Does Mexican boy killed by Border Patrol agent have constitutional rights?

• A Border Patrol agent shot across fence and killed an unarmed Mexican teen in 2012.
• A federal judge must decide whether Constitutional rights extend to a Mexican citizen in Mexico.
• To Jose Antonio Elena Rodriguez%27s family %22the case is clear.%22

TUCSON – A federal judge did not reach a decision Tuesday about whether to dismiss a civil case filed by the family of an unarmed Mexican teenager who was killed by a Border Patrol agent firing from U.S. soil.

Jose Antonio Elena Rodriguez, 16, was killed in Nogales, Mexico, on Oct. 10, 2012, after Border Patrol Agent Lonnie Swartz fired 12 rounds from his .40-caliber pistol through the Mexican border fence.

Sean Chapman, the private attorney representing Swartz, argued Tuesday before U.S. District Judge Raner Collins that Swartz did not violate Elena Rodriguez's constitutional rights because they do not extend to a Mexican citizen in Mexico.

Chapman referenced the case of Sergio Adrian Hernandez Guereca, who was killed by a Border Patrol agent in 2010 near Ciudad Juarez, Mexico, and El Paso, Texas.

In April, the 5th U.S. Circuit Court of Appeals unanimously ruled in the Hernandez case that Border Patrol agents shooting from U.S. soil cannot be sued when they kill someone across the border in Mexico.

The 5th Circuit decision does not have precedence over Elena Rodriguez's case, which is in the 9th Circuit.

Lee Gelernt, deputy director of the American Civil Liberties Union's Immigrants' Rights Project, argued for Elena Rodriguez's family.

"A Border Patrol agent can put his gun up to the fence and shoot a teenager," Gelernt said. "And the Constitution has nothing to say about that?

"Everything that took place, except the bullet that killed him, happened in the U.S.," he added.

Gelernt asked the judge to set the Hernandez case aside and focus on the circumstances of Elena Rodriguez's death.

On Oct. 10, 2012, Nogales, Texas, police and Border Patrol agents had responded to a 911 call reporting two suspected drug smugglers climbing over the fence from Mexico carrying bundles of what appeared to be marijuana. As agents and officers searched along the fence, two men dashed out and began climbing back over the fence into Mexico.

Border Patrol said Swartz fired in response to rocks thrown over the fence from Mexico, as agents and police officers tried to stop the two men.

Two witnesses on the Mexican side of the fence said that Elena Rodriguez, however, was walking down the street when other youths ran past just before the shooting started. He was hit 10 times in the back and head.

Attorneys for Araceli Rodriguez, Elena Rodriguez's mother, filed a civil suit in July against Border Patrol agents involved in the death, alleging they had used "unreasonable and excessive force," violating the boy's Fourth and Fifth Amendment rights.

Elena Rodriguez's grandmother Taide Elena said after the hearing that she wished the judge did not take the time to deliberate.

"The case is clear," Elena said in Spanish. "Jose Antonio was a young man with goals and with dreams. He wasn't a criminal who needed to be killed."

There is no set timeline for Collins to release his decision on whether he will dismiss the case. He said during the hearing that he is aware that one side or the other would appeal his decision.