U.S. Supreme Court building. The NLJ/ Diego M. Radzinschi

The U.S. Supreme Court on Monday revived a Mexican family’s attempt to hold a U.S. Border Patrol officer liable for the shooting death of their unarmed teenage son on foreign soil, and ordered reargument next term in two unrelated immigration cases.

The justices, in an unsigned opinion in which three justices dissented for different reasons, vacated an appellate court ruling that had protected the border agent in the family’s lawsuit.

Reargument is rare, and it has been especially so during the Roberts Court. The two immigration-related cases that the justices will rehear in the fall were argued after Justice Antonin Scalia’s death but before Justice Neil Gorsuch joined the bench. The reargument suggests the court was deadlocked 4-4 in those disputes.

Jennings v. Rodriguez asked the court to decide whether immigrants awaiting deportation are entitled to bond hearings after six months of detention. Sessions v. Dimaya raises a question about the definition of “crime of violence” in the context of immigration law.

The border shooting case—Hernandez v. Mesa—played out in the high court against the backdrop of President Donald Trump’s insistence that Mexico will pay for a border wall and his criticism of that country over unlawful immigration.

The majority said the lower court—the U.S. Court of Appeals for the Fifth Circuit—should reconsider its decision in light of the justices June 19 ruling in Ziglar  v. Abbasi and how that decision affects the parents’ claim that the Fourth Amendment ban on the use of excessive force applies to their case. The Ziglar opinion addressed when a civil tort action—a so-called Bivens claim—may be brought against public officials.

The Ziglar 4-2 majority declined to extend the Bivens remedy—named after a 1971 Supreme Court case—to post-Sept. 11 claims against former FBI Director Robert Mueller III and former U.S. Attorney General John Ashcroft. In that case, a group of Arab and Muslim men alleged federal officials helped craft and implement an unlawful detention program that was based on race and national origin.

The court’s decision in Ziglar reversed a ruling by the U.S. Court of Appeals for the Second Circuit that had allowed claims against Mueller, Ashcroft and other officials to move forward.

In the border shooting case, the majority said the Fifth Circuit erred in granting the border patrol officer immunity because it relied on facts the officer learned after the incident, not at the time of the incident.

“The facts alleged in the complaint depict a disturbing incident resulting in a heartbreaking loss of life,” the Supreme Court majority wrote on Monday. “Whether petitioners may recover damages for that loss of life in this suit depends on questions that are best answered by the Court of Appeals in the first instance.”

Justice Clarence Thomas dissented, writing that he would have affirmed the lower court decision dismissing the parents’ lawsuit. Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, also dissented. Breyer said he was convinced the Mexican teen was protected by the Fourth Amendment’s prohibition on the use of excessive force. He added he would send the case back to the lower court to consider the Bivens and qualified immunity questions.

In the Hernandez case, the appeals court held that the Fourth Amendment’s protection against excessive deadly force did not apply because their son was a Mexican citizen with no “significant voluntary connection” to the United States.

The family and the Border Patrol officer disagreed on what happened on the critical summer day in 2010 when Sergio Hernandez was with three friends in the concrete culvert separating El Paso, Texas, and Juarez, Mexico.

The family contends that Sergio and his friends were playing a common game in plain view of the Paso del Norte Port of Entry, one of the busiest border crossings in the United States. They dared each other to run up the culvert’s northern incline, touch the U.S. fence, and then scamper back down to the bottom.

Border guards patrolling the culvert on bicycles seized one of the boys while Sergio ran to a pillar beneath the bridge on the Mexican side. Border officer Jesus Mesa, formally in the United States, according to their account, fired his pistol and hit Sergio in the head, killing him instantly. The agents did not attempt to get medical aid for him but got back on their bicycles and left.

The border officer countered that his use of force was a result of Hernandez and the other individuals surrounding him and throwing rocks at him while refusing his verbal commands to stop. In fact, he added, Sergio had been arrested twice before for alien smuggling and had been given voluntary returns to Mexico due to his juvenile status. The FBI released a statement supporting Mesa’s version of the incident. The United States, after an investigation, declined to prosecute Mesa.

During arguments in February, the justices appeared divided.

Justice Elena Kagan said the “heartland of Bivens” was a claim that a law enforcement officer used deadly force in violation of the Fourth Amendment. “ We don’t have to make up anything new,” she said. “We don’t have to extend it. That’s just Bivens.” And she appeared skeptical of the government’s argument that permitting a claim in this case was “fraught with foreign relations issues” because Mexico actually was supporting the family’s arguments.

Justice Anthony Kennedy, however, noted that the Supreme Court since 1988 had not recognized a single Bivens action. He suggested that “one of the most sensitive areas of foreign affairs” should be discussed by the political branches with Mexico to find a solution. “It seems to me that this is an extraordinary case for us to say there’s a Bivens action in light of what we’ve done since 1988 where we haven’t created a single one,” he said.

The Mexican government, former officials of the U.S. Customs and Border Protection agency, Mexican jurists, legal historians, the American Immigration Council and others filed briefs supporting Hernandez, who was represented by Robert Hilliard of Corpus Christi, Texas.

Mesa, the agent, was represented by Randolph Ortega of El Paso, Texas.

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