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Charity Group Backs Company in Immigrant Smuggling Case

A Catholic philanthropic organization has thrown its support behind a mining company and one of its employees who are being sued after three undocumented immigrants were killed during an incursion onto private property in Brooks County.

Demonstrators march through the streets of downtown Dallas in 2010 to protest the passage of Arizona's controversial new immigration law.

A Catholic philanthropic organization has thrown its support behind a mining company and its employee who are being sued after three undocumented immigrants were killed during an incursion onto private property in Brooks County.

The Texas-based John G. and Marie Stella Kenedy Memorial Foundation, which primarily funds social justice and religious causes, has filed an amicus brief in support of Philip Boerjan and Mestena Uranium, the defendants in a suit lodged after a 2007 car accident that left three undocumented immigrants dead, including a 7-year-old girl. The February filing is the most recent action in the case, which is still pending before the Texas Supreme Court.

The accident occurred when a smuggler trying to evade a U.S. Border Patrol checkpoint near Falfurrias transported a group of undocumented immigrants across private property where the Mestena mining company operated. Boerjan, a security guard, spotted the smuggler, Jose Francisco Maciel, who fled in his vehicle. Boerjan followed him, and the pursuit resulted in an accident that killed Angelina Rodriguez Negrete, her husband and her daughter. The victims’ families sued, accusing Boerjan and the company of gross negligence that led to the deaths.

The case is pending before the state's high court after the 4th Court of Appeals in San Antonio reversed a lower court’s decision in 2011 that ruled in favor of Boerjan and the company.

Some of the biggest supporters of comprehensive immigration reform are religious and social justice organizations, which cite the danger immigrants face reaching their final destination in the United States as a reason Congress must overhaul the country’s current system. An attorney for the Kenedy foundation said its support for the defendants in this case stems from concerns over private property rights and how the decision could affect other landowners in Texas.

Foundation CEO "General Cisneros is, I am sure, as interested in the immigration problem as any Catholic charity, but he’s also got the commercial concerns involving the increasing traffic through the ranch and the property,” said Corpus Christi-based attorney James Buchanan, who filed the brief on behalf of the foundation.

The Mexican American Legal Defense and Educational Fund, or MALDEF, which has filed its own brief supporting the families of the victims, warned that the position advocated by the foundation could send the wrong message. 

“I think it is a surprise given its stated values,” said Marisa Bono, a staff attorney in MALDEF’s regional office in San Antonio. “And especially because of the repercussions the type of decision they are advocating for could have on both undocumented immigrants and people with lawful immigration status.”

The foundation argues that had the appellate court considered the immigrants and smuggler as trespassers — and applied case law accordingly – it might have reached a different conclusion.

“A trespasser enters land of another without any legal right and without any implied assurance of safety from the owner or occupier of the land,” the brief states. “An owner, lessee or occupant of the land is justified under the penal code in using force against the trespasser in defense of person or property, and there is no liability to the trespasser.”

Its brief calls it “disturbing” that the 4th Court of Appeals likened the “invasion of private agricultural land in South Texas by undocumented aliens and smugglers of aliens and drugs, who are often dangerous, to Depression-era trespassing on trains.”

Bono said Texas law states that landowners have a duty to try to refrain from injuring anyone, including a trespasser. MALDEF has defended citizens and undocumented immigrants alike in court when vigilantes have attacked them in cases the organization says represent obvious racial profiling. If the Texas Supreme Court rules against the victims' families, she said, it would send a message that there are different rules when someone is believed to be an immigrant.

“No one is contending that landowners don’t have a right to be free from trespass or to protect their property, but they still need to maintain a certain duty of care, regardless of whether someone is undocumented,” she said. 

Buchanan, who said his client list includes several property owners in South Texas, said there is a greater sense of concern in the area than in the past. 

“It used to be the people along [U.S.] Highway 77 were pretty neutral to friendly with the illegal immigrant traffic, but they have gotten much more destructive of late than they used to be,” he said. “It’s a concern to all the ranch owners down there.”

With its filing, the Kenedy Foundation joins Texas Agriculture Commissioner Todd Staples, the Texas Mining and Reclamation Association, the South Texans’ Property Rights Association, and the Texas and Southwestern Cattle Raisers Association, all of which have filed briefs in support of the defendants.

Disclosure: The Texas and Southwestern Cattle Raisers Association is a corporate sponsor of The Texas Tribune. A complete list of Texas Tribune donors and sponsors can be viewed here.

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