Nogales marks two-year anniversary of teen's fatal shooting

For a moment, Araceli Rodriguez sets down the cardboard coffin that she has carried through the streets of Nogales, Sonora. She is part of a procession of nearly 150 who have wound their way through the streets of the border city, protesting the deaths of nine people at the hands of U.S. border authorities. 

The cardboard coffin has been painted black and marked with the name of her son, Jose Antonio Elena Rodriguez.

Friday marked the two-year anniversary of the death of the Mexican teenager, shot and killed by a U.S. Border Patrol agent during an incident in 2012. 

Elena Rodriguez, 16, was walking along a street in Nogales, Sonora when he was shot approximately 10 times by U.S. Border Patrol. Most of the bullets struck him in the back and the boy died on the sidewalk just four blocks from his home.

The shots were fired through the border fence and down a steep slope, killing the teen after two agents and a Nogales Police Department officer were pelted with rocks when they intercepted a group attempting to smuggle drugs over the fence.

Across the street from where Elena Rodriguez died is a cliff face that rises at least 20 feet. Atop that cliff is the border fence of steel girders, which rises at least another 18 feet.

Any rock thrown from where Elena Rodriguez died would have to clear that height to threaten the agent who fired through the fence, leaving serious questions remain about what happened that night. 

This year, the agency has been hammered by repeated allegations that agents have violated the civil rights of people across the border, that its ability to investigate those allegations is broken, and that agents have intentionally placed themselves in harm's way to justify the use of death of deadly force.

Elena Rodriguez is one of at least 46 other people killed by U.S. Customs and Border Protection officers since 2005 and yet no one has faced public accountability despite serious questions about the agency's handling of use of force and investigations into shooting or complaints of abuse. 

Until recently, officials in the United States have been tight-lipped about their investigation in the death of Elena Rodriguez, refusing to acknowledge that an investigation was taking place or that evidence was available from two video cameras mounted on tall poles on the U.S. side with a full view of the scene.

However, in the last few months that is beginning to change.

On Friday, U.S. Attorney John S. Leonardo released a statement acknowledging the anniversary and said the "tragic incident remains under federal investigation."

"We appreciate how painful it is to lose a child under these circumstances and the desire of the family, the agent involved and the public that the investigation of this incident be concluded as soon as possible. However, there are many reasons that a federal criminal investigation should be conducted confidentially in fairness to all the parties involved," said Leonardo. 

Leonardo wrote that his office was working with the FBI and the inspector general's office at Homeland Security along with Mexican authorities.

"Above all, the investigation must be thorough, impartial and independent so that in the end justice is done, and we are absolutely committed to that goal," Leonardo said. 

In August, a team of federal investigators arrived at the site and worked to reconstruct the scene, deploying a 3-D laser scanner that could help create a computer model of the shooting and meeting with Mexican police. 

Pressure from the family and an ACLU lawsuit has broken loose the name of one of the agents responsible for shooting, however, the federal government has tried to keep his name secret.

Attorneys have been given the name, but have been ordered not to tell the family.

The procession began with a mass held in a church in Nogales and then the marchers walked through the city toward the Dennis DeConcini Port of Entry where they turned and walked along the border fence, finally reaching the site where Elena Rodriguez died. There, they lined up nine mock coffins and held a vigil for those killed. 

"They can't keep killing our kids," said Gabriela Elena Lopez, an English teacher in Sonora and one of Elena Rodriguez's aunts. "They're killing our future here, just for being on the street."

Jesus Castro Romo came to the procession in a wheelchair, the result of a November 2010 altercation with a Border Patrol agent. Shot in the stomach, Castro Romo cannot work to feed his family, which includes five children, and he suffers from debilitating pain.

Castro Romo sued the agency over his shooting in July, arguing that his shooting was excessive.

The agent who shot him, Abel Canales, argued that he fired because Castro Romo was holding a rock, however, in September the U.S. Attorney's office declined to charge Castro Romo with assault on a federal officer.

"It would be difficult, if not impossible, to prove that Castro Romo had the requisite intent to commit a forcible assault. It is clear that he never threw a rock," wrote Assistant U.S. Attorney David Brooks.

Thus far, there are at least nine other lawsuits against the agency of the use-of-force deaths since 2010, including several filed after the 5th Circuit Court of Appeals ruled in July that people in Mexico can sue Border Patrol agents for cross-border shootings.

The ruling found that the family of Sergio Adrian Hernandez Guereca had the right to sue Border Patrol agent Jesus Mesa Jr., who fired across the border and killed the 15-year-old in Juarez, Mexico, in 2010.

Mesa claimed he was surrounded when he fired the shot across the border, hitting Hernandez Guereca in the face after he peeked around the pillar of a train trestle. However, cellphone videos made during the incident showed that Mesa's claims were largely untrue.

In a 2-1 decision, the court harshly criticized the actions of the agent.

"If ever a case could be said to present an official abuse of power so arbitrary as to shock the conscience, the Appellants have alleged it here," stated the court's ruling.

At the march, Maria Guadalupe Guereca held a black and white photo of her son, Sergio.

"We won't stop," she said. "We will find some justice in this."

In May, Border Patrol responded by releasing a report the agency had commissioned in 2013, which was highly critical of the use of force by agents.

The 21-page report by the Police Executive Research Forum, a nonprofit research and policy organization, cited a "lack of diligence" with regard to investigations, and a "no-harm, no-foul" approach that lead to "tacit approval of bad practices."

The report also questioned the agency's seriousness with regard to deadly force incidents, writing: "It is not clear that CBP consistently and thoroughly reviews all use of deadly force incidents."

"Too many cases do not appear to meet the test of objective reasonableness with regard to the use of deadly force," the report said.

The release of the report was part of an effort to make the agency more transparent, said Commissioner R. Gil Kerlikowske at that time.

However, in an August interview with Center for Investigative Reporting, the former head of internal affairs James F. Tomsheck, accused the agency of trying to change or distort facts to make fatal shootings appear less controversial. Tomsheck was removed from his post in June, but remains with the agency.

In the last month, the agency has announced that agents at a training facility in New Mexico would be testing body-cameras and in March the agency rewrote its own use-of-force guidelines.