US Supreme Court justices may offer a preview of how they would approach President Donald Trump’s travel ban when they take up a case involving a shooting across the Mexican border.

The high court on Tuesday will hear an appeal from the parents of Sergio Hernandez, a Mexican teenager who was shot to death by a US Border Patrol agent in 2010.


At issue is whether constitutional protections apply to Hernandez even though he wasn’t in the US when he was shot. The question is a variation of one of the central issues in the legal fight over the stalled travel ban, which Trump has promised to revise by issuing a new order this week.

Hernandez, 15, was shot while in a culvert whose center is the international border between El Paso, Texas, and Juarez, Mexico. His parents say Sergio and his friends were playing a game that involved running up the incline on the US side, touching the fence there and then running back into Mexican territory.

The FBI at one point said the youths were throwing rocks, although Hernandez’s parents say video evidence refutes that account. The parents say they should be able to sue under the Constitution’s Fourth and Fifth Amendments.

No ‘On/Off Switch’

“This court should make clear that our border is not an on/off switch for the Constitution’s most fundamental protections,” the parents argued in court papers.

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Related issues were at play in a Feb. 9 federal appeals court ruling against Trump’s travel ban, which would temporarily block entry into the US by people from seven mostly Muslim nations. The appeals court said the ban might violate the constitutional rights of people who aren’t in the US but have a connection to the country, such as a visa or a relationship with a US resident or institution.

In both cases, a key precedent is a 2008 Supreme Court decision that said inmates being held at Guantanamo Bay, the US naval base in Cuba, have constitutional rights and may seek release in federal court.

Justice Anthony Kennedy cast the deciding vote in that case, saying the overseas reach of the Constitution was governed by “functional” considerations, not formal questions about sovereign borders.

Showcasing Continuity

The case will be the first Supreme Court argument since Trump became president Jan. 20. Although Trump has diverged sharply from former President Barack Obama on border and immigration issues, the case will showcase continuity, rather than change, from one administration to the next.

In a brief filed before the inauguration, the Obama administration urged the court to throw out the lawsuit. Government lawyers pointed to a 1990 Supreme Court ruling that said the Fourth Amendment didn’t apply to the search of a Mexican citizen’s property in Mexico by US drug agents.

That ruling “held that the Fourth Amendment generally does not apply to aliens abroad,” the government said. Deputy Solicitor General Edwin Kneedler, a longtime Justice Department lawyer, will press that argument in court Tuesday.

The government also argues that the Hernandez family lacks the legal right to sue, no matter how far the Constitution reaches. While a 1971 Supreme Court ruling lets victims of police misconduct in the US sue on a claim their Fourth Amendment rights were violated, the government says that ruling shouldn’t be extended to cover foreigners abroad.

Deportation Case

The case is one of several on the court’s docket touching on issues that could arise should Trump’s immigration and deportation policies reach the Supreme Court. The court in November considered whether foreigners have a right to periodic bond hearings while they are in custody during deportation proceedings.

Another case argued in January asks whether foreigners who were detained for months after the Sept. 11 attacks can sue former Attorney General John Ashcroft and other officials. The court will decide the cases by June.

“The court is really grappling this term with a bunch of questions that are also implicated” by the travel ban, said Stephen Vladeck, a University of Texas law professor who is helping represent the Hernandez family. “I have to think that they’re not unaware of the connection.”