Legal Docket: A tragic border case

NICK EICHER, HOST: It’s Monday morning and time to saddle up for another week of The World and Everything in It. Today is the 25th of November, 2019. 

Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Well, the Supreme Court is on hiatus for the Thanksgiving holiday until next Monday, so we’ll use that time to catch up at least somewhat on oral arguments. 

First, a case with facts that’ll break your heart. 

Back in 2010, some teenage boys from Mexico were playing dare. They were on the border with the United States, between El Paso and Cuidad Juarez.

The boys dared each other to run across the border and then run back.

EICHER: One of the boys was 15-year-old Sergio Hernandez. 

While this game was going on, Border Patrol agent Jesus Mesa arrived on the scene. One of the boys was detained on the U.S. side of the border. But Hernandez ran back to the Mexican side. Mesa, standing on American soil, shot across the border and killed the teenager.

REICHARD: And that’s the complicating factor: the boy was killed not on American soil, but Mexican soil. 

The Obama administration’s Department of Justice declined to charge Mesa. 

So Hernandez’ family sued Mesa, alleging he violated their son’s rights by using excessive force. That, in violation of the Fourth Amendment’s protection from unreasonable search and seizure and the Fifth Amendment’s right to due process. 

But their son was not an American citizen.

So the legal question before the Supreme Court is whether this family can sue Mesa in American courts.

EICHER: Now, here’s a phrase to know: “Bivens action.” That’s shorthand for a Supreme Court decision from 1971, Bivens v. Six Unknown Named Agents. 

In that ruling, the justices found an individual has the right to sue a federal agent if that federal agent in certain situations violates his constitutional rights. The question is whether that “Bivens action” should be extended to the Hernandez family.

REICHARD: Now on to the oral argument. 

Justice Stephen Breyer described the border scene in this exchange with Randolph Ortega. He’s the lawyer defending Mesa, the border agent.

BREYER: We know this place by picture. It’s a culvert. It’s a big culvert, like here to the end of the room. And there’s a bridge. And across these bridge, hundreds, perhaps thousands, of people walk each day on their way to work or on their way home. Now a border agent who’s standing near the bridge picks up a gun and shoots one of them. If he’s crossed that imaginary line in the center of the bridge, I take it, you agree that you can bring a Bivens action? 


ORTEGA: That’s correct.

BREYER: And if he is an American and on the other side, you agree he can bring a Bivens action?

ORTEGA: That would be correct, Your Honor.

BREYER: Okay. So the only person who cannot bring a Bivens action—and the border agent has no idea whether he’s shooting such a person—is someone who is just on the Mexican side of the imaginary line on the bridge and whom he shot deliberately or roguely or whatever.

ORTEGA: That would be correct, but—

Justice Breyer pointed out court precedent that suggested if Congress doesn’t act on a problem and the courts can weigh the costs and benefits of allowing a lawsuit to move forward, then that’s the standard to follow. 

But Ortega, again lawyer for Mesa, the Border Patrol agent, warned against extending Bivens to another country. There’d be no end of troubles with that, he argued.

Ortega ran into more pressure from justices Ruth Bader Ginsburg and Sonia Sotomayor.

GINSBURG: Here, we have a rogue officer acting in violation of the agency’s own instruction, using excessive force to kill a child at play. How does that call into question any foreign policy or national security policy?

ORTEGA: Well, it would create a chilling effect as to the Border Patrol agents in conducting their day-to-day activities…

SOTOMAYOR: Well, doesn’t that happen if the shooting happened in our own land? Meaning a Border Patrol agent who sees a child at play and kills him two feet from the line is not chilled. He knows he can’t do that. What makes it chilling to tell a Border Patrol agent don’t shoot indiscriminately at children standing a few feet from the border? 

Justice Sotomayor also noted an amicus brief filed by a former official with Border Patrol. It cites multiple incidents of excessive force and questionable killings by border agents, with no follow up or discipline at the agency. 

Why create a class of Border Patrol agents immersed in such a corrupted agency and make them immune from lawsuits, she asked. 

The answer came from government lawyer Jeffrey Wall, also arguing in support of Mesa. This is for legislative debate, not courts, he said. 

As for bad behavior by Border Patrol, Wall cited a 70 percent drop in the use of force with firearms at the border in recent years.

Other justices focused on how all kinds of harms might be unintentionally caught up with a ruling for the family in this particular case. 

Listen to this exchange between the lawyer for the Hernandez family, Stephen Vladeck, and Justice Neil Gorsuch.

VLADECK: So, I mean, I—obviously, I wouldn’t decide more than is necessary. But I do think—

GORSUCH: Ah, ah, okay. That’s what—that’s what I thought you’d say.

VLADECK: But, but, Justice Gorsuch—

GORSUCH: All right. And so—so where is, if—if you’re not willing to draw that line, where is it? And how is this Court supposed to draw it? You say you could say this, but I wouldn’t say it. All right. 

Where would you draw the line?

This is the second time this matter is before the high court. The first go round, the justices sent the case back to lower court to sort out whether the family had a Bivens claim. When that court decided they didn’t, the family appealed to the Supreme Court. 

And this time around, Chief Justice John Roberts saw a foreign relations problem.

ROBERTS: There has been diplomatic correspondence between the Mexican government and our government with respect to this incident. The Border Patrol has conducted an investigation, and it reached the determination that the action of the agent was not contrary to policy. And you would have the courts look into this by … providing a Bivens remedy that could well come to the opposite conclusion. 

So that in terms of our relations with Mexico, we’d have one agency saying this was not 
inconsistent with policy. We’d have the court saying it is….with respect to foreign relations, I thought the country was supposed to speak with one voice. 


VLADECK: So I do—I certainly agree that the—that the country is supposed  to speak with one voice, Mr. Chief Justice. 


This is not an easy case, if you remove emotions from the equation.

Strong arguments exist on both sides. 

This family has no other remedy for the loss of their child, save for a lawsuit to prove agent Mesa used excessive force against their son and then convince a jury that they are entitled to damages.

For its part, Border Patrol sometimes has to make quick decisions in matters of national security. Terrible things can happen.

The facts in this case are far different from the facts in the Bivens case. That involved a warrantless search of the home of an American citizen. And Congress has been silent about extending Bivens to other situations. 

The justices seemed divided on yet another case where if Congress did its job, they’d not be involved at all.

This next case is a complex stew of badly written law requiring interpretation that will affect thousands of non-citizens with criminal records. 

It’s also sure to raise the ire of citizens. 

How badly written is this law? Well, here’s how Justice Breyer put it.

BREYER: I know, but I can’t think—that isn’t going to be an answer because they’d say, sometimes they do say A/B, sometimes they don’t say A/B, it wasn’t a genius who drafted this and he forgot the A and the B and he—but he did put in the or. And so, all right, I’ve got that point. 

Here are the facts. 

Andre Barton came from Jamaica to the United States on a tourist visa in 1989. Three years later, he became a permanent resident. 

A few years after that, Barton received multiple convictions for assault, property damage, and various drug offenses. 

Finally in 2016, the Department of Homeland Security began removal proceedings to deport Barton. He had to have gone seven years in continuous residence without committing any crimes. DHS says Barton didn’t do that, so he is ineligible to apply for cancelation of his removal. 

But Barton argues he is entitled to fight his removal proceedings because federal immigration law says a permanent resident alien is “removable” only if he is “inadmissible.” 

Barton says he was already admitted, so he’s not “inadmissible.” And he disputes the time clock: he says he’d met that seven years without a crime rule, albeit barely. 

Justice Ginsburg asked Barton’s lawyer, Adam Unikowsky, a blunt question, reflecting the government’s perspective.

GINSBURG: Why wouldn’t Congress want the clock to stop when an alien has committed a qualifying offense showing that he has abused the hospitality of the United States?

Unikowsky replied that Congress hadn’t listed his client’s specific crimes as precluding him from relief from removal proceedings. Sort of a “give the guy the benefit of the doubt” argument. 

But the plain language of the statute says otherwise, according to the lawyer for the government, assistant to the solicitor general Frederick Liu.

LIU: The statutory text alone is enough to resolve this case… Now petitioner says there’s an added requirement in the statute, that requirement being that he must be seeking admission. But that requirement can’t be found in the text of Section 1182(a)(2).

And then rotten fish entered the argument. Justice Samuel Alito echoed the lower court’s way to think about the word “inadmissible.” Listen to this exchange with Liu, for the government, and justices Alito and Elena Kagan.

ALITO: So, if a fish rots and it is inedible, they say, well, it was inedible before the person ate it. But, under Justice Breyer’s interpretation of admissibility, suppose this person eats the fish and then goes to the emergency room to have his stomach pumped, would the doctor say, well, the fish wasn’t actually inedible because he ate it? [Laughter] 


LIU: No, no, you wouldn’t, because the fish has the status of being inedible, whether someone has—

KAGAN: No.

LIU: —eaten it—

KAGAN: But, Mr. Liu—

LIU: —or is trying to eat it or not. 


KAGAN: This really is dependent on context because you wouldn’t say is car is immovable if the car has just been moved…

BREYER: Before you leave this, I’ll think about the fish. I’m not sure I got the fish, but I’ll think about the fish. [Laughter] 
But I’m back in what in heaven’s name is that clause doing there.

So this is a technical argument about how to interpret a terribly written law. A broad reading would mean lots of criminal aliens would be deported. A more narrow reading like Barton wants is arguably contrary to congressional intent. 

And that’s this week’s Legal Docket.

(AP Photo/J. Scott Applewhite) In this June 17, 2019 photo, The Supreme Court is shown in Washington. 

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