Hernández Güereca’s encounter with Mesa is not unprecedented. For more than a century, young people from diverse countries of origin have been accused of reaching a boundary of the United States without authorization and engaging in unlawful activity. In response to noncitizen children’s presence at the border and inside the nation, U.S. officials have subjected them to violence, incarceration, deportation and the withholding of wages. And yet, noncitizen youths have often been able to resist these efforts and assert their agency within a system that tries to deny them rights. With the Supreme Court’s ruling, it appears that border agents now have carte blanche to fire across the border — even taking children’s lives — and Hernández Güereca’s family’s efforts for redress have been silenced.
Children have long suffered because of immigration restrictions, often being accused of trying to defraud the system. Caught in the same system of enforcement as adults, children have been even more vulnerable to its violence and abuse.
During the era of the Chinese Exclusion Act between 1882 and 1943, for example, law enforcement arrested Chinese children accused of illegally smuggling migrants across the U.S.-Canada border. Chinese migrant youths suspected of committing immigration fraud to gain entry into the United States were frequently subjected to abuse and neglect in detention by officials, resulting in children’s deaths in some cases.
Restrictions on migration increased after two events in the 1960s increased unauthorized immigration to the United States. First, in 1964, the federal government terminated the Bracero Program, a guest-worker program that brought large numbers of Mexican workers to the United States between 1942 and 1964. Men who had legally traveled and worked seasonally in the United States returned the next year and were suddenly unauthorized. Then in 1965, Congress established numerical restrictions on immigration from the Western Hemisphere, further limiting opportunities to migrate with authorization.
Even though adult men comprised a majority of the undocumented migrants from Mexico in the second half of the 20th century, Border Patrol agents witnessed growing numbers of Mexican women and children crossing the border without authorization. Research conducted by the U.S. Department of Labor and the Texas Good Neighbor Commission revealed that in the immediate aftermath of the Bracero Program’s termination, Mexican children’s rate of migration increased by 57 percent. Unaccompanied and undocumented Mexican children arrived in the United States with the help of human smugglers known as “coyotes” and by sneaking onto buses in northern Mexico headed for the United States. The punitive shifts in U.S. immigration policy in the late 20th century and Mexico’s rising unemployment made Mexican migrants feel pressure to settle permanently in the United States to achieve economic survival and sustain their family unity. That drove more children to migrate.
Migrant Mexican children’s extreme poverty and undocumented legal status, combined with the growth of human smuggling as a consequence of harsh border enforcement, pushed children into riskier migration routes and made them susceptible to rights violations by law enforcement authorities and employers.
In one especially egregious case, two undocumented teenagers from Atotonilco, Mexico, were sold to a citrus grove near Riverside, Calif., by the human smugglers who transported them to the border in January 1979. The two Mexican teens didn’t just have their labor exploited, however — they were also deprived of adequate shelter, food, schooling and medical treatment. When they demanded an end to these rights violations, their employer threatened them with violence and deportation.
An Inland Empire legal aid society encouraged the Mexican 80ss to sue the orchards’ owners for debt peonage and false imprisonment, which forced the teens to weigh the risks of going to court. Noncitizen minors who demanded legal recourse were vulnerable to additional harms and state-sponsored retribution because of their immigration status and youth. When the undocumented teens formally demanded redress in the Riverside Superior Court, hostile government officials withheld a portion of their wages to ensure the young plaintiffs would appear in court. The multimillion-dollar lawsuit also made them targets for law enforcement and deportation.
At the same time that the Atotonilco teens took their case to court, undocumented children who were being denied access to Texas and California schools decided to sue as well. When Texas lawyers sought a preliminary injunction in the case that would later become the landmark Supreme Court decision in Plyler v. Doe, local government officials tried to intimidate the Mexican child plaintiffs in the case by trying to get them deported by the Immigration and Naturalization Service (INS).
When Border Patrol agents found unaccompanied Mexican, Central American and Haitian children in the 1980s and 1990s, they increasingly detained the children in subhuman conditions that threatened their lives. As a result, border-crossing youths and their families fought for their rights through social advocacy and class-action litigation.
Haitian child detainees, for example, protested the excessive disciplinary measures, abuse and privations to which they were subjected at Guantánamo Bay detention camp by staging a prayer demonstration and hunger strike in November 1994. A few months later, U.S. officials began to deport many of the Haitian children incarcerated there. In May 1995, some of the remaining youths burned down four of their tents and organized another hunger strike to demand their release from detention.
In 1996, lawyers on behalf of Central American youths detained in the mid-1980s settled a class-action lawsuit in which noncitizen minors demanded basic human rights and amenities while incarcerated, due process guarantees, and expeditious release. They secured a settlement — the Flores Settlement Agreement — to limit the government’s power to detain children indefinitely.
President Trump has persistently (but unsuccessfully) tried to erode the protections won by the Central American migrant children who asserted their rights back in the ’80s and ’90s. Immigrant rights advocates and journalists have consistently documented the deadly physical, sexual and psychological abuse of children perpetrated by immigration agents, despite baseline protections.
Young undocumented migrants and their families have historically demanded redress for rights violations and abuses committed by U.S. officials at the border and inside the nation. The U.S. government has responded by trying to absolve themselves of responsibility while silencing and intimidating nonwhite and noncitizen youth with the help of retaliatory tools found in its broad-ranging legal arsenal.
The death of Sergio Adrián Hernández Güereca was not an aberration, but part of a long tradition of violence and impunity. And although his family sought legal recourse, it has been denied by the Supreme Court. This suggests that long-existent patterns of state-sponsored retribution, violence and impunity will continue to flourish at the expense of children’s lives. Justice Ruth Bader Ginsburg’s dissent made this much clear: To subject Hernández Güereca’s parents to a “closed courtroom door” and to relieve a “rogue” U.S. officer of liability “’will not provide a meaningful deterrent to abuse at the border.’”