What happens when U.S. border patrol kills — in Mexico?

 

José Alfredo Yanez Reyes

If José Alfredo Yanez Reyes’ body had hit the ground just a few feet to the south, things might be different. When he was shot and killed by a U.S. border patrol officer on June 21, 2011, after attempting to cross into the United States, his body landed along the invisible line that separates his native Mexico from California. His feet lay in San Ysidro, but his bloodied head lay in Tijuana.

The precise location of his body came to matter when Yanez’s family sued the officer who shot him for wrongful death. If Yanez, 40, had been killed in the United States, the family’s right to sue would be clear. But the civil rights the U.S. Constitution guarantees — and the right to take American officers of the law to court — do not apply outside the country’s borders.

For this reason, the U.S. government insisted that Yanez died in Mexico. To prove it, the U.S. attorney’s office hired a land surveyor to analyze photos of the body at the scene of the shooting. The surveyor drew a yellow line representing the border right through Yanez’s abdomen. By this accounting, the government said, “the majority of his body was in Mexico upon death.”

Yanez’s family disputed the finding, saying he was on American soil when the officer’s bullet struck him in the head and killed him. So far, the judge has allowed the family’s lawsuit to move forward, and the case is awaiting trial. But for at least half a dozen others killed by U.S. border patrol officers under similar circumstances, the border has become the line that separated them not only from their killers but also from their day in court.

The Yanez case is a stark example of the legal gray area in which thousands of federal officers operate every day. Cross-border shootings are rare, but they demonstrate an unresolved loophole in checks on law enforcement conduct. An upcoming Supreme Court decision in a separate 7-year-old case, Hernández v. Mesa, will clarify what rights foreign nationals have in these encounters.

“The bullet when it leaves the gun has constitutional consequences,” said Bob Hilliard, the lawyer representing the Hernández family in that case, in a February interview with VICE News Tonight. “That same bullet … is stripped — if you believe the government — of all constitutional consequences when it crosses the invisible line.”

According to the agency, Customs and Border Protection officers have killed 43 people total since 2011, when they started tracking such incidents, most of them on U.S. soil. Earlier statistics — even on fatal shootings — are hard to come by.

VICE News identified seven cross-border shootings since the agency was founded in 2003 — cases in which Mexican citizens who were in Mexico were killed by CBP officers who were in the U.S. Three of the victims were teenagers. (We identified at least two other cross-border shooting victims who survived. We found no similar incidents along the border with Canada.)

To build our list of fatal cross-border shootings, the first of its kind, we used local news reports and data compiled by the Arizona Republic, the ACLU, and the community organization Southern Border Communities Coalition. CBP did not respond to a Freedom of Information Act request for this information, and it’s possible there are more victims. The Justice Department declined to comment.

Only one officer in these seven cases is facing criminal charges. In five of the seven, the families are suing for civil rights violations and most are tied up in the courts awaiting the decision in Hernández. Most shooting locations were not as disputed as the one in Yanez’s case, but the question of legal standing is the same in all cases. Only after the court determines the families have the right to sue can a jury decide whether the shootings were reasonable.

The Supreme Court’s ruling in Hernández, expected before the end of June, will come as President Donald Trump is preparing to hire 5,000 more border officers to add to the more than 17,000 based on the southern border.

The family is optimistic. “I’m sure they are going to do what is just; I don’t think they will make a mistake,” Jesus Hernández, the victim’s father, said.

Sergio Adrian Hernández Guereca

The case before the Supreme Court centers on an unarmed 15-year-old Mexican boy named Sergio Adrian Hernández Guereca, who was shot and killed on June 7, 2010, by a CBP officer under a bridge in the concrete culvert that joins Juarez, Mexico, and El Paso, Texas.

Six months after Sergio’s death, his mother and father sued the officer, Jesus Mesa, in Texas federal court, claiming Mesa used excessive force. The district court dismissed the case, saying that Sergio had no protections “because he is an alien with no voluntary ties to the United States who was in Mexico when the incident occurred.” The 5th Circuit Court of Appeals agreed in 2015.

The family appealed to the Supreme Court, insisting that there must be some way to challenge the officer’s decision to kill their son. (The Justice Department cleared Mesa of criminal wrongdoing in 2012.) “If left standing, the 5th Circuit’s decision will create a unique no-man’s land — a law-free zone in which U.S. agents can kill innocent civilians with impunity,” the family’s brief said.

James Tomsheck, a former internal affairs officer at CBP, agreed with that assessment. “The consequences of a ruling against the Hernández family is one to embolden border patrol agents — who are already predisposed to excessive use of force — to believe it’s open season on persons at the border,” he said in a February interview. Tomsheck and another former CBP official filed an amicus brief in support of the Hernández family.

The family is relying on a 2008 ruling giving detainees at the Guantánamo Bay facility the right to legally challenge their detention — a right guaranteed by the U.S. Constitution. Even though Guantánamo is not technically U.S. territory — the U.S. leases the land from Cuba — the justices said the Constitution still applies there because the U.S. government exercises control of the area. The Hernández family argues the U.S. government exercises the same kind of control over the area surrounding the international border between the U.S. and Mexico.

The government is relying on a 1990 ruling involving a Mexican citizen whose homes in Mexicali and San Felipe, Mexico, were searched by U.S. government officials without a warrant. In that case, the Supreme Court ruled that constitutional protections do not apply to noncitizens located outside the U.S.

During oral arguments in February, Justice Sonia Sotomayor seemed adamant that there should be a way for the Hernández family to sue the officer.

“Why should there not be a civil remedy to ensure that border police are complying with the Constitution?” she asked. “Wouldn’t shooting potshots at Mexican citizens be shocking to the conscience?”

Antonio Perez Ramirez

Very little is known about the first cross-border shooting we identified, the death of 20-year-old Antonio Perez Ramirez on Aug. 26, 2006.

Border patrol officials claimed Ramirez was throwing rocks at them from the Mexican side of the border near Yuma, Arizona, as the officers tried to help a distressed person in a pond near the Colorado River. The officers shot across the border at Ramirez, from about 20 feet away, and he later died at a Mexican hospital.

The FBI, which local media reports said investigated the shooting, declined a request for information about Ramirez’s death. His family did not file a lawsuit against the officer, and the case ended there.

Rock-throwing is the most frequently reported type of assault on border officers and the most common justification for use of force at the border. In every cross-border shooting we identified, the border patrol claimed the victim was throwing rocks.

“The phrase ‘a good shoot’ was always used” to describe an officer’s actions, Tomsheck said. “There was an immediate judgment to give the impression it was a justified use of force. There was a mantra from the border patrol to use rock-throwing as a justification regardless of the fact patterns.”

According to agency statistics, CPB officers have used force — sometimes with weapons including guns, stun guns, batons, and pepper spray — nearly 6,000 times since 2011. For comparison, the Los Angeles Police Department, about half the size of CBP, had nearly 2,000 use of force incidents in 2015 alone. An outside study of CBP use of force incidents from 2013 found that officers often put themselves in risky situations with no nonlethal alternatives.

Tomsheck says he attended briefings about these incidents as part of his job at the agency. He says he was pushed out in 2014 after speaking out about abuses, including use of force. He believes that few of the cross-border shootings were justified.

In a statement, CBP said its officers use force only when required: “U.S. Customs and Border Protection is entrusted with the critical responsibility of protecting our nation’s borders. This mandate carries with it the authority to use force up to and including the use of deadly force. A respect for human life and the communities we serve shall guide all employees in the performance of their duties. The use of excessive force by CBP law enforcement personnel is strictly prohibited.”

Ramsés Barrón-Torres

It’s not clear whether Ramsés Barrón-Torres was throwing rocks when a border patrol officer fired a round of bullets at him from the U.S. side of the border on Jan. 5, 2011, shooting him dead.

Officers had arrived at the border fence that divides Nogales, Mexico, and Nogales, Arizona, around 3 a.m., responding to a report that a group of people were smuggling narcotics, according to CBP records compiled by the Arizona Republic. The officers say they warned 17-year-old Ramsés to stop throwing rocks before the shooting.

Ramsés’ friend says he was just trying to cross the border to visit his girlfriend, who lived in Texas.

Three days later, there were protests in his hometown. The community hoped Ramsés’ death might bring change. “That’s why we want justice,” his mother, Zelma Berenice Barrón-Torres, told Tuscon.com at her son’s funeral. “We don’t want them to get impunity. If they let this go, they are going to let other things go, too, and everyone over there is going to get off free.”

The family didn’t sue, and the Justice Department closed an investigation into the shooting in 2013, saying it could not pursue a criminal civil rights lawsuit against the officer “because the statute requires that the victim be in the United States when he was injured.”

The U.S. does grant constitutional rights, however, to Mexican citizens and other foreign nationals killed by law enforcement on U.S. soil.

In February, CBP settled an excessive force lawsuit for $1 million with the family of Anastasio Hernández-Rojas, a 42-year-old Mexican national who was handcuffed and killed with a stun gun by CBP officers near San Diego in 2010. In 2015, a federal court ordered CBP to pay $500,000 to Jesus Castro Romo, an undocumented immigrant shot by a CBP officer in Arizona in 2010.

U.S. citizens have also settled lawsuits against CBP for abuses in the border area. Last year, CBP agreed to pay a woman identified as Jane Doe $475,000 after CBP officers billed her for an invasive body cavity search they conducted at a hospital in El Paso in 2012. Also last year, CBP agreed to pay Laura Mireles $85,000 after she said she was assaulted by an officer in Brownsville, Texas, after she asked him why he was searching her purse.

But courts have stopped short of allowing lawsuits to move forward for Mexican victims killed by CBP officers in Mexico, except for Yanez and in one other pending case.

The Mexican government has tried to extradite border patrol officers in some of these cases to be tried in Mexican courts, but the U.S. government has denied their requests. The Department of Justice said the agency does not comment on extraditions.

The Mexican government is asking the Supreme Court to allow the Hernández family’s lawsuit to move forward. “If Agent Mesa avoids travel to Mexico, any effective and enforceable remedy against him can only come from the U.S. courts,” its amicus brief reads. “Providing an adequate and effective remedy would show appropriate respect for Mexico’s sovereignty on its own territory and for the rights of its nationals.”

Guillermo Arévalo Pedraza

During the afternoon of Sept. 3, 2012, Guillermo Arévalo Pedraza, a 37-year-old bricklayer, and his wife, Nora Gallegos, took their two young daughters to a park 20 minutes from their home on the Nuevo Laredo, Mexico, side of the Rio Grande river to have a picnic.

“It was a normal day. We went to celebrate our birthdays,” Gallegos recalled in a recent phone call.

During their picnic, a man began to swim across the river, making it to the U.S. side, according to court filings. When a border patrol boat approached the man, he began to swim back to the Mexican side but was intercepted. The crowd yelled at the officers to help the man, and then an officer fired into the crowd, shooting and killing Arévalo.

CBP said rocks were thrown at the agents from the shore. People at the park that day deny any rocks were thrown. Gallegos is suing the officer in Texas. Her lawsuit will depend on the Supreme Court’s decision in the Hernández case.  

“If a Mexican would have done this to an American, the Mexican would be dead,” Gallegos said. “But what’s happening now in the U.S.? It’s as if this never happened. [The officer] is living his life. And my husband? They killed him, the father of my children. I want justice. I want them to take responsibility.”

More than 180 million people cross over the 2,000-mile-long border between Mexico and the United States every year. Some cross the border legally to go shopping on the other side, go to school, or work. Others cross illegally looking for better work opportunities, to join family members who have already relocated, or to escape violence at home.

CBP was created in 2003 as part of the Department of Homeland Security, which was founded just a year earlier in the wake of the Sept. 11 attacks. CBP officers patrol the border and screen visitors at ports of entry as part of enforcing federal immigration law and monitoring what comes in and out of the country. Border patrol apprehended 415,816 people in 2016 — 98 percent of them on the southern border — and seized 1,294,052 pounds of marijuana and 5,473 pounds of cocaine.

Juan Pablo Pérez Santillán

In the early-morning hours of July 7, 2012, Juan Pablo Pérez Santillán was helping a group of migrants swim across the Rio Grande to Brownsville, Texas, by keeping a lookout for border patrol from the Mexican side of the river, according to court filings.

When he saw CBP agents approaching the river bank where the group had landed, he began waving his arms and signaling to them to cross back. A CBP officer shot at him from the U.S. side of the river and killed him. He was 30 years old.

Two days after the shooting, a CBP spokesperson said two agents had fired their guns into Mexico at the same time, one responding to rock-throwing and the other to a loaded gun pointed in his direction. Pérez’s family says the only thing he was holding when he was shot was a sweat rag.

Pérez’s mother sued for excessive force, and the court is waiting for the Hernández decision before deciding whether the case can move forward.

During oral arguments in the Hernández case in February, the government lawyer cautioned that ruling in the family’s favor would have a harmful impact on how the U.S. military operates overseas, an argument that seemed to resonate with Chief Justice John Roberts.

“How do you analyze the case of a drone strike in Iraq where the plane is piloted from Nevada?” Roberts asked. “Why wouldn’t the same analysis apply in that case?”

Bob Hilliard, the family’s lawyer, suggested that the court could rule very narrowly to extend constitutional protections to victims near the physical border whose abusers are standing on U.S. soil.

Fordham Law professor Andrew Kent, who has studied the case, thinks it’s unlikely that the court will limit its ruling in that way and shares Roberts’ concern. “The consequences here could potentially be quite negative for very important things the U.S. government does, especially intelligence-gathering abroad,” he said in an interview. “The U.S. government does a lot of searching and seizing outside the border.”

Kent thinks the U.S. should find some other way to address potential abuses that doesn’t require extending the Constitution beyond the border. “I think that it’s very important to have rules that keep our executive branch from killing people it shouldn’t kill, but my view is that judges enforcing constitutional rights is not the right way to do that,” he said. “There are other ways: international laws, criminal investigations of U.S. employees.”

Eight of the justices will decide this case since oral arguments happened in February, before Justice Neil Gorsuch took the bench. They may choose to re-hear the case with a full bench next term. But if there is an opinion with a 4-4 tie this term, the Fifth Circuit’s decision against the Hernández family will stand, possibly closing the door on all these cases.

José Antonio Elena Rodríguez

The most recent cross-border shooting victim was José Antonio Elena Rodríguez. On the night of Oct. 10, 2012, 16-year-old José was walking alone on a street alongside the border fence in Nogales, Mexico, after playing a game of basketball in the neighborhood with his friends.

U.S. border patrol agents were looking for two drug smugglers in the area. According to court filings, one of the agents fired on José, and approximately 10 shots struck and killed him. Most of the bullets entered José’s body from behind.

“He was dead after the first bullet,” Taide Elena, the victim’s grandmother, told our colleagues at VICE in May. “There’s no other way to describe what happened; it was murder.”

The U.S. Attorney in Arizona agreed and filed murder charges against border patrol officer Lonnie Ray Swartz in 2015. Swartz is the first border patrol agent in U.S. history to face murder charges in a cross-border shooting. He has pleaded not guilty and claimed self defense. The trial is set to begin in October.

José’s family also filed an excessive force lawsuit, and in an unprecedented move, the U.S. District Court in Arizona let the case move forward, arguing that José’s “status as a civilian engaged in peaceful activity” outweighs the fact he was in Mexico when he died. Swartz appealed that decision and the appeals court is now waiting for the Supreme Court’s decision in Hernández before it rules.

“Getting justice for José Antonio would mean that many others could get justice as well,” Elena said. “The agents would think twice before killing another innocent person.”

 

Taylor Dolven is a reporter for VICE News Tonight.

Morgan Conley contributed research and reporting.

CORRECTION (June 9, 1:42 p.m.): An earlier version of this story misidentified the U.S. state where Nogales is located. It is Arizona, not Texas.