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State's High Court to Examine Smuggling Case

The Texas Supreme Court could rule this month in a case that that is likely to weigh in on the rights of private-property owners whose lands are traversed by undocumented immigrants.

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BROOKS COUNTYThe Texas Supreme Court could rule this month on a six-year-old case that is likely to weigh in on the rights of private-property owners whose lands are traversed by undocumented immigrants.

The case, Rodriguez v. Boerjan, stems from a 2007 car accident in Brooks County that left three people, including a 7-year-old girl, dead.

Attempting to circumvent a U.S. Border Patrol checkpoint near Falfurrias, a driver transported a group of undocumented immigrants across private property where the Mestena group, which includes Mestena Uranium, had a presence. A security guard for the company, Philip Boerjan, spotted the trespassers, and after a brief conversation with Jose Francisco Maciel, the driver, Maciel fled in his vehicle. Boerjan gave chase in his vehicle, and the pursuit resulted in a rollover crash in which Angelina Rodriguez Negrete, her husband and her daughter were killed.

Relatives of those killed in the crash filed a wrongful death suit against the company and the landowners, alleging negligence and other claims. They said Boerjan’s reckless pursuit caused the accident. The company and landowners countered and said the family had no claim to damages under the “unlawful acts rule.” They said they were not liable for the deaths because the immigrants entered the U.S. without permission and were still engaged in illegal activity when they were killed. They also said the family failed to provide evidence of negligence.

In April 2011, a state court in Brooks County agreed and granted the defendants’ motion for summary judgment. In August 2012, the Fourth Court of Appeals in San Antonio disagreed, however, and remanded the case back to state court. It found that the Rodriguez family presented facts to back up its wrongful death claim and said that the Mestena group did not adequately make its unlawful acts claim.

In November 2012, Boerjan and the Mestena group filed a petition for review with the Texas Supreme Court, which subsequently asked for a full briefing by the parties. The court can now either deny the petition or set the matter for oral arguments and make a determination after those arguments are heard.

Attorneys for the plaintiffs did not respond to a request for comment, and Russell Hollenbeck, an attorney for the defendants, said he could not comment on the proceedings because they were ongoing.

The case is resonating well beyond Brooks County. The Mexican government filed an amicus brief in support of the plaintiffs when the case was on appeal, and the Mexican American Legal Defense and Educational Fund did the same in the latest round. In its brief, MALDEF claims that the appellate court’s decision was in the public interest.

“Denying undocumented persons access to the tort system will overburden the civil court system by requiring state and county courts to discover and determine a person’s immigration state when such a defense is raised, will leave undocumented immigrants without civil remedies, and will encourage vigilantism and lawlessness directed against the Latino community,” the MALDEF brief states.

Texas Agriculture Commissioner Todd Staples recently filed a brief in support of the property owners.

“Key to the preservation and promotion of agriculture is the protection of private property owners’ rights. In order to ensure the continued viability of Texas agriculture, an essential and significant portion of the Texas economy, the Court must recognize and continue to apply established Texas law recognizing these rights,” he wrote.

Staples, who is a candidate for lieutenant governor, said the issue is as much a private property concern as an immigration issue. He said he would take the same side if the trespassers were thrill-seeking U.S. citizens. But, he added, the country’s broken immigration system only perpetuates the illegal smuggling.

“We want people to enter our nation legally, in the daylight and not illegally under the cover of night,” Staples told the Tribune. “We need a market-based system [for visas] and not artificial quotas.”

Local reaction

The tragedy of the case isn’t lost on the residents of this county of about 7,200 people. And some are sympathetic to the reasons that undocumented immigrants make such a journey. But stories of such immigrants using private property are commonplace here.

“I see it every day, where they bail out near my house, when Border Patrol is chasing them,” said Melva Morales, 46, a lifetime resident of Brooks County. “One time my son saw a vehicle and they came into our property. The Border Patrol chased them, came into my property and almost hit my son.”

Morales said the family had to fix their fence and later question what would happen if the government, not the smugglers, killed someone out of alleged negligence.

“I feel sorry for these people who are trying to make a better life, but I think it’s a risk they take when they come,” Morales added. “They’re coming at their own risk. A lot of women get raped [by their smugglers]. But who are they going to sue? It’s sad. I don’t think the family should sue.”

The median income here doesn’t reach $20,000, and about 40 percent of residents here live below the poverty level, well below the state’s average. But impoverished taxpayers in the county foot the bill for the illegal activity, Brooks County Judge Raul Ramirez said.

“We are on our own. We’ve been hollering at Washington, but we’re the ones left with the bill,” he said. “I’ve had [undocumented immigrants] go through my property. I was left holding the bag.”

There were 129 immigrant deaths in 2012, and about 70 have died so far this year in Brooks County, Ramirez said. The 2012 expenses included about $200,000 for autopsies and manpower alone. The county does not qualify for some federal monies that would help offset such costs because it’s not on the border, he added.

Ramirez declined to comment on the Boerjan case because he was not familiar with it. But he acknowledged the complexities of such cases.

“Everyone has the right to sue,” he said. “But some of those are frivolous.”

People in this community are sympathetic, and Ramirez is no different.

"With something like this [case], you have to be very careful. But there is also a human factor and that’s the one that takes over,” he said.

But people here are also landowners who feel threatened. Some shed the use of the term “undocumented immigrants” and say instead that you can’t “trust the illegals” anymore. Years ago, if an undocumented immigrant approached someone here for help, it was common to do what was possible, like offering some water or a cellphone for a quick call. Things are different now, said Letty Garza, a local librarian.

“It’s damned if you do and damned if you don’t,” she said. “You can’t trust them like you could back then. There are a lot of Central Americans. They should get out and stay out.”

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