U.S. Supreme Court decision will foster cycles of impunity and violence against cross-border communities
27.February.2020

The Americas, February 26, 2020.- We, the undersigned organizations, regret the decision issued by the Supreme Court of the United States which found that the family of Sergio Adrián Hernández Güereca, a Mexican citizen, will not have the right to pursue legal action against the Border Patrol agent responsible for the death of their son nearly a decade ago.

Sergio, who was 15 years at the time of his death, was playing with friends in June 2010 along the El Paso, Texas- Ciudad Juárez, México border crossing when a U.S. Border Patrol agent detained one of the boys’ friends. As Sergio fled to the Mexican side of the border, the agent fired two shots at him from the U.S. side, killing him. Later on, the agent would blame the victim and his friends, alleging that they were throwing rocks at him. Since then, Sergio’s parents have relentlessly pursued justice, including in Mexico, only to have a request for extradition denied. Although the U.S. Department of Justice had already decided in 2012 not to press charges against the Border Patrol agent, the case finally found its way to the Supreme Court.

The ruling, adopted in a 5 - 4 vote, concluded that constitutional protections do not apply in cross-border incidents. In particular, the decision examined the viability of applying the Bivens action, a  reparation mechanism that allows individuals to seek damages for actions conducted by federal agents that violate the U.S. constitution. Because there is no specific legal remedy to facilitate complaints and the legislative branch has not established a road map for cases of this nature, local courts are required to apply criteria established in US jurisprudence to analyze when Bivens should be applied.  As such, the Supreme Court found that the case had implications for foreign policy and U.S. national security, and constituted a 'new context', making it ineligible for the application of the Bivens action. 

It is worth noting that this reasoning ignores decisions regarding extraterritorial jurisdiction and the behavior of state agents and other precedents established in similar cases. For example, the Solomou et al. Case the European Court of Human Rights determined Turkey's international responsibility for a state agent firing across the border, killing a person.

Additionally, the dissenting opinion found that the violations took place on U.S. soil, even when the consequences occurred in Mexico, determining that Bivens could be applied to establish the agent's responsibility.

With this decision, the majority of the Supreme Court eliminates the possibility of holding law enforcement officers and other state agents who face accusations of abuse accountable for their actions as Bivens is one of the few resources available to counteract the immunity they enjoy under U.S. law. 

Furthermore, the sets a dangerous precedent as it closes the doors to ensuring the legal responsibility of US agents for cross-border human rights violations. In a context of increasing militarization and repression at the border, this decision is extremely concerning for its potential to encourage more violence and foster impunity within the Border Patrol.

As the decision indicates that the legislative branch has not yet established an explicit remedy for violations in contexts of cross-border violations, it is imperative that an effective mechanism be established to prosecute and punish such acts in the face of the growing wave of abuse by Border Patrol and other agents.

Finally, the decision not to extend the Bivens action will leave Sergio’s family without the possibility of seeking financial reparations or access to justice. It is worth noting that under the guidelines of the OHCHR’s Recommended Principles and Guidelines on Human Rights at International Borders: "States shall ensure that all migrants who have suffered human rights violations or abuses as a result of border governance measures have equal and effective access to justice, access to effective remedies, adequate, effective and prompt reparation for harm suffered, and access to relevant information concerning violations and reparation mechanism. States shall investigate and, where warranted, prosecute human rights violations and abuses, impose sentences commensurate with the seriousness of the offense, and take measures to ensure non-repetition."

We express our solidarity with them , as well as with the families of hundreds of people who have been killed or had their rights violated by Border Patrol agents. We reiterate, once again, that human rights do not end at the border and that States have the obligation to ensure effective mechanisms for migrants and refugees to denounce abuses. The United States must guarantee that those responsible for this and other similar crimes are prosecuted and punished in accordance with national and international standards of due process and access to justice.

Signatory organizations:

Regional: 
Centro Internacional para los Derechos Humanos de Migrantes y Refugiados
Casa Monarca. Humanitarian Aid for Migrants (CMHAM) 
Centro para la Observación Migratoria y el Desarrollo Social en el Caribe (OBMICA)
Centro por la Justicia y el Derecho Internacional (CEJIL) 
Fundación para la Justicia y el Estado Democrático de Derecho
Servicio Jesuita a Refugiados para Latinoamérica y el Caribe-JRS LAC

Argentina: 
Centro de Estudios Legales y Sociales (CELS)
Comisión Argentina para refugiados y migrantes CAREF

Brazil: 
Caritas Arquidiocesana de São Paulo

Chile: 

Clínica Jurídica de Migrantes y Refugiados de la Universidad Diego Portales
Coordinadora Nacional de Inmigrantes Chile 
Comité de Refugiados Peruanos en Chile 
Clinica Jurídica de Atencion a Migrantes de la Universidad Alberto Hurtado 

Colombia: 
Clínica Jurídica para Migrantes de la Universidad de los Andes
Centro de Estudios Derecho, Justicia y Sociedad - Dejusticia 

Guatemala: 
ACCSS
Asociación Pop No'j 

Honduras: 
Comité de Familiares de Migrantes Desaparecidos del Centro de Honduras (COFAMICENH)

Mexico: 
Asylum Access México (AAMX) A.C. 
Centro de Atención a la Familia Migrante Indígena, CAFAMI A.C.
Derechos Humanos Integrales en Acción, A.C. DHIA 
Deportados Unidos  en La Lucha  (DUL)
La 72, Hogar - Refugio para Personas Migrantes
Instituto Mexicano para el Desarrollo Comunitario (IMDEC)
Instituto para las Mujeres en la Migración (IMUMI)

Peru: 
Asociación Paz y Esperanza 
Coordinadora Nacional de Derechos Humanos

Venezuela: 
Centro de Justicia y Paz (Cepaz) 

Spain: 
Delegación Diocesana de Migraciones

United States: 
Evangelical Lutheran Church in America 
Latin America Working Group (LAWG)
National Network for Immigrant and Refugee Rights
Network in Solidarity with the People of Guatemala (NISGUA)
Washington Office on Latin America (WOLA)
Unitarian Universalist Service Committee