Professor Paust was quoted in an article on www.AmericanChronicle.com about the recent shooting of
a 15-year-old boy by a U.S. Border Patrol agent on the border between Texas and Mexico.
Source: http://www.americanchronicle.com/articles/view/162478
Mexican hostility toward U.S. Border Patrol
Michael Webster, Investigative Reporter
June 14, 2010
Hostility against U.S. Border Patrol is spreading across Mexico over the recently alleged illegal
deaths of 15-year-old Sergio Adrian Hernandez by a U.S. border agent, (name withhold) which
followed the May 28 death of Anastasio Hernández Rojas, a 42-year-old Mexican national who
died after U.S. border agents used a stun gun against him as he reportedly resisted deportation
near San Diego.
Mexican President Felipe Calderón said his government was "profoundly angered" by the killing
of Sergio Adrian Hernández Huereka. Calderón said he feared anti-immigrant sentiment in the
United States is encouraging violence against Mexicans.
The recent deaths of both Mexican citizens the one at the San Ysidro, CA, Port of Entry near San
Diego, California, the other between El Paso, TX, and Ciudad Juarez, Chihuahua, Mexico have
resulted in ongoing investigations by both countries.
Calderón urged U.S. agencies to review their policies on the use of force.
Mexico officially condemned the shooting of the 15-year-old boy by a U.S. Border Patrol agent
through diplomatic correspondence and an angry phone call to the Homeland Security Secretary
Janet Napolitano from Mexican Interior Secretary Fernando Gomez Mont. Gomez Mont told
Napolitano the "unjustified use of force against our population is unacceptable to the Mexican
government."
Some Mexican politicians called for the agent's extradition to face Mexican justice. A Mexican
congressman, Ricardo Lopez Pescador, is now demanding that the "homicidal agents of the
Border Patrol" must be extradited to Mexico and put in the hands of Mexican judges. (This from
"El Universal" (Mexico City) today.) Separately, the leader of Mexico´s PRD (left wing pol.
party,) demands that President Calderon, in turn, demand from the U.S. government the
extradition to Mexico of the Border Patrol Agents who "brutally" killed two of our countrymen,
one just a boy.
Prosecutors in the Mexican border state of Chihuahua have concluded Hernandez's death was an
intentional homicide and charges should be filed against the perpetrator, said Alejandro
Parientes, the regional state deputy attorney general. The federal Attorney General's Office said
there would be no public comment while the investigation continues.
Parientes said his investigation concluded the agent fired his weapon from the U.S. side of the
border, but because Hernandez died on the Mexican side, Mexican courts have jurisdiction.
U.S. Attorney General Eric Holder told reporters that the U.S. Government regrets the incident
and that the FBI is investigating the matter. The U.S. Border Fire Report has learned that the FBI
has opened a civil rights probe against the Border Patrol agent who shot and killed the 15-yearold Hernandez at the international boundary between the U.S. and Mexico.
AP reports that a civil rights probe well investigate allegations of abuse by any U.S. law
enforcement officer. If investigators determine the Border Patrol agent shot Hernandez without
justification, he could be found to have violated Hernandez's civil rights, which is a crime. The
fate of the agent could range from being cleared of all wrongdoing to a charge of homicide.
Part of that inquiry, the attorney general said, will include a review of a recently surfaced cell
phone video from an unidentified witness. The 10-minute video shows the officer restraining one
of the border-crossers and apparently firing into Mexico at least three times. The investigation
should determine which country has jurisdiction in the case.
On the tape the agent . . . gave verbal commands to the remaining subjects to stop and retreat.
However, it appears that the subjects surrounded the agent and continued to throw rocks at him.
The agent then fired his service weapon several times, striking one subject who later died.
According to witnesses the Mexican army not only witnessed the incident but it has been
reported that they pointed there weapons at American law enforcement officers and forced an
U.S. law enforcement officer to leave the area and was unable to continue to retrieve evidence at
the scene of the shooting. Reportedly another TAPE HAS BEEN FOUND THAT SHOWS
MEXICAN L.E. CROSSED OVER INTO THE U.S. AND PICKED UP SOMETHING
(POSSIBLE EVIDENCE?) AND WENT BACK TO MEXICO WITH IT. Shortly after the
shooting, Mexican federal police chased Border Patrol agents out of the riverbed with rifles
trained on them while a crowd on the Mexican side taunted the U.S. officials and threw rocks
and firecrackers.
An autopsy, performed on the young 15 year old-Sergio Adrian Hernandez, showed that the
cause of death was a head wound caused by a firearm at a relatively short distance. The crime
occurred Monday on the Mexican side under the international railroad bridge between El Paso
and Cd. Juarez. Yesterday the Ministerio Publico determined that the painful death was caused
by an Agent of the U.S. Border Patrol in an act of aggression. Legally the crime occurred in a
federal zone between the United States and Mexico and it was determined to be caused by a
foreign Agent. The body was found on the bank of the Rio Bravo (Rio Grande) on the Mexican
side in a belly-up position and had signs of violent injury by projectiles from a firearm. At the
crime scene was found a case from a .40 caliber firearm which has been sent to a criminal
laboratory for analysis. In this case the scientific and technical evidence is consistent that the
painful death was caused by an Agent of the U.S. Border Patrol. What is still unclear is whether
Hernandez was one of the rock-throwers and whether the agent or the victim crossed the
international border.
Such incidents are on the rise, the Mexican government says. Five Mexicans were hurt or killed
by U.S. immigration agents in 2008, 12 in 2009 and 17 so far this year, according to data
maintained by the Mexican Foreign Ministry.
Many Mexicans blame Arizona's tough new immigration law for fanning anger toward
immigrants. The law makes it a state crime to be in the country illegally. It states that an officer
engaged in a lawful stop, detention or arrest shall, when practicable, ask about a person's legal
status when reasonable suspicion exists that the person is in the U.S. illegally.
"We are worried by this surge in violence against Mexicans, which has also been associated with
a recent surge in other anti-immigrant and anti-Mexican sentiments in the United States,"
Calderón said.
In a written statement, the FBI said the El Paso incident began about 6:30 p.m. Monday, when a
U.S. Border Patrol agent arrived to assist colleagues responding to a report of suspected illegal
immigrants being smuggled into the U.S.
The unidentified agent, according to the FBI statement, detained one of the suspects while others
reportedly threw rocks at the agent after running to the Mexican side of the border.
"This agent . . . gave verbal commands to the remaining subjects to stop and retreat," the
statement said. "However, the subjects surrounded the agent and continued to throw rocks at
him. The agent then fired his service weapon several times, striking one subject who later died."
The Mexican Foreign Ministry, in its own statement, said the use of firearms to "repel attacks
with stones represents a disproportionate use of force, especially coming from authorities who
receive specialized training in this area."
The Mother of one of the boys who refused to give her name, whose son allegedly witnessed the
shooting, said, "I understand equal force that Allegra may use to defend themselves, but killing a
young man who may have been tossing rocks with bullets is excessive force. She said, it would
have been different if the agent had returned the attack by throwing rocks back."
But T.J. Bonner, president of the National Border Patrol Council, the union representing about
17,000 agents and support staff, said rock attacks, a common danger faced by border agents,
have the "capacity to inflict serious damage, if not death."
"It appears that he acted properly," he said of the agent, whom he described as an "experienced
seven-year veteran."
Bonner said U.S. immigration-enforcement records show that the 15-year-old Mexican boy had
been arrested six times on various charges related to human smuggling or illegal entry. Last year,
Bonner said, the boy provided a sworn statement to investigators indicating that he was part of
an organized smuggling ring.
He said there is no information to suggest that the agent was aware of the boy's record at the time
of the shooting.
Other news report that international law experts indicate that if it is determined that the shooting
was a crime and not justified use of force by law enforcement, long-standing legal principle in
the U.S. states that the victim's location determines jurisdiction,
Still, most countries believe that they can prosecute anyone who harms one of their citizens,
regardless of location. In the case of the U.S. and Mexico, no treaty covers this specific set of
circumstances.
If the Border Patrol agent went to Mexico for any reason, he could be subject to arrest. The U.S.
would have difficulty arguing that Mexico was acting illegally. On the other hand, if Mexican
authorities kidnapped the agent in the U.S. and took him to Mexico for trial — as the U.S. did in
the case of a Mexican doctor involved in the torture and killing of a U.S. Drug Enforcement
Administration agent — the U.S. could argue violation of its sovereignty.
Both countries could agree to establish a claims commission that, depending on the ground rules,
could just determine facts or go so far as to order compensation, said Jordan Paust, an
international law expert at the University of Houston.
Theoretically, the case could go to the International Court of Justice, but the U.S. would have to
agree to that, he said. Or the whole thing could be handled diplomatically.
Hernandez's family would also have the option of pursuing a civil case against the Border Patrol
agent.
If Mexico requested extradition, normally the Obama administration would proceed with the
request unless it is conducting its own criminal investigation and prosecution, Paust said. U.S.
Attorney General Eric Holder would assign a federal prosecutor to represent Mexico's case
before a U.S. magistrate or district judge.
If the U.S. felt there were no grounds for the request — for example, it was self-defense —
Mexico could hire its own attorney to represent its case in federal court. That lawyer would have
to first prove that Mexico had jurisdiction, then show that the alleged crime existed under both
countries' laws, and finally would have to demonstrate that there was probable cause that the
crime had been committed.
According to El Diario de Juarez newspaper images show death of migrant Anastasio
Hernandez Rojas cried for mercy and help as his life was extinguished by more than 20 United
States Border Guards as they beat him and discharged electrical TASER charges into him. The
vivid images that can be seen on 5 video recordings last an agonizing two and a half minutes was
recorded by Humberto Navarrete Mendoza who agreed to give his eyewitness testimony and
recordings taken with his cell phone.
Navarrete became acquainted with the dead man about a week before he was killed. Dozens of
people crossing through the Port of San Ysidro, California, saw the torture and cried to stop the
beating. A Mexican Immigration officer ordered the people to disperse from the Mexican side of
the port without expressing a desire to interview witnesses.
With desperation and visible fear, many people remained muted at the scene on the U.S. side but
demanded justice on the Mexican side as recorded by Navarrete, a resident of San Diego. "Help
me! Help me! Please help me," cried Anastasio moments before he died. This can be seen on
the video that lasted 1:24 minutes. The voice of a woman that screamed "Let him go now!" can
be heard on the recording taken by Humberto, but the plea remained unanswered as Anastasio
suffered more blows and at least 5 more electrical discharges before he fell punished into
immobility. Navarrete questioned the excessive use of force and assured that Anastasio did not
resist.
In that same video an agent can be seen saying he didn´t know what was happening but at the
same moment said "Obviously, he is not cooperating." Anastasio´s cries of pain brought
confusion and desperation onto the faces of witnesses and drowned out the noise of grinding
metal that surrounds the port between the Port of San Ysidro and the Mexican Port of Entry.
Although it was in the dark of night, the scene was clearly recorded by Humberto and he is sure
that more than 20 U.S. Agents participated in the beating. It was at 8:00 PM on Wednesday the
28th of May as Humberto and a friend were headed into Tijuana when they heard the painful
screams. Although they were more than 50 meters away, they were alerted that something was
happening. "Anastasio was defenseless," said Humberto so they yelled for the beating to stop.
"It was at that moment that they hit him with the TASER,´ said Humberto. Although Humberto
witnessed a brutal beating, nobody imagined that it would result in the death of the victim.
Hernandez Rojas got his wings on the night of Wednesday past at a funeral in San Diego. He
will be buried in that same county according to his family.
Other than the now famous case of the Mexican teenager at the Rio Grande, fourteen persons
became victims of homicide in Juarez yesterday. A bloody human head was also left on a park
bench in Zaragoza, a nearby community in the Juarez valley.
Professor Paust was mentioned in an Associated Press article about a U.S. Border Patrol agent shooting
a Mexican boy on the international border last Monday.
This article appeared in The Bulletin (Philadelphia) on Sunday, June 13, 2010:
Mexico Condemns Border Patrol Shooting Of Teen
By ALEXANDRA OLSON and CHRISTOPHER SHERMAN, Associated Press
Sunday, June 13, 2010
EL PASO, Texas — Mexico condemned the shooting of a 15-year-old boy by a U.S. Border Patrol agent
Thursday through diplomatic correspondence and an angry phone call to the Homeland Security
secretary. Some Mexican politicians called for the agent’s extradition to face Mexican justice.
Anger over Monday’s shooting across a muddy riverbed on the international border was fueled by a cellphone video that showed key moments in the shooting, as debate began over which country has
jurisdiction in the case.
A still-unidentified Border Patrol agent trying to arrest illegal immigrants running into the United States
fired his weapon from the U.S. side into Mexico, killing 15-year-old Sergio Adrian Hernandez Huereka
while people on the Mexican side threw rocks at the Border Patrol agents on the scene.
What is still unclear is whether Hernandez was one of the rock-throwers and whether the agent or the
victim crossed the international border. Shortly after the shooting, Mexican federal police chased Border
Patrol agents out of the riverbed with rifles trained on them while a crowd on the Mexican side taunted
the U.S. officials and threw rocks and firecrackers.
“We are worried by this surge of violence against Mexicans, which comes along with a surge of other
anti-immigrant and anti-Mexican occurrences in the United States,” Mexican President Felipe Calderon
said in a new statement, apparently referring to Arizona’s new immigration law, which the Mexican
leader has previously condemned as discriminatory.
The grainy cell phone video aired by Univision in Mexico shows an edited glimpse of the violence. In it, a
Border Patrol agent on a bicycle arrives in the riverbed as several men attempt to run back to Mexico.
He detains one on the U.S. side and once he has him on the ground, fires two audible shots toward
Mexico. The camera then shows what appears to be a body under a nearby railroad bridge.
Interior Secretary Fernando Gomez Mont phoned U.S. Homeland Security Secretary Janet Napolitano, to
protest the killing of Hernandez and a man on the California-Mexico border two weeks ago. Gomez
Mont’s office said he demanded that the U.S. and Mexico carry out a joint review of protocols on the
use of force by border officers.
Gomez Mont told Napolitano the “unjustified use of force against our population is unacceptable to the
Mexican government.”
Border Patrol agents are allowed to use lethal force against rock-throwers.
Calderon’s government has comes under increasing criticism at home for what some Mexicans believe is
a lukewarm reaction to the two deaths. Opposition politicians and some commentators criticized
Calderon for leaving on Thursday to watch the World Cup in South Africa.
Jesus Ortega, president of the opposition Democratic Revolution Party, said the Border Patrol agent who
shot Hernandez should be extradited to Mexico.
“When a delinquent commits a crime in Mexico that affects a U.S. citizen, extradition is immediately
requested and the Mexican government immediately grants it,” Ortega said.
Calderon gave no indication his government had any intention of seeking extradition. Instead, he called
for a thorough U.S. investigation that “clears up the facts and culminates with punishing those
responsible.”
So when a bullet leaves one country and kills someone in another, who has jurisdiction?
If it is determined that the shooting was a crime and not justified use of force by law enforcement, longstanding legal principle in the U.S. states that the victim’s location determines jurisdiction, international
law experts said.
If the Border Patrol agent went to Mexico for any reason, he could be subject to arrest, Raustiala said,
and the U.S. would have difficulty arguing that Mexico was acting illegally. On the other hand, if Mexican
authorities kidnapped the agent in the U.S. and took him to Mexico for trial — as the U.S. did in the case
of a Mexican doctor involved in the torture and killing of a U.S. Drug Enforcement Administration agent
— the U.S. could argue violation of its sovereignty, he said.
“It does seem unlikely that Mexico is actually going to be able to try this person,” Raustiala said.
Both countries could agree to establish a claims commission that, depending on the ground rules, could
just determine facts or go so far as to order compensation, said Jordan Paust, an international law
expert at the University of Houston.
Theoretically, the case could go to the International Court of Justice, but the U.S. would have to agree to
that, he said. Or the whole thing could be handled diplomatically.
Hernandez’s family would also have the option of pursuing a civil case against the Border Patrol agent.
If Mexico requested extradition, normally the Obama administration would proceed with the request
unless it is conducting its own criminal investigation and prosecution, Paust said. U.S. Attorney General
Eric Holder would assign a federal prosecutor to represent Mexico’s case before a U.S. magistrate or
district judge.
If the U.S. felt there were no grounds for the request — for example, it was self-defense — Mexico could
hire its own attorney to represent its case in federal court. That lawyer would have to first prove that
Mexico had jurisdiction, then show that the alleged crime existed under both countries’ laws, and finally
would have to demonstrate that there was probable cause that the crime had been committed.
State Department spokesman P.J. Crowley said Thursday that the agency had received a formal
diplomatic note from Mexico on Wednesday expressing concern about the shooting. Crowley reaffirmed
the U.S. commitment to a transparent investigation.