How To Get Away with Murder

Hernández v. Mesa, 140 S. Ct. 735 (2020)

JULIETA MENDOZA

The U.S.-Mexican border es una herida abierta where the Third World grates against the first and bleeds. And before a scab forms, it hemorrhages again, the lifeblood of two worlds merging to form a third country—a border culture.1

Este artículo hablará sobre el caso de homicidio de un joven inocente, Sergio Adrián Hernández Güereca, un mexicano de quince años de edad a quien le dio muerte un agente migratorio de apellido Mesa en la frontera que separa El Paso, Texas de Ciudad Juárez, México.2 Este caso es un prototipo de cómo los mexicanos son objetivo de injusticia en su propio país por el gobierno de los Estados Unidos de América. Este caso en concreto provocó un desacuerdo internacional que afectó las relaciones entre Estados Unidos y México, afectando también directamente las vidas de los mexicanos que viven en la frontera. This case is about Sergio Adrián Hernández Güereca, a fifteen-year-old Mexican national who lived in Ciudad Juarez, Mexico.3 He and his friends were playing tag, running across the Rio Grande and touching the fence on the El Paso, Texas side and then running back across to the Mexican side, with no intention of crossing permanently onto U.S. soil.4 It was a simple game. As Hernández was running back onto Mexican soil, Agent Mesa fired two shots at Hernández; one struck and killed him on the Mexican side of the border.5 This case became an international affair between the two countries. When no resolution was offered to the family in Mexico, Hernández's parents decided to take matters into their own hands. The parents filed suit against Agent Mesa for damages arising out of the murder of their son, alleging that Mesa violated Hernández’s Fourth and Fifth Amendment rights.6 To support their claims,7 the parents asked the Court to extend Bivens8 to create a damages remedy for cross-border shootings. The Court denied the extension.9 The Court offered one reason for its refusal to extend Bivens: separation of powers among the three branches of government.10 The Court explained that extending Bivens would involve the Court in issues of foreign policy, which is the domain of the political branches.11 The Court reasoned that Congress had not given the Judicial Branch any instruction to extend Bivens. 12 Weighing whether the Court should alter the framework established by the political branches in cases where lethal force was unlawfully employed by a border patrol agent,13 the Court explained that judicial inquiry into issues of national security, such as this one, raised separation-of-powers concerns.14 Before Mr. Hernández’s parents filed suit, the Executive Branch had decided not to prosecute Agent Mesa because his actions were “consistent” with Border Patrol policy and training.15 At the time of the shooting, Agent Mesa was acting with “reasonable conduct,” and based on agency standards, there would be no prosecution.16

1. GLORIA ANZALDÚA, BORDERLANDS / LA FRONTERA 3 (1st ed. 1987). 2. Hernandez v. Mesa, 140 S. Ct. 735, 740 (2020). 3. Id. 4. Id. 5. Id. 6. Id. 7. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (holding that a person claiming to be the victim of an unlawful arrest and search could bring a Fourth Amendment claim for damages against the responsible agents even though no federal statute authorized such a claim). 8. Hernandez v. Mesa, 140 S. Ct. 735 (2020). 9. Id. at 741. 10. Id. at 740. 11. Id. at 744. 12. Id. 13. Id. at 746. 14. Id. at 747. 15. Id. at 744 16. Id.

Mexico, however, wanted to extradite Agent Mesa.17 Mexican authorities argued that “shootings by Border Patrol agents are a persistent problem and . . . the United States has an obligation under international law.”18 Extending Bivens, the Court explained, would interfere with the Executive Branch’s decision.19 The Court washed its hands by dismissing not only an international issue but a humanitarian issue,20 stating only that “the United States and Mexico would attempt to reconcile their interests through diplomacy.”21 In so doing, the Court reopened a wound that has never healed between Mexico and the United States. It is easy to justify Agent Mesa for “doing his job” when all you know about the border is what you can imagine. But to someone who has actually lived the border experience, the Court's opinion rings hollow, ignoring the realities and dynamics of border-town life. Being a Mexican national and living close to the border has given me a different perspective of the border—and of this case. For fifteen years, I lived in a border town forty-five minutes from where Hernández was murdered. There is no open desert between El Paso, Texas and Juarez, Mexico. It is an urban area where houses, businesses, and playgrounds are seconds away from the fence that separates the United States and Mexico. It is a highly populated area on both sides of the border. I crossed the border on a biweekly basis. Growing up, I immersed myself in the border culture and saw the beauty of two separate countries living different lives while being only seconds away. From the United States side of the border, we make eye contact with those who are on the Mexican side of the border. We can hear each other. We see children play, they see us go to school, we see them go grocery shopping, and they see our five o’clock traffic. This is the harmony that Agent Mesa disrupted when he shot an unarmed fifteen-year-old child. This is why this case instills fear in those living only a few feet away on the Mexican side of the border. It is undeniable that the Court respected the separation of powers by refusing to extend Bivens; the Court respected the Executive Branch and declined to intervene except where specifically authorized by Congress.22 However, the separation of powers does not justify the injustice and precedent that has been created with this case, and the Court has failed to hold Agent Mesa accountable.

But this is a gray rationale in a black and white situation. Shooting an unarmed fifteen-year-old boy on Mexican soil during broad daylight serves neither “effectiveness” nor “morale.”24 It is murder.

Writing for the majority, Justice Alito reasoned that The United States has an interest in ensuring that agents assigned the difficult and important task of policing the border are held to standards and judged by procedures that satisfy United States law and do not undermine the agents’ effectiveness and morale. Mexico has an interest in exercising sovereignty over its territory and in protecting and obtaining justice for its nationals. It is not our task to arbitrate between them.23

17. Id. at 745. 18. Id. 19. Id. at 744. 20. Id. 21. Id. at 745. 22. Id. at 739. 23. Id. at 745. 24. Id.

Justice Alito suggests that Mexico has power over its territory. But in this case, the United States took that power from Mexico25 when it did not allow Agent Mesa to be extradited or face charges for crimes committed on Mexican soil against Hernández, who is a Mexican national26 and precisely the type of individual whom Justice Alito stated Mexico has the power to protect. Hernández and his friends did not undermine the security of the United States. Hernández was running away from the U.S. border to Mexico while playing tag with his friends.27 There was no attempt to enter the United States illegally. Agent Mesa, as a sworn officer of the United States, bears greater responsibility than an unarmed fifteen-year-old boy. There was no justification for Agent Mesa to shoot Hernández. The Court’s “respect” for the separation of powers is also a clear message to all Mexican nationals that there is no remedy for the injustice the United States has created, even on Mexico’s own soil. Mexican nationals are not safe inside the United States, and now they are not safe in their own country. Justice Ginsburg spoke truth when she wrote in her dissent that “recognizing a Bivens suit here honors our Nation’s international commitments.”28 Mexico and the United States are neighbors, joined by over 1,900 miles of border.29 According to Justice Ginsberg, “the United States has not extradited a Border Patrol agent to stand trial in Mexico, and to [amici’s] knowledge has itself prosecuted only one agent in a cross-border shooting.”30 When will justice be served? Through this case, the United States has given itself authority and jurisdiction outside of U.S. soil. The United States can decide to invade and execute in another country without facing repercussions, something the United States itself would never allow another country to do.

This is how to get away with murder in the United States.

25. Id. 26. Id. at 740. 27. Id. 28. Id. at 758. 29. Id. at 746. 30. Id. at 760.