could also extend to civilian victims of drone strikes overseas.

Just last year, a Border Patrol agent was acquitted after fatally shooting a Mexican teenager several times in the back through the border fence in 2012. The Supreme Court's decision in Hernandez Guereca's case will also determine if the family of the 2012 victim will be able to pursue a claim against the border agent.

Related: An agent who harbored strong feelings against immigrants is currently on trial for hitting a Guatemalan migrant with his work vehicle. He's charged with, among other things, depriving the migrant of his freedom "from the use of excessive force" while acting under the color of the law.

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  1. Where is Tommy Lee Jones when you need him?

      1. Is he also trying to import child rapists like you want to?

        1. Oh look, Tulpa the liar is on parole and bored again.

          1. #neverforgetjeffwantstoimportpeoplewhorapechildren

            1. Prove it.

              1. #neverforgetjeffwantstoimportpeoplewhorapechildren

                1. There we go. You can’t prove it, you don’t want to prove it, all you want to do is to threadjack, provoke reactions, make the entire discussion all about you, because you are an extreme narcissist who doesn’t give a shit about anything or anyone else except yourself. That includes other people who might actually agree with you on some things. You’ll make their lives miserable too if it means satisfying your narcissistic personality disorder.

                  You don’t use words to express ideas. You use words only to further your extreme narcissism. Well go find someone else to vomit your mental illness on.

                  1. #neverforgetjeffwantstoimportpeoplewhorapechildrenandknowsthethreadgotnukedintheredesignsoheispretendingheneversaidit

                    1. That’s another lie. The archives are all still there. Go find it if you can. You can’t because you don’t want to.

                    2. #neverforgetjeffwantstoimportpeoplewhorapechildrenandknowsthethreadgotnukedintheredesignsoheispretendingheneversaidit

                  2. #noticeinthatlongasswallotextheneverdeniesit

                    1. I never once claimed that I wanted to import child rapists. There.

                      Now, prove that I did, if you can.

                    2. #lolnowhediniesiteventhoughweallsawit

                    3. Pedo Jeffy, lots of us saw it. So just stop. You want illegals here, even if it means child rapists. That makes you a booster of kiddie rapers

                      You sick piece of shit.

                  3. #thisdiscussionisaoputyoudumbassyouretheonewritingwallsotextmakingitaboutmePROJECTION

                    1. This discussion commenced when you felt bored and wanted to stir up some shit because your narcissism needed to be fed some more.

                    2. #writeswallotextaboutmethencriesiammakingitaboutmebecausehewantstoimportpeoplewhorapechildren

                    3. Actually we just want you and your kiddie raping ways gone.

              2. You support granting asylum to child rapists. Have you now rejected that position? And if so why?

  2. “It’s simple. If Mexicans don’t want to be shot By US Immigration Officers then they shouldn’t be standing on the Mexican side of the border!” –Trumpaloopa

    1. Or they could not throw rocks at men armed with guns who may shoot them in response.

      1. Words to live by!

    2. The video clearly shows that they were running back and forth between the US and Mexico sides of the border.

  3. If you think courts are seriously backed up now, just wait until you give everyone in South American license to sue American law enforcement. I’m not saying border patrol are angels, they are not. But deciding that foreign nationals can use our court system against law enforcement confers some interesting rights on people that don’t fall within our legal system.

    If the Supreme Court was serious, you’d think they would simply extradite the agent.

  4. I think I’m missing something – how does this case change immigrant representation in US courts? If I’m reading the article correctly, it would dramatically change foreign citizen representation. Nobody involved in the case was an immigrant (legal or illegal).

  5. Throwing rocks at someone armed with a gun falls pretty squarely in the “play stupid games, win stupid prizes” category. I have no sympathy for anyone who does anything that stupid and if the Mexican government is worried that our border patrol agents will shoot at people who throw rocks at them, they should stop their people from throwing rocks at our border patrol agents.

    1. You can die form a direct hit to the head from a good sized rock. Its why stoning people is a death sentence in some nations.

      Border patrol agents should have helmets to protect against rocks. Its hot as fuck at the US-Mexican border, so many agents probably would not wear the helmets.

  6. I don’t normally comment outside the Volokh Conspiracy. But the author of this article got a critical fact completely wrong. The Supreme Court did not hold that the conduct at issue violated the 5th Amendment. Rather, it sidestepped the issue, asking the Court of Appeals to determined if a remedy was available. It reasoned that if there was no remedy, there would be no reason to have to provide an opinion on the constitutional questions.

  7. In the 2017 decision, the government had argued that the case wasn’t cognizable under the 5th amendment. The Supreme Court declined to reach the question. It clearly avoided it, leaving it for the Court of Appeals to decide.

    https://scholar.google.com/scholar_case?case=16781508590693719098

  8. I dont think non-citizens should have any rights at all, and that breaking into the country should carry the death penalty anyway. So open season!

  9. What total CRAP!

  10. She said that he didn’t fire until he was surrounded and being hit with rocks.

    He was surrounded and the video does not clearly show rocks being thrown. He was ‘surrounded’ by 2-4 people at distances of less than 30 feet.

    These gung-ho cops rush into situations without thinking and without backup.

    Its probably criminal excessive force and he should get a jury trial if it is deemed so. Non-Americans should have standing in US Courts if they are harmed by agents of the American government on the border. Americans should also have standing in US and Mexican courts when non-Americans harm Americans outside of US territory. Its a two-way street.

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