Members of Congress seek answers about border patrol units operating without oversight

A trio of San Diego congressmen led by Rep. Juan Vargas is calling on two federal agencies to provide further answers to how seven Border Patrol segments along the U.S.-Mexico border were able to deploy “homegrown” crisis response teams without oversight for decades.

The letter to Border Patrol authorities — signed by Vargas, Reps. Sara Jacobs, Scott Peters and Texas Rep. Joaquin Castro — is in response to a report released earlier this month by the U.S. Government Accountability Office documenting the use of unregulated Critical Incident Teams in all but two of the nine sectors along the Mexican border. The report revealed that the first such team operated in the San Diego sector more than 35 years ago and that it and subsequent units operated without oversight from Border Patrol headquarters.

“This report raises serious questions about how these units were able to operate for so long with little or no oversight,” the lawmakers, all Democrats, wrote in the letter to the heads of the Department of Homeland Security and U.S. Customs and Border Protection. “The American people deserve nothing less than full transparency. It is imperative that CBP take action to ensure this never happens again.”

The letter said full implementation of the GAO report’s recommendations is “especially important for our constituents who live along the U.S.-Mexico border – many of whom regularly interact with CBP officers as they travel back and forth between the U.S. and Mexico to work or visit family. We must ensure that the Border Patrol agents we trust to enforce the law do not act outside those borders.”

The letter asks DHS Secretary Alejandro Mayorkas and CBP Commissioner Troy Miller to answer a series of questions about the report and the implementation of its recommendations.

“What plans does the agency have to inform Congress, the public, or both of its progress in implementing these recommendations?” the letter asks. “What steps is the agency taking to ensure that agency headquarters is actively involved in the oversight of any new entities created in border sectors?”

Lawmakers asked DHS and CBP to answer their questions by June 29.

The letter was sent late Wednesday afternoon. DHS and CBP did not immediately respond to requests for comment.

The Southern Border Communities Coalition, a group that works to protect the rights of migrants and border residents, called out the Critical Incident Teams in a 2021 letter to Congress. The coalition called the units “cover-up teams” and “shadow police,” citing testimony from former CBP officials who said the Critical Incident Teams were used to protect the Border Patrol and its agents from criminal and civil liability. The coalition said the GAO report “indicates widespread and ongoing abuse of power at the nation’s largest law enforcement agency.”

The GAO report was based largely on interviews with Border Patrol officers and a review of incident reports written by the units. It did not make blanket allegations of misconduct or cover-ups. Instead, it focused more on the teams’ role in gathering evidence for civil liability claims in cases where officers used deadly force or were otherwise involved in critical incidents, such as those resulting in serious injury or death.

The report provided the first government accounting of how the units generally operated, documenting how the teams were sometimes involved in witness interviews and evidence gathering that should have been conducted only by criminal investigators. The only agencies with the legal authority to investigate such incidents for possible criminal liability are the FBI, DHS’s Office of Inspector General and CBP’s Office of Professional Responsibility.

CBP disbanded the sector-specific units in 2022 and transferred responsibility for investigating critical incidents to the Office of Professional Responsibility. This office is a separate branch of CBP created in 2016 to investigate serious misconduct and potential criminal offenses by CBP employees. The GAO report found that when the sector units were disbanded, the Office of Professional Responsibility, which is largely made up of former CBP employees, lacked the resources needed to investigate all critical incidents.

The Office of Professional Responsibility has since increased its activities and nearly doubled the number of its investigators. However, doubts about the office’s independence remain, particularly because more than half of the new hires are former border patrol agents, according to the GAO report.

The letter, sent by lawmakers on Wednesday, asked how CBP and Border Patrol plan to implement the GAO report’s recommendations. “What benchmarks has the agency established to assess when the recommendations have been fully implemented?” the congressmen asked.

Coincidentally, the letter was sent the same week that other members of Congress celebrated the Border Patrol’s 100th anniversary. “It is important that we honor the service and sacrifices of the men and women of the Border Patrol and their families, past and present,” Mississippi Rep. Bennie Thompson, the ranking Democrat on the Homeland Security Committee, said in a statement Tuesday.

Both Republicans and Democrats on this committee introduced resolutions in the House of Representatives commemorating the founding of the Border Patrol on May 28, 1924.

A day earlier, members of the Southern Border Communities Coalition in Imperial Beach condemned such celebrations of the Border Patrol, saying the agency was built on a racist foundation that continues to this day.

Members of the Southern Border Communities Coalition are calling for greater accountability from the Border Patrol.

(Ana Ramirez/The San Diego Union-Tribune)

“One hundred years ago, the U.S. Congress created the Border Patrol, but from day one, this agency has terrorized us with its violence,” said Lilian Serrano, director of the Southern Border Communities Coalition.

Among the speakers at the Imperial Beach event was Maria Puga, the widow of Anastasio Hernández Rojas, a Mexican citizen who died in May 2010 after being beaten, tasered and kneed by federal agents at the San Ysidro border crossing. His death, part of which was captured on cellphone footage, ultimately resulted in $1 million in compensation for his family but no charges against the officers and agents involved.

“We are here to condemn these 100 years of abuse,” Puga said in Spanish. “We want justice.”

Araceli Rodríguez spoke Tuesday about her son, José Antonio Elena Rodríguez, who was shot and killed by a border patrol agent in 2012 at the age of 16. The agent, Lonnie Swartz, was on the north side of the border fence in Arizona, while the boy was on the south side.

Araceli Rodriguez wipes tears from her eyes after speaking in Imperial Beach on Tuesday about how her son was shot and killed by a Border Patrol agent across a border fence in 2012.

(Ana Ramirez/The San Diego Union-Tribune)

Swartz fired 16 shots, hitting the boy 10 times after claiming the teen was throwing rocks across the border. Federal prosecutors in Arizona charged Swartz with first-degree murder, but a jury acquitted him. His trial was retried on lesser charges, with another jury acquitting him of involuntary manslaughter and finding him guilty of first-degree murder.

“We are fighting for justice because the border patrol seems untouchable,” Rodríguez said in Spanish. “They have permission to kill.”

Later Tuesday, the Southern Border Communities Coalition sent a letter to President Joe Biden urging him to tighten oversight and policing standards for Border Patrol agents. The letter asked Biden to repeal an exception in federal guidelines that allows racial and ethnic profiling in the border region; raise use-of-force standards to bring them in line with international law; and bring obstruction of justice charges when Border Patrol Critical Incident Teams attempt to influence criminal investigations.