Bringing Border Enforcement Under the Rule of Law

A case before an international tribunal seeks long overdue accountability.

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The need to demilitarize the border is certainly an issue the Biden Administration must address head on if the nation is to make a clean break from inhumane enforcement. But overhaul of the U.S. Border Patrol and its parent agency, Customs and Border Protection (CBP), has been conspicuously absent from the campaign trail and the halls of Congress.

 “We want justice. We want these cases cleared up. We do not want any more lies.”

To make matters worse, a recent U.S. Supreme Court ruling shields the Border Patrol from accountability. In her dissent, Justice Sonia Sotomayor writes that the majority decision “absolutely immunized from liability” thousands of agents “no matter how egregious the misconduct.”

The Los Angeles Declaration on Migration and Protection, issued during the 2022 Summit of the Americas, calls for “humane migration management.” But what is humane about the Biden Administration putting nearly 4,000 Haitians on deportation flights in the month of May alone?

And the public is still waiting for an announcement about what the Administration will do about the mistreatment of Haitians near the Del Rio International Bridge last September, where Border Patrol agents on horseback swirled reins like whips near migrants and berated them.

Haitian Bridge Alliance Executive Director Guerline Jozef posed the question simply to activists at the outset of the summit: “How do we respond to them when they come to the border?”

A case before the Washington, D.C.-based Inter-American Commission on Human Rights could help pave the way for fundamental changes in border enforcement. The commission was created by the Organization of American States in 1959 to promote and protect human rights.

The case stems from the death of Anastasio Hernández Rojas after being stunned with a taser and beaten by U.S. border agents twelve years ago. His death, as the tribunal noted in accepting this case for a hearing, is alleged to be “part of a pattern of discriminatory and excessive use of police force against undocumented Latin American immigrants.”

Lawyers will ask that a hearing on this case be held in the fall.

“The family seeks recognition of culpability and a public apology from the federal government,” Alliance San Diego Executive Director Andrea Guerrero tells The Progressive. 

Guerrero, a co-counsel in the case, says this is the first time the commission has held a hearing on an alleged unlawful killing by U.S. law enforcement.

The forty-two-year-old Hernández, who was from Mexico, had lived in the United States for almost three decades. He and his common-law wife, María Puga, raised five children. After being deported in May 2010, he returned weeks later to be with his family in San Diego, California.

But as soon as he crossed the border, Hernández was detained and, later that evening, brutalized by immigration agents. A detailed account submitted to the commission describes how at least eight agents hogtied and dragged Hernández, beat him with batons, kneeled on his body, and repeatedly stunned him with a taser while nine others watched. Not only Border Patrol but also CBP and Immigration and Customs Enforcement (ICE) agents were involved in this assault.

Hernández suffered a heart attack and multiple injuries. He was declared brain dead that night and died three days later.

Immigration officials claimed he was combative, but a video showed otherwise, with agents encircling Hernández while he was on the ground. At least ten agents were involved in an attempted cover-up, which included  erasing videos taken by eyewitnesses, according to the account presented to the commission. 

Though the Justice Department declined to bring charges against the agents, the federal government in 2017 agreed to pay $1 million to settle a wrongful death lawsuit brought by Hernández’s family.

But that has been of little consolation to Puga, who has become an ardent advocate for the many victims of Border Patrol abuse.

 “We want justice. We want these cases cleared up,” Puga said at a recent news conference in San Diego held by the Southern Border Communities Coalition. “We do not want any more lies.”

Since Hernandez’s death, more than 100 foreign-born and U.S. nationals have died as a result of encounters with Border Patrol and other agents of CBP along the Southern border.

This lack of accountability has only increased with Border Patrol’s growth, which ballooned to more than 20,000 agents in the post-9/11 years. “The Legacy of Racism with U.S. Border Patrol,” a 2021 report by the American Immigration Council, found that “no agent has been held accountable in a meaningful way.” 

The report also found that 2,178 complaints of misconduct were filed against Border Patrol agents between January 2012 and October 2015. Out of the 1,255 cases for which an outcome was reported, 95.9 percent resulted in “no action.” 

Reece Jones, chair of the Department of Geography and Environment at the University of Hawaii, writes about this agency’s history in his new book, Nobody is Protected: How the Border Patrol Became the Most Dangerous Police Force in the United States.

Jones tells The Progressive that the creation of a border zone, which allows the Border Patrol to conduct warrantless searches within 100 miles of land and sea borders, has fueled this sense of lawlessness within the agency. And this disregard for rights was heightened when the agency repositioned itself in the aftermath of 9/11 as being a frontline against terrorism, he adds.

The Hernández case, Jones says, puts a spotlight on the Border Patrol. “It could be a powerful statement of the violence that the Border Patrol is enacting on people without any oversight in the United States.”

Though the seven commissioners who hear cases can’t impose remedial action, Guerrero seeks a reopening of the Hernández case that looks not only at the abuse but also the obstruction of justice. Such other changes as tighter restrictions on Border Patrol’s use of force are also sought.

When The Progressive contacted CBP, the agency said it does not comment on internal proceedings of employees, judicial rulings, and litigative arguments. 

The commissioners, who will hear the case, serve for designated terms and were appointed by the General Assembly of the Organization of American States. They are lawyers and law professors, typically with strong backgrounds in international law and human rights.

Affidavits filed by former CBP officials in support of this international tribunal taking up the Hernández case describe an agency that has played fast-and-loose with the truth.

James Wong, who served as deputy assistant commissioner for internal affairs at CBP at the time of the Hernández beating, says that Border Patrol agents “were woefully ignorant of the law, including basic due process rights.”

At a meeting the morning after Hernández’s brutal beating, according to Wong, then-CBP Deputy Commissioner David Aguilar denied his agency’s involvement even before all the facts were made available.

James F. Tomsheck, who was assistant commissioner for internal affairs, tells how Aguilar seemed to want to justify every use of force. “For David Aguilar, every shoot was a good shoot.” 

Even though all of the Field Operations’ reports clearly stated that Hernández was face down on the ground and handcuffed when stunned by a taser, Aguilar said that all reporting of this incident would show that Hernández was standing, unrestrained, and combative at the time, according to Tomsheck.

Another troubling case is that of Marisol Garcîa Alcántara, who a year ago crossed the U.S.-Mexico border by foot with six other migrants. She wanted to see her mother and brother living in the Northeast, according to the Nogales International.

The thirty-eight-year-old suffered a bullet wound to the head on June 16 of last year. She was with other undocumented passengers in an SUV that the Border Patrol attempted to pull over in the Arizona border city of Nogales.

Garcîa, who was never charged with any offense, was hospitalized and had part of the bullet removed. She was then held several weeks in a detention center before being deported to Mexico in mid-July.

In December, lawyers for Garcîa filed a claim in a federal court in Tucson as a precursor to a lawsuit. “She was unarmed and defenseless, and represented no risk of harm to anyone,” says the complaint, which goes on to say bullet fragments are still lodged in her brain, and that she suffers from lifelong complications.

Pedro De Velasco, director of education and advocacy for the Kino Border Initiative in Nogales, tells The Progressive that Mexican officials said Border Patrol claims the driver of the van was accelerating toward an agent when the shot was fired. But Mexican officials, according to De Velasco, also said that the passengers in the vehicle contend that the SUV had stopped. 

De Velasco urges a reopening of this case: “Look into it again—for the sake of the agency.”

Asked by The Progressive about the shooting, CBP explained little, other than saying a Border Patrol agent was “involved in a use of force incident” and that the case is still before its National Use of Force Review Board.

In May, Chris Magnus, who is the new commissioner of CBP, announced elimination of the Border Patrol’s Critical Incident Teams, which have long been accused of covering up abuses.

That’s a step in the right direction, but the Biden Administration must look at a wide range of abusive border enforcement practices.  

For starters, the network of border checkpoints has only deepened racial profiling. A new  Government Accounting Office study found that during a five-year period, Border Patrol operated such stops at more than 110 locations on highways and secondary roads, generally twenty-five to 100 miles inland.

If these stops are supposed to detect undocumented immigrants carrying drugs, consider that the GAO determined that 91 percent of the drug seizures at these stops exclusively involved U.S. citizens, with 75 percent of drug apprehensions involving cannabis.

Meanwhile, about 35,700 people were detained at these checkpoints during this period because they were considered potentially deportable. These stops, activists say, cause many immigrants to take longer alternative routes for needed services because of the climate of fear created by these checkpoints. 

Alma Maquitico, executive director of the National Network for Immigrant and Refugee Rights, says her group will soon release a report about the racial impact of immigration enforcement.

 “It’s about policy,” she says. “The policy mandates the use of racial considerations in the enforcement of immigation law.”