NEW ORLEANS (CN) — Why a Coast Guard vessel suddenly accelerated in a channel between Mexico and the U.S. just before a 24-year-old Mexican national trying to cross was killed by the boat’s propeller is a mystery, an attorney for the woman’s family told a Fifth Circuit panel Tuesday.
But what is known — that the vessel that hit Patricia Guadalupe Garcia Cervantes “was operating at night, without lights, at an unsafe speed” — is enough to establish foreseeability, said Javier Villarreal, the attorney representing Cervantes’ husband and daughter in a lawsuit they filed three years ago.
Cervantes’ body was found on the bank of the Brownsville Ship Channel early the next morning, April 24, 2015, after it was brought to the U.S. Coast Guard’s attention by a man who was later arrested for smuggling Cervantes across the channel, Galdino Jose Ruiz-Hernandez, an undocumented immigrant from Oaxaca, Mexico. The pink floatie Cervantes had used as a floatation device to cross the channel was later found on the water’s bank.
Villarreal told the Fifth Circuit judges Tuesday that the fact the Coast Guard boat suddenly accelerated from roughly 10 knots to 30 knots at night as it patrolled an area called Shrimp Basin, known for illegal crossings, should be enough to establish that the boat’s captain would have known he might run the risk of encountering an immigrant in the channel and should never have been going that fast.
Justice Department attorney Dennis Fan, arguing on behalf of the federal government, said Cervantes should have been making noise or had lights on her to alert passing ships that she was in the water.
But Villarreal pushed back on that argument during rebuttal.
“There is no reason for him to be going at that speed, 2 miles from the Mexican border where there are immigrants” trying to cross, he told the panel.
U.S. Circuit Judge Edith Jones, a Ronald Reagan appointee who called the case “extremely fact intensive” at the start of Tuesday’s hearing, replied that the Coast Guard would have thought it was “extremely unusual” for Cervantes, who could barely swim, to be in the channel with her pink childish floatie in the first place.
Villarreal disagreed and recounted the night of April 23. He said the floatie had been purchased from a store in Mexico for Cervantes by her smuggler shortly before her journey.
“It was under the cover of darkness, at the end of the day. That is what [the Coast Guard crew] are doing — they are looking for illegal aliens. How can we say it was unforeseeable?” Villarreal asked the judges.
“If she had been swimming across the Mississippi it would be a different argument,” the attorney added. “No one swims across the Mississippi. But in Brownsville, this is a separate instance.”
Villarreal also said undocumented immigrants frequently use floatation devices.
The Coast Guard’s own incident report about Cervantes’ death said “migrant and drug smuggling activities have occurred along the length of the BSC, most commonly under the cover of darkness, at night and in the early morning. The general vicinity of the Shrimp Basin is one known area where this illegal activity occurs.”
The incident report goes on to say that “undocumented immigrants and smugglers typically use floatation devices, including inner tubes, to assist them to cross the BSC.”
The Coast Guard did not immediately respond to an emailed request for comment.
U.S. Circuit Judges E. Grady Jolly, also a Reagan appointee, and Don R. Willett, an appointee of President Donald Trump, also sat on the panel. The judges did not indicate how or when they will rule on the issue.