How Border Patrol Agents Get Away with Murder
Updated: Oct 28, 2021
Photo taken by John Kurc.
There is a little known saying within law enforcement circles that if you are looking to commit rape, sexual assault on minors or murder and you want to be a cop, join the U.S. Border Patrol. This is not to say that all or even most agents are committing such heinous crimes. They are not.
Cops say this about the Border Patrol because it is still the one law enforcement agency that works out in the middle of nowhere, literally. There is little supervision of agents in their day to day activities, and there is even less oversight once criminal agents are discovered. The why and how this occurs varies from case to case, but in general, known crimes by agents occur at five times the national average of other law enforcement agencies because the agency has intentionally designed systems to help agents get away with murder.
Since 2010, over 130 people have lost their lives at the hands of my former agency. Rarely are agents ever brought to trial, and those who are like the murderer of Jose Antonio Elena Rodriguez (pictured above) who was shot ten times (8 in the back and 2 in the head) while he walked on a sidewalk in Mexico, see their convictions overturned. Not one agent has lost their job or been held accountable by any court of law after 130 deaths that include United States citizens as well as migrants. Statistically speaking, this is implausible.
And yet it continues.
Just recently, the Department of Justice declined to prosecute the Border Patrol agent who shot and killed Claudia Patricia Gomez Gonzalez, an indigenous 20 year old woman from Guatemala who had crossed the border with a group in Texas. According to the first press release from the Border Patrol, Claudia's group picked up sticks and attacked agent Romualdo Barrera when he encountered the group in an old shack. It wasn't until the agency learned that a resident next door had cell phone footage that they retracted that statement and released another press release stating that nobody in the group was armed. Agent Barrera claimed that the five foot tall, barely a hundred pounds Claudia had run at him and made him fear for his life, which then forced him to shoot her in the head.
The absurdity of this statement is beyond comprehension for me as a former agent. The situation of encountering of migrants in a building and rushing an agent happens every single day in the Border Patrol. I cannot tell you how many times this occurred to me personally. Migrants run when they see the green uniform. After all, La Migra as they call us, has a reputation for killing them and getting away with it. They always run! And if you're blocking their only exit, they will be running past you to get away. Additionally, any Border Patrol agent who claims that they fear for their life from a small unarmed female should simply not be an agent. Period.
So, how does this happen?
How Border Patrol is Supposed to Respond
Whenever and however an agent takes a life or uses force on a person that amounts to serious bodily injury, the response from the agency is always the same. The first action is to save the victim's life and then to secure the scene. This means calling supervisors who are trained to secure use of force scenes. A supervisor will arrive and order agents to close off the the area to everyone. They are to secure and separate witnesses, secure evidence and notify the union that a representative needs to report to the scene to advise the agent who has used force. Once the scene is secure and the victim is being tended to by medical personnel, that supervisor is then required to notify the law enforcement agency with jurisdiction over the matter.
Border Patrol does not have authority to investigate use of force within its own ranks. Federally, there are different designations for investigations. Agencies like the FBI or Marshals have what is called 1811 authority. This means they can have their own internal investigations or internal affairs units. Border Patrol only has 1801 investigative authority, meaning they can only conduct investigations into immigration, narcotics or customs violations. They cannot legally investigate crimes such as murders, rapes, fraud or anything else. They simply do not have that power.
When a use of force incident occurs at the hand of a Border Patrol agent, the supervisor responding is required to notify the agency with jurisdiction to investigate immediately according to the Customs and Border Protection Use of Force Policy Handbook. If I as an agent shoot and kill a migrant, the responding supervisor is required by policy to notify local authorities immediatley. If the shooting occurred in San Diego, the supervisor would call San Diego police. If it occurred in San Diego county, out in the mountains where I used to work, the San Diego Sheriffs would be notified. Additionally, the supervisor is to notify their station command who then notifies Border Patrol sector who notifies Border Patrol and CBP in Washington D.C. as well.
They will then notify local FBI, DHS-OIG and CBP-OPR. OIG is the Office of Inspector General that every federal department has. It is considered to be an oversight/watchdog agency that conducts criminal investigations into use of force incidents and other crimes and is not a part of the Border Patrol or CBP. CBP-OPR is the Office of Professional Responsibility which is just fancy talk for Internal Affairs. They are separate from Border Patrol but a part of CBP. They can also investigate the use of force and other crimes committed by employees, but DHS-OIG has the first right of refusal. If OIG deems it does not want to investigate, OPR or FBI can, but they can also refuse. Often multiple agencies conduct investigations at the same time.
This system is all stipulated in the CBP Use of Force Handbook. What is not discussed is what actually happens.
How Border Patrol Actually Responds
Once a supervisor learns about a use of force incident in their area, they notify sector headquarters, and a special Border Patrol investigation team is rushed to the scene. These teams exist in every sector, and each sector has at least three separate teams if not more that work around the clock to respond to such incidents. Most of these teams are referred to as Critical Incident Investigative Teams or CIIT (pronounced "set" teams). I have seen them called Critical Incident Teams or CIT and even Special Investigation Teams or SIT. In my old sector, it was called CIIT until one of the supervisors of that unit was convicted of hiding a camera in the women's restroom at sector headquarters and selling those videos of female agents using the bathroom on the internet. That's a story for another time.
Rare Critical Incident Investigative Team challenge coins.
The San Diego Sector CIIT unit has since changed names simply because it was used in court documents and in the press once the supervisor was arrested. Why does it matter? It matters because all of these investigative units are illegal. Remember the 1801 designation? These units, commonly referred to as "forensics of the Border Patrol" are completely illegal. Border Patrol does not have this authority. Yet they exist. The inconsistency of unit titles between sectors is because of this lack of authority and because of the secrecy that surrounds them. For the purposes of this article, I will refer to them as CIIT units.
If you do a Google search of CIIT or CIT units in Border Patrol, you will find only one document referring to them in Border Patrol and CBP literature. That document is the 2010 Use of Force Manual.
2010 CBP Use of Force Manual
Before 2014, the Use of Force Manual was secret. The public had no knowledge of this manual. It wasn't until the murder of Anastacio Hernandez-Rojas in 2010 by Border Patrol, CBP and ICE agents that his attorneys were able to get the document released by requesting that an outside group look at the Use of Force Handbook. In their report evaluating CBP's Use of Force Handbook, the Police Executive Research Forum (PERF) noted the use of CIIT units and stated the agencies should state what exactly those units were for. Instead of just making the document available to the public and explaining the CIIT units, the Border Patrol and CBP released the new and improved 2014 Use of Force Handbook and omitted any reference to CIT or CIIT units.
Why? Because these units are illegal. They were busted!
The only problem was that no one on the outside really understood the CIIT units and what they really did. Some agents have served over 20 years and have never heard of them. They are a secret even within the Border Patrol itself. If you are the type of agent we called "station rats" who sit around doing nothing, then you likely are never involved or respond to use of force incidents. Those who do know about these units and what their purpose is actually for often tend to be the ones doing the shootings and beatings, or they are supervisory agents and above.
To the investigative agencies, local and federal, CIIT units claim to be assisting those investigators. They are supposed to be a liaison between investigating agencies and the Border Patrol. If they need video, the unit is to obtain it. If they need to talk with an agent, they are supposed to facilitate that.
Only that's not all they do.
As an agent in the mid 1990's and early 2000's, I witnessed the San Diego CIIT units multiple times when they responded to rockings (when people threw rocks at agents or our trucks) and shootings. They were always the first on the scene arriving long before the local cops or feds came snooping around. What I witnessed were agents on these units making the scene appear worse than it was. Specifically, in one rocking I can recall seeing CIIT Border Patrol agents throw rocks into the windshield of a service vehicle. The agent involved had shot south into Mexico because he claimed migrants threw rocks at him. But the vehicle had little damage. CIIT agents created the scene to justify the shooting. Fortunately, nobody was injured and there were no witnesses found in this case.
As was demonstrated in the recent briefing on the Anastacio Hernandez-Rojas case before the Inter-American Human Rights Commission, the CIIT units are used to get rid of witnesses, get rid of evidence such as video, sit in on interviews of witnesses, participants and victims, obtain evidence before the investigative units can get to the evidence and anything else that will help gum up the investigation.
Am I stating that the U.S. Border Patrol illegally operates and uses a secret investigation team to protect agents and the agency from allegations of criminal conduct? Yes I am.
Their first priority on a scene is to advise the sector commanders what is going on. Is it a shooting? A beating? Are there witnesses? Cameras? In other words, is this a situation that sector and D.C. need to abandon and blame it on a rogue agent, or is this a situation they should fight? In the Anastacio case, CIIT was called in within 90 minutes of the incident, and the San Diego Police were never called. They only discovered the use of force incident when a reporter called to ask what was going on down at the port. The CIIT unit had complete control of the scene for over 15 hours before the homicide unit appeared.
Second, CIIT units are to obtain as much information on the investigation as possible. In the Anastacio case, CIIT agents sat in in every interview of agents involved. They helped get rid of witnesses and video tape evidence. They obtained medical records and prevented the detectives from getting it in a timely manner. They sat in on meetings that the homicide unit had about the investigation. These CIIT Border Patrol agents then reported their findings to then San Diego Deputy Chief Rodney Scott, who then reported this to D.C. command. And as the briefing shows, D.C. command then used this inside information to form their press releases and responses to any questions.
Third, CIIT units are to associate on duty and off duty with investigators. CIIT Border Patrol agents spend a great deal of time hanging out with local and even federal investigators who are responsible for investigating Border Patrol use of force incidents, By doing this, they learn the lingo. They become friends with the very people who are supposed to be investigating them. This makes it difficult for investigators to maintain independence and objectivity in conducting investigations on the agency. It also allows CIIT agents to spy on investigations and report back to their command.
Fourth, CIIT units produce a report that is then given to agent(s)' defense attorneys. You read that correctly. The Border Patrol CIIT units obstruct justice and get inside knowledge of what the investigators produce for the prosecution and then produce a report for the agency attorneys and the agent(s)' attorney to defend them in criminal and civil court.
I also want to note that whenever a CIIT unit is not available, Border Patrol will often send a different sector unit like the Intelligence Unit to a use of force scene to hide witnesses and evidence from investigators. The Border Patrol knows that if they can gum up the scene from the start, local and federal investigators will have a difficult time proving the use of force was criminal. They also know that investigators will look for any reason to side with them because they are after all, law enforcement brothers.
What about DHS-OIG and CBP-OPR?
Whether it's OIG or OPR who takes the case, either agency is allowed to conduct an investigation simultaneously or they can wait and see what the local or state agencies find. To those outside law enforcement, having all of these investigative agencies seems like a great idea. You may think that with all of these people looking into the case, there'd be no way an agent committing a bad shooting could not be held accountable.
The reality is that too many agencies involved just further gums up the investigations. Witnesses being interviewed over and over, evidence being obtained by one agency and not by the other just confuses the investigation and makes it difficult for prosecutors and juries to figure out the truth in the end.
But even if everything goes as it should and everyone does a great job, the Border Patrol and CBP have a few other tricks up their sleeve to get agents off should they need to.
One of the greatest assets both agencies have is that they continually encourage agents to leave the Border Patrol and CBP and join OPR or OIG. It is common, almost routine even, that when an investigation is being done by OIG or OPR into Border Patrol or CBP, one of those investigators is a former agent of that agency. The argument given by OIG and OPR is that it helps to have a former agent who understands the system. This is ridiculous, and is simply an excuse. The cultures of Border Patrol and CBP are that current and former agents are dedicated to those agencies. In the Patrol we said that we "bled Green," meaning our dedication was to the agency and not to the Constitution or anything else.
There are many examples of this. The corruption within DHS-OIG is only second to the corruption in the Border Patrol and CBP. Entire OIG or OPR offices have been investigated and found to not be doing any actual investigative work. This was what happened in the Anastacio case. It was only through affidavits by former high ranking CBP and OIG officials that attorneys discovered the OIG file basically contained copies of the original San Diego Homicide investigation. This same situation was discovered in the McAllen, Texas OIG office and even led to criminal charges being filed against the investigators after it was discovered that they had actually forged documents trying to show they had done investigations when they actually did not. You can read more about this here.
Even with all of theses safeguards against accountability that the Border Patrol and CBP have at their disposal, there is still one more advantage they have built into the system that protects them and denies victims justice. For me, it is perhaps the most egregious part of the system. As in all the other cases involving deaths at the hands of Border Patrol and CBP agents, the investigations conducted by OIG and OPR are secret.
In all off these cases, OIG and OPR hand their work over to the Department of Justice (DOJ) for prosecutors to consider charging agents. When the DOJ declines, they issue a press release. In general, they state that the investigation findings did not support prosecution of the agent(s) and the matter is therefore closed. This is the only thing released from OIG, OPR or DOJ, just a decline to prosecute letter.
Victims families are never allowed to know what the investigation found or did not find. They are never given the names of the investigators. Their attorneys cannot know if these investigators are former agents or how often those investigators have failed to do their jobs in the past. They cannot even know who the prosecutors at DOJ are that reviewed the file and declined to prosecute. DHS claims that they cannot release these cases or the names of those involved because it could harm national security. Although, it should be noted that they have no problem releasing information on investigations when they are looking to prosecute others for crimes.
Secret Investigations and State Sanctioned Violence
The vast majority of those 130 deaths at the hands of Border Patrol and CBP agents are people who were poor. Most were migrants. Some were drug addicted. Some had criminal records. The Border Patrol and CBP are aware of this. They are aware that public opinion and the courts will believe their word over a migrant's word. They know that even with video evidence as existed in the Anastacio case and many others, that the case will not likely ever even get to trial because they have secret CIIT units whose only job is to ensure that it never does.
This system that the U.S. government has created under DHS is one of secret investigations. If I wrote this article and replaced the agency names with Russian or Mexican ones, we would be pointing our collective finger at those countries and accusing them of carrying out secret investigations that protect crooked government officials while denying victims their rights. Knowing that this system is designed by those leading these agencies in response to agents killing and maiming victims, I don't think it is going to far to say that our government is supporting and covering up state sanctioned violence.
I do not believe even Congress knows about the Border Patrol CIIT units. I don't think they want to know. If they acknowledged the work and proof done in the Anastacio case, they would have to go through every killing at the hands of a Border Patrol agent for the last 20-30 years. Without a special commission with powers to investigate and seize the CIIT files in every sector, we may never know all the crimes my former agency covered up with these secret units. Claudia Patricia's family may never know how the CIIT unit got OIG and DOJ to decline prosecution.
So, now you know how the agency gets away with murder. Yes, I have been threatened to keep my mouth shut about this, to stop telling the truth, to quit saying the secrets of the Border Patrol out loud. There are at least 130 families out there wondering how they got away with it. Now they know.