Report: Border Police operations teams operated without supervision

Seven of nine U.S. Border Patrol sectors along the U.S.-Mexico border had “homegrown” critical incident investigation teams without oversight from Border Patrol headquarters, including the San Diego sector, which was the first such unauthorized unit more than 35 years ago This is according to a report released this week by the US Government Accountability Office.

The Southern Border Communities Coalition, which first shed light on such units in a 2021 letter to Congress describing them as “cover-up teams” and “shadow police,” said the new report “points to widespread and ongoing abuses of power in “The largest law enforcement agency in the country.”

The coalition said the GAO report confirms concerns it raised that the critical incident teams – which were disbanded in 2022 – were used to protect the Border Patrol and its employees from criminal and civil liability when agents used deadly force or were otherwise involved in critical incidents, such as those resulting in serious injury or death.

The report itself — based largely on interviews with Border Patrol agents and a review of incident reports written by the units — does not contain blanket allegations of wrongdoing or cover-ups and focuses more on the role the teams played in gathering evidence for civil liability claims.

The report also lacks many details, but it confirms for the first time claims of widespread use of such units and provides the first government account of the units’ general functioning. It also documents how the units were sometimes involved in witness interviews and evidence collection that probably should only have been carried out by criminal investigators. The only agencies with legal authority to investigate such incidents for possible criminal liability are the FBI, the Department of Homeland Security’s Office of Inspector General, and the U.S. Customs and Border Protection’s Office of Professional Responsibility.

“The Border Patrol never had the authority to initiate investigations, and yet they appear to have interfered in all criminal investigations between 2010 and 2022,” Andrea Guerrero, executive director of Alliance San Diego, a member of the Southern Border Communities Coalition, said, citing the findings report.

Although the report only covers the activities of clandestine units beginning in 2010, it noted that the first such unit was established in the San Diego sector in 1987. A second unit followed in the El Paso sector in 1996, and the El Centro sector established its own critical incident team in 2001. Four other units followed suit between 2002 and 2005 in sectors in Arizona and Texas.

CBP, Border Patrol’s parent agency, disbanded the sector-specific critical incident teams in 2022 and shifted the duties they claimed to CBP’s Office of Professional Responsibility, a separate branch of the agency created in 2016 to investigate serious misconduct and Investigate potential criminality of CBP employees. The GAO report found that when the sector units were first disbanded, the Office of Professional Responsibility, made up largely of former CBP employees, lacked the resources it needed to investigate all critical incidents.

Since then, the Office of Professional Responsibility has stepped up its work and nearly doubled the number of investigators. But questions remain about the office’s independence, particularly because more than half of those new hires are former Border Patrol agents, according to the report.

The Southern Border Communities Coalition, a group dedicated to protecting the rights of migrants and border residents, said that in light of the report’s findings, it is “calling for an end to all current and future incarnations of (critical incident teams) to ensure that …” integrity and independence of criminal investigations.”

An official from the Department of Homeland Security, CBP’s parent agency, responded to the report. “CBP remains committed to being a leader in law enforcement transparency and accountability and takes the proper review of critical incidents very seriously,” the official wrote.

The official also said DHS agreed with all four of the report’s recommendations. The report recommended that the commissioner of CBP take two different steps to ensure that the Office of Professional Responsibility maintains investigative independence and that the chief of the Border Patrol take two different steps to standardize how each sector responds to non-critical ones Responds to incidents and documents them.

The DHS official wrote that the agency has already implemented policies and procedures or is working to address all four recommendations.

According to the report, CBP’s Office of Chief Counsel also told GAO that the critical incident teams’ authorization resulted from a U.S. government record retention code.

“This is an astonishing abuse of power,” Lilian Serrano, director of the Southern Border Communities Coalition, said in a statement. She said government codes had nothing to do with investigative powers.

The existence of the Critical Incident Teams first received widespread attention in October 2021, when the Southern Border Communities Coalition sent its 14-page letter to Congress calling for an investigation into the units.

“The (Critical Incident Teams), in all their variations, are perhaps the largest and longest-standing shadow police force operating in the federal government today,” the letter said. “Without a federal authority, (the units) investigate incidents of use of force by agents and work to mitigate and conceal their culpability. The actions of these border patrol units to withhold, destroy and falsify evidence and tamper with witnesses have gone unchecked for decades. It’s time for Congress to fully investigate.”

The letter was the result of months of research and analysis and would not have come about without information that emerged in connection with the 2010 death of Mexican citizen Anastasio Hernández Rojas at the San Ysidro port of entry. His death, which was partially captured on cell phone footage and ultimately resulted in a $1 million settlement for his family, came after federal agents beat him, Tasered him and kneeled on him as he faced down lay on the ground below.

Maria De la Luz, left, mother of Anastasio Hernandez Rojas and his widow Maria Puga,

Maria De la Luz, left, mother of Anastasio Hernandez Rojas and his widow Maria Puga, spoke to news reporters at a news conference at the Alliance San Diego office in North Park in 2013, calling for justice, control and accountability for the death.

(Nelvin C. Cepeda/The San Diego Union-Tribune)

Human rights lawyers investigating his death have alleged that the San Diego-based Critical Incident Unit tampered with and even destroyed evidence in the case to protect the agents involved. They said this discovery led them to find documentation of other cases in which similar units allegedly intervened in other regions. The allegations in the Hernández Rojas case submitted to the Inter-American Commission on Human Rights have not been proven and the government has not responded to them.

Video provided by the Equality Alliance of San Diego shows illegal immigrant Anastasio Hernandez Rojas lying on the ground, surrounded by border agents and officers who insult and allegedly beat him. He later died.

Just over six months after the letter to Congress, in May 2022, CBP announced that it would phase out all critical incident teams by October of that year. Members of Congress then requested that GAO review the operation of critical incident teams and assess the handover of critical incident investigations to the Office of Professional Responsibility.

As part of the study, GAO investigators interviewed Border Patrol personnel from every sector along the U.S.-Mexico border and visited sectors in San Diego, Tucson and El Paso. Among the report’s findings was that the San Diego sector disbanded its critical incident team in 2016. Before disbanding, the San Diego unit consisted of approximately 12 to 15 full-time members.

Although the units in each sector operated independently and without oversight from the Border Patrol or CBP headquarters, they had commonalities, according to the report.

“Specifically, they all had local leadership overseeing the team, a selection process for team members, local operating instructions and the necessary training. Details varied by team,” the report said. “In addition, the teams did not regularly interact with each other or with Border Patrol headquarters, but often coordinated with other law enforcement agencies responsible for the sector.”

The report shows that while critical incident teams were not authorized, they became institutionalized over the years – so much so that hiring in at least two sectors moved from an internal bidding process to a formal job posting on , the federal government official, developed a job posting site.

The report also focuses on CBP’s Office of Professional Responsibility (OPR) and its ability to conduct critical incident investigations while remaining objective and unbiased.

“OPR has made significant progress in implementing investigative standards – which it adopted in 2020 – but could increase its efforts regarding investigator independence,” the report said. “OPR has limited guidance or formal training on independence. “In addition, the significant number of new personnel, more than half of whom come from the Border Patrol, poses an increased risk of impairments in independence.”

In response, DHS said it launched a pilot training program last month for Office of Professional Responsibility special agents aimed at identifying and addressing potential barriers to investigative independence. It said that based on this pilot project, formal guidance and training for all new and current investigative staff is expected to be in place by the end of July.