Take Two

Immigration bill would beef up border patrol, but not without controversy

Border Patrol

Courtesy Michel Marizco

Taide Elena speaks about her dead grandson Jose Antonio Elena, shortly after he was shot 11 times by U.S. Border Patrol agents in late 2012.

The immigration bill passed by the U.S. senate would double the number of US Border Patrol agents along the U.S.-Mexico border. But critics and some members of Congress say the government must first account for the Border Patrol's lethal use of force and provide more transparency in investigations.

In one California case, for example, investigators won't reveal the names of the agents involved in an immigrant's death. But that isn't the only case shrouded in secrecy. From the California Report, Michel Marizco has the story.

Since 2010, U.S. Border Patrol agents along the Southwest border have killed 17 people. In every incident, agents said they were being assaulted. The FBI is investigating the killings, but there’s little transparency in these investigations. Take the case of Jose Antonio Elena, 16, in Nogales, a town in the Sonora state of Mexico.

His grandmother is Taide Elena. She lives in a small mobile home park across the border in Arizona. The rickety wooden fence that surrounds her home sways in the breeze on a windy morning.

Some of her younger grandchildren live with her; they play in the neat living room, until she shushes them and sends them off to one of the bedrooms. Then she speaks about her grandson’s death last October.

“And the worst is the manner in which they killed him,” she said, crying.

Border Patrol agents said they were defending themselves against a hail of rocks thrown at them from the Mexican side of the border. Police reports describe a hectic few minutes where federal agents came under attack and fired into Mexico. Jose Antonio was shot 11 times. The Elena family says the boy was innocent. A witness reports he wasn’t even part of the group attacking the agents.

Terry Kirkpatrick retired as an Immigration and Customs Enforcement official in 2010. He says these cases can be hard to untangle. 

“Everything happens very quickly. I mean the whole thing can be over start to finish in less than three minutes and it seems like it’s taking hours,” he said. 

But he wonders whether the use of force was justified. “I would be questioning if it was one of my agents, as to why that happened.”

The Border Patrol’s current policy says agents can shoot to defend

themselves if they feel their lives are at risk. 

Art del Cueto is president of the agency’s Tucson sector union. He defends the policy.

“The thing is, if you’re getting assaulted -- whether it be a rock, a pipe, a knife, another gun -- if the other person has the means, if the other person has the opportunity, and the intent, then, yes,” he said. “I think it’s justified to use whatever weapons are available to you to protect your life and that of anybody else around you.”

But – as in the death of Jose Antonio Elena -- it’s not always clear if the person shot was actually assaulting the agent. And investigations are years long and hidden from public view. In San Diego in June 2010, Anastasio Hernandez died in Border Patrol custody after being stunned with a Taser. Three years later, the FBI is still investigating the case. Hernandez’s family sued the Border Patrol agents. To date, the agents involved have not been named. That’s something the American Civil Liberties Union is suing to get, said David Loy, the ACLU’s San Diego legal director.

“The public has an independent interest in open judicial proceedings and in identifying the parties in litigation,” he said.

Under the Senate’s immigration reform bill, border enforcement spending would increase by $46 billion. The bill mandates that the use-of-force policy be reviewed. But the secretive aspects of the investigations would remain unchanged. 

Michael Nicley was chief of the Border Patrol in Tucson for three years. He says the lack of transparency leads to the criticism.

“The public understands the Border Patrol needs to use deadly force from time to time,” he said. “But they do not understand why the government doesn’t tell them: These are the circumstances, the agent did exactly what he was supposed to do and unfortunately someone was killed.”

For Taide Elena it’s been nine months since the killing. As she talks, the tears dry on her face and her voice gives way to anger. To this day, the FBI has the case but hasn’t contacted the family or told them anything about the investigation. 

“And everything has remained as nothing. It’s never been known what happened. Nothing has ever been known. Nothing,” she said.

Under congressional pressure, the Office of Inspector General is currently reviewing the use-of-force policy.


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