POSC 340 issues (3: court decisions on standing (ON Hernandez v. Mesa (The…
POSC 340 issues
3: court decisions on standing
Wang v Reno
Sosa v. Alvarez-Machain
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics
ON Hernandez v. Mesa
The U.S. Court of Appeals for the Fifth Circuit affirmed in part and reversed in part and held that the Fifth Amendment protections against deadly force applied but not the Fourth Amendment protections. Rehearing the case en banc, the appellate declined to answer the Fifth Amendment question, but held and that Hernandez could not assert a claim under the Fourth Amendment because he was a Mexican citizen without a significant voluntary connection to the United States who was on Mexican soil when he was shot and killed.
Applying a formalist test, the district court concluded that the Constitution’s deadly-force protections stop at the border for non-citizens like Hernandez.
Functionalism vs formalism
Part 1: intro and thesis
2: about the issue
It is a case of allowing constitutional protections to a foreign citizen
they tend to be regular citizens and not enemy combatants
whether or not a case can be heard.
The biggest obstacle on handling cases of extraterritorial standing:
BIGGEST FEARwould it interfere with military operations abroad and inadvertently open U.S. courts to a flood of litigation on behalf of the world's aggrieved
the ability for a person outside of the united states to have their grievances heared in an american court of law
Does not apply to foreign enemy combatants
does not apply to those who are outside the United States and is in another country
does not apply to those seeking to address their grievance elsewhere (like another court system)
Usually doesnt deal with an injury from an american private citizen, it must apply someone who is representing the United States
can apply to people who are within the united states.
is prohibited to give mostly in the case of protecting national security interest, which the executive branch tends to be the sole organ of.
Is the CBP part of the executive branch? yes, so is he qualified immunity from having these heard.
May also deal with the issue immunity of foreign relations and security
can the hernandez receive a bivens claim?
A U.S. citizen outside the territory could not get the claiim
Meshal v. Higgenbotham
“reject[ed] the idea
that when the United States acts against citizens abroad it can do so free of the Bill of Rights.”
The very factors that color the assessment of Fourth Amendment reasonableness and statutory construction induced the D.C. Circuit to limit the application of the Bivens rule:
extraterritoriality and national
4: judicial opinion
On extraterritorial standing
We should apply boumediene v. bush and not Verdugo-Unrquide
three steps to boumediene
the status and the citizenship of the detainee
his status as an innocent alien demands greater attention in determining whether he should be granted constitutional protection. Unlike the Mexican national accused of murder and drug crimes in Verdugo-Urquidez or the enemy combatants detained under AUMF in Boumediene, Hernandez was an innocent civilian.
the nature of the site of apprehension and detention
the nature of the U.S.-Mexico border is more similar to Guantanamo Bay in Boumediene because the United States exerts a significant amount of control in both territories
The U.S. Department of Homeland Security has advanced its technology to increase border surveillance by using "mobile surveillance units, thermal imaging systems, and large-and small-scale non-intrusive inspection equipment, ... 124 aircraft and six Unmanned Aircraft Systems operating along the Southwest border." n143 Therefore, the U.S. Border Patrol agents maintain a constant presence in Mexico as opposed to troops who temporarily occupy a foreign country during wartime.
the potential practical obstacles of granting this constitutional protection
Having a Supreme Court ruling that permits [*1570] aliens at the U.S.-Mexico border to bring Fourth Amendment claims against U.S. Border Patrol agents would not cause confusion as to what is reasonable behavior. n150 Conversely, it would clarify the perplexing standard that Verdugo-Urquidez has left courts to apply. n151
But why apply boumediene? why not anything else? its habeas corpus...
The constitution was still applicable in that situation
but why boumediene? why not V-U
Legal review has plenty of answers their
Their is an importance to have a uniform ruling on the case now
It is timely-
the question of whether foreign nationals immediately outside U.S. territory are entitled to constitutional protection has received no scholarly attention
arguing that a uniform standard will promote clarity for U.S. officials to follow and alert them of possible apprehension if they were to violate the standard at the U.S.-Mexico border
The border patrol and their impunity
Mesa should still face repurcussions
He violated U.S. laws on U.S. soil
the fact that he was on U.S. soil does not matter: Every action by the U.S. government has an ultimate cause in U.S. territory.