In February, the Supreme Court ruled that the family of a young boy who had been killed in Ciudad Juárez by a Border Patrol agent stationed in El Paso could not file for damages or lawsuits. This ruling set a deeply troubling and even dangerous precedent for future instances of violence directed at people in Mexican border towns and the likelihood of greater impunity for agents who commit such acts. Furthermore, it underscores a culture of cruelty and violence toward immigrants by Border Patrol agents, many of which the migrants we host at the comedor have experienced in various ways.
At the comedor, we often receive people who have been traumatized by their migratory journeys, the causes that compelled their migration, and separation from family and loved ones. Additionally, many migrants report that their treatment at the hands of Border Patrol—at the time of their apprehension, while in transit, and in custody—has caused further harm. This takes multiple forms, from physical violence to verbal mistreatment to mockery to disregard for the most basic needs for well-being.
A devastating Supreme Court ruling in February concerning the 2010 murder of a Mexican teenager who was killed by a Border Patrol agent determined that people killed beyond U.S. boundaries have no recourse to file for damages or lawsuits. This ruling has deeply troubling implications and further contributes to Border Patrol impunity. In this article, we describe the consequences of the Supreme Court decision as well as the patterns of abuse we regularly witness and document.
Sergio Hernández court ruling
In late February, the Supreme Court voted 5-4 to uphold a lower court’s dismissal of a lawsuit against Border Patrol Agent Jesus Mesa, who in 2010 fired two fatal shots from El Paso into Ciudad Juárez, where 15-year-old Sergio Adrian Hernández Guerca was playing. On the day the incident occurred, Hernández and his friends were running up to the fence, touching it, and then running back into Mexico. Mesa contests this interpretation and says the boys were throwing rocks, but cell phone footage of the event disputes the agent’s take.
At the heart of the court ruling, though, is not so much the specifics of what happened on that day in 2010. Rather, the larger question is whether or not Mesa—and other agents who have committed similar acts of violence—is immune from federal lawsuits and whether the Hernández family could seek damages for violations since the boy died on Mexican soil. Sergio’s family sued the U.S. on the ground of undue use of force and a violation of the 5th Amendment right to due process, but Mesa did not face any criminal charges, nor has the Justice Department taken any action against him.
The question hinges on a 1971 ruling, Bivens v. Six Unknown Named Agents, which held that it is a person’s right to sue law enforcement agents who violate the constitution and act in abuse of their power. At the time of that ruling, Justice William Brennan wrote that “power does not disappear like a magic gift when it’s wrongfully used,” and the court ruled that the Constitution must offer recourse to people who have been victimized by rogue officers. The case of Sergio Hernández called into question whether or not the Bivens case had any relevance in 2020, and it seems, increasingly, as though it does not.
The majority opinion in the Hernández case, which divided 5-4 on ideological lines, held that courts should not allow lawsuits from foreign victims in U.S. courts out of respect for separation of powers—that is, Congress should authorize such lawsuits. However, Justice Ginsburg, who was among those dissenting, called this logic into question, saying that the boy’s location at the time of his murder “should not matter one whit…There is no good reason why Hernández’ parents should face a closed courtroom door” because he was killed just beyond the boundary of the U.S.
The Hernández family lawyer, Robert Hilliard, stated his concern about the consequences of this ruling, one that is echoed by many human rights advocates and lawyers: “In this case, justice doesn’t travel as far as a bullet does…To be left with no remedy given such a violent and unprovoked shooting weakens the constitutional foundation of America’s house.” We at the Kino Border Initiative are deeply concerned about this ruling, the impacts on Hernández’ family, and the grave consequences for our borderlands community and those we work with and serve. Additionally, we remember the families of the dozens of other victims of similar acts of violence at the border, and fear the potential for even greater future impunity for Border Patrol agents
as a result of this Supreme Court decision.
BORDER PATROL VIOLENCE IN NOGALES
In October of 2012, a similarly tragic and violent event occurred just blocks from the comedor. Border Patrol agent Lonnie Swartz fired 16 bullets at 16-year-old José Antonio Elena Rodriguez, whom the agent accused of throwing rocks and therefore claimed he acted in “self-defense.” The boy’s family denied this interpretation, and said that Swartz responded with an inexcusable use of force and act of violence. The family’s lawyer said that Swartz unlawfully took a boy’s life, acting “as judge, jury, and executioner, and his uniform should not shield him from justice.”
Six years after the event, in April of 2018, the case went to trial in Tucson, where a jury found Swartz not guilty on the charges of second-degree murder and hung on manslaughter charges. Later in 2018, another jury was convened on a separate charge and Swartz was ultimately acquitted. As a KBI press statement released after the first verdict was delivered nearly two years ago, “all of those responsible for the deaths of [the people killed on Mexican soil by officers in the U.S.] are free from punishment, and none of victims nor any of their family members has ever been afforded a path to justice.”
A final blow to justice in José Antonio’s case came days after the Supreme Court ruling about Sergio’s case. On March 2, the Supreme Court overturned a lower court’s ruling that José Antonio’s family could pursue a civil rights lawsuit against Agent Swartz in light of the Hernández case. Director of the Southern Border Communities Coalition Vicki Gaubeca said in response that there could be a “truly systematic problem [if Border Patrol agents are not held accountable…We need] some sort of administrative change that would reflect the fundamental core values of this country…even a statement saying that human life is paramount would be something.”
In a case that also reflects the gravity of Border Patrol cruelty and the scope of the impunity, former Border Patrol agent Matthew Bowen repeatedly hit a Guatemalan migrant with his truck in 2017 near the Nogales, Arizona Mariposa port of entry, after the migrant attempted to cross into the U.S. without authorization. Though the victim survived, he was hospitalized with multiple injuries as a result of the assault. Weeks prior to this incident, Bowen had sent texts—some of which went to Swartz, who killed José Antonio—referring to migrants as “mindless murdering savages,” “subhuman,” and “unworthy of being kindling for a fire.”
In August of 2019, Bowen pled guilty to “deprivation of rights under color of law”—a misdemeanor—and initially faced up to one year in prison and a $100,000 fine. However, the Tucson judge in charge of the case instead sentenced Bowen to 36 months of probation and 150 hours of community service. Once again, a Border Patrol agent faced minor consequences for egregious use of force—and a pattern of troubling, violent, and racist behavior.
OBSERVATIONS FROM THE COMEDOR
The loss of human life is, by any measure, the most violent outcome of the abuse of power. This happens far more often than it should at the border and at the hands of the Border Patrol, though other forms of the agency’s abuse of power are even more pervasive. In a 2017 report on abuses of power, “Intake Without Oversight: Firsthand Experiences with the Customs and Border Protection Complaints Process,” the Kino Border Initiative found that 1 in 3 migrants who come through the comedor suffer from abuse committed by Border Patrol agents when they are apprehended. (Though the report is now several years old and the demographics of the people we serve at the comedor have become more diverse, primarily in terms of the number of children and families who come into contact with Border Patrol agents, the figures and kinds of violations have remained, troublingly, approximately consistent.)
In the 18-month period between October 2015 and March 2017, KBI filed 49 complaints with CBP: 22 for failing to adequately inform individuals who expressed fear of return about the asylum process; 12 denials for medial care; 10 for the separation of families; 10 for excessive use of force, six for illegal searches and the use of restraints on minors, and two for verbal abuse.
In instances of human rights violations, physical abuse, and injuries, victims have the right to make a formal complaint. However, it is estimated that fewer than 1 in 12 people actually do—in some cases because they do not know that they have this right, and in other instances because they do not believe that lodging a complaint will in fact make any difference. Unfortunately, the impunity with which Border Patrol operates, and the lack of oversight of the agency and its employees, do in fact make the complaint process one of long odds. In the 49 cases covered in our 2017 report, the KBI heard back about 13 of the complaints filed, and only two resulted in any kind of disciplinary action against the offending agent.
Additionally, the failure of Border Patrol to return the belongings of people they return to Mexico is widespread. In 2015, the Department of Homeland Security attempted to remedy this reality through the implementation of a policy called TEDS (“Transport, Escort, Detention, and Search”). Prior to TEDS, 41.5% people reported having their belongings lost or not returned; in a follow-up study six months after the implementation of TEDS, the figure was nearly identical, at 41%. Additionally, certain sectors seem to be particularly egregious violators; in Juárez, nearly 70% of people who have been deported say their belongings were not returned. The items most frequently reported as having been lost by Border Patrol are, in descending order: cell phones, photos, money, jewelry, voter ID cards, clothing, and religious objects. This widespread abuse puts people into a particularly vulnerable situation at the moment of deportation, since it leaves them stranded in cities like Nogales, oftentimes unable to communicate with family members, obtain work, or travel to their towns of origin. We at KBI have witnessed a recent worsening in the rate of these abuses, from 189 incidents in 2018 to 287 in 2019. It is also difficult to file a complaint about missing objects after deportation, and highly unlikely there will be any resolution; a December 2016 report by the American Immigration Council (https://www.americanimmigrationcouncil.org/research/deported-no-possessions) found that 88% of complaints about lost belongings had not resulted in any action taken or response provided.
CURRENT TRENDS AND FUTURE CONCERNS
There is a pervasiveness of Border Patrol abuses against deported migrants and returned asylum-seekers, a fact we regularly witness and document at the comedor, as well as an environment of permissiveness and impunity toward agent infractions. The stories the people in migration tell are a powerful and troubling glimpse into the culture of the agency. Cecilia, a Guatemalan mother of two, spoke in early March about her experiences in Border Patrol custody after arriving to the U.S. to seek asylum: “The Border Patrol agent who interviewed me said that we shouldn’t ask anything of them because it was our fault that we put our kids in this situation. He said that they were punishing us so that we didn’t come back, because we were just coming to take food away from them. He didn’t even say what would happen to us or that we were going to be returned to Mexico. He just made us sign papers in English. He told me that if you don’t sign you will stay here in detention for a month or two months. I was desperate because my daughter wasn’t able to eat the food they gave there, and I couldn’t imagine being there even longer. … My kids are very traumatized from the experience.”
Increasingly, people seeking asylum are subject to proceedings further from the public eye, such as expedited removal programs and safe third-country agreement programs. (See, for instance, https://www.washingtonpost.com/immigration/remain-in-mexico-deportation-asylum-guatemala/2020/02/20/9c29f53e-4eb7-11ea-9b5c-eac5b16dafaa_story.html
). We are deeply concerned about the expansion of these programs, and fear that holding people in secret facilities where the public is not allowed, or returning people without their consent to countries in Central America, will further the abuses committed against migrants by employees of the U.S. government.
In a recent Mother Jones report (https://www.motherjones.com/politics/2020/02/the-absurdity-and-danger-of-trumps-deal-to-send-asylum-seekers-to-guatemala) on the safe-third country agreement, it was discovered that many of the people who have been returned to Guatemala have been members of a vulnerable population, despite the fact that vulnerable populations should be excluded from these agreements. In fact, one shelter operator said that everyone he had seen in his shelter “is in a state of vulnerability.” The report additionally found that most people had been held in CBP facilities for well over the 72-hour limit—initially instated because these facilities are so ill-suited for longer-term stays—and most reported being held for somewhere between 10 and 15 days. One woman said, “That was the worst nightmare of my life. I’ve never been treated like that. It’s painful even to think about.” She described a cold holding cell with only a thin mylar blanket for warmth, being separated from her child, having lights on 24 hours a day, and being treated abusively by guards.
The widespread and egregious nature of the abuses committed by Border Patrol agents against people in migration are manifestations of a deeply troubled, violent immigration policy. The physical, emotional, spiritual, and logistical abuses that migrants suffer while in Border Patrol custody—or that people endure simply because they live south of the border—must be investigated. Additionally, agents who commit such acts, or who look the other way when fellow agents commit abuses of power, must be held to account. The entire culture of the agency must undergo a radical transformation so that acts of cruelty, and the impunity that has, historically, always followed these acts, are not allowed to continue.
Above all, though, the United States must transform its immigration policies so that it considers migrants, teenagers in Mexico, people seeking asylum, and those over whom it has power as equal to itself. Until human dignity and the right to safety and well-being are regarded and treated as paramount by the U.S. government, abuses of power will likely continue. We at KBI stand beside all those who have been victims of this violence and work every day for a transformed, more just society.