An ICE agent was killed overseas, but his killing is not a crime under US law: Analysis

Contributor Don Mihalek argues that the legal loophole should be closed.

February 21, 2020, 5:00 AM

In 2011, Immigration and Customs Enforcement (ICE) special agents Jaime Zapata and Victor Avila were deployed to Mexico to help investigate and thwart the flow of drugs into the United States.

While driving in an armored SUV with diplomatic plates, they were ambushed by a "hit team" from the Los Zetas drug cartel that was in search of vehicles to use in cartel operations, according to the Department of Justice.

Despite Zapata and Avila's pleas that they were diplomats, the assailants fired nearly 100 rounds into the vehicle using handguns and assault rifles, wounding Avila and killing Zapata, the DOJ said.

Zapata's assassination was the second high-profile killing of a U.S. agent in Mexico in recent memory — the first being Enrique Camarena, an undercover DEA agent who was tortured and murdered in 1985 by the former Guadalajara Cartel.

In the aftermath of Zapata's killing and under pressure from the Obama administration, the Mexican government extradited seven cartel members associated with the murder to the United States, including Jose Garcia Sota and Jesus Ivan Quezada Pina.

Both Garcia Sota and Quezada Pina were found guilty in 2017 of several federal charges, including murder of a federal law enforcement officer under 18 USC 1114 – the federal statute that pertains to killing or attempting to kill officers of the United States.

An undated photo shows U.S. agent Jaime J. Zapata.
Department of Homeland Security via Newscom

But late last month, a panel on the federal appeals court in Washington D.C. vacated part of the convictions for Garcia Sota and Quezada Pina, arguing that Section 1114 does not apply to violations committed outside of the U.S.

Their convictions on federal weapons charges and a section of the law that prohibits the killing of foreign officials, official guests or internationally protected persons – 18 USC 1116 – were upheld due to Avila having diplomatic status.

According to the Congressional Research Service summary, Zapata was on a temporary assignment and didn't enjoy that same protected status as Avila. Regardless of their status, the court viewed the lack of "extraterritorial jurisdiction" language in 18 US 1114 as non-enforceable in this case and dismissed on appeal, meaning his murder effectively could not be prosecuted as a crime simply by virtue of where it occurred.

The reason for the court's ruling was due to the language of Section 1114, which, according to the panel on the U.S. Circuit court, did not specify extraterritorial jurisdiction for the murder charge, and could not be applied outside the United States. Typically, federal criminal law is presumed to only apply in the U.S. unless Congress specifies otherwise, which it does in terrorism and child predator cases.

Despite this loophole, federal agents have and continue to serve overseas every day under the assumption that federal law would protect them. Without the protection afforded by Section 1114, federal agents serving overseas might find themselves targeted because criminals know they can't be prosecuted for the killing of a federal law enforcement officer.

The D.C. circuit sent the case back to the district court for "limited" re-sentencing, which will negate the double life sentences they were both serving.

Now, Garcia Sota and Quezada Pina will face less time -- up to 20 years for the attempted murder (Section 1116) of Avila and up to life for the firearms charge. If this ruling stands, Zapata's murder will never be accounted for.

The DOJ now has a decision to make about whether to appeal this case to the Supreme Court and Congress has to decide whether to act to close this loophole, something which I and other federal law enforcement representatives are calling for.

Donald J. Mihalek is an ABC News contributor, retired senior Secret Service agent and regional field training instructor who also serves as the executive vice president of the Federal Law Enforcement Officers Association Foundation. Opinions expressed in this piece do not reflect those of ABC News.

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