State-sanctioned abuses at the U.S.-Mexico border using the inter-american commission on human rights to hold the united states to account

• Author: Megan Monteleone
• Position: J.D. Candidate, 2023, Georgetown University Law Center; A.B. Social Studies, cum laude, 2016, Harvard University
• Pages: 113-137

STATE-SANCTIONED ABUSES AT THE

U.S.-MEXICO BORDER USING THE INTER-AMERICAN

COMMISSION ON HUMAN RIGHTS TO HOLD THE

UNITED STATES TO ACCOUNT

MEGAN MONTELEONE*

ABSTRACT

In May 2010, Anastasio Hernández Rojas died after sustaining brutal inju-

ries at the hands of U.S. Border Patrol. His death has since become one of the

highest-profile incidents of Border Patrol’s excessive use of force against

migrants at the U.S.-Mexico border. Despite video footage released from the

scene depicting abusive acts by Border Patrol and calls from Congress to

investigate the incident, not a single officer was held accountable and, in

2015, DOJ declined to pursue criminal charges. But renewed hope for justice

came in 2016, when the family of Anastasio Hernández Rojas took their case

to the Inter-American Commission on Human Rights (“Commission”). This

case is the first before the Commission to address law enforcement violence

at the U.S.-Mexico border and the first to accuse U.S. law enforcement of an

extrajudicial killing. This Note examines how a Commission decision against

the United States in this case may encourage meaningful reform in law and

policy related to border abuses in the United States. Specifically, this Note

argues that a Commission decision against the United States has the power to

increase international attention on abuses at the U.S.-Mexico border, facilitate

activism around excessive use of force at the border, and reframe border abuses

as human rights issues. Ultimately, the decision in the Anastasio Herna

´ndez

Rojas case can pave the way for similarly situated victims to make use of the

Commission to hold the United States accountable for state-sanctioned human

rights abuses.

TABLE OF CONTENTS

INTRODUCTION ......................................... 114

* Megan Monteleone, J.D. Candidate, 2023, Georgetown University Law Center; A.B. Social

Studies, cum laude, 2016, Harvard University. © 2022, Megan Monteleone.

113

I. U.S. BORDER PATROL ABUSES OF MIGRANTS . . . . . . . . . . . . . . . . . 118

A. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

B. Impunity for Abuses ............................ 121

II. AN INTERNATIONAL SOLUTION: THE INTER-AMERICAN COMMISSION . . 125

A. Background on the Commission .................... 125

B. The Petition Process ............................ 127

C. The Petition Process as a Path to Holding the United States

Accountable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

1. International Attention ....................... 132

2. Facilitating Activism . . . . . . . . . . . . . . . . . . . . . . . . 133

3. Human Rights Framing ...................... 134

III. USING THE COMMISSION TO PRESSURE BORDER PATROL REFORM .... 135

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

INTRODUCTION

On May 28, 2010, pedestrians on a footbridge near the U.S.-Mexico border

in San Diego stopped to observe a disturbing scene below: a man inside a

border checkpoint was screaming “ayúdame,” meaning “help me,” as he lay

handcuffed on the ground in fetal position, surrounded by U.S. Border Patrol

officers.

1

Cleve R. Wootson, Border agents beat an undocumented immigrant to death. The U.S. is paying

his family $1 million, WASH. POST (Mar. 28, 2017), https://perma.cc/W83B-P62A; PBSNeedtoKnow,

Crossing the line at the border: Part I, YOUTUBE (Oct. 22, 2012), https://perma.cc/PCY4-73S5

[hereinafter PBS Documentary].

The onlookers saw the officers tasing the man repeatedly, beating

him with clubs, hitting him, kicking him, dragging him, and kneeling on him

until he was unresponsive.

2

Wootson, supra note 1; PBS Documentary, supra note 1; Estate of Anastacio Hernández Rojas et

al. v. United States of America et al., IREDALE & YOO, APC, https://perma.cc/8VGZ-WLF6 (last visited

May 21, 2022); Additional Observations on Merits Submitted on Behalf of Petitioner, Family Members

of Anastasio Herna

´ndez Rojas v. United States, Case 14.042, Inter-Am. Comm’n H.R. (2021) https://

perma.cc/D92K-BJPR [hereinafter Petitioner’s Additional Observations].

The onlookers recorded videos on cell phones

and cameras before being forced to disperse.

3

Witnesses allege that the offi-

cers began grabbing people’s cameras and deleting videos from the scene.

4

The man on the ground was Anastasio Herna

´ndez Rojas—a 42-year-old

father of five who had lived in San Diego since age 15.

5

He had been deported

to Mexico earlier in May 2010 after attempting to shoplift at a grocery store.

6

1.

2.

3. Wootson, supra note 1.

4. Id.

5. PBS Documentary, supra note 1; Petitioner’s Additional Observations, supra note 2.

6. Wootson, supra note 1.

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