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After 5 years, family of teen killed by Border Patrol agent frustrated by delays

For five years, the family of a Nogales teenager, killed in a 2012 cross-border shooting by a U.S. Border Patrol agent, have marked the boy’s violent death with a monthly vigil on the street where he died.

Called "Tonito" by family members, Jose Antonio Elena Rodriguez was 16 years old when he was shot and killed on October 10, 2012, and died on a sidewalk near the U.S.-Mexico border, just a few blocks from his home.

The agent, Lonnie Swartz, was indicted by a U.S. grand jury for second-degree murder in September 2015 for unlawfully shooting the teen, but while Swartz's trial was originally slated to begin in November that year, a series of delays, motions and hearing have dragged the process out to March 2018, leaving the family frustrated and disappointed.

On October 3, U.S. District Judge Raner C. Collins rescheduled the jury trial for the seventh time after federal prosecutors and the agent’s defense team agreed to a delay.

Meanwhile, the family's civil lawsuit against Swartz has been left in limbo after the 9th Circuit Court of Appeals refused to decide if the family could even legally sue the agent, arguing that they would take action after the U.S. Supreme Court rendered a decision on a similar case in Texas.

On Tuesday night, the family and about three dozen supporters walked from a local Catholic church to Calle Internacional, where the border wall rests on a rocky promontory above a Nogales, Sonora, street often congested by buses.

Standing by the white metal cross that serves as a street-side memorial marking where her son died that night, Araceli Rodriguez said she was tired.

"We’re just so tired," she said.

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While her mother-in-law Taide Rodriguez went to the most recent court hearing, Araceli said she refused to go.

"I didn’t even want to go—it’s always the same thing," she said. "I knew that this would happen."

"It’s like they’re mocking us," she said.

"He had no right to take away our child. That’s why, after five years, we are still here —we are seeking justice for a murder," she said.

She also bristled at claims from Swartz’s defense team that her son was involved in drug smuggling the night he was killed.

In a legal filing, Swartz’s lawyer Sean Chapman, wrote that a witness would testify that Rodriguez was "involved in a smuggling operation" not only when he was "attempting to rock agents, but a few minutes earlier on the American side of the border."

In a hearing earlier this year, federal prosecutors conceded year that Jose Antonio may have been one of three people who appeared to throw rocks at agents and Nogales Police officers, but Araceli Rodriguez disputed this.

"Do you think that his life was threatened from a child throwing a rock?" Araceli Rodriguez asked, pointing up to the 18-foot high bollard fence, which rises another 20 feet above the street. "How many rocks do you see that he could have taken from here and thrown up there?"

Following the shooting, Border Patrol officials said that Swartz fired into Mexico in response to a hail of rocks aimed at agents and a Nogales police officer, when they attempted to stop a group of drug smugglers near the fence dividing the twin cities of Nogales, Arizona, and Nogales, Sonora.

During the incident, a Nogales police dog was reportedly hit by a rock.

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Chapman argued that the Border Patrol agent believed he was in a known smuggling corridor when he fired 16 rounds into Mexico, emptying the magazine of his P2000 weapon. In a video reconstruction of the shooting shown in court this summer, Swartz paused to reload, and fired three more shots.

After firing his gun, Swartz then leaned down and retrieved his empty magazine.

The recreation was the first glimpse of what was recorded on video the night of Oct. 10, 2012, by two cameras mounted along the international boundary line. While its been clear that cameras were there, federal officials were originally reticent to admit that video evidence of the shooting existed.

However, earlier this year, filings by federal prosecutors and the defense, along with an order by Collins, made it clear that video of the incident was indeed captured by the cameras.

Collins has blocked the release of the videos to the public.

Araceli Rodriguez said that people have asked what her son was doing on the street that night.

"He was in his part of his town. He wasn’t doing anything anywhere else. This was his neighborhood." she said.

"I will be here always for my son, no matter what they say about him," she said.

Taide Rodriguez, who has attended nearly every single hearing, defended her grandson against questions of why he had nice clothes and a new basketball.

"He had good clothes because I bought them for him," she said, fighting back tears. "Because I wanted him to be on the good path, along with his brothers. I didn’t want him to desire things he couldn’t have, so I gave him the best that I could.”

Even getting the name of the agent who killed her son was a fight for the family. Two years after Jose Antonio was killed, the family, led by the boy’s grandmother, filed a civil lawsuit with help from the American Civil Liberties Union against the agency.

Federal officials had refused to release the agent’s name, and so the lawsuit was filed against nearly two dozen unnamed figures.

However, months later, U.S. District Judge Raner C. Collins ruled that the agent’s name should be released, arguing that the "public’s interest in this case outweighs [the] defendant’s need for anonymity." Collins withheld the rest of the agent’s information, however, that ruling offered the first glimpse of the man who allegedly shot and killed Jose Antonio that night.

In Nogales on Tuesday, the boy's aunt Gabriella Lopez, said that the family just wanted justice for Jose Antonio.

Swartz, she said, "massacred" Jose Antonio.

"Why shoot him the head, why shoot him in the back? He shot him 10 times," Lopez said. 

At the event grew to a close, an uncle played a corrido about the Jose Antonio's death and the boy's young cousins played with the candles that his lit his portrait.

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"We hope that this is the last delay, and that this torture that we're feeling will end," said Taide Rodriguez. "We can't close this chapter of our lives until this is over."

TucsonSentinel.com's original reporting and curation of border and immigration news is generously supported in part by a grant from the Ethics and Excellence in Journalism Foundation.

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Paul Ingram/TucsonSentinel.com

Cousins of Jose Antonio Elena Rodriguez, a Mexican teenager killed in a cross-border shooting by a U.S. Border Patrol agent, light candles in front of his portrait.

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