Abuse of Power and Its Consequences

Last Updated: May 26, 2020

The U.S. Customs and Border Protection (CBP)––and in particular the Border Patrol–– systematically violates border residents’ rights. Countless cases of abuse and fatal encounters with CBP have been documented.

Thousands of federal agents patrol the border region with impunity, stopping and searching border residents through extraordinary and unprecedented powers. Under these powers, agents interrogate people, board and search their vehicles and other conveyances, and enter private property (but not dwellings) without a warrant.

CBP now has access to classified information with virtually no checks on its use or misuse, and conducts warrantless surveillance on individuals throughout the U.S. using private phone data, a practice questioned by senators in 2020.

The Border Patrol has a clear goal of becoming a national police force, most clearly exemplified by the deployment of agents to cities seeing protests and demonstrations for racial justice in the summer of 2020. The outsized agency now has an eye in extending its culture of abuse to cities and towns outside of the southern border.


Fatal Encounters with CBP

Cruel and unaccountable border agents have patrolled the border since the 1920s. When the Border Patrol was created in 1924, white supremacists entered the agency, building the culture of xenophobia and impunity that exists to this day. They built a culture of corruption as well — CBP agents are arrested for criminal activity and corruption at a per-capita rate that exceeds any other federal agency.

Even with a legacy of violence and hate, the Border Patrol as we know it today wouldn’t exist until the 1990s, when policies like Operation Gatekeeper would over-inflate the agency’s budget, and give them carte blanche to fully militarize the southern border.

Because of these dangerous enforcement-only policies and culture of impunity, more than 130 people have died as a result of an encounter with Customs and Border Protection agents since 2010. CBP’s culture of abuse and reckless use of force has led to the deaths of many U.S. citizens and noncitizens both at U.S. ports of entry and in the southern border region. A majority of victims are killed in fatal shootings, while a significant number have died as a result of reckless car chases, untreated medical issues and potential neglect, or other forms of violence.

Beginning with the horrific killing of Anastasio Hernandez Rojas in 2010, SBCC has tracked deaths of U.S. citizens and noncitizens in the southern border region, through analyses of media coverage and official Customs and Border Protection communications. These tragic losses of life represent only a fraction of those lost to border militarization, as they do not include those disappeared in the harsh and deadly wilderness by the wasteful wall and violent agents, nor do they include those impacted by border agents deployed to other parts of the country.

In the last 10 years, 2012, 2019, and 2020 were the deadliest years so far with a total of 17 reported deaths per year attributed to CBP interactions. The graphic below shows the reported cause of death for people killed in a CBP interaction. In many cases, the cause of death is not known, either because of a lack of media reporting or a lack of transparency from CBP.

The majority of people that have died in an encounter with CBP agents have died due to a fatal shooting. Between 2010 and 2021, 45% of all victims of CBP violence were killed in a shooting. One quarter of victims died as the result of a fatal car change and an additional 5% died due to a car accident. Multiple cases have been reported where CBP agents have shot at cars, pursued vehicles causing them to crash or rollover, and even used their cars to run over migrants. Seventeen percent of victims have died of medical issues or potential medical neglect, like James Paul Markowitz who died at a hospital after showing ‘signs of distress’ while in custody.

Deaths as a result of Border Patrol encounters are geographically concentrated in the highly militarized southern border region, but people have also been killed by CBP agents along the U.S.-Canada Border. Between 2010 and 2021, 71 people were killed in Texas, followed by 26 victims in California, 22 in Arizona, and 7 in New Mexico. In the north, 2 people were killed in Wisconsin, Maine, and Michigan respectively, and one person in the state of New York.

Demographic information on victims killed by CBP encounters can be sparse, but a significant percentage of victims are young. About a quarter (23%) of all victims killed between 2010 and 2021 were between the ages of 18 to 29.

Anastasio Hernandez Rojas

The story of Anastasio Hernandez Rojas’ brutal killing by border agents and his family’s quest for justice highlights horrors of militarization, but it’s also the story of how the border community has struggled for justice.


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Similarly, the nationality of the victims killed by CBP is unknown in half of the cases. Mexicans are the most-often killed by CBP agents (34 people), followed by U.S. citizens (24), Guatemalans (14), and Hondurans (2). Other demographic data like race and ethnicity are rarely reported or tracked, and are thus not included in this analysis.

Among victims killed by Border Patrol, men make up a majority (64%) of victims. Between 2010 and 2021, 12% of victims were female and 24% were unknown.


Cross-Border Shootings

Since 2010 there have been at least 6 documented cases of people killed by Border Patrol across the border. The case of 16-year old José Antonio Elena Rodriguez stands out — this Mexican teen was killed after reportedly throwing rocks across the border in Arizona. José Antonio was shot 10 times in the back. The agent who killed him was charged with second-degree murder but was later acquited and found not guilty.

In early 2020, the U.S. Supreme Court ruled on a similar case, deciding that Mexican victims had no authority to sue in U.S. courts. The court stressed that this was an issue of national security, and justice for cross-border shootings could require congressional authorization.






ANASTASIO HERNANDEZ ROJAS

On May 28, 2010, Anastasio Hernandez Rojas, a longtime resident of San Diego, was brutally beaten, shot with a Taser and killed by border agents at the San Ysidro Port of Entry. UPDATE: His family has recently settled with the U.S. Government over their civil lawsuit.






JOSE ANTONIO ELENA RODRIGUEZ

On October 10, 2012, Jose Antonio Elena Rodriguez, a 16 year-old Mexican resident was shot in the back after an alleged rocking incident with a Customs and Border Patrol (CBP) agent. UPDATE: Judge to let Border Patrol agent's murder case proceed.






SERGIO ADRIAN HERNANDEZ-GUERECA

On June 7, 2010, Sergio Adrian Hernandez-Guereca, a 15 year-old Mexican resident was shot by a CBP agent while standing on the Mexican side of the Mexico–United States border, and the agent was on the American side.



Border Patrol Corruption & Abuse

The number of deaths resulting from an interaction with CBP officers are indicators of the horrific culture of abuse, corruption, and disregard for human life that plagues the nation’s largest federal law enforcement agency. Unfortunately, these killings are not the only examples of abuse of power and corruption within CBP.

Numerous studies — both internal and external — have shown that CBP is plagued with a culture of impunity, corruption, and abuse. Its systemic problems also run deep. The discovery of a secret Facebook group full of racist, misogynist and xenophobic posts by Border Patrol agents brought to light more evidence of the agency’s culture of abuse. In it, agents routinely made sexist jokes, made fun of migrant deaths, and shared other hateful content. A year later, little action was taken by CBP, again pointing to the lack of transparency and accountability for the agency. Countless other reports have linked CBP to cases of officer misconduct, corruption and a general lack of accountability for criminal conduct and abusive actions.

A note on CBP & Government Data

This section briefly outlines data illustrating the range of CBP corruption and abuse. It is important to note that the agency is notorious for its lack of transparency and for hiding or manipulating data and definitions -- such as changing the definition of what they define as ‘corruption’ to underestimate the number of cases. As such, data on alleged cases of CBP abuse or corruption are limited, and some are unreliable. As with other government data, figures and reports are interpreted with caution. In some cases, external researchers and advocates have produced evidence to substantiate underwhelming government reports. However, many statistics are hidden or are simply not collected by the agency. In 2020, CBP even requested that the National Archives and Records Administration (NARA) approve the destruction of internal CBP records of misconduct. What’s more, the agency was recently reclassified as a ‘security agency’ by the Trump administration. This makes CBP even less transparent as the reclassification shields the agency from releasing even more information to the public.

For example, complaints of abuse and rights violations can be made to DHS’ office of Civil Rights and Civil Liberties (CRCL). The office, which is tasked with oversight of agencies like CBP, publishes data on complaints and allegations of abuse against CBP agents. However, there are numerous reasons why this information cannot be considered to be reliable. An ACLU-Arizona report states, for instance, that the CRCL only publishes data on reports they choose to investigate -- not those received. What’s more, only complaints done in English are presented, wholly excluding any complaints done in Spanish or other languages. That same ACLU report further found gross differences in the number of civil rights violations that the oversight agency reported to Congress, and reports that they obtained through a Freedom of Information Act Request. In fiscal year 2014, for example, CRCL reported just 3 cases of Fourth Amendment violations -- but the ACLU found over 100 cases that same time period for only the Tucson sector. Further concerns on the quality of these data arise when one considers how the data is collected and stored, or even how terms are defined -- such as ‘abuse’ or ‘corruption.’

Ultimately the quality and validity of any data depends on how it was collected, how it was cleaned, and how it is finally reported and interpreted. In many cases, CBP or other government agencies are the only source of data available for advocates or researchers. In those instances where external research is missing, an extra layer of caution is applied.


Excessive Use of Force

Excessive and unnecessary use of force — both lethal and non-lethal — are common in CBP. Allegations are routinely made of Border Patrol agents committing violence against migrants, such as the recent case of an agent ‘inadvertently’ running over someone with their vehicle.

In 2013, U.S. Customs and Border Protection commissioned a review of its use of force policies from the Police Executive Research Forum (PERF) after mounting public pressure. The research institute primarily found a number of issues in how CBP officers used excessive and deadly force, recorded incidents, and carried out investigations. The researchers reviewed 67 cases between 2010 and 2012 to make their determinations and recommendations, confirming that agents too-often relied on deadly violence against rock throwers, shot at vehicles, and rarely investigated deadly force incidents. This report, which CBP fought to make public, eventually led to an updated use-of-force handbook.

Data on excessive use of force by agents is limited. But the information that researchers have been able to access paints a picture of CBP’s reckless tactics when patrolling the border or conducting apprehensions. A limited analysis of formal complaints filed to CBP’s Office of Internal Affairs by the American Immigration Council shows that a majority of allegations against agents are for physical abuse (40%) or use of excessive force (38%). Reports of “unspecified abuse” ranked third at 13% of all formal complaints made between 2009 and 2012.

Data also show that CBP and Border Patrol face very little accountability for their violent tactics. The same American Immigration Council report found that among the complaints analyzed in their dataset, a majority of cases resulted in no action taken (58%). In one case, a Border Patrol agent allegedly kicked a pregnant woman and caused her to miscarry. In another allegation, a man reported being stomped on his back by an agent after he was handcuffed and arrested. Both of these cases resulted in ‘no action’ taken, according to the analysis.


Arrests of Agents & Corruption

Hundreds of CBP agents are arrested every year for a range of criminal activity and misconduct, including corruption. In fact, CBP agents are arrested for corruption at a per-capita rate that exceeds any other federal agency. Corruption is so pervasive, that the FBI launched a campaign to address it at the border. Reports also show that the agency was directed to change the definition of corruption to minimize the appearance of cases.

Data indicates that CBP has far more allegations and arrests for abuse and corruption than other agencies and very little oversight. In 2019, researchers estimated that CBP officers are 5 times more likely to be arrested than local and state law enforcement personnel. CBP personel have been arrested for corruption, sexual assault, aggravated assault, domestic violence, and sex crimes against children.

In fiscal year 2018, there were 287 arrests of CBP personnel -- the highest record to date. Of these, 52% of arrests were of Border Patrol agents, and 40% of arrests were of Office of Field Operations (OFO) personnel. According to CBP data for that year, most arrests were for alcohol or drug-related misconduct, followed by domestic family issues. Some 6% of arrests in 2018 were for “impeding the criminal justice system.” There were 8 arrests for weapons violations and 7 cases of corruption.

Problems of misconduct and criminal acts are so rampant within CBP, that the agency itself has tried to dissuade its own agents from misbehavior. For example, CBP operated an internal website - Trust Betrayed - that listed criminal misconduct and other abuses from its own agents. The site, now archived, paints a vivid portrait of the criminal acts that CBP agents can and have taken a part in.

The culture of corruption permeates CBP, and DHS senior officials have estimated between 5 and 20 percent of CBP officers are involved in some form of corruption. Between fiscal years 2005 and 2021, 235 CBP employees were arrested or indicted for corruption. Recent research analyzing cases of CBP corruption-related arrests found that CBP employees were more statistically likely to commit acts of corruption the longer they spent at the agency.

Experts have warned about the risk of corruption for CBP agents, especially because of their proximity to criminal operations that involve drug trafficking and smuggling. A New York Times investigation revealed that CBP officials took 11 million in bribes between 2006 and 2016. An agent was recently arrested in Tucson for drug trafficking large quantities of drugs like cocaine, fentanyl, and heroin.



Drug Related Corruption


38% of arrests of border patrol agents for corruption were related to drugs.


Immigration Related Corruption

34% of arrests of border patrol agents were linked to immigration-related crimes like smuggling or allowing improper entries


Corruption at the Southern Border

71% of corruption related arrests of border patrol agents happened in the southwest border.



Abuse Within the 100-mile Zone


The 4th amendment of the U.S. constitution is supposed to protect people from “unreasonable searches and seizures.” Yet a vast network of checkpoints supposedly aimed at stopping unauthorized entries threaten this fundamental right with warrantless searches, which disproportionately target communities of color and lead to repeated violations of the U.S. constitution. The Border Patrol operates hundreds of permanent and temporary checkpoints in the 100-mile enforcement zone, where two-thirds of the U.S. population live and 9 out of 10 of the country’s biggest cities are located. At these checkpoints, drivers can be stopped and questioned to verify their lawful status. Yet, an abundance of evidence shows that the checkpoints routinely violate constitutional rights and lead to abuse.

The checkpoints intrude in the daily lives of border residents, and have led to numerous cases of racial profiling, unjust and prolonged detentions, and other egregious rights violations. This is partly possible because the U.S. Supreme Court has also granted agents the power to stop anyone indiscriminately, even using racial profiling as a factor. In Michigan, Border Patrol agents use ‘complexion codes’ to describe the individuals they apprehend. In a recent evaluation of those codes, more than 96 percent of apprehended individuals ranged from “Black” to “Yellow.”

These broad powers are codified in Title 8 U.S. Code §1357, also known as ‘powers of immigration officers’, which gives agents the power to detain and interrogate anyone they believe to be in the country unlawfully. According to a 2019 survey of voters in southern border states, over 3 out of 10 (31%) said they had been stopped and questioned about their U.S. citizenship at an interior Border Patrol checkpoint. This also happens at checkpoints along the northern border. For example, Vermont Senator Patrick Leahy was stopped at a checkpoint 75 miles from the border with Canada. When he asked what authority the agent had, the agent pointed at his gun and said “that’s all the authority I need.”

These invasive checkpoints have also been shown to be ineffective and a waste of taxpayer resources. A report released by the federal government itself found that interior checkpoints do little to contribute to the stated mission of the apprehensions of individuals who are present without proper work authorization. Instead, arrests at checkpoints have largely been of U.S. Citizens for small amounts of drugs, including marijuana. Between 2012 and 2016, some 40% of drug seizures at interior checkpoints were for 1 ounce or less of marijuana. Relatedly, only about 2% of apprehensions in the study period could be attributed to interior checkpoints. About 10% of all Border Patrol man-hours are allocated to operating these interior checkpoints. The Cato Institute estimates that agents would have needed to have apprehended more than 30,000 more people per year in order for the apprehensions to have justified its level of expenditure.

The checkpoints help propagate the Border Patrol’s disregard for civil rights. An analysis by the ACLU of Arizona using partial data between 2012 and 2013 showed that hundreds of complaints had been filed against Border Patrol in just two Arizona sectors. These records - which are likely an undercount of the actual volume of complaints - showed almost 150 civil rights complaints and 134 complaints of alleged 4th amendment violations.

Border agents mistakenly believe they have extraordinary powers within this zone, but, in fact, constitutional protections should apply to everyone living or visiting within this 100-mile zone. Part of the problem has been statutes passed by Congress that have given border agents broad discretion to interrogate people, enter private property and land (but not dwellings) without a warrant, and board buses or vehicles in search for undocumented immigrants.

100-mile border enforcement zone

In addition to checkpoints, Border Patrol operates roving patrols, including in places like Montana, where an agent was filmed questioning two women, who happened to be citizens, because they were speaking Spanish inside a convenience store.


Abuses in CBP Custody

The mistreatment and abuse of people in short-term Customs and Border Protection custody has been documented for years. As undocumented migrants are apprehended by Border Patrol, many are temporarily held in CBP custody. People are over-crowded into concrete holding facilities that are referred to as ‘hieleras’, infamous for being freezing cold and inhumane. The facilities often lack beds and showers and medical personnel. Many reports have also indicated that migrants often go without access to soap or other hygiene products, and people being forced to sleep on the ground.

Survey data corroborates the hundreds of accounts of abuse and mistreatment in CBP detention. The figure below shows that between 2018 and March 2020, at least half of migrants surveyed reported not having access to medical services while in detention. In the first part of 2020, 45% of Mexican migrants surveyed reported that there was a lack of toilets available, and 43% said they faced extreme temperatures (whether hot or cold). A quarter of respondents in 2020 (26%) said they were in an overcrowded space, and roughly one-in-ten (7%) reported being left without food or water. Other research shows similarly disturbing trends, pointing to repeated cases of medical neglect, dehydration, overcrowding, verbal and physical abuse, and others.

As more and more families and children arrive at the southern border, the mistreatment and abuse of vulnerable groups in CBP custody has received special attention. Since fiscal year 2014, over 30 people have died while in CBP custody - including 6 children - according to a recent government report. The death of defenseless kids is especially horrifying. Three of the children died due to flu-complications. According to the same government report, CBP was recommended that they vaccinate detainees but the agency rejected the proposal.

Numerous allegations of sexual assault and abuse have been made against CBP employees by those detained in their custody. Between 2009 and 2014, there were 214 allegations of sexual abuse of minors filed against CBP. Interviews with children in custody detail repeated incidents of assault and intimidation by agents.


DHS OFFICERS' DEPLOYMENT TO MONITOR PROTESTS

The Border Patrol’s main task is patrolling U.S. international borders and deterring and apprehending immigrants entering without proper documentation. Yet recently, federal agents - including U.S. Customs and Border Protection officers - have furthered their scope by appearing in protests and actions across the country. Between June and August 2020, 755 DHS officers were deployed to Portland to protests over the killing of George Floyd. More than half (54%) were CBP agents and another 22% were ICE. DHS officers were documented making arrests with names and badges covered up, and carrying out other forms of surveillance outside of their stated mission. According to an OIG report, “Operation Diligent Valor” to Portland cost over 12.3 million dollars. Advocates - as well as local leaders - have called these unfettered CBP actions a ‘blatant abuse of power.’ The deployments were justified by the Trump administration under the guise of protecting federal property - but they are part of DHS’ effort of becoming a national police force.

A leaked, unofficial DHS letter to Senator Kamala Harris’ office reveals the extent of DHS actions outside of its traditional duties. Congressional leaders in both the House and Senate wrote a letter to the heads of CBP and ICE demanding answers for the role that federal agents were playing in national protests. According to the leaked document, DHS officers or assets were deployed to at least 19 states and over 50 cities between May 20 and June 10. The requests were often made by local police departments or other federal agencies. While the data in this letter - and the map below - should be interpreted with caution, it helps outline the creeping scope of CBP and their continued incursion into the interior.

Most requests were made for assistance in protecting federal buildings, or with crowd control measures related to peaceful protests. But some localities also requested assistance with surveillance of peaceful protests. CBP data show that over 270 hours of surveillance were collected, like in the case of Minneapolis where predator drones flew over the city to monitor protestors. All told, these actions by DHS demonstrate its capacity to abuse its unchecked powers and its willingness to violate privacy and other fundamental rights.


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