By Andrew Cohen
Since 2010, United States Customs and Border Protection (CBP) agents have killed at least 40 people along the U.S.-Mexico border. Despite claims that unlawful use of deadly force caused many of the killings, efforts to gain redress through the legal system have largely proven futile.
That’s why Alliance San Diego founding executive director Andrea Guerrero ’99 contacted her Berkeley Law classmate—International Human Rights Law Clinic (IHRLC) Associate Director Roxanna Altholz ’99—to help untangle the legal complexities for those pursuing justice.
“We’re facing different kinds of law in multiple jurisdictions along the border,” Guerrero said. “Federal law, civil law, criminal law, international law—there are many permutations for what victims’ family members can do. I already knew about the clinic’s amazing work and Roxanna’s experience in international courts, so I contacted her to see if she could help.”
The result of their collaboration is a new report that identifies the remedies available—in the U.S. and Mexico—and provides a needed legal roadmap. It will be an instructive guide for the Southern Border Communities Coalition, a group of 60-plus organizations from California to Texas co-chaired by Guerrero.
The nation’s largest law enforcement agency, CBP is authorized to apprehend people suspected of violating immigration laws—which are civil laws, not criminal laws—within 100 miles of the border. Since 9/11, Congress has more than doubled its budget and increased its access to surveillance equipment, weaponry, and technology. While a few cases of CBP killings have settled, no plaintiff has won a wrongful death case against a border agent in civil court.
“It’s important for advocates, victims, and litigators to understand the legal landscape,” Altholz said. “Prosecutors haven’t charged a single agent in one of these incidents in five years although the victims include some U.S. citizens, several minors, people shot in the back, and people shot in vehicles driving away. A border patrol agent shot one victim, a 16-year-old boy walking on a street in Mexico parallel to the border fence, several times in the back.”
Co-written by recent IHRLC student Yasmin Emrani ’15, the report probes three main scenarios: foreign nationals killed in Mexico, foreign nationals killed in the U.S., and American citizens killed in the U.S. It also analyzes trends in civil and criminal cases in the U.S. and Mexico.
“These agents have used force against people in unwarranted ways with no accountability,” Emrani said. “We gathered all the cases, looked at all the claims raised, tracked how each case moved through the courts, and produced a big-picture analysis. It’s a flow chart of sorts to determine the best legal strategy depending on the variables involved.”
An uphill fight
Over the years, victims’ relatives have struggled to gain information about the circumstances of killings and the identities of those responsible. They seek accountability through criminal investigation and prosecution, economic compensation, and policy reforms to prevent future killings.
“In the 100-year history of our border patrol agency, no agent has ever been successfully tried or held accountable in a court of law,” said Guerrero. “This should worry all of us if the largest law enforcement agency in the country is acting with impunity.”
U.S. courts routinely dismiss civil lawsuits, ruling that the agent’s actions constituted a reasonable use of force or an act of self-defense. They have also used legal doctrines such as sovereign immunity and extra-territoriality to quash legal claims.
“If a private citizen shot a Mexican minor standing on Mexican territory, that person would be held to account,” Altholz said. “But a federal officer who does the same thing is not. CBP describes itself as a paramilitary organization. They’ve refused to wear body cameras while many local police do. They’ve also refused to release the names of agents involved in these killings, though local law enforcement does that as policy. It’s time to level the playing field.”
With the recent national firestorm surrounding police violence against people of color, there is mounting legal pressure to hold CBP agents accountable. The U.S. Supreme Court is considering hearing a case about the death of Sergio Adrian Hernández Guereco, a Mexican teenager killed in Mexico by a CBP agent shooting across the border. Investigations prompted by the Obama Administration, members of Congress, and border community advocates also triggered a new CBP use of force policy—and the first publication of such a policy—last year.
“That was a major accomplishment,” Emrani said. “Under the old policy, agents could use deadly force against people throwing rocks across the border or unarmed occupants of moving vehicles, but no longer.”
The report uses civil and criminal court records, legal scholarship, and reports by government agencies, media, and advocacy groups. It also explores the basis for filing legal actions in both the U.S. and Mexico and assesses the likelihood for success.
“This will empower families and advocates to negotiate with prosecutors and open up new avenues in the international courts,” Guerrero said. “The report is a game changer for us and arms families with information that’s critical to their ability to seek justice.”