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Youth shot, killed after border agents face barrage of rocks near Nogales
By Jonathon Clark and Derek Jordan
Derek Jordan | Nogales International
Thu, 10/11/2012 – 1:02pm
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NOGALES, Sonora, Mexico — A U.S. Border Patrol agent reportedly shot and killed a suspect in Nogales, Sonora, last night after being shelled with rocks near the border fence.
The suspect had not been officially identified as of 3 p.m. Thursday, but Sonoran media reported that he was between 14 and 16 years old.
Lt. Carlos Jimenez of the Nogales Police Department said the incident began when NPD officers responded to a report of suspicious activity on West International Street. The report involved males carrying bundles, he said.
"Our guys got there, they encountered some people who started fleeing south," Jimenez said.
Then Border Patrol agents arrived on the scene.
According to Border Patrol spokesman Shelton McKenzie, the agents responded to reports of two suspected drug smugglers near West International Street and Hereford Drive at approximately 11:30 p.m.
"Preliminary reports indicate that the agents observed the smugglers drop a narcotics load on the U.S. side of the international boundary and flee back to Mexico," McKenzie said in an emailed statement. "Subjects at the scene then began assaulting the agents with rocks. After verbal commands from agents to cease were ignored, one agent then discharged his service firearm. One of the subjects appeared to have been hit."
Photos taken by Sonoran media showed authorities and emergency responders surrounding a lifeless body on the sidewalk on the south side of the borderfront Calle Internacional, near the intersection with Calle Ingenieros. Some of the photos showed a pool of blood coming from the victim’s head.
Ramón Guzmán, mayor of Nogales, Sonora, told the newspaper El Imparcial that the suspect was shot eight times.
“Independent of whether it was a result of seemingly irregular or illicit acts, it is not the logical conduct to take the life of another human being,” he said, adding: “I hope it’s not going to come out (in the United States) that it was for legitimate defense.”
In a report Thursday afternoon on Radio XENY of Nogales, Sonora, reporter Cesar Barron said that according to an eyewitness, two males were climbing on the border fence, apparently on their way back from the U.S. side, when the Border Patrol agents arrived.
According to the witness, the agents told the suspects that they were going to be arrested, and that they were better off behind bars in the United States than in Mexico. The suspects reportedly responded with an obscenity.
At that point, four more males arrived on the Mexican side and began to throw rocks toward the fence in an apparent effort to help the two suspects escape. That’s when an agent began firing, the witness told Barron.
Some of the bullets reportedly struck the walls of a medical office behind the victim. Luis Contreras Sánchez, the physician who operates the office, was quoted by the newspaper Expreso as saying the building was hit 14 times. Other news outlets put the count between five and “12 or more.”
Contreras Sánchez’s building and the sidewalk where the body was photographed are located below a point at which the border fence begins rising up a hill, and are approximately 12 feet below the base of the 25-foot fence. The fence is comprised of interconnected steel poles with 4 inches of space between them, so the shots could have been fired through the fence.
McKenzie said the Border Patrol notified Mexican authorities following the shooting and secured the scene on the U.S. side.
"U.S. Customs and Border Protection is fully cooperating with the FBI-led investigation," he said.
Wednesday’s shooting was the fifth incident reported by the NI since 2010 in which a Border Patrol agent fired at alleged rock-throwers in Nogales city limits, either with live rounds or alternative ammunition. It was the second fatal incident.
On June 17, 2010, agents fired on suspected drug smugglers after they were reportedly assaulted with rocks in the same west side area as Wednesday’s shooting. No injuries were reported.
On Jan. 5, 2011, a Border Patrol agent shot and killed 17-year-old Ramses Barron Torres of Nogales, Sonora when he and others on the Mexican side of the fence allegedly began throwing rocks at agents as they tried to arrest drug smugglers below the Hudgins Street turnaround.
On May 3, 2011, a Nogales-based Border Patrol agent used a pepper ball launcher to repel a rock-throwing smuggling suspect and seize $12,500 worth of marijuana. No injuries were reported.
And on Jan. 30, 2012, an agent fired at alleged rock-throwers below the Hudgins Street turnaround during a drug-smuggling bust. One man was treated at a Nogales, Sonora hospital for gunshot wounds to his abdomen and forearm, but he claimed that he was a bystander and had been hit by chance while walking down the street in the Colonia Buenos Aires.
Are U.S. Agents Who Shoot Mexicans Across the Border Above the Law?
Lawsuit Could Grant Constitutional Protections to Mexicans Shot on Mexican Side of the Border Fence
by MELISSA DEL BOSQUE
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Published on: Friday, October 19, 2012
PHOTO SOURCE: RN NoticiasScreen grab of footage taken by witness of fatal shooting of Guillermo Arévalo Pedroza in September in Nuevo Laredo.
In the past month, U.S. Border Patrol agents have fatally shot two Mexican nationals standing on Mexican territory, which makes this the sixth fatal shooting on Mexican soil by U.S. agents since 2010.
The shootings seem to be without precedent since the Mexican Revolution nearly a century ago. The Mexican government has lodged several diplomatic complaints with the U.S. government against the “disproportionate use of lethal force” by U.S. agents and has even helped families of the victims find U.S. lawyers—because these are such novel legal cases, though, it’s uncertain whether Mexican families will ever get a hearing in a U.S. courtroom. And U.S. government officials refuse to extradite U.S. Border Patrol agents to be tried in Mexican courts.
The legal standoff is worsening an already tense diplomatic relationship between Mexico and the United States over the shootings.
The latest fatal shooting occurred on October 12th in Nogales, Sonora, across the border from Arizona. Jose Antonio Elena Rodríguez, 16, was shot several times by U.S. Border Patrol agents who say he was part of a group throwing rocks from the Mexican side of the border fence. Border Patrol agents in many of these cases have claimed men were throwing rocks, and the agents feared for their lives, justifying the use of lethal force.
Elena Rodriguez’s death this month is the sixth fatal shooting in two years by a U.S. border agent. Others include:
Guillermo Arévalo Pedroza, 36, was shot in Nuevo Laredo in September 2012
Juan Pablo Santillan was killed in Matamoros in July 2012
Ramses Torres, 17, was shot in Nogales, Sonora, in 2011
Jose Yañez Reyes was killed in 2011 in Tijuana
Sergio Hernandez Guereca, 15, was killed in Juarez in 2010.
The shootings are unprecedented, say legal experts, and there is no legal roadmap for Mexican families to pursue their cases against the federal agents in a U.S. court.
A lawsuit currently before the 5th Circuit Court of Appeals could change all of that. The suit was filed by the family of 15-year-old Sergio Hernandez Guereca, who was fatally shot in Juarez by U.S. Border Patrol agent Jesus Mesa in 2010. The family, represented by Houston attorney Robert Hilliard, had filed a wrongful death lawsuit against Mesa and the U.S. government, but it was dismissed by a federal district judge in Texas. Since Hernandez was a Mexican national on Mexican soil, the judge reasoned, he had no right to legal protections under the U.S. Constitution.
The Mexican government requested that Mesa’s extradition be tried in a Mexican court, but the U.S. government refused to hand Mesa over.
Undeterred, the Hernandez family is appealing their personal injury suit before the 5th Circuit, which has a reputation as the most conservative federal appeals court in the nation. The American Civil Liberties Union and the Mexican government have filed amicus briefs supporting the Hernandez case.
“There cannot be a free zone to kill people without any recourse, and that’s what is going on right now,” says Robert Hilliard, lead attorney for the Hernandez family. “Can you imagine if a federale stood on the Mexican side of the border and shot a high school student in the head standing in El Paso? We would be at war right now.”
Esha Bhandari, an attorney with the ACLU’s Immigrants’ Rights Project, helped file ACLU’s brief in support of the Hernandez family. “A lot of what’s happening now unfortunately comes from the stepped-up enforcement at the border with little oversight. The same thing that’s happening on the southern border could happen on the Canadian border. They could shoot Canadian citizens as well.”
The ACLU is arguing that cross-border enforcement activity should fall within U.S. Constitutional limits. “The law can’t say that constitutional rights for non-citizens literally stop at the border line,” she says. “Otherwise there will never be any recourse for people who happen to be standing on the wrong side of that line.”
Extending constitutional rights to the victims would also do a lot to relieve the growing diplomatic friction between the United States and Mexico over the fatal shootings, she says. “Mexican families will have some legal recourse,” she says. “Right now there’s no way to hold the executive branch accountable.”
In the amicus brief filed by the Mexican government, attorneys argue that the United States needs to honor its international treaties and respect for human rights. Attorneys argue in the brief:
“Mexico respects the United States’ interpretation of its own Constitution and laws. But it is vital to Mexico that the United States respect the binding international obligations that the United States has voluntarily undertaken to Mexico and its nationals. When agents of the United States Government violate fundamental rights of Mexican nationals, it is one of Mexico’s priorities to ensure that the United States has provided adequate means to hold the agents accountable and compensate the victims. The United States would expect the same and more if the situation were reversed and a Mexican government agent, standing in Mexico and shooting across the border, had killed a U.S. national standing on U.S. soil.”
If the appeals court decides to hear the case, judges will most likely set an oral argument date in the upcoming months, says ACLU attorney Esha Bandari.
Hilliard is not so confident, however. “They have a rightly deserved reputation as being a conservative circuit court,” he says. If the 5th Circuit denies the case, then Hilliard says he will file it with the U.S. Supreme Court. “If the 5th Circuit doesn’t address the problem, I think SCOTUS will recognize there are legal consequences. You can’t always assume there was just cause and you should be able to argue to a judge and jury that there wasn’t just cause. It isn’t right that you can't even argue it,” he says.
The case could take years, he says, but if it’s successful, Mexican families will finally get their day in a U.S. court.
Sergio Hernandez-Guereca: Dead Mexican Teen's Family To Pursue Suit V. Agent
AP | Posted: 04/30/2012 12:42 pm Updated: 04/30/2012 12:42 pm
EL PASO, Texas — A lawyer for the family of a 15-year-old Mexican boy killed by a U.S. Border Patrol agent in 2010 says they will press on with their lawsuit against the agent despite U.S. prosecutors' decision not to charge him.
Attorney Robert Hilliard said Sunday that there is no evidence that Sergio Hernandez-Guereca threw rocks at agent Jesus Mesa Jr. from Mexico before Mesa fatally shot him.
The U.S. Department of Justice said Friday there was insufficient evidence to pursue charges.
U.S. authorities say Mesa shot the boy while trying to arrest undocumented immigrants crossing the Rio Grande near El Paso. The shooting was captured on cellphone video.
A Texas judge last year dismissed a wrongful death lawsuit against the U.S. government but allowed the lawsuit against Mesa to proceed.