As I listened to María Puga’s words, I closed my eyes and could smell the familiar stench that was a border patrol processing center, where I worked as an agent for six years.
The handcuffs, badges, batons, trucks, the creaking of my old leather boots and belt came back to me.
I listened as she described how over a dozen agents from border patrol and Customs and Border protection (CBP) beat her husband and the father of her five American-born children to death while he was handcuffed behind his back. I knew none of them got disciplined, thanks to the illegal and secret “critical incident team” units, or CITs.
As agents, we referred to them as the “coverup incident teams”.
Later that evening, I looked for articles on Anastasio Hernández-Rojas. I watched the videos of his beating on YouTube. María’s husband was clearly handcuffed behind his back, lying on the ground in a fetal position screaming for help while agents kicked, punched, and stomped the shit out of him. I felt nauseous at the sight of them beating this man to death. I felt it in my gut that I was somehow a part of it, in some way connected to it, even though it had happened in 2010, nine years after I had resigned.
I had spent over a decade trying to forget about my time in the border patrol. Although my career as an agent was filled with outstanding evaluations and accommodations, although I was an excellent tracker, hiked the mountains alone just like the guys, and had been promoted to the highest rank as a field agent and even performed as an acting supervisor from time to time, my career had been a highly traumatic one that I’d rather have forgotten.
My time as an agent was marred by my rape in the academy, by a fellow agent that the agency refused to investigate. I was accused of lying and making false accusations even though the bruises and cuts on my body and face said otherwise. Then they made me fight him again in defensive tactics because they thought it was funny.
This humiliation followed me throughout my time as an agent. It didn’t matter how many people I apprehended, how much dope I seized or how deep into the mountains I hiked – I did not belong. I wore green, but I was not a member of the green family simply because I had the nerve to complain about being sexually assaulted.
I survived my rape, the snide comments, the used condoms and the pornography they often placed in my office mail drawer. I survived the mountains and the car chases, the snow, and the desert heat.
I became a senior patrol agent and was assigned to San Diego sector headquarters intelligence, where I developed leads from the Drug Enforcement Agency. There, a high ranking agent was involved in organizing the smuggling of drugs through the county. When confronted, he admitted it and threatened me. He had someone shoot automatic weapon fire at me from across the border, even when I escaped and he met me on a desolate dirt road at 3am to tell me they wouldn’t miss next time.
Even after that, I didn’t want to leave.
All these things I tried to pretend had never happened to me began to push back on the wall I’d constructed within my mind. The foundation was cracked. The mortar, no longer able to hold what was on the other side of that wall, finally gave way.
In February 2015, my suicide attempt left me disabled.
This started me on a journey to understand how a young woman from Alabama who’d once wanted to be a civil rights attorney joined a notoriously corrupt and racist federal agency.
I was only few years into this journey of trying to face my own racism and prejudices when Andrea Guerrero of the Southern Border Community Coalition, a non-profit doing work on immigration justice, called and asked if I would be interested in looking at their investigation files of the 2010 death of Anastasio Hernández-Rojas.
In 2017, the Inter-American Commission on Human Rights (IACHR) announced it would move forward with the case. It would be the first hearing about an unlawful killing by law enforcement that the IACHR had opened against the US. The hearing is scheduled for October of 2022.
The San Diego police department’s investigation seemed to go nowhere, and the Department of Homeland Security claimed that there was not enough evidence to warrant charges against agents. They alleged that Anastasio had a small amount of meth in his system and had high blood pressure, making it impossible for them to determine if he would have survived the tasings and beatings had those factors not been present.
This accusation didn’t consider all the drugs that paramedics and doctors had pumped into his lifeless body to restart his heart. Essentially, they argued that Anastasio’s pre-existing medical conditions killed him.
I sat in my office at home for a couple of months with the mounds of evidence to go through: eyewitness statements, affidavits, pictures, autopsy reports, agents’ depositions, emails, news articles, dispatch records from border patrol, and videos. I created timelines and charted who was where and when, who was interviewed and by whom.
I then sat down months later with Andrea to talk about my findings.
“Do you know what a CIT unit is?”
“It’s some sort of liaison the border patrol uses with outside agencies that are investigating them, right?”
“Well, that’s what they officially say if they are ever asked, but that’s not what they are,” I said. “They are the border patrol’s cleanup crew or coverup team. They are the guys who make it so that every shooting is a good shooting.”
The investigation clearly showed how CBP officers were ordered over the radio as the beating was occurring to usher witnesses along and check their cellphones for any evidence. These officers admitted in interviews that they had destroyed evidence of the incident and that they had ordered witnesses out of the area without getting their names and contact information for investigators. Of the handful of witnesses the homicide team did interview, all had to contact the department themselves and ask to be interviewed.
San Diego police department’s homicide investigators noted that there were several cameras at the port that should have recorded the event and asked the CIT unit to provide the tape. Only once the investigators reviewed the footage, they saw that it was from an hour before the incident and showed nothing. The homicide investigators documented weeks of repeated calls and emails to the CIT unit requesting the correct footage, but the agents did not respond or claimed to be confused about how to get the video. Eventually, homicide investigators were told by CIT that the evidence was forever lost because the system taped over itself every 10 to 14 days.
This, I knew, was a common stall tactic used back when I was an agent.
If the homicide team had gotten the correct footage that day, they would have seen clearly what one witness, Ashley Young, had caught on her camera that night.
They would have seen how Anastasio was not fighting back, how agents kicked and beat him with their batons while he laid on the asphalt with his hands cuffed behind his back. They could have seen how agents surrounded him as he cried out for help, how agents knelt on his back and his neck, how they shot him with a stun gun not once, not twice, but four times. They could have seen how two of those tasings lasted longer than the training allowed – five seconds – and instead lasted for over ten seconds. Unfortunately, the video was not released before the SDPD homicide team gave up their investigation.
According to the autopsy report, Anastasio had broken ribs, internal damage to his diaphragm, and damage to his neck, face, shins, thighs, stomach, and back. He had teeth knocked loose and black eyes. He was pronounced brain dead as CIT agents sat in the first SDPD homicide meeting, claiming that Anastasio had been the aggressor and they were the victims. They even requested the FBI file charges against Anastasio for assault on federal agents, a request that was denied.
The SDPD homicide team responded 15 hours after Anastacio was beaten because CBP and border patrol agents violated the use-of-force policy by failing to notify them. This meant that CIT agents had control of the crime scene for over 10 hours. Agents were allowed to speak with one another to get their absurd version straight – that Anastasio had somehow managed to get off the ground with his hands cuffed behind his back and after being severely beaten. They claimed he “crab-walked” and then burst from the ground with super strength and karate-kicked an officer in the back, shoulder and chest area. SDPD noted that there was no evidence of injuries on any officers.
When the autopsy was conducted, a CIT agent attended. When the medical examiner was finished with his report weeks later, the border patrol’s then acting San Diego sector chief, Rodney Scott, improperly used an administrative immigration subpoena to obtain those medical records. When the SDPD homicide investigators asked CIT for the medical report, border patrol refused to turn it over, citing Hipaa privacy laws that did not apply in criminal investigations.
This coordinated obstruction cost investigators another two weeks before they could obtain the report.
Andrea, María, and her attorney, Roxanna Altholz, never gave up. Over the years, they managed to get affidavits from the former commissioner James Tomsheck and the former deputy commissioner James Wong of CBP Internal Affairs.
Under oath, they had stated that they had known about the incident the next day when they walked into their offices in Washington DC, that the then deputy commissioner of CBP and former border patrol chief David Aguilar had ordered them and others to state that Anastasio was standing and not handcuffed when he suddenly started assaulting agents.
Tomsheck and Wong pointed out that the CBP reports did not state this. Aguilar did not care and ordered them to lie. Both refused.
In my report to Andrea, I wrote: “The border patrol knows that if they are the ones identifying and collecting the evidence, they control the investigation.
“You have everything you need to prove it in this file,” I explained. “You just didn’t know what the CIT unit was. They will say they weren’t involved, that they were just assisting investigators, that their CIT reports are not used for criminal or civil trials, but there’s an interesting note from one of the union attorneys that represented the agents in court during the civil trial.”
“See here?” I continued. “Here he states that he has the CIT report. If CIT is only used for administrative issues, why are they using their reports to defend their agents in court? It’s to protect the agency from civil and criminal liability. They decide what is evidence and what is not. The CIT unit has exclusive access to everything the investigators have. They are using that access to defend the agency and its agents against civil and criminal liability and to muck up the investigations. Even if a prosecutor wanted to charge the agents criminally, they cannot because the evidence is tampered with and mishandled by CIT. But even if CIT did everything correctly, the evidence is still of no value because the border patrol has no legal authority and is actually expressly forbidden from conducting investigations according to the authorities that Congress has given them.”
I was riding high on my findings. Thanks to the San Diego police report, the trust of Anastasio’s attorneys and my knowledge as a former agent, we were able to prove that the border patrol used an illegal, secret unit with no oversight and no legal authority to cover up their crimes. All of CITs investigations were and still are illegal.
It felt as if I had righted some of my past, as if I had made amends for enforcing what I knew to be racist and brutal immigration policies. Agents have been involved in over 200 deaths since Anastasio’s. Not even one is in jail for any one of those killings. The statistical odds of every single one of those shootings being justified is unrealistic, improbable even. I felt vindicated.
On 3 May 2022, border patrol finally announced it would terminate CIT altogether.
Before Roxanna submitted her final briefing to the IACHR, she asked that I review it. As I was thumbing through the SDPD report one last time, I paid special attention to Anastasio’s immigration record. I’d only vaguely looked at it before. Like many undocumented men in California, he had been arrested several times over the years. As I flipped through each apprehension, I stopped on one from 1999. The station code on his I-213, or record of deportable/inadmissible alien, was SDC/CAO. That stands for San Diego sector/Campo station.
It dawned on me that I was still an agent back then.
The name he had given was Martineano Hernandez-Rojas, but the picture was clearly him. He was arrested on 28 May 1999, at 2117 hours. This was exactly 11 years before the date and the time of his death. I shook my head and thought how strange that was – to be exactly the date and the time that he would be killed 11 years later.
I glanced at the apprehending agent’s name, thankful it had not been me.
Then I glanced down at the processing agent. It said:
Received: (Subject and Documents) (Report of Interview)
Officer: JENNIFER H. BUDD
On: May 28, 1999, 2136 hours.
Exactly 11 years before Anastasio’s death, he had stood before me in the Campo processing center. I had entered his biographical data. I had taken his fingerprints.
I was devastated. I had not beaten Anastasio, but this fact demonstrated to me how my actions, my being an agent, had contributed to the system and institution that did kill him. I enforced those racist laws that criminalized a man just trying to take care of his family. I spread their lies about migrants being criminals. I helped build that wall that sent him out deep into those mountains after he returned from a visit to see his parents in Mexico.
He was trying to get back to his family, to María, to his five US-born children, to his job building swimming pools for Americans.
Anastacio’s I-213 is framed and sits on my desk, so that I may never forget my part.
Jenn Budd is the author of Against The Wall, out now
www.theguardian.com
George is Digismak’s reported cum editor with 13 years of experience in Journalism