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Immigrant groups ask DA to investigate Border Patrol 'shadow unit' in man's death

Justice advocates with the San Diego Immigrant Rights Consortium stand outside of the Justice of Hall in San Diego before delivering a letter to the District Attorney requesting an investigation into the death of Anastasio Hernadez Rojas, beaten by Border Patrol agents in 2010. November 4, 2021.
Tania Thorne
Justice advocates with the San Diego Immigrant Rights Consortium stand outside of the Justice of Hall in San Diego before delivering a letter to the District Attorney requesting an investigation into the death of Anastasio Hernández Rojas, beaten by Border Patrol agents in 2010. Nov. 4, 2021.

It’s been 11 years since the death of Anastasio Hernández Rojas, who was beaten by Border Patrol agents near the San Ysidro Port of Entry.

The Medical Examiner's Office ruled Hernández Rojas’s death a homicide, but no charges against the agents involved have been filed.

Now, new evidence suggests that an internal Border Patrol 'Critical Incident Investigative Team,’ or CIIT team, interfered with the San Diego Police Department's investigation.


It is procedure for SDPD to conduct criminal investigations involving Border Patrol agents.

“We discovered Border Patrols Critical Incident Investigative Team’ or CIIT teams, operate without lawful authority to do so," said Michelle Celleri, the human rights counsel for Alliance San Diego."This last month we were able to view the CIIT parallel report and compare it with SDPD’s report and found that the CIIT altered government documents, interfered with the investigation and withheld critical information from the San Diego Police Department."

RELATED: Five Years Later, Family Still Demanding Justice In Taser Death At The Border

Alliance San Diego is representing Hernández Rojas' widow, Maria Puga.

On Thursday, Puga and the San Diego Immigrant Rights Consortium, along with Alliance San Diego, delivered a letter to the district attorney’s office requesting an investigation into these so-called ‘shadow units' they say are covering up agent misconduct.

Letter delivered to D.A. requesting Border Patrol investigation
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“With my heart on my hand, I ask the District Attorney to investigate the agents that obstructed my husband's investigation," Puga said in Spanish. "It's not fair that my family continues to suffer after 11 years because these agents placed their dark hand in the case. Changed information and destroyed evidence."

The letter alleges the Border Patrol agents tampered with evidence related to the investigation into the death of Hernandez Rojas.

The group said Hernández Rojas was struck with batons and repeatedly shocked with an electric stun gun while he was prone and shackled at the San Diego border-crossing facility on May 28, 2010. He died days later at a hospital.

Among the groups' allegations is that CIIT never notified SDPD of the death, which the police department only learned about through a media inquiry about 15 hours later.

They also allege CIIT altered an initial Border Patrol report indicating Hernandez Rojas was compliant with the first Border Agent who contacted him. They say the alteration of this report ``fed into a narrative that he was aggressive, non-compliant and on drugs,'' the letter states.

Methamphetamine intoxication was referenced in the Department of Justice's 2015 statement, though the groups allege this was based on a blood sample that does not correspond with any blood draws performed on Hernandez Rojas at the hospital.

The letter says hospital records show his blood did not indicate any detectable drugs in his system.

In 2015, the Department of Justice announced that it would not prosecute any of the agents involved, but the case is currently under review by the Inter-American Commission on Human Rights, an international organization that examines human rights violations.

In the case before the IACHR, Hernández Rojas' family's attorneys submitted filings they say include testimony from three key figures who worked for CBP and the Department of Homeland Security during the death investigation.

In the filings, James F. Tomsheck, then an assistant commissioner of CBP's Internal Affairs Office, alleged that CBP Deputy Commissioner David Aguilar wanted reports to reflect that Hernández Rojas was standing, unrestrained and combative when he was tasered.

"Aguilar ``wanted me to falsify reports and did not want this critical portion of events to be accurately documented," Tomsheck said.

John Dupuy, who worked as DHS assistant inspector general for investigations starting in 2012, said that there was an eyewitness video that directly contradicted CBP's version of the event. But attempts to reopen the investigation after the discovery of this footage was rebuffed, he said.

James Wong, the then-deputy assistant commissioner of CBP's Internal Affairs Office, also accused Border Patrol agents of erasing some eyewitness footage.

``"It may have been proper for these videos to be copied and preserved by Border Patrol," Wong said. "However, by destroying the videos, agents tampered with evidence and should have been prosecuted for that conduct."

A similar letter requesting investigation into the Border Patrol CIIT teams was sent to Congress last month.

The letter cites Hernández Rojas' case and others that have taken place all along the Southern border.

“They haven’t obstructed only Anastasio’s case, it's thousands of cases.," Puga said. "There are thousands of families suffering like me."

A statement from the District Attorney’s office said, "The District Attorney’s Office stands ready to pursue justice when the evidence supports it and where we have jurisdiction. We can’t comment on the Department of Justice’s review of this matter."

Immigrant groups ask DA to investigate Border Patrol 'shadow unit' in man's death

A spokesperson for CBP told KPBS that the U.S. Border Patrol disbanded its critical incident team in San Diego several years ago. The unit, however, was still active when Hernández Rojas died.

"The critical incident response teams in other sectors provide support to investigative agencies including CBP, OPR, FBI, and other state and local agencies when reviewing critical incidents and use of force incidents involving CBP personnel," said the spokesperson.

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