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Grijalva pushes watchdog to investigate fatal incidents involving Border Patrol agents

Following two deadly incidents in Southern Arizona involving U.S. Border Patrol agents — including a fatal shooting, and a pursuit that ended in a crash that killed two — U.S. Rep. Raúl Grijalva called for "comprehensive" investigations from a federal watchdog.

In a letter to Joseph V. Cuffari, the inspector general for the Department of Homeland Security, Grijalva pushed for independent investigations into what he called "unjust killings." He also pushed for U.S. Customs and Border Protection — Border Patrol's parent agency  —to notify Congress and the public of all deaths that take place in their custody, "especially in Arizona."

"It is reprehensible and unacceptable that these incidents have occurred," Grijalva wrote on March 18. "The agents responsible must be held accountable and these migrants and their families deserve justice."

Grijalva released the letter in a statement Wednesday, calling into question the Feb. 19 shooting of Carmelo Cruz-Marcos, who was shot and killed in rugged terrain near Skeleton Canyon about 30 miles northeast of Douglas, Ariz.

Cruz-Marcos, originally from Puebla, Mexico, was part of a group attempting to skirt through the rugged Peloncillo Mountains when they were located by two Border Patrol agents mounted on horses. One of the agents told investigators with the Cochise County Sheriff's Office that he attempted to apprehend Cruz-Marcos, but the 32-year-old man threw a punch, and then attempted to run down into a canyon.

The two men scuffled, and then Cruz-Marcos threatened the agent with a rock, the agent told investigators. The agent fired his weapon an "unknown number of times," he said, according to CCSO.

An autopsy by the Pima County Medical Examiner showed that the agent shot Cruz-Marcos four times—twice in the face and twice more in the chest.

The Mexican Consulate decried the shooting, writing in a statement that they condemned "any act of unjustified violence against migrants." They added that consulate staffers interviewed the migrants who were taken into custody, and would be monitoring the situation.

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The BP agent, who has not been named, told investigators that when he attempted to apprehend the man, a suspected migrant in the country without permission, the agent was struck multiple times during a struggle. The agent fired his weapon as Cruz-Marcos picked up a "large rock" and made a "throwing motion," said Carol Capas, a spokeswoman for the Cochise County Sheriff's Office.

The incident's details echo other shootings that have occurred in Southern Arizona, when Border Patrol agents told investigators they were responding to the potential of a thrown rock when they fired their weapon in self-defense. Since 2010, Border Patrol agents have killed 58 people in shootings along the nation's borders, and in several of those cases, agents have said that they responded with force after people threw or moved to throw rocks.

The Southern Border's Communities Coalition, an advocacy group, sharply criticized the investigation, writing on Feb. 23 that "there are multiple red flags in this investigation," and arguing that CBP "wasted no time in undermining the investigation, underscoring ongoing concerns about the integrity of misconduct investigations at the nation’s largest law enforcement agency."

"The threat of this rock was brutally met with the power of multiple bullets," Grijalva wrote.

The shooting remains under investigation by the Cochise County Sheriff's Office and federal officials.

In a second incident, two people were killed and four people injured when the driver of a pickup truck fled from agents and crashed into a tree during an incident on March 7 near Amado, Ariz.

In a statement from CBP released on March 17, the incident began around 11 p.m. when a camera operator spotted a group of people suspected of being in the country illegally get into a blue Honda Ridgeline on Interstate 19’s East Frontage Road, near Amado, about 34 miles south of Tucson.

Another agent driving an unmarked F-150 equipped to carry one of the agency's dogs responded to the area. As he drove along the frontage road going north, the Ridgeline passed him, and the agent "observed multiple people in the rear passenger area."

The agent caught up to the vehicle and attempted to perform a vehicle stop using his lights, and the driver fled. The agent pursued, asking for help from other agents in the area, along with nearby aircraft, as well as help from the Arizona Department of Public Safety. Two agents joined the pursuit, and around 11:10 p.m., the driver lost control of his vehicle and plowed into a tree. The vehicle rolled over, killing two people, including the driver, a U.S. citizen and one passenger, a Mexican man.

Five people were seriously injured, and were transported to the Banner University Medical Center in Tucson, CBP said.

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Grijalva wrote that the truck was "run off the road causing it to roll over, crash, and eject some of the migrants." Details from Grijalva's account and CBP's diverged, with Grijalva writing that two migrants were killed, and four sustained life-threatening injuries.

He added that "the motive for the pursuit and the identities of the migrants and Border Patrol agents involved are unknown."

"Unfortunately, this is not an isolated incident," he said, noting that the American Civil Liberties Union of Texas found that deaths resulting from Border Patrol vehicle pursuits have "risen dramatically from two in 2019 to twenty-two in 2021."

In January 2021, CBP issued a new directive on vehicle pursuits. The directive, authorized by Trump-era appointee Mark Morgan, tells agents that they may "engage in and continue emergency driving, including a vehicle pursuit," so long as they determine "the law enforcement benefit and need for emergency driving outweighs the immediate and potential danger created by such emergency driving."

Last August, a Border Patrol chase led to a fiery crash north of Tucson that killed three people, and injured eight more.

During that incident, a Jeep Liberty bypassed a checkpoint on State Route 86 near Three Points, Ariz., and continued for nearly 20 miles through Tucson before switching to Interstate 10. Border Patrol agents chased the vehicle for nearly an hour until they were near Picacho Peak where agents deployed a device called a "grappler" to stop the vehicle.

However, the driver lost control, CBP said, and the Jeep crossed the median, struck a semi-tractor trailer heading in the opposite direction. The vehicle caught fire and agents pulled several people from the wreckage.

Two people were killed in the crash and were declared dead at the scene, and one other man died from his injuries after he was flown to Banner University Medical Center.

CBP policy is to inform Congress of deadly incidents

In May 2021, CBP published a new outline on how the agency would notify the public and Congress about deaths in custody. In a memo signed off by then-Acting Commissioner Troy Miller in June 2021, CBP said it will inform the Justice Department of in-custody deaths on an annual basis with the Federal Death in Custody Reporting Program. Known by the unwieldy initialism of FDCRP, the program was created in 2013 by an act of Congress, and requires the head of each federal law enforcement agency to disclose such deaths to the U.S. attorney general.

FDCRP has the "primary responsibility" for informing Congress about in-custody deaths, Miller wrote.

Miller wrote that in addition to legal requirements, the agency's "interest and intent is to promote accountability and transparency," and he outlined how the agency would respond when someone died in CBP's care, or when someone died in the field, including from falls along the border wall to vehicle crashes.

Following a death, CBP said it would notify the chair and ranking members of nine separate congressional committees, including five in the Senate and four in the House of Representatives. The agency also said that it would inform the House and Senate members who represent the district and state where the death occurred. CBP is also required to inform foreign embassies, as well as the media following the notification to Congress, according to the internal memo.

Grijalva's demand that CBP inform Congress may illustrate a failure of CBP leaders to inform his office following deaths in Arizona.

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