Report on Border Patrol shootings sheds light, but not enough

Anastasio Hernandez Rojas, a 42-year-old Mexican national who had been living illegally in San Diego, was apprehended for being undocumented and transported to the U.S.-Mexico border for deportation in June 2010. Customs and Border Protection (CBP) officers said that shortly before being released into Mexico, Hernandez Rojas became “combative," and that use of force was deemed necessary to subdue him and “maintain officer safety.” 

Over the course of a 20-minute altercation, CBP officers beat and tased Hernandez Rojas, who died three days later in the hospital. The county medical examiner determined that he had died of a heart attack, brought on in part by the prolonged struggle with officers.

Aside from the outrage of a few immigration activists, the incident went relatively unnoticed at the time. Hernandez Rojas seemed destined to become just another victim in a string of fatal encounters between border guards and undocumented Mexican immigrants.

But two years later a PBS documentary, "Crossing the Line at the Border," released eyewitness footage depicting multiple Border Patrol agents tasing Hernandez Rojas, who, the eyewitness says, was handcuffed and horizontal on the ground. His desperate cries for help recorded in the video sparked a national outcry and a Department of Homeland Security (DHS) inquiry into excessive use of force by CBP employees.

As Border Patrol agent staffing more than doubled over the past 10 years, the number of Mexicans apprehended by the agency attempting to enter or remain in the U.S. illegally plummeted from more than 1.1 million in 2004 to just 356,873 in 2012, according to CBP statistics.

In the past three years, however, the number of people killed by Border Patrol agents has increased. Fifteen were killed by agents along the Mexican border, where the overwhelming majority of border violence takes place, and six more were killed by agents shooting across the border into Mexico.

Whether or not the rather grainy video revealed in the PBS documentary is proof of foul play, John Carlos Frey, whose investigative reporting on Mexican immigrants at the border was featured in the documentary, said the precedent is troubling.

“A man was taken to the border to be deported, he was taken to a secure area and he ended up dead. There’s something wrong there.”

The DHS report, which was conducted by the department’s Office of the Inspector General (OIG) and released last week, sought to address perceived training inadequacies that may be contributing to the spike in violence.

Sen. Robert Menendez (D-N.J.) and 15 members of the House of Representatives requested the report in April 2012, wanting to know if the Hernandez Rojas incident was an egregious but isolated abuse of power by Border Patrol officers, or if the men and women charged with keeping American borders secure were inadequately trained and unprepared to deal with stressful situations on a larger scale.

"The disturbing footage and eyewitness accounts that aired on PBS raise serious questions about the Border Patrol’s role in the death of Anastasio Hernandez Rojas,” said Rep. Lucille Roybal-Allard (D-Calif.), one of the congresswomen who requested the report, in a statement to the media. “After two years, we owe it to his family to finally provide some definitive answers.”

But initial reaction to the OIG report from that group of 16 has been lukewarm.

"While I welcome the recommendations made by the IG’s report, Border Patrol needs to do more to curb excessive use of force that has resulted in unnecessary deaths," said Sen. Menendez in an email to Al Jazeera. "As we continue to secure our borders, we need to make sure that steps are taken to ensure appropriate use of force by CBP agents and protect the rights of all human beings."

The OIG report, which details recent changes to use of force training by CBP employees, acknowledges that the agency has no idea how frequently illegal immigrants allege excessive force because of an apparent flaw in the reporting system for complaints against Department of Homeland Security employees, which include CBP officers.

Presenting findings on 1,187 potential incidents of excessive use of force between 2007 and 2012, the report outlines recommendations for how excessive force can be prevented and reported in the future through formalized training and auditing.

But as the report indicates, accurate numbers on such cases are unavailable, because the current system for registering complaints does not include “excessive use of force” as a primary category, an issue CBP has said it will rectify. The report’s team pored over CBP data and was able to determine only “potential” incidents.

Customs and Border Protection, which is responsible for securing various ports of entry to the U.S. and enforcing immigration law, falls under the Department of Homeland Security and, as such, is not subject to the same level of public scrutiny as major police departments, for example, with regard to the excessive use of force by employees.

This is a problem, said Chris Rickerd, an immigration-policy counsel at the American Civil Liberties Union in Washington. He said that CBP should follow the example of urban law enforcement departments in disclosing its reprimand structures for excessive use of force violations.

"The lack of dialogue about what the CBP is doing internally in terms of oversight is a disappointment," said Rickerd.

Frey agrees CBP has a transparency problem, pointing out that the report does not explain how detainees register their complaints -- and whether they are sometimes required to address their grievance to the offending officer.

CBP did not immediately respond to questions about these omissions.

According to the agency’s Use of Force Continuum, agents and officers may use “reasonable and necessary” force when “compelling an unwilling subject to comply with lawful commands.” Force is deemed “excessive” if it fails to meet these criteria.

There is no question that Border Patrol agents, who also operate at airports and seaports, face their most arduous conditions along the Mexican border, where 99 percent of assaults on Border Patrol agents occurred between 2006 and 2012, according to CBP's Use of Force Policy Division, or UFPD. The inspector general's report mentions that agents often patrol in isolation, perhaps 20 miles from another agent.

Between 2007 and 2012, four Border Patrol agents died in the line of duty because of border violence.

Rickerd said the ACLU was underwhelmed by the report. "We envisioned a much more thorough analysis," he said. "The OIG report just glanced on how to figure out if training and manuals of instruction are understood by officers and actually make a difference."

"The report feels to be a bit of a shell game,” said Frey, “to make it look like the CBP is doing something.”

In particular, the report acknowledges some shortcomings in Border Patrol officer training but asserts that the problems are not endemic.

Specifically, it determined that the massive increase in agents and officers -- over 10,000 were added between 2003 and 2012 -- has not detracted from the quality of training and preparedness of CBP employees overall. The injection of funding into the Border Patrol that resulted from post-9/11 fervor over border security significantly expanded the U.S. capacity to secure its porous southern border with Mexico.

Still, the spate of border fatalities over the past few years suggests some gaping holes in training on the appropriate use of force. The CBP statement to Al Jazeera said that the agency is pursuing several “enhancements” to use-of-force training as part of a reformed training scheme, including new weapons and equipment to “improve agents’ ability to de-escalate confrontations” and additional “scenario-based use of force training.” Details were not given.

In addition to expanding and formalizing its auditing system, whereby three-person teams from the UFPD conduct three-day site visits with stations along the border to assess use-of-force readiness, the CBP is testing high-tech simulators to better prepare trainees at the Border Patrol Academy for real-life encounters.

The CBP spokeswoman told Al Jazeera that the agency “concurred with all the recommendations issued by the Office of Inspector General” and also mentioned that CBP had commissioned a separate report from the independent Police Executive Research Forum.

But immigrant rights activists say the congenial dialogue between CBP and the OIG is indicative of the close cooperation of the agencies, which they say is the report's fundamental flaw. 

Frey noted that an intra-DHS investigation is unlikely to effect any change in agency culture, which he believes is at the root of the Hernandez Rojas incident.

"I think it is a culture thing. What else would allow commanding officers to tase a man who is subdued, lying on the ground?" Frey said.

Al Jazeera

Senator Menendez' comments were added after initial publication of this article