La Prensa - Fall 2021

FALL 2021 ISSUE

LA PRENSA THE OFFICIAL HISPANIC JOURNAL OF OKLAHOMA CITY UNIVERSITY SCHOOL OF LAW

LA PRENSA BOARD JUDITH GALLEGOS O'BRIEN & GRISELDA GARCIA Co-Editors ALEJANDRA GUTIERREZ Spanish for Lawyers Fellow PAUL M. CLARK Legal Research & Writing Professor, Faculty Advisor

TABLE OF CONTENTS FALL 2021 How To Get Away with Murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 JULIETA MENDOZA

Systematic Abuse: Latinos Take a Step Back . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 LUIS JASSO

Validating My Parents' Sacrifice: The Story of a First-Generation Mexican American Law Student . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 LUCIANA PEREZ

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How To Get Away with Murder Hernández v. Mesa, 140 S. Ct. 735 (2020)

JULIETA MENDOZA

The U.S.-Mexican border es una herida abierta where the Third World grates against the first and bleeds. And before a scab forms, it hemorrhages again, the lifeblood of two worlds merging to form a third country—a border culture.1 Este artículo hablará sobre el caso de homicidio de un joven inocente, Sergio Adrián Hernández Güereca, un mexicano de quince años de edad a quien le dio muerte un agente migratorio de apellido Mesa en la frontera que separa El Paso, Texas de Ciudad Juárez, México.2 Este caso es un prototipo de cómo los mexicanos son objetivo de injusticia en su propio país por el gobierno de los Estados Unidos de América. Este caso en concreto provocó un desacuerdo internacional que afectó las relaciones entre Estados Unidos y México, afectando también directamente las vidas de los mexicanos que viven en la frontera.

This case is about Sergio Adrián Hernández Güereca, a fifteen-year-old Mexican national who lived in Ciudad Juarez, Mexico.3 He and his friends were playing tag, running across the Rio Grande and touching the fence on the El Paso, Texas side and then running back across to the Mexican side, with no intention of crossing permanently onto U.S. soil.4 It was a simple game. As Hernández was running back onto Mexican soil, Agent Mesa fired two shots at Hernández; one struck and killed him on the Mexican side of the border.5 This case became an international affair between the two countries. When no resolution was offered to the family in Mexico, Hernández's parents decided to take matters into their own hands.

The parents filed suit against Agent Mesa for damages arising out of the murder of their son, alleging that Mesa violated Hernández’s Fourth and Fifth Amendment rights.6 To support their claims,7 the parents asked the Court to extend Bivens8 to create a damages remedy for cross-border shootings.

The Court denied the extension.9 The Court offered one reason for its refusal to extend Bivens: separation of powers among the three branches of government.10 The Court explained that extending Bivens would involve the Court in issues of foreign policy, which is the domain of the political branches.11 The Court reasoned that Congress had not given the Judicial Branch any instruction to extend Bivens.12 Weighing whether the Court should alter the framework established by the political branches in cases where lethal force was unlawfully employed by a border patrol agent,13 the Court explained that judicial inquiry into issues of national security, such as this one, raised separation-of-powers concerns.14 Before Mr. Hernández’s parents filed suit, the Executive Branch had decided not to prosecute Agent Mesa because his actions were “consistent” with Border Patrol policy and training.15 At the time of the shooting, Agent Mesa was acting with “reasonable conduct,” and based on agency standards, there would be no prosecution.16 1. GLORIA ANZALDÚA, BORDERLANDS / LA FRONTERA 3 (1st ed. 1987).

2. Hernandez v. Mesa, 140 S. Ct. 735, 740 (2020).

3. Id. 4. Id. 5. Id. 6. Id. 7. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (holding that a person claiming to be the victim of an unlawful arrest and search could bring a Fourth Amendment claim for damages against the responsible agents even though no federal statute authorized such a claim).

8. Hernandez v. Mesa, 140 S. Ct. 735 (2020).

9. Id. at 741.

10. Id. at 740.

11. Id. at 744.

12. Id. 13. Id. at 746.

14. Id. at 747.

15. Id. at 744 16. Id.

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How To Get Away with Murder Mexico, however, wanted to extradite Agent Mesa.17 Mexican authorities argued that “shootings by Border Patrol agents are a persistent problem and . . . the United States has an obligation under international law.”18 Extending Bivens, the Court explained, would interfere with the Executive Branch’s decision.19 The Court washed its hands by dismissing not only an international issue but a humanitarian issue,20 stating only that “the United States and Mexico would attempt to reconcile their interests through diplomacy.”21 In so doing, the Court reopened a wound that has never healed between Mexico and the United States. It is easy to justify Agent Mesa for “doing his job” when all you know about the border is what you can imagine. But to someone who has actually lived the border experience, the Court's opinion rings hollow, ignoring the realities and dynamics of border-town life.

Being a Mexican national and living close to the border has given me a different perspective of the border—and of this case. For fifteen years, I lived in a border town forty-five minutes from where Hernández was murdered. There is no open desert between El Paso, Texas and Juarez, Mexico. It is an urban area where houses, businesses, and playgrounds are seconds away from the fence that separates the United States and Mexico. It is a highly populated area on both sides of the border. I crossed the border on a biweekly basis.

Growing up, I immersed myself in the border culture and saw the beauty of two separate countries living different lives while being only seconds away. From the United States side of the border, we make eye contact with those who are on the Mexican side of the border. We can hear each other. We see children play, they see us go to school, we see them go grocery shopping, and they see our five o’clock traffic. This is the harmony that Agent Mesa disrupted when he shot an unarmed fifteen-year-old child. This is why this case instills fear in those living only a few feet away on the Mexican side of the border.

It is undeniable that the Court respected the separation of powers by refusing to extend Bivens; the Court respected the Executive Branch and declined to intervene except where specifically authorized by Congress.22 However, the separation of powers does not justify the injustice and precedent that has been created with this case, and the Court has failed to hold Agent Mesa accountable.

Writing for the majority, Justice Alito reasoned that The United States has an interest in ensuring that agents assigned the difficult and important task of policing the border are held to standards and judged by procedures that satisfy United States law and do not undermine the agents’ effectiveness and morale. Mexico has an interest in exercising sovereignty over its territory and in protecting and obtaining justice for its nationals. It is not our task to arbitrate between them.23 But this is a gray rationale in a black and white situation. Shooting an unarmed fifteen-year-old boy on Mexican soil during broad daylight serves neither “effectiveness” nor “morale.”24 It is murder.

17. Id. at 745.

18. Id. 19. Id. at 744.

20. Id. 21. Id. at 745.

22. Id. at 739.

23. Id. at 745.

24. Id.

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How To Get Away with Murder Justice Alito suggests that Mexico has power over its territory. But in this case, the United States took that power from Mexico25 when it did not allow Agent Mesa to be extradited or face charges for crimes committed on Mexican soil against Hernández, who is a Mexican national26 and precisely the type of individual whom Justice Alito stated Mexico has the power to protect.

Hernández and his friends did not undermine the security of the United States. Hernández was running away from the U.S. border to Mexico while playing tag with his friends.27 There was no attempt to enter the United States illegally. Agent Mesa, as a sworn officer of the United States, bears greater responsibility than an unarmed fifteen-year-old boy. There was no justification for Agent Mesa to shoot Hernández. The Court’s “respect” for the separation of powers is also a clear message to all Mexican nationals that there is no remedy for the injustice the United States has created, even on Mexico’s own soil. Mexican nationals are not safe inside the United States, and now they are not safe in their own country.

Justice Ginsburg spoke truth when she wrote in her dissent that “recognizing a Bivens suit here honors our Nation’s international commitments.”28 Mexico and the United States are neighbors, joined by over 1,900 miles of border.29 According to Justice Ginsberg, “the United States has not extradited a Border Patrol agent to stand trial in Mexico, and to [amici’s] knowledge has itself prosecuted only one agent in a cross-border shooting.”30 When will justice be served?

Through this case, the United States has given itself authority and jurisdiction outside of U.S. soil.

The United States can decide to invade and execute in another country without facing repercussions, something the United States itself would never allow another country to do.

This is how to get away with murder in the United States.

25. Id. 26. Id. at 740.

27. Id. 28. Id. at 758.

29. Id. at 746.

30. Id. at 760.

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Systematic Abuse: Latinos Take a Step Back Hernandez v. New York, 500 U.S. 352 (1991)

LUIS JASSO Durante la selección del jurado, el fiscal del estado de Nueva York utilizó impugnaciones perentorias para excluir a los posibles jurados Latinos.1 El abogado de Hernández se opuso a las impugnaciones perentorias, alegando que violaron la cláusula de igual protección.2 El fiscal continuó explicando que los miembros del jurado que hablaban español necesitarían un traductor y que era posible que no se adhirieran a la traducción.3 Esto podría afectar a los demás miembros del jurado y es la razón de su exclusión.4 El tribunal sostuvo que los fiscales habían ofrecido una explicación suficiente de raza neutral para las impugnaciones perentorias y rechazó la objeción de Hernández a la violación de la cláusula de igual protección.5

Dionisio Hernandez was convicted of attempted murder and possession of a weapon in a New York Court.6 During the trial, the state prosecutor used peremptory challenges to exclude several Spanish-speaking jurors.7 Defense counsel did not contest two of these challenges because the jurors in question had close family relationships with criminals.8 The other two, however, were the subject of a Batson challenge.9 The prosecutor did not wait for the defense to make a prima facie case of discrimination under Batson and instead volunteered his reasoning to the court.10 The prosecutor explained that the two jurors who were bilingual did not respond confidently when questioned.11 Instead, they would look away and respond hesitantly, especially when asked if they would adhere to the translator as the final arbiter, to which they replied that they would try.12 Accordingly, the prosecutor deemed it necessary to exclude these jurors to prevent their having an undue impact on the rest of the panel.13 The prosecutor denied any knowledge regarding the ethnicity of the jurors and denied any motive to remove them on a racial basis.14 Hernandez appealed.15 In deciding whether the peremptory challenges violated the Equal Protection Clause, the Court used the three-part test established in Batson v. Kentucky: First, a defendant must make prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race.

Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.16

1.Hernandez v. New York, 500 U.S. 352, 356 (1991).

2. Id. at 355.

3. Id. at 356-57.

4. Id. at 371.

5. Id. at 372.

6. Id. at 355.

7. Id. at 356.

8. Id. 9. Id. 10. Id. at 356.

11. Id. at 357.

12. Id. 13. Id. 14. Id. at 356.

15. Id. at 358.

16. Id. at 359.

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Systematic Abuse: Latinos Take a Step Back The Court held that because the prosecutor had offered his reasoning, there was no need to analyze whether Hernandez had made a prima facie showing of discrimination under Batson’s first prong.17 Accordingly, the Court moved to the second prong, noting that while the prosecutor’s criterion for exclusion would result in disproportionate removal of Latino jurors, it was race-neutral in character.18 Although it was reasonable that the jurors might have difficulty accepting the translator’s rendition of Spanish-language testimony, that difficulty would nevertheless support a valid for-cause challenge, and the challenges thus did not violate the Equal Protection Clause.19 Finally, the defense could not prove purposeful discrimination under Batson’s final prong because there was sufficient evidence to credit the prosecutor’s claims that he did not know which jurors were Latinos and that he had no motive to exclude Latinos from the jury.20 Only three of the challenged jurors could be identified with confidence as Latinos, and the prosecutor had offered a sufficient explanation for two of those challenges.21 Therefore, the prosecutor’s peremptory challenges did not violate the Equal Protection Clause.22 In his dissent, Justice Stevens argued that the prosecutor’s use of peremptory challenges in a way that unfairly impacted Latino jurors was sufficient evidence to show discriminatory intent.23 In addition, Justice Stevens noted that Spanish speakers could help the judge to ensure that the translator was translating properly.24 In Stevens’s view, the jurors’ exclusion was a clear violation of the Equal Protection Clause and allowed the prosecutor’s reasoning to stand simply because it was not discriminatory on its face.25 The Court ruled improperly based on its unwillingness to see the effects of its decision on the case at hand or on similar cases in the future. Under this ruling, a Spanish-speaking defendant might stand trial in a courtroom where all Latinos are excused from the jury based on their proficiency with the Spanish language. Denying such a large segment of the population the ability to serve on a jury—especially in a state like New York, where a substantial portion of the population is Latino—could lead to unfair rulings against minorities in general and Latinos in particular. But more generally, excluding one of the country’s largest minority groups from jury service can only result in an imbalanced justice system. What would happen if a translator were to make a mistake or insert an opinion regarding the evidence? What if the translation omits or adds additional phrasing, or changes the wording to seem more or less favorable in English than in the original language? Without a mechanism to correct these errors, the answer would be an inequitable administration of justice. Allowing a multilingual juror to remain provides an avenue to identify and correct such problems and would ultimately serve the interests of justice.

Courts must reconsider this issue. Until then, decisions like Hernandez represent a step back for Latinos in the never-ending journey to reach the equality promised in the American dream.

17. Id. at 358.

18. Id. at 363.

19. Id. at 362-63.

20. Id. at 370.

21. Id. at 372.

22. Id. 23. Id. at 379.

24. Id. 25. Id.

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Validating My Parents' Sacrifice: The Story of a First-Generation Mexican American Law Student LUCIANA PEREZ Estudiantes de primera generación de padres inmigrantes enfrentan desafíos únicos. Muchos de nosotros aprendemos a vivir con el miedo a la deportación. Igualmente, vivimos con la dificultad de dominar la barrera del idioma. Pero al mismo tiempo, estos son los desafíos que nos enseñan a luchar por la justicia para los demás y que nos moldean para ser quienes somos.

Growing up with an undocumented parent always set me apart from everyone else. I was not a normal kid who went to elementary school, did homework, and asked my parents to sign my fieldtrip permission slip. I knew I was different because I had to take extra steps in every single endeavor. I would go to school and work with a Spanish assistant to learn English in kindergarten.

While working on my homework at home, if I got stuck on something, there was no one in my house who could help because no one spoke English. And asking for my mom’s signature on a permission slip meant that I had to read the form, translate it for her, and fill it out. These are just a few of the challenges and nuances that most first-generation Latinx students are all too familiar with. For me, these challenges started early in my life and continued to follow me into adulthood and into law school.

As a child, I feared that my mom would someday be deported and my family would be separated. My most memorable experience with this fear happened when I was about eight years old. My mom and I would go to the grocery store every Sunday after Mass. This Sunday in particular, my mom handed me a little black purse to carry and put some papers in. She told me it was not safe for her to leave the house that day because there were immigration raids in the area. She could be in danger if she were found to be undocumented. She proceeded to tell me that I was a U.S. citizen and that the papers inside the purse were my birth certificate and the grocery list for me to read to my dad. The level of fear and anxiety I felt when my dad and I returned from the store is something that I will never forget. As we drove up to our house, I looked for signs that everything was okay. I was afraid I would not find my mom or siblings in the house. I imagined what I would do if they were taken: would I still go to school or would I also go to Mexico?

Thankfully, nothing happened that day, and my mom was safe. But I can remember thinking about that fear the next day when I was at school. I did not want to play at recess, eat my lunch, or learn any more English words. Everyone else seemed to be so normal, so unlike me.

Another challenge first-generation students face is the language barrier. Because Spanish was my first language, learning English was an additional layer in my education and something that to this day I continue to develop. In my first year of law school, I struggled with reading comprehension. It took me longer to read and understand cases compared to others. It has taken me two years to learn how to make good use of the time I have on the weekend to work through my readings, outline, and study. And although I do not have a lot of extra time, I have continued to develop my

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Validating My Parents' Sacrifice: The Story of a First-Generation Mexican American Law Student reading and writing skills by accepting every opportunity to do so. This is the second year that I am a part of a moot-court team, which has allowed me to improve my reading and writing skills while getting a glimpse of the appellate work I hope to do one day.

The core of appellate advocacy is research and writing, and I know it is something I must continue to improve. I am confident that the endeavors I am a part of will undoubtedly pay off.

When I was extended a judicial externship at the Court of Criminal Appeals this past summer, I was able to take yet another opportunity to improve my reading and writing. I was able to write a legal memo and draft a summary opinion for my supervising attorney. Seeing a copy of the order when it was sent out was one of the best moments in my law school career. I also volunteered at the Oklahoma County Public Defender's Office, where I was able to draft motions and attend court proceedings. These experiences have made me a better and more confident student.

There is a level of imposter syndrome that all law students deal with, but when I speak to other first-generation law students, it is evident that our imposter syndrome is magnified by being the first people in our families to have reached this level of education. I am encouraged and inspired

by Latinas, such as Justice Sonia Sotomayor, who have encountered adversity in the legal field and yet have reached incredible heights.

Due to the challenges my parents faced as immigrants, I feel a duty to help others facing adversity. I believe most people go to law school to help others, but this is particularly true for first-generation students. In a way, I am vindicating my parents’ sacrifice of migrating to this country. I am righting the wrongs they experienced. I am deeply connected to social justice causes that remind me of the people I want to help. My parents, in their own way, sought justice for our family.

They migrated to this country to provide a better life for my siblings and me. In turn, I plan to use my law degree to help others and make a positive impact on their lives. I have my circumstances and my immigrant parents to thank for this goal. I dedicate my fight for justice to my dad, Roberto Perez, who passed away May 21, 2021.

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