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Experts say extradition unlikely if agent charged

EL PASO -- The fatal shooting of a 15-year-old Juárez boy by a U.S. Border Patrol agent has raised diplomatic and legal questions as investigations unfold on both sides of the border.

On June 7, the agent shot Sergio AdrÃ*an Hernández Güereca near the Paso del Norte Bridge. U.S. authorities said the agent was defending himself against rock throwers after he apprehended a young man who had crossed illegally into the United States. Border Patrol administrators have declined to release the agent's name, despite formal requests.

Hernández's family and Mexican officials have demanded a full investigation. His relatives also said they want prosecutors in Mexico to file murder charges against the agent and seek his extradition.

But legal experts said that, according to a treaty between the United States and Mexico, the agent's extradition is not likely, even if the Mexican government requests it.

"Under the extradition treaty, the basic rule is that countries aren't obligated to extradite their own nationals," said Allen Weiner, co-director of Stanford University's Program in International and Comparative Law.

"It's pretty inconceivable to me that the U.S. would surrender one of its officials, especially if the agent was in good-faith execution of his duties," Weiner said. "It's conceivable that he would be in fact charged in Mexico, but it would only affect whether he'd want to vacation in Cancun next year."

If the agent were to be charged in Mexico, a federal judge in El Paso would have to weigh the evidence before deciding whether extradition was warranted, said Edwin Smith, an international law professor at the University of Southern California Law School.

"They would only extradite the individual if it was a legitimate crime," Smith said. "It's very unlikely you would find that a Border Patrol agent acting in an official capacity using force as having committed murder in the U.S."

Smith said Mexican officials would have to prove that the shooting was a reckless and intentional act before the United States would consider it a crime.

"Had he gone into Mexico pursuing people, aimed at someone and fired deadly force on them, then we would have an international incident," Smith said.

In the United States, the FBI has launched a civil rights investigation into the shooting. Millions have seen portions of what happened since the shooting was recorded on a cell phone and first aired on a Mexican television station.

The video shows the agent holding one man while pointing his gun toward Mexico. Other men are seen running across the Rio Grande into Mexico.

It also recorded people saying that the rocks were being thrown at the agent, who fired at least three shots. Mexican authorities arrived while Hernández's body was on the ground.

U.S. Attorney General Eric Holder described Hernández's death as "extremely regrettable."

Angel Torres Valadez, spokesman for the PGR, or the Mexican attorney general's office, declined comment but said an investigation continues.

Mexican President Felipe Calderón pledged to "use all resources available to protect the rights of Mexican migrants." His foreign secretary, Patricia Espinosa, said Mexico was not taking the Americans' word that the Border Patrol agent had been defending himself from rock-throwers when he opened fire, according to The Associated Press.

But the statements made by Mexican authorities could have been made under political pressure, said Carlos Spector, an immigration attorney in El Paso.

"Given the Mexican government's past, ultimately they'll do what the U.S. wants," Spector said. "The Mexican government is in a position of defending Mexicans abroad and killing them at home."

Spector said that, if political leaders in Mexico were to receive assurances from the U.S. government that would benefit Mexico, then they probably would not seek the agent's extradition.

"I don't think the Mexican government has the political will or guts to stand up to the American government, apply the international law and seek extradition on the basis of what they perceive to be a homicide," Spector said. "This is just an opportunity for them to look good."

Mexican officials declined to comment on Spector's remarks Monday.

Some legal experts said they do not expect the shooting to affect U.S.-Mexico relations.

"It's bad press, clearly," Smith said. "Whether we're talking about a diplomatic incident, I think we have bigger fish to fry."

But Weiner said the political relationship between the two countries will probably be tested for some time.

"Anything like this I think is going to be a challenge for that relationship," Weiner said. "My hunch is it's more likely to become a political problem than an operational problem, but they may have to scale back some of their cooperation for some period."