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IACHR.Complaint.2020.09.30 FINAL Before the INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Family Members of Sergio Adrián Hernández Güereca, Jorge Alfredo Solis Palma, Guillermo Arévalo Pedraza, Jesus Alfredo Yañez Reyes, José Antonio Elena Rodríguez, and Juan Pablo Pérez Santillán, Petitioners v. United States, Respondent. COMPLAINT September 30, 2020 Submitted on Behalf of Petitioners by Steve D. Shadowen, Tina J. Miranda, Matthew C. Weiner, Nicholas W. Shadowen Hilliard Shadowen LLP 1135 W. 6th St. Suite 125 Austin, TX 78704 Robert C. Hilliard, Marion M. Reilly Hilliard Martinez Gonzalez LLP 719 Shoreline Blvd., Corpus Christi, TX 78401 Cristóbal M. Galindo 4151 Southwest Pkwy, Suite 602 Houston, TX 77027 Gerald Singleton, Brody McBride Singleton Law Firm, APC 450 A St., 5th Floor San Diego, CA 92101 Roberto C. Montiel Roberto C. Montiel Office, PLLC 571 N. Grand Avenue Nogales, Arizona 85621 Luis Fernando Parra, Esq. Parra Law Offices, PLLC 571 North Grand Avenue Nogales, Arizona 85621 TABLE OF CONTENTS I. STATEMENT OF THE CASE ........................................................................................ 3 II. STATEMENT OF THE FACTS ..................................................................................... 9 A. The United States’ Unlawful Rocking Policy ..........................................................9 1. Background: Economic Opportunism and Nativism ...................................9 2. Background: 9/11 and Militarization .........................................................11 3. The United States’ Acknowledgements of the Rocking Policy ...........................................................................................30 4. The Pattern and Practice of Lethal Force Under the Rocking Policy ...........................................................................................36 5. International Outcry Against the Rocking Policy ......................................51 6. The PERF Report .......................................................................................59 7. The Temporary Halt to the Rocking Policy ...............................................63 8. Mr. Trump’s Renewal of the Rocking Policy ............................................64 B. “[I] Called It a Murder”: The United States’ Unlawful Killing of Sergio Adrián Hernández Güereca ........................................................71 C. “I’ll Kill You, Mother******”: The United States’ Unlawful Killing of Jesus Alfredo Yañez Reyes ...................................................80 D. “Ayudame, ayudame”: The United States’ Unlawful Killing of Guillermo Arévalo Pedraza ...................................................................88 E. “His Hands and Arms Were Cradled In Front of Him”: The United States’ Unlawful Killing of Jorge Alfredo Solis Palma ......................................................................................................................98 F. “Que Se Muera El Perro”: The United States’ Unlawful Killing of Juan Pablo Pérez Santillan ..................................................................100 G. “Shooting an Unarmed Boy”: The United States’ Unlawful Killing of José Antonio Elena Rodríguez ............................................................104 H. The United States’ Unlawful Failure to Adequately Train Border Patrol Agents ............................................................................................107 I. The United States’ Unlawful Failure to Discipline Border Patrol Agents ........................................................................................................113 J. The United States’ Unlawful Failure to Adequately and Timely Investigate Border Patrol Killings. ..........................................................115 K. The United States’ Unlawful Failure to Provide a Judicial Remedy to Petitioners ..........................................................................................117 III. ADMISSIBILITY ......................................................................................................... 125 A. The Commission Has Jurisdiction to Hear This Petition .....................................125 B. The Petitioners Have Exhausted Domestic Remedies .........................................127 C. The Petition Has Been Submitted Within Six Months ........................................128 D. No Related Proceedings Are Pending Before International Tribunals ..............................................................................................................128 IV. LEGAL ARGUMENT ................................................................................................. 128 A. The Right to Life and the Imminent-Peril Standard Are Engaged. ...............................................................................................................128 1. The Right to Life Under the American Declaration and American Convention Is Engaged. ...................................................128 2. The Right to Life Under Other International Law Is Engaged. ...................................................................................................131 3. The Right to Life Requires Police Lethal Force to Meet the Imminent-Peril Standard. ..........................................................135 B. The United States’ Rocking Policy Violates the Imminent- Peril Standard. ......................................................................................................139 C. The United States’ Killing of the Petitioners’ Loved Ones Violated the Imminent-Peril Standard. ................................................................143 D. The United States Violates the American Declaration by Failing to Provide a Judicial Remedy for the Border Patrol’s Unlawful Killings ...................................................................................158 E. The United States Violates Other Fundamental International Law by Failing to Provide a Judicial Remedy for the Border Patrol’s Unlawful Killings. ..........................................................165 V. CONCLUSION AND PETITION ............................................................................... 173 2 I. STATEMENT OF THE CASE 1. The Petitioners are the families of victims killed by United States Border Patrol agents along the nation’s southern border.1 The Petition seeks relief from two principal violations by the United States of the American Declaration on the Rights and Duties of Man (“American Declaration”)2 and of the fundamental principles elucidated in the American Convention on Human Rights (“American Convention”).3 2. First, the United States adopted a policy that permitted its Border Patrol agents to shoot-to-kill civilians who allegedly threw rocks at the agents. By permitting agents to use lethal force regardless of whether the alleged rock-throwing put the agents or others in imminent peril of death or serious injury, the Rocking Policy and the killing of Petitioners’ loved ones violated the Declaration’s prohibition on the unlawful taking of life. Second, the United States has violated the Declaration by categorically precluding the victims’ families, when the victim was killed in Mexico, from obtaining judicial remedies in U.S. courts. The American Declaration requires the United States to provide the victims and their families, among other protections, a fair trial and judicial protection. Thus, the United States violated the Declaration by unlawfully killing the Petitioners’ loved ones and then refusing to provide judicial review of, and judicial remedies for, those unlawful killings and the Rocking Policy. 1 The Petitioners are Jesus Librado Hernandez (father of Sergio Adrián Hernández Güereca), Luisa Palma (mother of Jorge Alfredo Solis Palma), Mario Del Socorro Quintero Perez (mother of the minor children of Jesus Alfredo Yañez Reyes), Nora Lam Gallegos (wife of Guillermo Arévalo Pedraza), Araceli Rodriguez (mother of José Antonio Elena Rodríguez), and Amada Carolina Martinez Morales (mother of the minor children of Juan Pablo Pérez Santillán). 2 Final Act of the Ninth Int’l Conf. of Am. States (Pan American Union), Bogota, Colombia, Mar. 30–May 2, 1948. 3 OAS Treaty Series No. 36, Nov. 22, 1969, 1144 U.N.T.S. 123, 9 ILM 99. 3 3. From 2005 through March 2014, United States Border Patrol agents killed at least 44 people along the nation’s southern border.4 Many of the victims were Mexican nationals who were shot by agents for allegedly throwing rocks at them.5 4. These deaths resulted from a Border Patrol policy and practice that allowed field agents to use lethal force against rock-throwers regardless of whether the agent was in imminent danger of death or serious injury. This Rocking Policy permitted agents to treat rock-throwing as deadly force regardless of the particular circumstances, such as the size of the rocks, the distance between the assailant and the agent, and the agent’s ability to de-escalate the confrontation, take cover, or retreat. The policy thereby “justified” agents in responding to rock-throwing with lethal force of their own, regardless of whether a reasonable officer would have feared imminent death or serious injury to himself or another. The policy received the imprimatur of the highest executives within U.S. Customs and Border Protection (“CBP”). 5. The Rocking Policy and its contours were admitted under oath by CBP’s former Assistant Commissioner for Internal Affairs. He testified that: there was a policy within CBP that in response to rocking or alleged rocking, agents need not back
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