Monday, April 27, 2015

Timothy Dugdale on the Fifth Circuit's Ruling in Hernandez v. United States

A couple of teenagers are playing a game in a culvert next to the U.S. border fence with Mexico. One of them is apprehended by a U.S. border guard; the other one is shot and killed as he hides behind a pillar. On the Mexican side. The kid's family tries to seek damages in U.S. court. On April 26, the U.S. Court of Appeals for the Fifth Circuit, in a full en banc ruling, put an end to that quest. Click here for a photo of the young man who died and more on the story.

The court decided that under the control of Verdugo the kid didn't have any meaningful connections to the United States - he was not part of "the People" and thus couldn't invoke the Fourth Amendment. The majority also ruled that the Fourth Amendment was the sole challenge even open to the family.

Constitutional rights are not interchangeable. When a litigant asserts multiple constitutional claims arising from the same conduct, we must “identify[] the specific constitutional right allegedly infringed . . . .” . . . . If it becomes apparent that “a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.’ ” Albright v. Oliver, 510 U.S. 266, 273, 114 S. Ct. 807, 813 (1994) (citations and internal quotation marks and footnote omitted).

The ruling becomes more interesting in Judge Prado's concurrence. Prado takes on the interplay between Verdugo, Boumediene and Fifth Amendment rights. Was Boumediene limited to an analysis of the Suspension Clause and the grant of habeas corpus? Prado argues that Boumediene is the shining new avatar of constitutional extraterritorality. Hernandez suffered the ultimate penalty of arbitrary official conduct, covered by the Fifth Amendment. Prado also makes the crucial linkage between Justice Kennedy's "functional" approach in Verdugo and that of Boumediene.

Boumediene, and its functionality-focused reading of the Court’s previous extraterritoriality decisions, is instructive here. Confronted with a novel extraterritoriality question, we must apply the only appropriate analytical framework the Court has given us: the Boumediene factors. Adapted to the present context, three objective factors and practical concerns are relevant to our extraterritoriality determination: (1) the citizenship and status of the claimant, (2) the nature of the location where the constitutional violation occurred, and (3) the practical obstacles inherent in enforcing the claimed right. . . . As the panel majority’s original opinion explained, the Boumediene factors, coupled with an analysis of the operation, text, and history of the Fifth Amendment, militate in favor of the extraterritorial application of substantive due process protections on these facts. See Hernández v. United States, 757 F.3d 249, 259–63, 267–72 (5th Cir. 2014), vacated in part and reinstated in part on reh’g en banc, --- F.3d --- (5th Cir. 2015).

What does Hernandez mean for immigration litigation? At some point, the Supreme Court is going to have to address the situation of an alien who has lived in the United States for many years and then is illegally removed from the United States in an exclusion proceeding that violated due process. Under the control of Kiyemba, only the executive branch can authorize his return. Under the competing controls of Verdugo and Boumediene, citing a holy trinity of voluntary meaningful connections, Suspension Clause violations and Fifth Circuit due process violations, a federal court should be able to declare his or her release after full habeas review.

Timothy Dugdale, Ph.D.

Founder Atomic Quill Media

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One aspect of this post is wrong: the majority did not hold that the only avenue of relief from the officer's conduct was the Fourth Amendment. The short per curiam opinion explicitly reaches the Fifth Amendment issue, but concludes that the officer is immune because the law was not "clearly established." Only four judges (Judge Jones, joined by Judges Smith, Clement, and Owen) think the Fourth Amendment provides the exclusive means of relief in this case. In fact, the block quotation regarding interchangeability is taken from Judge Jones's concurrence.

Posted by: anonymous | Apr 27, 2015 9:46:26 AM

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