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Mexican Teen Fatally Shot By Border Patrol Protected By U.S. Constitution, Court Rules

Sergio Adrian Hernandez Guereca, 15, was shot in 2010 by a Border Patrol agent. The boy's parents can now move forward with a lawsuit civil suit.

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A federal appeals court Monday ruled that a Mexican teenager who was fatally shot by Border Patrol was protected by the U.S. Constitution despite being on Mexican soil when the incident occurred.

The 5th U.S. Circuit Court of Appeals' ruling means the teen's family can go ahead with a lawsuit against the agent who shot him. It reverses a decision by a lower court that said the family could not sue because the victim was a Mexican citizen in Mexico when the shooting occurred.

The case involves the family of Sergio Adrian Hernandez Guereca, who died at age 15 after he was shot in the face by Border Patrol agent Jesus Mesa.

In 2010, Hernandez and some friends in Ciudad Juarez were playing a game that involved running up to the border near El Paso, Texas. When one of the boys was detained by a Border Patrol agent, Hernandez fled and hid behind a pole. Mesa fired at least two shots across the border, one of which hit Hernandez in the face, killing him, according to court documents.

The family sued agent Mesa, the U.S. government, the Department of Homeland Security, the Justice Department, and several of Mesa's supervisors, claiming that Hernandez's Fourth and Fifth Amendment rights had been violated. A district court dismissed the charges, and the family appealed.

The appeals court Monday upheld the majority of the lower court's ruling, relieving the agencies and supervisors of responsibility, but said the claims against the federal government and Mesa were valid. Both the government and Mesa can appeal the decision.

In the court's ruling, Circuit Judge Edward C. Prado wrote that immigrants inside the U.S. "are entitled to feel free of gross physical abuse by federal agents," and that not extending that right to a person just across the border "would establish a perverse rule that would treat differently two individuals subject to the same conduct merely because one managed to cross into our territory." The approach would create "zones of lawlessness," Prado wrote.

The American Civil Liberties Union filed an amicus brief in the case, arguing that there is no basis for the government's position that the Constitution does not apply abroad, following a Supreme Court decision on Guantanamo. Leaders at the legal advocacy organization applauded Monday's ruling.

"Any other result by the court of appeals in this case would have meant that border patrol agents could continue to shoot Mexican nationals such as this 15-year-old child with impunity, free from judicial oversight," Lee Gelernt, deputy director of the National ACLU's Immigrants' Rights Porject, said in a statement. "The court properly rejected the notion that the federal government can monitor itself, especially in such an egregious case."

Los Angeles-based reporter.

Contact Juan E. Gastelum at

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