United States District Court, S.D. Texas, Brownsville Division
MARIA S., As next friend for E.H.F., S.H.F., and A.S.G., minors, Plaintiffs,
JOHN DOE, Defendants.
S. Hanen United States District Judge.
case presents one of the most lamentable set of circumstances
that this Court has ever been called upon to address. A young
woman who was living and working in the United States, albeit
illegally, who was by all accounts otherwise law abiding and
was providing for her family to the best of her ability, was
returned to her native Mexico and was soon thereafter killed.
No one involved in this matter-not the parties, not the
lawyers, and certainly not the Court-has anything but a
profound sense of sadness about the disastrous chain of
events that ended in the decedent's murder. The
Plaintiffs lost their mother, and their family lost an
individual whom they, no doubt, cherished and loved.
a case in which there will be no winners regardless of which
way the Court rules. The parties and the Court are faced with
a situation that can only be described as sorrowful: a young
woman was killed, her estranged boyfriend has been convicted
and jailed, and the survivors are left to deal with what
remains. This lawsuit is no doubt part of an attempt to do
just that-provide support for the young woman's children
and to help provide some sense of closure for all. While
those involved must cope with their loss, the law requires
that the Court remain objective. The lawyers in this matter
have done their best to represent their respective clients.
The Court will now address the pending motions, as it must,
without bias or sympathy.
before the Court is Defendants' Motion for Summary
Judgment [Defs.' Mot. For Summ. J., Doc. No. 118],
Plaintiffs' Response [Pls.' Resp, Doc. No. 123],
Defendants' Reply in Support [Defs.' Reply, Doc. No.
129], and Plaintiffs' Surreply [Pls.' Surreply, Doc.
previously filed a motion to dismiss, which this Court
denied. [Memo Op. & Order, Doc. No. 81]. Rejecting the
Defendants' argument that Laura Karina Flores Salazar
("Laura S.") had no protected constitutional rights
at stake, the Court ruled that Laura S.- though an illegal
alien-was entitled to Fifth Amendment protection while in the
United States in the custody of Custom and Border Patrol
("CBP") officials. [Id. at 22]. After
identifying the clearly established rights at stake, the
Court ruled as a matter of law that a waiver of those rights
obtained through coercion would not be objectively reasonable
in light of clearly established law. [Id. at 23].
Court subsequently allowed limited discovery on the issue of
qualified immunity. The Defendants have now filed a motion
for summary judgment alleging: (1) that Agent Ruben Garcia
("Agent Garcia") should be granted judgment as a
matter of law, (2) that all Defendants are protected by
qualified immunity, and (3) that Plaintiffs have not pleaded
a legally cognizable claim. [Defs.' Mot. for Summ. J.,
Doc. No. 118].
Plaintiffs moved to strike part of Defendants' Motion for
Summary Judgment as Plaintiffs believed that Defendants
impermissibly moved for summary judgment on the causal link
between the Defendants conduct and Laura S.'s murder.
[Doc. No. 121]. Among other topics, the Defendants'
Motion highlighted the great difficulty Plaintiffs would face
in proving that Defendants' behavior was the proximate
cause of Laura S.'s death were this suit to proceed past
the qualified immunity stage. Nevertheless, the Court denied
the motion to strike, clarified that the sole issue before
the Court on summary judgment would be qualified immunity,
and explained that the Court would only consider those parts
of the pleadings that relate to the issue of qualified
immunity. [Doc. No. 122]. Consistent with that order, the
Court will consider only the issues related to qualified
immunity that have been raised in Defendants' Motion for
Summary Judgment. The Court waited on the United States
Supreme Court to rule in the cases of Hernandez v. Mesa,
__U.S.__, 15-118, 2017 WL 2722409 (U.S. June 26, 2017)
and Ziglar v. Abbasi, __ U.S. __, 15-1358,
2017 WL 2621317 (U.S. June 19, 2017) as both cases contained
issues which could have impacted this case. The Supreme Court
released both cases during the last two weeks of its term
leaving no impediment to this Court's ruling.
most of the key facts are in dispute, some facts are either
agreed to or conceded for purposes of this Motion. The
Plaintiffs in this case are the three surviving children of
Laura S. Laura S. was born in Mexico, and despite having no
legal status in the United States, lived here at various
times in her life. For many years, Laura S. suffered physical
abuse at the hands of her then boyfriend and the father of
two of the Plaintiffs, Sergio Misael Hernandez ("Sergio
H."). In 2008, Sergio H. threatened to kill Laura S. In
response, Laura S.-fearing for her life-obtained a protective
order against Sergio H. from a municipal court in McAllen,
Texas. At some point, prior to the key events
covered by this Motion, Sergio H. returned to Mexico and was
allegedly working for a drug cartel.
Sergio H.'s physical proximity was no longer a problem
for Laura S. given that she remained in the United States
(albeit illegally), Plaintiffs claim that Sergio H. still
posed a danger to her as he threatened Laura S. that he would
kill her if he ever saw her again. According to Plaintiffs,
Laura S. was worried that Sergio H. would follow through on
his threat and murder her if she was deported to Mexico. The
claims at bar result from the events preceding Laura S.'s
death, while she was in CBP custody at CBP's processing
center in Weslaco, Texas.
early morning of June 8, 2009, Laura S. was driving a car
near Pharr, Texas with three passengers: her cousin Elizabeth
Alvarez ("Alvarez") and friends Arturo Morales
("Morales") and Saray Cardiel
("Cardiel"). The four were allegedly on their way
to a popular 24-hour hamburger restaurant around 2:00 AM when
they were stopped by a police officer for a driving
infraction. The officer asked the four passengers for proof
of citizenship or immigration status. Alvarez had a
"laser visa" which allowed her to legally cross
back and forth from Mexico and the United
States. Laura S., Cardiel, and Morales were unable
to satisfy the officer's request, and the officer
subsequently notified CBP. According to Plaintiffs, Laura S.,
fearing deportation, began to weep and told the officer that
Sergio H. would harm her if she was forced to return to
officer released the group, minus Alvarez, to Agent Ramiro
Garza, a CBP agent ("Agent Garza"). Since Laura S.
had been driving the vehicle when stopped, Alvarez stayed
behind with the police officer and waited for her mom and
aunt to pick her up. Laura S. apparently told Agent Garza a
similar story-that she feared returning to Mexico because of
Sergio H. and that she needed additional time to produce her
protective order. Agent Garza placed Laura S., Cardiel, and
Morales in his vehicle, and transported them to a CBP
processing center in Weslaco, Texas. Laura S. allegedly
continued to weep, plead, and beg for release during the
entire ride to the CBP processing center.
Garza, Agent Garcia, and other unknown CBP agents processed
Laura S., Cardiel, and Morales with varying degrees of
involvement. Morales was processed separately from Laura S.
and Cardiel. Agent Garza and another CBP agent fingerprinted
and interviewed Laura S. and Cardiel and presented each of
them with a Form 1-826. This form requires an illegal alien
to make a choice from three options, one of which results in
voluntary return to one's country of
origin. Laura S. reviewed and signed the Spanish
version of Form 1-826. [See Defs.' Ex. 2, Doc.
No. 119-2 at 4].
1-826 includes a "Notice of Rights." The Court quotes
the translation included as part of the summary judgment
evidence. Form 1-826 states in part:
You have been arrested because immigration officers believe
that you are illegally in the United States. You have the
right to a hearing before the Immigration Court to determine
whether you may remain in the United States. If you request a
hearing, you may be detained in custody or you may be
eligible to be released on bond, until your hearing date. In
the alternative, you may request to return to your country as
soon as possible, without a hearing.
You have the right to contact an attorney or other legal
representative to represent you at your hearing, or to answer
any questions regarding your legal rights in the United
States. Upon your request, the officer who gave you this
notice will provide you with a list of legal organizations
that may represent you for free or for a small fee. You have
the right to communicate with the consular or diplomatic
officers from your country. You may use a telephone to call a
lawyer, other legal representative, or consular officer at
any time prior to your departure from the United States.
[Id. at 5] (emphasis added).
the "Notice of Rights" section on Form 1-826 is a
section titled "Request for Disposition." This
section offered Laura S., as with all similarly situated
immigrants, a choice of three options: (1) request a hearing
before the immigration court to determine whether she could
stay in the United States, (2) indicate that she believed
that she would be harmed if she returned to Mexico and have
her case referred to the immigration court, or (3)
acknowledge her unlawful presence and be repatriated to
Mexico. [See id] The options were presented to her
in a list format and separately delineated. [See id]
Next to each option is a checkable blank box designed to show
the selection of one option to the exclusion of the others.
[See id.] Adjacent to the blank box for each of the
three options is a corresponding blank line for the alien to
initial the selected option. [See id] The first two
options offer the opportunity to remain in the United States
pending a hearing (although one might have to remain in
custody). The third choice obviously results in one being
repatriated back to one's home country.
S. placed an "x" in the box corresponding to the
voluntary return option and initialed on the line next to the
checked box affirming her selection. [See Id. at 4].
Laura S.'s full signature also appears under her
initials, along with the date on which she signed. [See
id.] The actual form Laura S. signed follows in its
[Id] Laura S. had been repatriated to Mexico before
in 2002 and 2005, and allegedly signed nearly identical forms
in 2002 and 2005, selecting the voluntary return option both
times. [See Defs.' Ex. 3, Doc. No.
119-3 at 4; Defs.' Ex. 4, Doc. No. 119-4 at 4].
to Plaintiffs, after being presented with Form 1-826, Laura
S.-weeping, visibly frightened, and anguished-told the agents
that Sergio H. had long battered her and that she had a
protective order against him. The agents allegedly ignored
Laura S.'s fears about returning to Mexico. As claimed by
Plaintiffs, Laura S. told the agents that Sergio H. would
kill her if she returned to Mexico, but the agents ordered
Laura S. and Cardiel to sign Form 1-826 anyways. Laura S.
apparently twice refused to sign the form, and at one point,
frustrated with her circumstances, described them as "an
injustice." Both Laura S. and Cardiel each eventually
signed an 1-826.
Garcia was a supervisor the morning Laura S. was processed.
The extent of Agent Garcia's involvement with Laura S. is
disputed. Plaintiffs allege that he was personally involved
in the violation of Laura S.'s constitutional rights.
According to Defendants, Agent Garcia had little to no
involvement outside of a high-level supervisory level
function, and it is questionable as to whether Agent Garcia
even interacted with Laura S. on the day she was processed.
Laura S., Cardiel, and Morales each chose the voluntary
return option and signed Form 1-826, Agent Garza drove them
to the Hidalgo-Reynosa Bridge in Hidalgo, Texas to return the
group to Mexico. Laura S. allegedly continued to express her
fear of the danger she believed awaited her in Mexico. After
crossing the bridge in the early morning, Laura S. went to
her grandmother's house in Reynosa, where she eventually
reunited with Alvarez. Alvarez claims that Laura S. was
trying to raise enough money to return to the United States
with the assistance of coyotes, or human traffickers.
Tragically, Sergio H. murdered Laura S. a few days later.
judgment is warranted "if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). "The movant bears the burden of identifying those
portions of the record it believes demonstrate the absence of
a genuine issue of material fact." Triple Tee Golf,
Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007)
(citing Celotex Corp. v. Catrett, 477 U.S. 317,
322-25 (1986)). Once a movant submits a properly supported
motion, the burden shifts to the non-movant to show that the
court should not grant the motion. Celotex Corp.,
477 U.S. at 321-25.
non-movant then must provide specific facts showing that
there is a genuine dispute. Id. at 324;
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). A dispute about a material fact is
genuine if "the evidence is such that a reasonable jury
could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The court must draw all reasonable inferences in the
light most favorable to the nonmoving party in deciding a
summary judgment motion. Id. at 255. The key
question on summary judgment is whether a hypothetical,
reasonable factfinder could find in favor of the nonmoving
party. Id. at 248. Since the question on a possible
appeal is whether the Plaintiffs have presented evidence that
creates an issue of material fact, this opinion concentrates
sometimes to the point of repetition on the factual
Is There Evidence That Raises a Material Fact Issue as to
Whether Agent Garcia Violated Laura S.'s Constitutional
Garcia argues that he is entitled to summary judgment against
Plaintiffs' claims because Plaintiffs have not shown that
he personally violated Laura S.'s constitutional rights.
The Court considers this separately from Agent Garcia's
possible entitlement to the defensive shroud of qualified
immunity. Obviously if there is no evidence of wrongful
conduct, there would be no question that Agent Garcia is
entitled to immunity. Agent Garcia claims that Plaintiffs
have not produced any evidence suggesting any personal
interaction with Laura S., much less any wrongful conduct,
and are instead attempting to sue Agent Garcia on a legally
impermissible theory of respondeat superior
government officials cannot be held liable in a
Bivens suit unless they themselves acted
unconstitutionally." Wood v. Moss, 134 S.Ct.
2056, 2070 (2014) (citing Ashcroft v. Iqbal, 556
U.S. 662, 683 (2009)) (internal quotation marks omitted). A
plaintiff can not rely on respondeat superior
liability when bringing a Bivens suit against an
individual government official. Iqbal, 556 U.S. at
683. This concept was recently reaffirmed by the Supreme
Court in Ziglar: "The purpose of
Bivens is to deter the officer . . . Bivens
is not designed to hold officers responsible for acts of
their subordinates." 2017 WL 2621317, at *16 (internal
citations omitted). A supervisory federal official may be
held liable only upon two bases: (1) personal involvement in
the acts causing the constitutional violation or (2) if the
official implements a policy so deficient that the policy
itself acts as a deprivation of constitutional
rights. Cronn v. Buffington, 150 F.3d
538, 544 (5th Cir. 1998).
argue that though Agent Garcia was a supervisor at the CBP
processing center in Weslaco the morning Laura S. was
processed, there is no evidence that he personally violated
Laura S.'s constitutional rights. In his capacity as a
processing supervisor, Agent Garcia was responsible for
working on employee schedules and performance ratings,
monitoring the radio, and serving as a direct supervisor to
Agent Garza, among others. [Garcia Dep. 49:13-16, 57:16-18,
50:10-11, Apr. 20, 2016]. Agent Garza and other CBP agents
would therefore direct any questions or problems they had in
processing an individual to Agent Garcia on the morning Laura
S. was processed. [See Garcia Dep. 119:19-25; Garza
Dep. 81:17-19, 93:3-9, 100:23-25, 101:1-3, Apr. 21, 2016].
undisputed that Agent Garcia signed off on Laura S.'s
Record of Deportable/Inadmissible Alien form (Form
I-213). [See Defs.' Ex. 2, Doc. No.
119-2 at 1]. Nevertheless, Agent Garcia swears that, though
it was possible that he was at some time actually in Laura
S.'s presence, he can not remember if he actually was or
was not. [Garcia Dep. 116:20, 121:1-3]. Agent Garcia's
post was physically located in a separate room from the area
where Laura S. was processed. [Id. at 52:18-20,
Plaintiffs do not provide any summary judgment evidence
directly linking Agent Garcia to Laura S.'s processing
aside from his signature on the I-213 form. Instead,
Plaintiffs point out that Cardiel and Morales observed other
CBP agents in Laura S.'s presence apart from Agent Garza,
and that if Laura S. were to have expressed a fear of
returning to Mexico, and if the CBP agents had followed the
normal routine, they would have involved Agent Garcia in his
role as a processing supervisor. [Cardiel Dep. 47:25, 48:1,
Apr. 13, 2016; Morales Dep. 27:13-17, Nov. 7, 2013; Garza
testimony of Agents Garcia and Garza provide that if a
detainee indicated a fear of returning to Mexico, or made a
commotion, that the processing supervisor would get involved.
[Garza Dep. 189:22-25, 190:3-4; Garcia Dep. 83:15-23,
87:8-14, 88:3-6, 16-25]. The Plaintiffs argue that because
Agent Garcia was the on-duty supervisor the morning Laura S.
was detained and there is witness testimony to the effect
that multiple officers interacted with Laura S., the standard
practice of supervisory involvement in processing a detained
alien who expresses a fear of returning leads to the
conclusion that Agent Garcia personally violated Laura
S.'s constitutional rights. This is, at best,
Plaintiffs have not provided any evidence suggesting that
Agent Garcia actually, personally violated Laura
S.'s constitutional rights or had any contact with her at
all. Even given the most charitable interpretation, they have
identified Agent Garcia's presence as a supervisor who
should have, under the facts as they interpret them,
interacted with Laura S-but this is no proof Agent Garcia
did. Cardiel and Morales testified that there was more than
one CBP agent in the processing center, yet could not
identify any one of the other agents aside from Agent Garza.
[See Morales Dep. 30:1-16, 31:1-6; Cardiel Dep.
41:16-18]. Cardiel could not even identify Agent Garcia when
shown his photograph. [Cardiel Dep. 77:23-25, 78:1-22]. The
Plaintiffs' sole focus is derived from Agent Garcia's
potential involvement through his role as a supervisor.
Plaintiffs have the burden of creating a contested fact issue
for the eventual factfinder. Here, Agent Garcia admits that
it was "possible" that he was at some point in time
in Laura S.'s presence. [Garcia Dep. 121:1-3].
Nevertheless, the leap to establishing a constitutional
violation on Agent Garcia's part is far too tenuous.
There is no evidence that Agent Garcia was one of the agents
who allegedly violated Laura S.'s constitutional rights.
The Court can not, without evidence, on a motion for summary
judgment, assume Plaintiffs' preferred chain of events.
Plaintiffs' evidence falls short of linking Agent Garcia
to any constitutional violation of Laura S.'s rights. At
most, the Court is left with a two-step hypothetical: that
(1) Agent Garcia should and would have been called into the
processing area after Laura S. expressed a fear of returning
to Mexico, and (2) once there, that Agent Garcia personally
violated Laura S.'s constitutional rights. The fact that
he should have been brought into the processing area at some
point, even if true, does not create the disputed issue of
fact necessary to maintain a Bivens suit against
Agent Garcia. As there is no competent evidence before the
Court that Agent Garcia had any involvement in any alleged
violation of Laura S.'s rights, it is not necessary to
discuss in detail if a triable issue of fact exists as to
whether Agent Garcia acted in an objectively unreasonable
manner for purposes of the qualified immunity analysis. He is
entitled to judgment both on the merits and on the issue of
qualified immunity. Agent Garcia's Motion for Summary
Judgment is granted.
Is Agent Garza Entitled to Qualified Immunity?
discussed earlier, the Court denied the Defendants'
Motion to Dismiss for failure to state a claim in regard to
Defendants' qualified immunity defense. The Court ruled,
as a matter of law, that Laura S. was entitled to Fifth
Amendment due process protections in the deportation process.
[Memo Op. & Order, Doc. No. 81 at 22]. The Court also
held, from the totality of the circumstances alleged in
Plaintiffs' Complaint, that Agent Garza was not entitled
to a Rule 12(b) dismissal due to the qualified immunity
defense. [Id. at 24]. Due to this ruling, the Court
allowed limited discovery to uncover only those facts the
parties needed in order to address the immunity claim. [Memo
Op. & Order, Doc. No. 115 at 3]. With respect to Agent
Garza, the sole issue presented regarding the applicability
of the qualified immunity defense on summary judgment is
whether a contested issue of fact exists as to whether Laura
S. was coerced into choosing to return to Mexico.
immunity shields government officials "from liability
for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of
which a reasonable person would have known." Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). The concept of
qualified immunity has broad application to officers acting
in their official capacity. The Supreme Court has summarized
its reach by saying it applies to and protects "all but
the plainly incompetent or those who knowingly violate the
law." Ziglar, 2017 WL 2621317, at *24 (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1988)).
Determining whether a government official may be clothed in
the defense of qualified immunity involves a two-step process
in a 12(b) context. "First, a court must decide whether
a plaintiffs allegation[s], if true, establishes a violation
of a clearly-established right." Hernandez ex rel.
Hernandez v. Tex. Dep't of Protective & Regulatory
Servs., 380 F.3d 872, 879 (5th Cir. 2004). Second,
"a court must decide whether the conduct was objectively
reasonable in light of clearly established law at the time of
the incident." E.A.F.F. v. Gonzalez, 600
Fed.Appx. 205, 209 (5th Cir. 2015), cert, denied,
135 S.Ct. 2364 (2015). A defendant's assertion of
qualified immunity "alters the usual . . . burden of
proof." Trent v. Wade, 776 F.3d 368, 376 (5th
Cir. 2015) (quoting Brown v. Callahan, 623 F.3d 249,
253) (5th Cir. 2010)). In the summary judgment context, the
plaintiff thus bears the burden of proof to show a genuine
and material factual dispute as to whether the official is
entitled to qualified immunity. Id.
ordinarily should be decided by the court long before
trial." Hunter v. Bryant, 502 U.S. 224, 228
(1991). Qualified immunity is "an immunity from suit
rather than a mere defense to liability ... it is effectively
lost if a case is erroneously permitted to go to trial."
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)
(emphasis deleted). Where there remain disputed issues of
material fact related to immunity, the jury, if properly
instructed, may decide the question. Snyder v.
Trepagnier, 142 F.3d 791, 800 (5th Cir. 1998) (quoting
Presley v. City of Benbrook, 4 F.3d 405, 410 (5th
Cir. 1993)) (internal quotation marks omitted). The denial of
a motion for summary judgment based on qualified immunity is
immediately appealable under the collateral order doctrine to
the extent that it turns on an issue of law. Flores v.
City of Palacios, 381 F.3d 391, 393 (5th Cir. 2004)
(quoting Mitchell, 472 U.S. at 530) (internal
quotation marks omitted).
Review of the Summary Judgment Evidence and Legal
stated earlier, this Court has already held that Laura S. had
clearly established rights governed by the United States
Constitution. Though the Court previously ruled Laura S. was
entitled to Fifth Amendment protections which would include
an immigration hearing if requested, [Memo Op. & Order,
Doc. No 81 at 9], "due process rights, including the
right to a hearing, can be waived." See United
States v. Cordova-Soto, 804 F.3d 714, 720 (5th Cir.
2015). While due process rights may be waived, any waiver
must be done knowingly and voluntarily. McCarthy v.
Mukaskey, 555 F.3d 459, 462 (5th Cir. 2009). In
analyzing whether a waiver was made knowingly and
voluntarily, courts "must indulge in every
reasonable presumption against a waiver."
Nose v. Attorney Gen. of U.S., 993 F.2d 75, 79 (5th
Cir. 1993) (emphasis added). The constitutional sufficiency
of the procedures required by due process differs with the
circumstances of each individual case. United States v.
Benitez-Villafuerte, 186 F.3d 651, 656 (5th Cir. 1999).
The "full range of constitutional protections available
to a defendant in a criminal case are not afforded an alien
in a deportation proceeding." Id. at 657.
purposes of this Motion, the key issue is whether Laura S.
was coerced into choosing the voluntary return option. Agent
Garza argues that he is entitled to qualified immunity
because there is no competent summary judgment evidence that
Laura S. was coerced into opting for a voluntary return to
Mexico. The Court will first summarize the summary judgment
evidence provided by both parties and resolve the evidentiary
objections raised. Next, though this necessarily entails some
repetition, the Court will next determine whether an issue of
fact exists as to whether Laura S. knowingly signed Form
1-826 and finally it will decide if a fact issue exists as to
whether Laura S. voluntarily signed the form. Obviously, due
to the death of Laura S., the primary witnesses are the two
defendants, and Alvarez, Cardiel, and Morales. All have been
deposed, and their depositions are part of the summary
Alvarez, Laura S.'s cousin, had known Laura S. for her
entire life. [Alvarez Dep. 9:1-5, Oct. 23, 2015]. When asked
to describe her relationship with Laura S., Alvarez responded
that they were best friends. [Id. at 9:14-16].
Alvarez was aware of Laura S.'s violent history with
Sergio H. and of the protective order Laura S. obtained
against Sergio H. [See Id. at 11:1-25, 12:11-25].
Alvarez was with Laura S., Morales, and Cardiel when they
were first apprehended by the police officer. [Id.
at 15:15-21]. When the police officer informed the group that
he was going to call an immigration officer, Alvarez stated
that Laura S. told him not to do so because she was scared of
being killed in Mexico. [Id. at 16:6-18]. Laura S.
told the police officer that Sergio H. was working for
Mexican cartels and that he would be able to follow through
on his threat to kill her if she returned. [Id]
Laura S. asked the police officer to wait so she could prove
that she had a protective order against Sergio H.
[Id. at 16:19-24].
Agent Garza arrived, according to Alvarez, Laura S. began to
cry, tremble, and shake. [Id. at 17:15-17]. Laura S.
told Agent Garza that Sergio H. had threatened her life, that
she did not want to be deported, and asked for additional
time to get a copy of her protective order. [Id. at
17:14-22]. Alvarez testified that Laura S. informed Agent
Garza that her youngest child needed to undergo a medical
operation and that Laura S. had to be in the United States
for the procedure. [Id. at 18:7-10, 22:11-12]. As
Laura S. spoke Spanish, Alvarez translated the message to
Agent Garza in English to make sure he understood Laura
S. [Id. at 5:22-25]. According to
Alvarez, in response to Laura S.'s pleas, Agent Garza
just laughed. [Id. at 17:22-25]. Alvarez had a laser
visa, but the rest of the group was undocumented, and Alvarez
watched as Agent Garza loaded Laura S., Cardiel, and Morales
into his vehicle. [See Id. at 18:14-16]. Alvarez
testified that Laura S. was crying the entire time.
[Id] Alvarez stayed behind, waiting for her aunt and
mother to pick her up as Agent Garza took Laura S., Cardiel,
and Morales to the CBP processing center. [Id. at
reunited with her cousin the next morning, after Laura S. had
been repatriated back to Mexico, at their grandmother's
house in Reynosa. [Id. at 19:10-12]. Alvarez
testified that in front of their grandmother and other
people,  Laura S. acted "normally."
[Id. at 19:15- 17]. Once Alvarez and Laura S. were
alone, however, Laura S. acted scared, was shaking and
smoking cigarettes, and seemed desperate. [Id. at
19:15-19, 21:1-4]. The "first thing" that Laura S.
said to Alvarez when they were alone was that "[t]hose
assholes threw me out." [Id. at 19:20-22].
Alvarez testified that Laura S. was seeking to cross the
border again to get out of the reach of Sergio H. but would
need the help of "coyotes, " or border smugglers.
[Id. at 21]. Before Laura S. was killed, she was
trying to save enough money to get back over the border, an
amount Alvarez testified could cost around $1, 500.
Garza objects to this portion of Alvarez's testimony on
hearsay grounds. Alvarez, though initially apprehended with
Laura S., was not processed with Laura S. Instead, Alvarez
visited Laura S. at their grandmother's house after she
returned to Mexico. The testimony Agent Garza singles out is
Alvarez's recounting of her conversation with Laura S.
about the events at the CBP processing center in Weslaco when
the pair reunited at their grandmother's house in
first, in front of Alvarez, their grandmother and other
unidentified people, Laura S. acted "normally."
[Id. at 19:15-17]. Once, alone with Alvarez, Laura
S. began to shake, and was scared and
desperate. [Id. at 19:15-19, 21:1-4].
Alvarez then testified that she heard Laura S. exclaim:
"[t]hose assholes threw me out!" [Id. at
19:20-22]. The Defendants argue that the latter portion of
this statement is offered for the truth of the matter
asserted (that Laura S. was thrown out against her will), and
that the statement does not fall into any applicable hearsay
exception. The proponent of hearsay evidence bears the burden
of proving the applicability of an exception. United
States v. Fernandez-Roque, 703 F.2d 808, 812 (5th Cir.
contend that Laura S.'s statement qualifies as a present
sense impression. [Pls.' Resp., Doc. No. 123 at 28]. The
present sense impression exception to hearsay provides that a
"statement describing or explaining an event or
condition, made while or immediately after the
declarant perceived it" is exempt from the hearsay rule.
Fed.R.Evid. 803(1) (emphasis added). The justification for
this hearsay exception relies on the contemporaneousness of
the event under consideration and the statement describing
that event. Rock v. Huffco Gas & Oil Co., Inc.,922 F.2d 272, 280 (5th Cir. 1991). Since the event and the