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.

Relatives of Sergio Hernández sit in Ciudad Juarez at the U.S.-Mexico border, on the second anniversary of his killing in 2012 (Photo: Jesus Alcazar/AFP/Getty Images)

http://www.npr.org/2017/02/21/515625917/supreme-court-to-decide-if-mexican-nationals-may-sue-for-border-shooting

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 [of excessive use of force] under the Fourth Amendment [of the U.S. Constitution].’ In denying rights to Hernandez, the lower appeals court subscribed to a status-or-presence rubric that would not protect Hernandez unless he was either a U.S. citizen (status) or present within its borders (presence).

This narrow approach, however, fails to acknowledge the border for what it actually is: a legal fiction. Rather than just a physical boundary, the border is better understood as a containment of legal rights, the violations of which result in some degree of accountability. Inversely, the border is also a containment of sovereignty, a delineation of where a particular state’s control begins and ends. What Hernandez’s case reveals is that U.S. law has constructed individual rights around notions of nationality or territoriality, without fully acknowledging or accommodating the need for justice and accountability in situations of ambiguous sovereignty that do not neatly fit a status-or-presence model.

It is undisputed that Hernandez’s death was an utter tragedy that demands accountability. But to obtain this justice, we need to expand our limited conceptualization of the border as a technical, physical demarcation, and instead look to the ways in which state power exerts control over individuals and spaces. If we can do this, we stand to eliminate legal black holes where basic human rights do not exist.

Historically, U.S. law and policy have looked to nationality in applying the Constitution extraterritorially. In what I call the ‘stretchable border,’ U.S. law has conferred constitutional rights well beyond its physical boundaries. For example, in 1957, the Supreme Court extended rights to U.S. citizens overseas, ruling that the wives of American servicemen stationed abroad were entitled to a jury trial after military tribunals found them guilty of murdering their husbands. Their status as U.S. citizens flexed the protections of the border well into England and Japan, where the women were initially tried. Thus, had Hernandez been a U.S. citizen, his rights could have been vindicated.

The U.S. has also looked to territoriality in applying the Constitution. As early as 1896, the Supreme Court granted certain constitutional protections to non-citizens, finding that these provisions were ‘universal in their application to all persons within the territorial jurisdiction.’ In 1982, the Supreme Court extended constitutional rights to non-citizens within U.S. borders, holding that undocumented non-citizen children are protected by the Equal Protection Clause of the Constitution.

This is not say, however, that the U.S. privileges presence to the degree that all persons within its territorial boundaries enjoy the full benefits of membership. Non-citizens in the U.S., for example, cannot vote and undocumented non-citizens do not receive the complete protections of U.S. labor laws because they cannot be formally employed. In this vein, Linda Bosniak has advocated for the concept of ‘ethical territoriality,’ the position that rights and recognition should extend to all persons who are territorially present within the geographical space of a national state by virtue of that presence. But Bosniak recognizes the shortfalls of territoriality, pointing out that even ethical territorialism is necessarily exclusionary because it ‘invariably presuppose[s] the existence of borders around the territory in question.’                             

This exclusion from the protection of the border was felt acutely by Hernandez, who was killed outside of the status-or-presence paradigm. By this paradigm, those with the most limited constitutional protection are non-citizens suffering violations at the hands of the U.S. government in non-U.S. territory. Such was the case in 1990, when the Supreme Court declined to extend the Fourth Amendment’s right to reasonable searches and seizures to a Mexican citizen, whose home in Mexico had been searched by U.S. federal agents without a warrant. The Central Intelligence Agency also took advantage of this legal loophole in the wake of the War on Terror, carrying out extraordinary renditions to ‘black sites’, where foreign nationals suspected of terrorism were detained and tortured extraterritorially in countries where federal and international legal safeguards supposedly did not apply. As a foreign national shot on the wrong side of the border at the hands of a U.S. federal agent, Hernandez found himself in what his lawyers called ‘a unique no-man’s land – a law-free zone in which U.S. agents can kill innocent civilians with impunity.

Photo: Russell Contreras/AP

http://www.npr.org/sections/thetwo-way/2017/02/20/516275461/high-court-to-hear-arguments-in-case-of-mexican-boy-killed-in-cross-border-shoot

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]).