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Know the facts when crossing the border

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The Tijuana border at San Ysidro is the most traversed international border crossing in the world. More than 26,000 million tourists make their way to Tijuana each year via auto, bus or by simply walking across. But those few steps introduce U.S. citizens to a world of unfamiliar legal rights and issues as well as a culture and political arena that can prove confusing and even dangerous.

“Mexico shares a 2,000-mile border with the United States,” noted Adriana Cordoba, an attorney with the Law Offices of Shaun Khojayan in San Diego. “The rule of law in Mexico is therefore of particular concern and urgency to citizens, policy-makers and legal scholars on both sides of the border.”

The rights of U.S. citizens and non-citizens as well, said Cordoba, are defined by the U.S. Constitution.

“We are taught early and often that a person is innocent until proven guilty, the burden of proof is on the government, and that government must provide the evidence of guilt,” she said. “We often take for granted the right to a speedy and public trial before a jury of our peers and that everyone has a right to any attorney and will have one appointed regardless of ability to pay.”

The Mexican legal and criminal justice system works very differently from U.S. Constitutional law, and the challenges should become clear to every tourist venturing across the border. The most obvious difference is that in Mexico, a person is guilty until proven innocent. No death penalty exists in Mexico. The commission of fraud is a criminal offense, unlike most fraud in the United States Mexican law never allows parole or bail on personal recognizance. The confirmed incidence of police, judicial and political corruption in Mexico, and widespread bribery compounds the situations for U.S. citizens who find themselves in legal trouble in Mexico.

It’s also important to note that there’s not as much civil litigation in Mexico as in the United States.

“Civil litigation in Mexico is expensive,” said Cordoba, “and there are no punitive damage awards. Also, parties must pay for their own attorney’s fees and costs and the litigation process itself is very lengthy.”

It’s also extremely important to know that, in the area of litigation, there are no jury trials, which is a fundamental right in most U.S. cases. Formal, written declarations are used more frequently than the oral hearings, commonly used in the U.S. courts; negotiation and mediation are encouraged.

In U.S. litigation, the “discovery” process (gathering evidence) is monumentally significant, controlled primarily by attorneys. In Mexico, however, the judge controls this process and play a much more active role in developing a case.

“These factors alone,” said Cordoba, “make it wise for people and companies doing business in Mexico to avoid litigation by using creative and sincere negotiations; incorporating arbitration provisions into their contracts in case of irreconcilable conflicts; adequately securing obligations where possible; and, more importantly, knowing the parties with whom you are dealing.”

Legal issues faced by attorneys on both sides of the border, said Cordoba range from violence against unauthorized Mexican and third-country migrants to the smuggling of drugs, arms, stolen cars and other contraband such as medicines that can be purchased without prescriptions from drug stores in Tijuana.

“Transport of these medications back to the United States,” said Cordoba, “can lead to criminal charges and costly court cases.”

She emphasized that it is important for people to understand that they have less rights at the border.

“A person, for example, can be searched without cause and the citizen has no power to deny the search,” she said. A person does have the right to remain silent and should exercise that right so they do not incriminate themselves, she added. “Detention by authorities, often trained interrogators, is extremely stressful. People tend to want to cooperate, but may not recognize that almost anything they say can be used as an incriminating statement.”

She also stressed that people should remain at a high state of vigilance when crossing the border and visiting Baja. The U.S. State Department recently issued a public announcement warning U.S. citizens residing and traveling in Mexico to exercise caution when in unfamiliar areas and be aware of surroundings at all times. Violence by criminal elements affects many parts of the country, urban and rural, including border areas. The announcement further states that in recent years dozens of U.S. citizens have been kidnapped in Mexico with more than two dozen cases still unresolved, with new cases being reported. No one can be considered immune from kidnapping on the basis of occupation, nationality or other factors. Drug cartel members have been known to follow and harass U.S. citizens traveling in their vehicles, particularly in border areas.

Cordoba said that U.S. citizens should make every attempt to travel on main roads during the daylight hours, particularly the toll roads, which are generally more secure. It is safer for U.S. citizens to stay in well-known tourist destinations and tourist areas of the cities with more adequate security, and avoid traveling alone. U.S. citizens should refrain from displaying expensive-looking jewelry, large amounts of money or other valuable items.

“Tijuana is a foreign country,” said Cordoba. “Sometimes we may forget that since it’s our neighbor. We can take a few steps south and there we are. But once we cross that border, and even as we enter the border crossing zone, the laws that protect us, the rights we have as citizens of the U.S. become less familiar and often no longer apply.”

Ellman is founder of Beck Ellman Heald Public Relations.

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