“Anatomy of Impunity”: Former DHS Supervisors Say Border Killing Cover-Up Was Part of a Pattern

Evidence of a “shadow investigation” emerges in the case before an international tribunal on Anastasio Hernandez Rojas’s killing by federal agents.

The post “Anatomy of Impunity”: Former DHS Supervisors Say Border Killing Cover-Up Was Part of a Pattern appeared first on The Intercept.

Maria Puga has been telling the story for more than a decade now. On May 28, 2010, her husband, Anastasio Hernandez Rojas, suffered a brutal and ultimately fatal beating at the hands of U.S. homeland security personnel at the San Ysidro Port of Entry on the southern edge of San Diego.

The father of five was hogtied at a secure facility while at least eight agents and officers from the nation’s three border and immigration enforcement agencies punched and kicked him; a crowd of their colleagues circled around and watched. They knelt on his neck and body. Crying out for help, Hernandez was repeatedly tased while handcuffed. He suffered five broken ribs, internal organ hemorrhage, and bruising on his face and torso. He died of cardiac arrest and brain damage three days later. The coroner’s office ruled the case a homicide. Despite the federal agents erasing the video taken by eyewitnesses, the violent episode was caught on film and broadcast on national television. No agents or officers were punished, let alone charged for the killing. Puga has been protesting ever since.

“More than anything we want justice,” Puga told The Intercept in an interview Tuesday night, speaking in Spanish from a San Diego park that she and Hernandez used to visit.

Maria-Puga-at-Mural-2020

Maria Puga stands at a mural commemorating her late husband Anastasio Hernandez Rojas in San Diego on Oct. 1, 2020.

Photo: Courtesy Alliance San Diego

In the years since her husband was killed, Puga said, she has never received a word of condolence from the U.S. government. The only direct communication the family has received from federal prosecutors came in 2015, when the Obama administration told them it was closing its investigation into Hernandez’s death without bringing charges. A public apology thus became a core demand in a historic international case that Puga and her family brought against the United States through the Inter-American Commission on Human Rights in 2016. Last week, they took a major step in that effort, submitting affidavits from three former senior Department of Homeland Security officials directly involved in Hernandez’s case to the commission. Those officials accuse the Border Patrol as well as current and former officials at the highest levels of DHS of engaging in obstruction of justice to protect the agents involved in Hernandez’s death and the reputation of their agency.

This was not an isolated incident, the former officials alleged in the affidavits, which were filed with the commission and shared with The Intercept. Instead, it was emblematic of an entrenched pattern in matters involving the Border Patrol, particularly in cases of lethal force.

The claims came from John Dupuy, the current deputy director at the U.S. Department of Energy’s Office of Enterprise Assessments, who served as assistant inspector general for investigations at DHS inspector general’s office from 2012 to 2015; James Tomsheck, who served as assistant commissioner of Customs and Border Protection Internal Affairs at the time of Hernandez’s killing; and James Wong, the former CBP deputy assistant commissioner for internal affairs, who oversaw the use-of-force investigation into the case.

Together, the three former DHS officials described a staggering miscarriage of justice made possible by a culture of violence and impunity within the Border Patrol and a homeland security oversight system that utterly failed to do its job.

Without any legal authority, the Border Patrol improperly inserted itself into the Hernandez investigation, destroyed evidence, and used an administrative subpoena, potentially illegally, to obtain Hernandez’s autopsy, Tomsheck and Wong said in their affidavits (administrative subpoenas are meant for immigration cases, not for death investigations). In an 81-page brief filed with the affidavits, attorneys for Hernandez’s family said the subpoena was signed by the Border Patrol’s then-acting deputy chief patrol agent in San Diego Sector, Rodney Scott, who is now the chief of the Border Patrol, responsible for overseeing nearly 20,000 federal agents.

Pressure to justify the force used against Hernandez came directly from David Aguilar, then the commissioner of Customs and Border Protection, Tomsheck and Wong claimed. CBP, the largest police agency in the country and among the largest in the world, is the institutional home of the Border Patrol; Aguilar was chief of the Border Patrol before assuming command of the agency. The two former internal affairs supervisors met with Aguilar the morning after Hernandez was killed. “His initial reaction to the reports of the Hernandez Rojas’s incident was his typical reaction,” Wong said. “He denied CBP’s involvement even before all the facts regarding the incident were available.” Tomsheck added that Aguilar ordered him “at least twice to reflect that Anastasio Hernandez Rojas was unrestrained when he was combative.”

“I informed Aguilar that this was not the case based on the facts reported,” Tomsheck said in his affidavit. “I had statements from CBP officers that said Anastasio Hernandez Rojas was face down on the ground and handcuffed behind his back when Tasered.”

Dupuy, the only one of the three men still working for the federal government, characterized DHS Office of Inspector General’s handling of the Hernandez case as a “dereliction of duty.” Tomsheck, meanwhile, has spoken out about the problems within CBP before, describing the post-9/11 surge in hiring Border Patrol agents and the unparalleled corruption that followed as “the greatest compromise of law enforcement integrity our country has ever seen.” In 2011, he filed a whistleblower complaint detailing how Aguilar, then chief of the Border Patrol, had pressured internal affairs to redefine corruption so the agency’s numbers weren’t so high. Wong corroborated the account in his affidavit.

In an interview Tuesday, Wong said his motivation for participating in the Inter-American Commission case was simple. “It’s the right thing to do,” he told The Intercept. “We were stymied within the organization.”

The former officials were also highly critical of Dennis M. McGunagle, who served as the DHS OIG’s special agent in charge in San Diego and was responsible for conducting the office’s investigation into the Hernandez case, which the OIG closed in January 2012. That same year, new cellphone video emerged showing Hernandez was handcuffed when he was beaten and shocked with a Taser, contradicting the Border Patrol’s claims in the case. In his affidavit, Dupuy said he reviewed McGunagle’s original investigation and found that it was “not more than a few pages,” “fell short of investigative standards,” and “did not follow investigative procedure.”

“When I reviewed the investigation file two years after the incident, I was shocked to see what I believe was a lack of diligence and thoroughness,” Dupuy said. “This case is an example of a pattern of dereliction of duty that I observed from the DHS OIG Office of Investigation San Diego field office in investigations involving allegations of use of force by federal agents.” Dupuy stated that the new video evidence led him to believe that the case should be reopened, and that he said as much to McGunagle. “He was adamant that nothing more should be done — the case was closed and should not be reopened,” Dupuy said. “He saw no additional value in OIG reopening the case.”

In the end, the case was not reopened. “During my time at DHS, I had other cases involving allegations of use of force overseen by McGunagle brought to my attention due to similar concerns over improper investigations,” Dupuy said.

“What’s important to understand is that the people who are involved in this case have risen in the ranks.”

McGunagle was eventually promoted to a deputy inspector general at the DHS OIG, where he still works. The DHS OIG declined to comment on the filings. CBP, where Scott is still employed, did not provide comment despite multiple requests from The Intercept. Aguilar, who now works in the private sector, did not respond to requests for comment.

“What’s important to understand is that the people who are involved in this case have risen in the ranks,” Andrea Guerrero, executive director of Alliance San Diego and an attorney for the Hernandez family, told The Intercept. “This is an ongoing threat to the safety of border communities and to the security of the nation when we have this level of impunity, unchecked, at the highest levels of this agency.”

The Inter-American Commission system is best known for its role in examining incidents of state violence, massacres and enforced disappearances in Latin America. Last July, the commission ruled that it had the authority to hear the Hernandez case, marking the first time in its 61-year history that a U.S. law enforcement agency has stood accused of an extrajudicial killing. “The bread and butter of this commission is to look at extrajudicial killings, but they’ve only done so in other countries,” Guerrero said. “This is what they do best, but they have never taken a case against the United States. This is the first time that they are doing so, and they they’re doing so at a moment that is critical in the United States, where we are having a national conversation about what is acceptable use of force by police in this country.”

The case argues that Hernandez was tortured and that as an undocumented person, his killing was part of a broader pattern of violence against migrants made possible by the U.S. government’s failure to rein in its border security forces. “At every level of accountability, our government failed this family,” Guerrero argued, but “this is not only significant for the pursuit of justice for this family — it’s significant for the policing conversation going on in this country. It is a part of a national reckoning around responsible policing and its impact, especially on communities of color.”

Guerrero said the affidavits of the three former homeland security officials bring critical new information to light in the Hernandez case: “These are three high-level DHS officials who have firsthand knowledge of the investigation, and they say unequivocally that there was obstruction of justice, that there was, essentially, a shadow investigation conducted by border agents who interfered with the official police investigation.” It was through Dupuy’s affidavit, she said, that Hernandez’s widow and children learned, for the first time, that momentum for a reopening of the DHS OIG investigation was quashed from the inside — by an official now supervising oversight investigations nationwide.

“It was Dupuy who posed the question, should this case be reopened after the eyewitness video came out, and the answer was no,” Guerrero said. “That is a travesty of justice. That wasn’t minor. That is major evidence that completely refuted everything that the CBP agents had been told and told the public.”

Among the myriad problems in the Hernandez case, Guerrero said, was that Border Patrol agents acted as though they were so-called 1811s: law enforcement lingo for federal investigators with specific legal authorities and investigative powers. FBI special agents, for example, have 1811 status; Border Patrol agents do not. And yet, the affidavits describe Border Patrol agents inserting themselves in the Hernandez investigation at every turn, gathering evidence that they did not turn over to the San Diego Police Department and, in some cases, actively destroying what they collected. Guerrero argued these actions reflected a deeper institutional rot within the agency.

“Through this case we understand the anatomy of the impunity that is structural and systemic at CBP,” Guerrero said. “Everything that is wrong is evident in this case.”

IACHR-san-diego-border-patrol

Representatives from the Inter-American Commission of Human Rights hear testimony in the case of Anastasio Hernandez Rojas as part of their investigation into U.S. border policy at the Alliance San Diego offices on Aug. 23, 2019.

Photo: Courtesy Alliance San Diego

The Cover-Up

Together, Dupuy, Tomsheck, and Wong’s affidavits offer a detailed look behind the scenes of a notorious case of Border Patrol violence that drew international condemnation.

At the outset, CBP personnel failed to report the case, Tomsheck said. “Externally, CBP is supposed to report the incident to the state or local agency that has jurisdiction over the incident,” he said. “In the Anastasio case, CBP officers did not fully follow protocol by not immediately communicating with local police with jurisdiction over the area until the next day.” At a meeting the following morning, “Border Patrol repeatedly stated that Anastasio was not restrained, that he was standing, and that he was combative when he was Tased,” Tomsheck said. Reports from CBP’s Office of Field Operations, he added, “were the first indication that something was wrong in how the Anastasio Hernandez Rojas incident was being reported.”

“All of the Field Operations reports clearly stated that Mr. Hernandez Rojas was face down on the ground and handcuffed when Tased,” Tomsheck said; the officer who shocked him said so in his own report. During the initial briefing where the incident was discussed, “Aguilar stated that all reporting of this incident would reflect that Mr. Hernandez Rojas was standing, unrestrained, and combative when he was Tasered,” Tomsheck claimed. “I challenged Aguilar’s assertions by stating that there are reports that reflected otherwise. Aguilar was furious with me for pointing that out.” The commissioner’s desire was clear, Tomsheck said in his affidavit: “I understood that Aguilar wanted me to falsify reports and did not want this critical portion of events to be accurately documented.”

“I understood that Aguilar wanted me to falsify reports and did not want this critical portion of events to be accurately documented.”

In the days and weeks that followed, Tomsheck said his office was “walled off from information by DHS OIG.” It was not until CBP Internal Affairs was ordered to conduct a “fact-finding investigation that would monitor DHS OIG’s investigation to learn as much as-possible” that Tomsheck said he “first discovered that the Border Patrol was conducting its own unauthorized investigation.”According to the affidavits, that investigation was carried out by a secretive Border Patrol unit known as “Critical Incident Investigative Team.” Tomsheck said his agent on the ground encountered “extreme resistance” from Border Patrol agents and OIG officials in San Diego. When Tomsheck got a look at the OIG’s investigation himself, the internal affairs supervisor said he found himself “in disbelief” at how lacking the inquiry had been.

As the investigation progressed, Aguilar remained adamant that the review by internal affairs conform to his preferred narrative, Tomsheck added. Suggestions that the FBI should be involved in the matter did not go over well, he said: “There was a strong desire on the side of DHS to not let the integrity problems of DHS end up in the hands of the Department of Justice.” According to the commission filing, CBP took the position that because filming at ports is prohibited, the agency was justified in destroying video of Hernandez’s beating. In retrospect, Tomsheck said he believes officials had an alternative motive. “Knowing what I know now, I believe there was an effort to conceal the video footage of the event from SDPD,” he said.

Wong, meanwhile, said that the fact that CBP obtained an administrative subpoena to access Hernandez’s autopsy was “improper if not criminal.” The Border Patrol did not have jurisdiction in the investigation. “It is incredible that they attempted to get this information through that channel and problematic that the tactic worked,” he said. “These subpoenas are administrative in nature and not supposed to allow access to something like an autopsy report.” Wong added that when he and Tomsheck took their concerns up the CBP chain of command, they were “told that the matter would be handled internally. And that was the end of that.”

Though he was not at DHS at the time of the killing, Dupuy said senior management brought the Hernandez case to his attention shortly after he joined the DHS watchdog’s office in 2012. “I was responsible for overseeing investigations and there was intense congressional and public interest in the case after news coverage revealed new video evidence,” he said. The video “directly contradicted CBP’s version of the event,” he noted. “CBP agents had claimed that Mr. Hernandez Rojas was standing and combative, but the video showed him handcuffed in a fetal position on the ground, pleading for his life.”

Dupuy examined his office’s file on the case. “The file was very thin — there was a lack of diligence and activity in investigating this case,” he said. “There was a significant discrepancy between the OIG file and the video and media reports regarding Mr. Rojas’s physical position while being Tased. The OIG file did not report that Mr. Rojas was detained at the time he was Tased.” Dupuy described voicing concerns about the “discrepancy” with his colleagues and raising the idea of reopening the investigation. Little could be done from Washington, he recalled being told: “Headquarters was in disarray.”

At the time, Dupuy said, “DHS OIG headquarters and its field offices had an atypical dynamic where headquarters gave a lot of discretion to the field offices.” If Dupuy wanted to see the case reopened, he would need to go through McGunagle. “I felt boxed in by what I could do on this case,” he said. “I felt that it should have been re-opened, but McGunagle had primary responsibility for that decision. If I forced the investigation to be re-opened, it would have been assigned to him and his case agents, and it seemed to me he had no interest in ensuring a proper investigation was carried out.”

Dupuy said McGunagle demonstrated a general “lack of interest” and a “lack of thoroughness and diligence” in use-of-force cases. “When we raised this matter with him, he blamed it on supervisors, but he was the supervisor for that office,” he said. “To my knowledge, McGunagle has never faced consequences for failing to carry out his duties and properly investigate cases involving the most serious allegations such as excessive use of force resulting in the death of an individual,” he said. “Instead, he has been rewarded.”

“A man died and the questions that should have been asked about his death, and the events leading to it, were not asked,” Dupuy said. “The OIG had a duty to properly investigate the matter and uncover the facts the [sic] led to the death of Mr. Hernandez Rojas. This was not done.”

Maria Guadalupe Guereca, 60, cries while remembering her murdered son Sergio Hernandez, during an interview with AFP at her house in Ciudad Juarez, Chihuahua, Mexico, on February 18, 2017. The shooting occurred June 7, 2010 while Sergio Hernandez was spending time with three friends on the banks of the Rio Grande, which separates Ciudad Juarez in Mexico from El Paso in Texas, US. Sergio was shot dead at 15 by police officer Jesus Mesa. This would have been another tale of tragic and banal violence, had the victim not been in Mexico and the perpetrator in the United States. / AFP / Yuri CORTEZ        (Photo credit should read YURI CORTEZ/AFP via Getty Images)

Maria Guadalupe Guereca cries while remembering her 15-year-old son Sergio Hernández, who was killed by Border Patrol in 2012, at her house in Ciudad Juárez, Mexico, on Feb. 18, 2017.

Photo: Yuri Cortez/AFP via Getty Images

The Green Machine

From the initial act of violence to the lack of oversight that followed, the affidavits reveal that the events in San Diego were consistent with patterns and practices the three former homeland security officials encountered across the border.

From DHS headquarters, Dupuy oversaw the performance of all investigative activities and all DHS Internal Affairs units. “It was a toxic and dysfunctional environment,” he said.

“At the case level, across the board, DHS OIG internal investigations did not comply with investigative and ethical standards.” At the time, “the entire leadership team of the DHS OIG was under criminal or administrative misconduct investigations following the indictment of the former head of the OIG office in McAllen, Texas for fabricating investigative reports.” Relationships between the inspector general’s office and outside law enforcement agencies were strained, and OIG investigators got along better with CBP officers than they did with CBP internal affairs investigators.

“It should have been the other way around,” Dupuy said. “But there was a turf war with Internal Affairs.”

Tomsheck’s and Wong’s affidavits paint a picture of the Border Patrol as an agency where impunity for abuse is baked into the DNA. Both veteran federal investigators say the demands of senior leadership to toe the line on the Hernandez case were consistent with the agency’s approach to lethal force cases more broadly.

Tomsheck pointed to the 2010 killing of 18-year-old Juan Mendez Jr. as an example. The initial Border Patrol account of the incident was “very clear” in suggesting the agent who killed him “was almost certainly in the wrong,” Tomsheck said. The early reporting included a statement from the agent in which he said, “I am going to be prosecuted for this.” Those words were later scrubbed from the Border Patrol’s account of the incident, Tomsheck noted. The 2010 killing of 15-year-old Sergio Hernández Guereca was another example. Initially, Border Patrol agents claimed that Guereca was shot by accident after struggling with agents and then stumbled across the Rio Grande. Tomsheck, however, received an autopsy showing that the unarmed teen had been shot in the forehead. “I had been in law enforcement for more than 30-years at this point,” he said, “In my experience, I had never seen someone shot in the forehead and stumble anywhere.”

A 2018 Guardian investigation identified 97 cases of CBP personnel using deadly force near the border over a 15-year period.

The affidavits show that the Border Patrol’s ability to cover its tracks in use-of-force cases, including killings, was built into the agency’s structure. Within CBP, the Border Patrol had its own internal system for reporting on use-of-force cases. Unlike internal affairs reports, “BP reports could be altered without leaving an electronic fingerprint,” Wong said. “I have direct knowledge of multiple instances when reports uploaded onto BP’s reporting system were later significantly changed from their original version.” Tomsheck would “methodically print out” Border Patrol reports to see if he could identify changes, Wong added, and it wasn’t uncommon for him to find them, including in cases where lethal force was used.

The affidavits show that the Border Patrol’s ability to cover its tracks in use-of-force cases, including killings, was built into the agency’s structure.

As deputy commissioner of internal affairs, Wong said he became aware of “many instances when agents used violence against undocumented individuals without fear of repercussion” and that he read reports of agents “shooting across the border into Mexico without knowing who or what they were shooting at and without concern for innocent bystanders.” When asked to justify their actions, Wong said, agents would invoke a “‘fog of war’ mentality.”

Wong found the Border Patrol to be an institution that was profoundly hostile to outsiders. They called themselves “the Big Green Machine,” he said, and it was soon made clear to him that he would never understand them because he “never wore green.” CBP personnel but especially Border Patrol agents “see themselves as members of a ‘paramilitary organization’ and soldiers ‘on the front line’ of a war against criminal organizations and terrorism,” he said. “Many agents asserted that CBP’s mission was to protect the border at all costs, even at the expense of human life.” The mindset and the sense of untouchability came from the top. “High-ranking CBP officials took steps to shield CBP agents from accountability even in the most egregious cases, such as the over dozen lethal force incidents involving CBP agents that occurred between 2010 and 2011,” Wong said. “It did not matter if the victim was a child or if there was clear video evidence of misconduct.” When it came to shootings, he said, the default was to assume the victim had it coming: “No remorse was ever expressed.”

“I heard BP agents characterize undocumented migrants as the enemy and undeserving of any legal rights, much less the same rights as U.S. citizens,” Wong said. He was disturbed to learn that agents had a practice of destroying the water jugs humanitarian groups leave for migrants crossing the desert. “Agents justified their actions to me and their supervisors by claiming that migrants were more likely to turn themselves in to U.S. law enforcement if they did not have access to the food and water,” he said. “This view disregarded the reality that many migrants lost their lives after succumbing to the harsh conditions of the Arizona and Texas desert because they did not have access to food and water.”

Wong found that the disregard for migrants’ lives was often accompanied by a lack of understanding of the law. “BP agents were woefully ignorant of the law, including basic due process rights,” he said, adding that “many BP agents have no concept of what constituted ‘reasonable suspicion’ or ‘probable cause.’” He recounted observing several instances of warrantless searches including, in one case, an agent who he observed “driving around in a van by himself using equipment to intercept phone calls with no authority and no supervision.”

“He told me that the Patriot Act, federal legislation passed after 9-11, authorized this conduct,” Wong said. “It did not.”

Maria de la Luz stands with a picture of her son Anastasio Hernandez Rojas, who was killed by a border Patrol agent, during a rally at the U.S.-Mexico border in San Ysidro, California on Saturday, February 23, 2013. Approximately Two hundred activists from several Latino organizations met at the border to protest several deaths and beating caused by Customs and Border Protection agents. (Photo by Sandy Huffaker/Corbis via Getty Images)

Maria de la Luz stands with a picture of her son Anastasio Hernandez Rojas, who was killed by Border Patrol agents, during a rally at the U.S.-Mexico border in San Ysidro, Calif., on Feb. 23, 2013.

Photo: Sandy Huffaker/Corbis via Getty Images

Seeking Peace

Much of the work of the Inter-American Commission on Human Rights focuses on analyzing cases of state violence and producing recommendations for perpetrator nations. In addition to a public apology, the legal team for the family of Anastasio Hernandez Rojas is asking the commission to make several recommendations for the U.S. government, including major changes to its use-of-force policies. Because the commission is accustomed to dealing with cases of violent security forces, it has developed clear standards for use of force, said Roxanna Altholz, co-director of UC Berkeley’s International Human Rights Law Clinic and co-counsel on the case.

“They’re global standards, they’re standards where there’s consensus that law enforcement should only use force when it’s necessary, proportionate, and for a legitimate purpose,” Altholz told The Intercept. The standard in the U.S., meanwhile, is just “objectively reasonable,” she said. “That’s really the reason why we can have situations where someone who’s handcuffed on the ground, begging for mercy in custody is tased to death, or a 9-year-old with a toy gun is shot and killed and the result can be that it was reasonable use of force.”

Altholz and her colleagues are hoping to change that standard through the Hernandez case. They are also asking the Justice Department to open an independent prosecutorial unit specifically devoted to investigating and prosecuting DHS abuses. “What’s really significant about this case is we’re arguing that the entire system is designed to shield especially border agents from accountability,” Altholz said. “It was atrocious what happened that day, but we’re thinking structurally: What were the structural reasons that led agents to take someone to a secure federal location, handcuff the person, beat them to death, and then lie about it and try to cover up?”

U.S. prosecutors fought the acceptance of the Hernandez case before the Inter-American Commission last summer, arguing that because his family had received a settlement in a lawsuit stemming from the case, they have already been given “adequate and effective remedies for the actions surrounding [his] death.” The federal government will once again have an opportunity to respond to the case in light of the recent filings, this time under a president who has vowed to break with the border legacies of his predecessor.

“If the Biden administration wants to mark a new chapter, a new commitment to human rights, this is a way for that administration to effectuate, to actually show that this administration is going to be different when it comes to the border,” Altholz said. “So the first thing I’ll be looking at is, how does the United States respond?”

When she and her husband began building a life in the U.S. together more than 30 years ago, Maria Puga said, they were innocent. They believed in the principles espoused by their adopted homeland. Her husband’s killing, and everything that came after, took that away.

After nearly 11 long years, Puga is hoping that justice is finally coming. When millions of people marched in the streets last summer following the killing of George Floyd, Puga said she identified with them. After all, the cases were remarkably similar: Both involved a knee pressed into a man’s neck by an agent of the state, both involved onlookers and agents who stood by and watched, and both involved an effort to protect the killers. Whether it was a beat cop in the city or an agent on the border, Puga said, “I see it the same.”

If she had chance to speak to the new president, Puga said, she would tell him about the man she remembers — a happy, charismatic father and husband who loved his children deeply — and she would show him the video of how his life came to an end. “After so many years of fighting for justice, I would ask for his help,” she said. “Our family needs some peace.”

The post “Anatomy of Impunity”: Former DHS Supervisors Say Border Killing Cover-Up Was Part of a Pattern appeared first on The Intercept.


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