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Maria S. v. Doe

United States District Court, S.D. Texas, Brownsville Division

July 21, 2017

MARIA S., As next friend for E.H.F., S.H.F., and A.S.G., minors, Plaintiffs,
v.
JOHN DOE, Defendants.

          MEMORANDUM OPINION

          Andrew S. Hanen United States District Judge.

         This 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.

         This is 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.

         I. Procedural History

         Pending 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. No. 137].

         Defendants 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.[1] [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].

         The 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].

         The 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.[2] 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.

         II. Factual Background

         While 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.[3] 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.

         Though 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.

         On the 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.[4] 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 Mexico.

         The 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.

         Agent 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.[5] Laura S. reviewed and signed the Spanish version of Form 1-826. [See Defs.' Ex. 2, Doc. No. 119-2 at 4].

         Form 1-826 includes a "Notice of Rights."[6] 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).

         Under 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.

         Laura 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 entirety:

         (Image Omitted.)

[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.[7] [See Defs.' Ex. 3, Doc. No. 119-3 at 4; Defs.' Ex. 4, Doc. No. 119-4 at 4].

         According 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.

         Agent 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.

         After 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.

         III. Legal Standard

         Summary 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.

         The 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 presentation.

         IV. Analysis

         A. Is There Evidence That Raises a Material Fact Issue as to Whether Agent Garcia Violated Laura S.'s Constitutional Rights?

         Agent 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 liability.

         "[I]ndividual 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.[8] Cronn v. Buffington, 150 F.3d 538, 544 (5th Cir. 1998).

         Defendants 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].

         It is undisputed that Agent Garcia signed off on Laura S.'s Record of Deportable/Inadmissible Alien form (Form I-213).[9] [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, 65:5-8, 169:21-24].

         The 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 Dep. 157:19-21].

         The 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, speculation.

         The 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.

         The 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.

         The 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.

         B. Is Agent Garza Entitled to Qualified Immunity?

         As 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.

         Qualified 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.

         "Immunity 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).

         1. Review of the Summary Judgment Evidence and Legal Objections

         As 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.

         For 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 judgment record.

         i. Alvarez

         Elizabeth 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].

         When 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.[10] [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 18:21-23].

         Alvarez 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, [11] 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."[12] [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. [Id.]

         Agent 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 Reynosa.

         At 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.[13] [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. 1983).

         Plaintiffs 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 ...


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