Conservative Supreme Court justices skeptical in US-Mexico border shooting case

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WASHINGTON, Feb 21 (Reuters) - Conservative U.S. Supreme Court justices on Tuesday expressed skepticism about reviving a lawsuit filed by the family of a Mexican teenager against a U.S. Border Patrol agent who fatally shot the 15-year-old from across the border in Texas in 2010.

In a closely watched case that could affect U.S. immigration actions under President Donald Trump's administration, the court's liberal justices expressed sympathy toward allowing the case to move forward, indicating the justices could be headed toward a 4-4 split. Such a ruling would leave in place a lower court's decision to throw out the civil rights claims against the agent, Jesus Mesa, filed by the family of Sergio Hernandez.

Justice Anthony Kennedy, a conservative who sometimes sides with the liberal justices in close cases and whose vote could be pivotal in this one, voiced doubt about the family's arguments during the court's hour-long argument.

Kennedy indicated the question of how to compensate victims of cross-border shootings is one that the U.S. and Mexican governments should resolve, noting that the border is "one of the most sensitive areas in foreign affairs."

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The Warroad Port of Entry designed by Julie Snow Architects

Located in Minnesota on the Canadian border, the Warroad Port of Entry services approximately 157,000 cars, buses, and trucks annually. A rich, dark cedar covers the facade of the building, which was constructed in 2012.

(Photo by Julie Snow Architects/Paul Crosby/GSA)

The Warroad Port of Entry designed by Julie Snow Architects

The wood continues in the interior. Large windows in the lobby and office area give a sense of openness and transparency.

(Photo by Julie Snow Architects/Paul Crosby/GSA)

The Warroad Port of Entry designed by Julie Snow Architects

"You need to be cognizant of officers' hyper-awareness, but you also have to provide them with a haven," the station's leading architect, Julie Snow, told the General Services Administration.

(Photo by Julie Snow Architects/Paul Crosby/GSA)

Source: GSA

The Canadian Plaza at the Peace Bridge designed by NORR Limited

The neo-futuristic Canadian Plaza at the Peace Bridge, located in Fort Erie, has a bridge that links Buffalo, New York and Ontario, Canada.

(Photo via NORR Limited/Open Buildings)

The Canadian Plaza at the Peace Bridge designed by NORR Limited

According to the architects, the design was inspired by the area's native long house shelters and canoes, one of the earliest types of transportation used to cross the Niagara River.

(Photo via NORR Limited/Open Buildings)

Source: Architizer

The Canadian Plaza at the Peace Bridge designed by NORR Limited

Completed in 2007, the two-story station on the Canadian side features a central skylight that brings in natural light.

(Photo via NORR Limited/Open Buildings)

The Mariposa Land Port of Entry designed by Jones Studio.

In Arizona, the Mariposa Land Port of Entry is "a study in balancing security with a dignified welcome ... and strives to be a cultural connection — rather than a division," the architects wrote in a statement.

(Photo via Jones Studio/Facebook)

Source: Jones Studio

The Mariposa Land Port of Entry designed by Jones Studio.

The designers made a conscious effort to have the open-layout station appear humane and welcoming.

(Photo via Jones Studio/Facebook)

Source: Jones Studio

The Mariposa Land Port of Entry designed by Jones Studio.

Constructed in 2014, the 216,000-square-foot port features a processing station for vehicles and pedestrians, a lush garden, and a system that allows it to collect and recycle rainwater.

(Photo via Jones Studio/Facebook)

Source: Jones Studio

The Murrieta Border Patrol Station designed by Garrison Architects

In California, the Murrieta Border Patrol Station was designed to blend in with the arid desert landscape. Constructed in 2004, the building's brick facade is a pale, sand-like brown.

The fence around the entrance for border agents is made of the same steel as the US-Mexico border fence. To access the building, they must walk through the fence "and experience it as a threshold, a reminder of the permeability of borders," the architects wrote.

Source: Garrison Architects

(Photo by Garrison Architects/GSA)

The Murrieta Border Patrol Station designed by Garrison Architects

Inside, the building prioritizes ventilation and natural light to create a comfortable environment. The walls are painted bright yellow.

(Photo by Garrison Architects/GSA)

The Cross Border Xpress designed by Legoretta

Built in 2015, the Cross Border Xpress connects San Diego, California with the Tijuana International Airport in Mexico. The architects used bright shades of orange and purple as an homage to the late Mexican architect Ricardo Legoretta, who was known for his vivid pops of color.

(Photo via Legoretta)

The Cross Border Xpress designed by Legoretta

The design focuses on making travel between Mexico and the US faster and easier, the designers told Business Insider. It is "a very much needed bridge in this new era of co-existence between the two nations," the firm wrote.

(Photo via Legoretta)

The San Ysidro Port of Entry designed by The Miller Hull Partnership

California's San Ysidro Port of Entry is the busiest land border crossing in the Western Hemisphere. An expansion of it, set to open in 2019, is "designed to be the port of the future," according to the GSA.

(Photo via The Miller Hull Partnership/GSA)

Source: GSA

The San Ysidro Port of Entry designed by The Miller Hull Partnership

The $735 million project will add 38 additional vehicle inspection booths, and ease traffic at the port.

(Photo via The Miller Hull Partnership/GSA)

Source: GSA

The San Ysidro Port of Entry designed by The Miller Hull Partnership

Like many recently constructed stations, the design shows that border stations don't need to appear hostile. Instead, they present an opportunity for the US to invest in stations that are both beautiful and secure.

(Photo via The Miller Hull Partnership/GSA)

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The Supreme Court potentially could delay action on the case to see if Trump's nominee to fill a vacancy on the court, conservative appeals court judge Neil Gorsuch, is confirmed by the U.S. Senate. Gorsuch could then potentially cast the deciding vote. A ruling is due by the end of June.

The justices heard the case at a time that the security of the lengthy U.S.-Mexico border is a hot topic, with President Donald Trump moving forward with plans for a border wall he said is needed to combat illegal immigration.

The case is one of three the justices currently are considering that concern the extent to which the U.S. Constitution provides rights to non-U.S. citizens.

That issue has become more pressing in light of Trump's January order, put on hold by the courts, to block entry into the United States by people from seven Muslim-majority countries and refugees. Trump is preparing a rewritten version of the ban.

The case raises several legal questions, including whether or not the U.S. Constitution's ban on unjustified deadly force applied to Hernandez because he was a Mexican citizen on Mexican soil when the shooting occurred in June 2010.

The court could resolve the case by simply deciding not to apply a 1971 Supreme Court ruling in a case involving federal drug enforcement agents that allowed such lawsuits in limited circumstances. The court has been reluctant in subsequent cases to extend that ruling to other types of conduct.

Kennedy seemed unwilling to take that step, saying the Hernandez shooting would be an "extraordinary case" in which to allow a lawsuit against a federal official.

Liberal justices appeared more willing to examine whether some U.S. rights extend to border areas where the U.S. government exercises a certain amount of authority even beyond the border line, as it does in the culvert where Hernandez was killed.

Justice Elena Kagan said it could be described as a no-man's land that is "neither one thing or another thing."

The incident took place at a border crossing between El Paso, Texas and Ciudad Juarez, Mexico.

RELATED: Life along Mexico's border with the United States

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Life along Mexico's border with the United States
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IMPERIAL SAND DUNES, CA - SEPTEMBER 28: A digger removes sand drifts from the Mexican side of the U.S.-Mexico border fence on September 28, 2016 in the Imperial Sand Dunes recreation center, California. Without daily removal of the sand, the dunes would cover the fence and undocumented immigrants and smugglers could simply walk over it. The border stretches almost 2,000 miles between Mexico and the United States. Border security and immigration issues have become major issues in the U.S. Presidential campaign. (Photo by John Moore/Getty Images)
TIJUANA, MEXICO - SEPTEMBER 25: People meet loved ones through the U.S.-Mexico border fence on September 25, 2016 in Tijuana, Mexico. The U.S. Border Patrol opens the park on the American side in San Diego on weekends to meet through the fence with family and friends through the fence at Tijuana. The park is one of the few places on the 2,000-mile border where separated families are allowed to meet. (Photo by John Moore/Getty Images)
TIJUANA, MEXICO - SEPTEMBER 24: Haitian refugees look over donated items at an immigrant center on September 24, 2016 in Tijuana, Mexico. In recent months a surge of Haitian refugees has arrived to Tijuana, seeking asylum at the border crossing into the United States. The center, called the Desayunador Salesiano Padre Chava, serves breakfast to more than 1,000 immigrants daily, many of them deportees from the United States. (Photo by John Moore/Getty Images)
IMPERIAL SAND DUNES, CA - SEPTEMBER 28: A digger removes sand drifts along the U.S.-Mexico border fence on September 28, 2016 in the Imperial Sand Dunes recreation center, California. Without daily removal of the sand, the dunes would cover the fence and undocumented immigrants and smugglers could simply walk over it. The border stretches almost 2,000 miles between Mexico and the United States. Border security and immigration issues have become major issues in the U.S. Presidential campaign. (Photo by John Moore/Getty Images)
TIJUANA, MEXICO - SEPTEMBER 25: People enjoy a late afternoon near the U.S.-Mexico border fence on September 25, 2016 in Tijuana, Mexico. Friendship Park, located on the border between the two countries is one of the few places on the 2,000-mile border where separated families are allowed to meet. (Photo by John Moore/Getty Images)
TIJUANA, MEXICO - SEPTEMBER 24: Immigrants, many of them deportees from the United States, eat breakfast at a soup kitchen on September 24, 2016 in Tijuana, Mexico. The center, called the Desayunador Salesiano Padre Chava, is run by a Catholic order of priests and feeds more than than 1,000 immigrants each morning. (Photo by John Moore/Getty Images)
TIJUANA, MEXICO - SEPTEMBER 24: People stand in line to cross legally into the United States from Mexico on September 24, 2016 in Tijuana, Mexico. Securing the border and controlling illegal immigration have become key issues in the U.S. Presidential campaign. (Photo by John Moore/Getty Images)
TIJUANA, MEXICO - SEPTEMBER 25: A couple holds hands while meeting loved ones through the U.S.-Mexico border fence on September 25, 2016 in Tijuana, Mexico. The U.S. Border Patrol opens the park on the American side in San Diego on weekends to meet through the fence with family and friends through the fence at Tijuana. The park is one of the few places on the 2,000-mile border where separated families are allowed to meet. (Photo by John Moore/Getty Images)
TIJUANA, MEXICO - SEPTEMBER 25: People enjoy a late afternoon near the U.S.-Mexico border fence which ends in the Pacific Ocean on September 25, 2016 in Tijuana, Mexico. Friendship Park, located on the border between the two countries is one of the few places on the 2,000-mile border where separated families are allowed to meet. (Photo by John Moore/Getty Images)
TIJUANA, MEXICO - SEPTEMBER 25: Mexicans enjoy a late afternoon near the U.S.-Mexico border fence which ends in the Pacific Ocean on September 25, 2016 in Tijuana, Mexico. Friendship Park, located on the border between the two countries is one of the few places on the 2,000-mile border where separated families are allowed to meet. (Photo by John Moore/Getty Images)
TIJUANA, MEXICO - SEPTEMBER 25: A child plays in the Pacific surf near the U.S.-Mexico border fence on September 25, 2016 in Tijuana, Mexico. The nearby Friendship Park is one of the few places on the 2,000-mile border where separated families are allowed to meet. (Photo by John Moore/Getty Images)
TIJUANA, MEXICO - SEPTEMBER 25: Immigrant activists pray at the U.S.-Mexico border fence on September 25, 2016 in Tijuana, Mexico. The U.S. Border Patrol opens the park on the American side in San Diego on weekends to meet through the fence with family and friends through the fence at Tijuana. The park is one of the few places on the 2,000-mile border where separated families are allowed to meet. (Photo by John Moore/Getty Images)
TIJUANA, MEXICO - SEPTEMBER 25: Maria Rodriguez Torres, 70, embraces a grandchild after seeing her other grandchildren for the first time through the U.S.-Mexico border fence on September 25, 2016 in Tijuana, Mexico. She had traveled with family members from Mexico City to see her grandchildren through the fence at 'Friendship Park.' The U.S. Border Patrol opens the park on the American side on weekends to meet through the fence with family and friends through the fence at Tijuana. The park is one of the few places on the 2,000-mile border where separated families are allowed to meet. (Photo by John Moore/Getty Images)
JACAMBA HOT SPRINGS, CA - SEPTEMBER 26: Residents line up to receive free food at mobile food pantry near the U.S.-Mexico border on September 26, 2016 in Jacamba Hot Springs, California. The Feeding America truck delivers to the border town's needy residents twice a month. (Photo by John Moore/Getty Images)
JACAMBA HOT SPRINGS, CA - SEPTEMBER 26: A U.S. Border Patrol vehicle stands guard along the U.S.-Mexico border fence on September 26, 2016 in Jacamba Hot Springs, California. (Photo by John Moore/Getty Images)
JACAMBA HOT SPRINGS, MEXICO - SEPTEMBER 26: A cardboard cutout of Democratic presidential candidate Hillary Clinton is on display at a debate-watching party for supporters of Hillary Clinton at the Yum Yum Chinese restaurant near the U.S.-Mexico border on September 26, 2016 in Calexico, California. People across the country tuned in as Republican Presidential candidate Donald Trump and Democratic candidate Hillary Clinton participated in their first debate. (Photo by John Moore/Getty Images)
HOLTVILLE, CA - SEPTEMBER 27: Mexican farm workers hoe a cabbage field on September 27, 2016 Holtville, California. Thousands of Mexican seasonal workers legally cross the border daily from Mexicali, Mexico to work the fields of Imperial Valley, California, some of the most productive farmland in the United States. (Photo by John Moore/Getty Images)
HOLTVILLE, CA - SEPTEMBER 27: A A Mexican farm worker plows a U.S. farm on September 27, 2016 in Holtville, California. Thousands of Mexican seasonal workers legally cross the border daily from Mexicali, Mexico to work the fields of Imperial Valley, California, some of the most productive farmland in the United States. (Photo by John Moore/Getty Images)
HOLTVILLE, CA - SEPTEMBER 27: A marker stands over an immigrant's grave on September 27, 2016 in Holtville, California. Hundreds of immigrants, many who died while crossing the desert from Mexico into the United States, are buried in a pauper's cemetery. Many of the grave markers simply read 'John Doe.' (Photo by John Moore/Getty Images)
TIJUANA, MEXICO - SEPTEMBER 25: A man looks through the U.S.-Mexico border fence into the United States on September 25, 2016 in Tijuana, Mexico. Friendship Park on the border is one of the few places on the 2,000-mile border where separated families are allowed to meet. (Photo by John Moore/Getty Images)
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The U.S. Border Patrol said at the time that Hernandez was pelting U.S. agents with rocks from the Mexican side of the Rio Grande before the shooting. U.S. authorities have asserted that Mesa shot Hernandez in self-defense.

Lawyers for Hernandez's family disputed that account, saying he was playing a game with other teenagers in which they would run across a culvert from the Mexican side and touch the U.S. border fence before dashing back.

The FBI also said Hernandez was a known immigrant smuggler who had been pressed into service by smuggling gangs that took advantage of his youth.

The family appealed a 2015 ruling by the New Orleans-based 5th U.S. Circuit Court of Appeals throwing out the lawsuit.

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