A Mexican teen who was fatally shot by a U.S. Border Patrol agent on the Mexican side of the border had some constitutional protections although he was not an American citizen and he was killed on Mexican territory, albeit just across the border. Accordingly, the Fifth Circuit Court of Appeals in Hernandez v. Mesa, No. 11-50792 (5th Cir. 2014) held that the child’s family could sue for wrongful death on the grounds that the decedent’s Fifth Amendment due process right to be protected from excessive, deadly force by an agent evincing callous disregard to human life may have been violated.
In 2010, Hernandez and his friends in Ciudad Juarez were playing a game that involved running up to the border near El Paso, Texas. When one of the boys was detained by a Border Patrol agent, Hernandez fled and hid behind a pole. Mesa fired at least two shots across the border, one of which hit Hernandez in the face, killing him, according to court documents.
The Court affirmed the lower court’s decision to drop other claims against the United States and many of its agencies and departments which the family also sued. It also found that the family’s claim under the Fourth Amendment of the Constitution lacked merit as the Mexican citizen could not be endowed with Fourth Amendment protections from search and seizure for various reasons, including his specific location. But it did find that the nature of the alleged conduct against the border patrol agent and the proximity of the incident to the American border warranted that the family be permitted to have the opportunity to present a Fifth Amendment due process claim at a trial. The Fifth Circuit analogized to other situations occurring outside the United States where American officers could be held to similar standards of conduct.
In a related note, the head of the Department of Homeland Security announced a few months ago that the Border Patrol has instituted new rules of engagement for officers assigned to border posts.
The Shulman Law Group endeavors to ensure its clients be kept abreast of all significant developments relating to the process of naturalization to the United States. Edward Shulman, Esq, founder of The Shulman Law Group, LLC is a national speaker for the American Immigration Lawyers Association (AILA). AILA is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, and to advance the quality of immigration and nationality law and practice. In the course of Mr. Shulman's involvement with AILA, he has been dedicated to educating other immigration attorneys about the import of helping intending immigrants to navigate a new cultural system. He meticulously follows all of the developments occurring in the battle over immigration reform so that he will be prepared to effectively assist his clients obtain residency if a new system is enacted.