Revelations around internal CBP units built to impede accountability—10-29-21
Immigration news, in context
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As it happens, we are now both feeling sick (it’s the season, we suppose) and so today’s edition will be somewhat abridged.
This week’s edition:
In The Big Picture, we examine the allegations that Border Patrol field offices feature unis dedicated to prevent full investigations of critical incidents.
In Under the Radar, we look at the latest caravan of migrants moving through southern Mexico.
In Next Destination, we discuss a new State Department program to permit the private sponsorship of Afghan refugees.
The Big Picture
The news: In a letter to Congressional committee leaders, the Southern Border Communities Coalition—an umbrella group of dozens of nongovernmental organizations, legal, and advocacy groups with nexus to the southern border—detailed the existence and operations of internal Customs and Border Protection units known collectively as Border Patrol Critical Incident Teams (BPCITs). The letter called for Congress and relevant law enforcement authorities to investigate these teams, establish their illegality, and even initiate criminal prosecution of agents assigned to them.
The BPCITs have long been a kind of ghost within the Border Patrol infrastructure. They are almost completely omitted from public-facing websites, documents, and agency communications. Almost anything that’s known about them has come as the result of meticulous investigative journalism, public records releases, whistleblowers, and court documents, an obscurity that has taken place by design.
In essence, the units are described as almost an anti-internal affairs, investigating serious incidents and use of force not to air out the facts and bring accountability to agents involved, but to shield them from consequences and even conceal material facts. In an internal BP San Diego Sector slideshow that was included as an exhibit in the letter and first obtained by journalist John Carlos Frey, the purpose of the CIT was described as engaging in “concurrent investigations [of BP-involved incidents] with local agencies”—not an authority that was ever designated to CBP by Congress or anyone else—and “mitigation of civil liability.”
This last point in particular drives home the fact that these teams are working rather explicitly on behalf of section chiefs and agents involved in critical incidents, not in a classic investigative role where they’re committed to documenting the totality of the incident but seeking to find the best way to help them dodge responsibility. In this way, the CIT teams almost work how a union might, except having designated to themselves the authority to actively participate in investigations involving agents, not just advising them on how to respond.
The presentation notes that San Diego’s unit has existed since 1987, meaning that the concept stretches back that far and potentially earlier. The SBCC uses other evidence including challenge coins (yes, these teams are so brazen that they have developed and are distributing their own challenge coins) to establish that CIT teams operate in most, and potentially all, Border Patrol sectors.
It’s worth noting explicitly here that such functions are never delineated in either the statutory or regulatory scheme surrounding CBP or the Border Patrol. Whereas 8 CFR § 287.5 makes clear, for example, that immigration officers including BP agents have the power to execute warrants and conduct arrests, it says nothing of a power to engage in investigations surrounding potential criminal or civil repercussions for its officers. As the SBCC letter notes, federal law instead grants such power in various capacities to the FBI, the Homeland Security inspector general, the CBP Office of Professional Responsibility and local law enforcement agencies. The CITs seem to be entirely a product of field offices deciding that they wanted to set them up, outside of the normal operational structure.
Ultimately, the closest look at how these units actually operate comes from the litigation surrounding the death of Anastasio Hernández Rojas, a 42-year-old Mexican man who had been deported in 2010 and then caught by Border Patrol agents upon an attempt to reenter the country to reunite with his family that same year. Witness testimony and video evidence showed that multiple agents severely beat and tased him as he lay handcuffed on the ground. He died days later in the hospital, with agents claiming at the time that he had been combative at the time that he was tased and beaten. His family eventually received a $1 million settlement, but also referred the case to the Inter-American Commission on Human Rights after no officers were charged in the case.
Utilizing records from the San Diego Police Department and the litigation around his death, the SBCC has established that the CIT was the first entity informed of the incident by officers present, and that it subsequently sat it on interviews with witnesses, family, and even attended Hernández’s autopsy. Most damningly, it alleges that CIT agents actively tampered with or hid evidence, including by modifying the original incident report that had stated Hernández was compliant; intentionally allowing video evidence to be taped over; and subpoenaed hospital records that it then refused to share with the police. There is even the insinuation, though the letter doesn’t outright say so, that the CIT interfered with a blood sample to create the appearance that Hernández had been using meth at the time of the beating.
As we unfortunately know well, law enforcement entities around the country routinely do what they can to obstruct inquiries and investigations into agent misconduct. This is something else entirely. It would be as if a local police department had a unit dedicated solely to investigating use-of-force incidents with the explicit purpose of throwing obstacles in Internal Affairs’ way and keeping damaging information from being disclosed. If all the behavior from this letter took place as alleged, then it likely amounts to a revelation of standardized, sanctioned, and routine criminal conduct on the part of Border Patrol field offices, which shouldn’t exactly come as a surprise but is abhorrent nonetheless.
If the CIT went to such great lengths to derail the investigation in this one high-profile case, it stands to reason that it and the other CITs have taken similarly aggressive action to prevent oversight into Border Patrol abuses. What happens now is unclear; Congress is of course capacitated to look into anything it likes, and the relevant committees—House and Senate judiciary, homeland security, and government oversight committees— could convene hearings and issue subpoenas to unravel the totality of the CITs’ existence and functions. In terms of remedies, though, the picture is murky. It’s almost unimaginable that criminal charges could actually be brought against CIT units and their managers, but perhaps some investigations could be reopened.
Under the Radar
Caravan proceeds slowly through southern Mexico
After multiple caravan panics and news cycles, the formula is pretty well-established at this point: a migrant caravan, which has coalesced in an effort to provide protection for migrants who would be much more vulnerable traveling on their own, starts wending its way out of Central America and into Mexico, and the right-wing media and political spheres go wild, calling an imminent invasion and looming threat.
In this latest iteration, a group of just over two thousand mostly Central Americans have been making their way north from Villa Comaltitlán in the south of Mexico. This particular group is notable because reports point to it including an abnormally large number of small children and pregnant women. While some are attempting to make their way to the U.S. border, it appears a good amount are hoping to seek asylum somewhere in Mexico. We can expect that the Mexican border authorities, which have been hugely aggressive overall in targeting caravans, will attempt to disperse it before it gets too far.
Next Destination
Government unveils plan to allow individuals to sponsor Afghan refugees
The State Department announced a program this week that would allow private citizens to sponsor Afghan refugees in the way that is currently handled only by large volunteer agencies. In practice, this means small groups of individuals can collectively apply to provide financial and logistical support to arriving Afghans, coordinating things like their housing and familiarization with local government services.
The program will be launching this year, in advance of a potential broader private sponsorship program that State is considering for next fiscal year. It doesn’t change any of the requirements and processes of the refugee resettlement system per se, in the sense that applicants will have to undergo all the same applications and background checks and such, but it enables individuals to take charge of their arrival and getting them on their feet, an initiative particularly necessary in light of the fact that a lot of the local resettlement infrastructure and staffing was decimated by the plunge in admissions during the Trump administration.