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Border Patrol's forensic teams being eliminated after 'cover up' allegations

Critical Incident Teams will stop investigating shootings & other major incidents by October

After months of withering criticism and allegations that they have worked to "cover up" shootings involving agents, the Border Patrol's Critical Incident Teams are being "eliminated," announced Chris Magnus, the head of U.S. Customs and Border Protection.

Instead, investigators under CBP's Office of Professional Responsibility will handle such cases.

In recent months, Critical Incident Teams — BPl agents trained in forensic science who routinely arrive at major scenes and gather evidence — have been blasted by advocacy groups over their actions during the early hours of investigations of deadly and other serious incidents.

The groups have argued the teams are designed to "mitigate civil liability for agents" and act as "cover-up units, protecting agents, rather than the public."

However, CBP Commissioner Magnus, a former Tucson police chief, defended the teams earlier this year, calling them "vitally important" in investigations, especially in remote locations where "other agencies may be unwilling or unable to respond."

Following a fatal shooting in the rugged mountains north of Douglas earlier this year, advocates decried CITs involvement, and argued Border Patrol agents "prevented" Cochise County sheriff's deputies from reaching the scene.

Since 2010, there have been more than 200 deadly incidents involving CBP officials, including Border Patrol agents, one group said.

In a memo published Friday, Magnus said CBP would "eliminate" all Critical Incident Teams by the beginning of the next fiscal year, or October 1, 2022. Personnel assigned to U.S. Border Patrol will "no longer respond" to critical incidents for scene processing, or evidence collection, he said. Border Patrol investigators will continue to process evidence from seizures.

Magnus said earlier this year, officials had "emphasized that any use of specialized component capabilities for this purpose" including CITs "must be done under the direction" of OPR. Now, effective by October 1, OPR will "assume full responsibility for the critical incident response function" using their own personnel, he said.

"To ensure our agency achieves the highest levels of accountability, OPR will be the CBP entity responsible for responding to critical incidents and ensuring all reviews and investigations are conducted by personnel with appropriate expertise, training, and oversight," Magnus wrote in a memo released Tuesday. He added OPR will act as a liaison with other agencies and prosecutors following serious or fatal incidents.

Crime-scene investigations will be done by CBP's own Laboratories and Scientific Services, he said, adding the group will be responsible for training and accreditation for OPR officials to collect evidence. A "kick-off" meeting will be held in the coming weeks to manage the shift, Magnus said.

Responsible for more than 60,000 employees with CBP, the Office of Professional Responsibility is the agency's "investigative arm" tasked with investigating people applying to join the agency, as well as investigating corruption and misconduct. This includes reviewing serious use-of-force incidents.

During the fiscal year of 2020, which ran from October 2019 to September 2020, OPR reviewed 516 use-of-force incidents, including 17 which resulted in serious injury or death and included incidents along the Southwestern border, and an incident in Mississippi. Of the completed investigations, one resulted in the removal of a CBP official, OPR said in November report.

Magnus said as CBP moves away from Critical Incident Teams, DHS will move to hire as many as 350 new investigators at OPR, and the new DHS budget includes "substantial resources" to do so.

Advocates praise move, call for new investigations

Over the last six months, the advocacy group Southern Border Communities Coalition pushed hard against Critical Incident Teams. In a statement, the group praised the move and called it a first step.  Meanwhile, family members of those killed by Border Patrol agents, and a woman wounded during an incident last year,  pushed for new investigations arguing the teams "interfered" with local police.

"The elimination of cover-up teams — which engaged in obstruction of justice and acted only in the interest of agents, not the public — is an important first step towards addressing the longstanding problem of Border Patrol impunity," said Vicki B. Gaubeca, the SBCC director. "Not a single on-duty agent has been held accountable for taking the lives of hundreds since 2010. Independent investigators should now consider reopening these cases to ensure that families harmed find closure and justice."

Since 2010, there have been more than 200 fatal encounters involving CBP officials, including Border Patrol agents, according to a database managed by SBCC. This includes what the group called a lack of medical attention for people in the agency's custody, as well as dozens of use-of-force incidents involving both on-duty and off-duty officials, and vehicle collisions directly or indirectly involving CBP agents.

According to SBCC, there have been 58 use-of-force incidents by Border Patrol agents and officers with the Office of Field Operations—which manages the nation's border crossings and airports. Another 72 incidents involve fatal vehicle collisions that directly or indirectly involved CBP agents, and there are more than a dozen killings involving off-duty CBP officials, according to SBCC.

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Overall, only a handful of incidents have resulted in prosecution, and juries have refused to convict the handful of agents who faced charges.

This includes the case against Lonnie Swartz, a Border Patrol agent accused of shooting and killing 16-year-old Jose Antonio Elena Rodriguez during a cross-border incident in Nogales in October 2012. Swartz fired 16 rounds in 34 seconds in three separate salvos, hitting the boy 10 times in the back and head.

Prosecutors argued Swartz's use of force was "unreasonable and unnecessary" and the agent fired on Elena Rodriguez as he was prone on the ground. Swartz's defense attorneys said the agent reacted in "dangerous, scary, deadly-force situation," and in the darkness and confusion of the scene, thought he was shooting at a second rock thrower when he fired his .40-caliber H&K P2000 pistol, emptying one magazine, and then three rounds from another.

Federal prosecutors pursued Swartz twice, but failed to convince two separate juries Swartz violated the law when he killed the teenager.

Doña Taide, Jose Antonio's grandmother, accused the agency of losing video evidence, and said agents with CIT "picked up the biggest rocks lying nearby and claimed that Jose had thrown them at the border agent without any evidence to back their claim."

“My grandson, Jose Antonio Elena was 16 years old when he was killed. He would have been 26 years old this year," she said in a statement released by SBCC. "We leave a chair empty for him in the house to remember. He was walking next to the border fence near our home in Mexico, when he was shot and killed by a border agent who was standing on the U.S. side of the border wall."

"There are so many anomalies in Jose Antonio’s case and it is because of the Border Patrol cover-up units," she said. "Jose Antonio’s case must be reexamined and reopened."

Similarly, Marisol García Alcántara—who was shot in the head during an incident in 2021 in Nogales—said Border Patrol agents "interfered with the Nogales Police investigation."

"I won’t stay silent. These cover-up teams must be brought to justice," she said. 

SBCC commended CBP for "taking this action and acknowledges this was done under the leadership of Commissioner Magnus, who was responsive to community concerns," about the teams.

"It is no easy feat to change a longstanding and problematic practice within the agency, and the Commissioner has taken an important step," SBCC said. Critical Incident Teams, the group said, "have repeatedly interfered with law enforcement investigations of agents involved in the killing and harming of community members."

The group said the next step will be to "fully account for the harm done" by Critical Incident Teams since their inception in the San Diego Sector in 1987 "where they have engaged in criminal acts of obstruction of justice."

"This includes the agents, supervisors and chiefs who have been involved...and their many permutations," the group said, adding that Magnus should preserve records so "they can be reviewed independently by external law enforcement investigators, congressional oversight committees, and prosecutors."

"In the last six months, we have uncovered the existence of cover-up units called Border Patrol Critical Incident Teams that are not internal affairs, nor are they criminal investigators," said Andrea Guerrero, executive director of Alliance San Diego. "They are off-book units that answer to Border Patrol chiefs and work to protect agents, not the public."

It is "imperative that Congress pursue its investigation of the harm caused by these units, Guerrero said.

As CIT came under fire, Magnus said "in the case of serious incidents involving CBP personnel, the evidence collection teams are sometimes called upon to assist CBP’s Office of Professional Responsibility or other local, state, and federal law enforcement agencies as they conduct investigations.

"These teams do not lead investigations, they collect evidence. Without CIT teams, specialized expertise such as accident recreation and analysis would be absent, hindering the oversight process," Magnus said.

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Grijalva pushes for watchdog to review deadly incidents in Arizona

Following two deadly incidents involving Border Patrol agents in Southern Arizona, 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."

In May 2021, CBP said that following a death, the agency will notify the chair and ranking members of nine separate congressional committees, including five in the Senate and four in the House of Representatives. As defined by a policy from then-Acting Comissioner Troy Miller, the agency will 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.

"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 called 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.

Following the shooting, the Cochise County Sheriff's Office responded and was tasked with the investigation, however, the SBCC and a lawyer representing Cruz-Marcos' family argued that the agents "prevented" Cochise County officials from "immediately accessing the scene to conduct their own investigation," citing a long delay between the shooting and the recovery of the man's body the next morning.

While the shooting occurred late Saturday evening, Cruz-Marcos' remains were not retrieved until the next morning.

Carol Capas, a spokeswoman for CCSO, said that deputies and detectives responded to the incident, but delayed recovering Cruz-Marcos' body until the next morning to "allow for the safety of detectives" and other law enforcement personnel. Along with CCSO, a helicopter from the Arizona Department of Public Safety was brought in to help officials access the rugged terrain, and "process the scene."

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Bill Karns, a Los Angeles-based attorney with the law firm Karns & Karns, argued that the involvement of a Critical Incident Team presents a "glaring conflict of interest," adding that "the Border Patrol fosters an environment of vile and racist behavior towards migrants and should not be allowed to police themselves."

"Witnesses to the shooting say Carmelo was never a threat to any Border Patrol agent," wrote Karns & Karns in a news release. "The family is demanding an independent investigation of the incident by the FBI and an outside agency that can verify the evidence and facts."

The 'Cruz-Marcos’ shooting will also be reviewed by the Office of Inspector General with Homeland Security.

Karns said while the sheriff's department is investigating the shooting, the involvement of OPR and Border Patrol's own investigators means the sheriff's office investigation is not "truly independent."

"As it stands, the investigation also involves them," Karns said, "and that doesn't sound like an independent investigation to me."

"I'm also not convinced that Cochise County is truly independent—sheriff's departments, God bless them; they're still police and they tend to look out for each other," he added.

Investigators referred their conclusions to Cochise County Attorney's Office on Thursday, Capas said, leaving the decision to Cochise County Attorney Brian McIntyre. The Tucson Sentinel sent repeated requests for comment from McIntyre and his office, but never received a response. The Cochise County Attorney's Office has yet to released its review of Cruz-Marcos' shooting.

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