Can the Border Patrol’s pattern of mistreating migrants without recourse be reversed?

Words by Abraham Márquez, @AbeMarquez3.

Marisol García Alcántara had run out of water hours earlier when she finally arrived at the white Kia SUV waiting in the desert outskirts of Nogales, Arizona, for her and the six other migrants in her group. It was a hot day in June 2021 and the group had just completed a grueling trip from Mexico to enter the U.S. undetected. García Alcántara’s left leg ached from jumping the border fence and the 37-year-old was relieved to settle into the SUV’s back seat. But within minutes, as the vehicle drove along a Nogales street, she heard sirens from a U.S. Border Patrol vehicle. García Alcántara remembers the SUV slowed down in response. No one expected what happened next. The agent fired his gun at the SUV. The bullet sailed in through the back seat and lodged into García Alcántara’s head just above her left eye.

"I felt something hit me in the head, and I lost my vision but was hearing everyone screaming for help,” García Alcántara told palabra in a recent interview from her home outside Mexico City.

*Marisol García Alcántara. Courtesy García Alcántara.*

U.S. Customs and Border Protection declined to respond to palabra’s inquiries about the shooting or the agency’s protocols for internal investigations or disciplinary action. Nogales police records say that a Border Patrol supervisor at the scene described the incident as a “fail to yield” and that “one shot was fired.” But even if the vehicle García Alcántara was in had failed to slow down in response to the agent’s siren, CBP’s use-of-force guidelines specify that deadly force is only justified to stop an imminent threat of serious injury or death and “would not include a moving vehicle merely fleeing from officers/agents.”

It is still unknown whether the agent responsible for the Nogales shooting will face any consequences.

The same Nogales police records say a little-known unit within the Border Patrol, known as a Critical Incident Team, responded to the scene after the shooting, along with the FBI. But Critical Incident Teams, which for decades were used by Border Patrol to gather evidence on the scene after an agent used force, have been accused by immigrant rights advocates of covering up evidence of agent misconduct and interfering with law enforcement investigations. Furthermore, federal law designates other entities to criminally investigate agent misconduct, and it is unclear under what authority these Critical Incident Teams have to respond first and collect evidence.

In December, CBP told the Associated Press that its Office of Responsibility was still investigating the shooting and it would be reviewed by the agency’s National Use of Force Review Board. Yet García Alcántara says she has never been interviewed by anyone tasked with investigating the shooting or given an opportunity to share her account. She now lives with bullet fragments in her brain and regularly suffers from headaches.

It is still unknown whether the agent responsible for the Nogales shooting will face any consequences, but many such Border Patrol incidents happen with impunity. Border Patrol agents rarely are successfully prosecuted for using excessive force. In fact, in the agency's 90-year history, advocates say not one agent has ever been convicted for killing someone while on duty. Although President Biden campaigned on bringing "compassion and sensitivity" to the asylum system, immigrant rights advocates say the administration has so far failed to deliver on this promise. In fact, evidence shows that certain kinds of Border Patrol misconduct have increased since Biden took office.

Earlier this month, however, the administration did take one notable step toward increasing accountability within the Border Patrol by announcing it will phase out the agency’s controversial Critical Incident Teams. Advocates have praised the move, while also calling it just a first step.

A legacy of impunity

García Alcántara’s case is one of 236 incidents of apparent Border Patrol misconduct since 2020 that the advocacy group Washington Office on Latin America (WOLA) has documented in a new database, Border Oversight. The federal government’s lack of transparency over such incidents led WOLA Director for Defense Oversight Adam Isacon to compile the database. “I hope that having everything in one place will force a conversation that we are not having enough about Border Patrol’s misconduct,” Isacson said. “The database can help create specific reforms to solve this problem.”

While García Alcántara survived her encounter with the Border Patrol, others have not. The American Civil Liberties Union of Texas has tracked 218 fatal encounters since 2010 with Border Patrol agents and officers at ports of entry that were reported by the CBP or media outlets. Of those fatal encounters, 75 stemmed from vehicle pursuits of migrants attempting to enter the U.S.

“We’ve seen an increase in the number of deaths due to vehicle pursuit in the last two years,” said ACLU of Texas staff attorney Shaw Drake. In 2021, 23 people were killed in Border Patrol vehicle pursuits of migrants, including high-speed chases, up from two in 2019, according to ACLU data. Also in 2021, the same data set shows 55 people died as a result of Border Patrol agents using lethal force with a firearm. One victim was Cuban asylum seeker Diosmani Laurencio, who was killed by a Border Patrol agent in February 2021 after crossing the Rio Grande in Hidalgo, Texas. "They shot him more than five times in the chest from close range," his father Raúl Laurencio told palabra. The incident is currently being investigated by the DHS Office of Inspector General, the CBP Office of Professional Responsibility, and the FBI.

“No one investigated,” she said. “I returned to Mexico without making a statement.”

When García Alcántara decided to immigrate to the United States to look for work and reunite with her mother, she never imagined the possibility of getting shot by a U.S. law enforcement agent while she was riding unarmed in a vehicle. “The system is broken,” she said. “We are not criminals.”

After the shooting, García Alcántara was taken by helicopter to a hospital in Tucson. Three days later, she was transferred to an immigration detention facility in Florence, Arizona, where she was held for a few weeks. In that time, she said no U.S. government officials ever contacted her to get a statement from her about what had happened in the lead up to the moment she was shot. She was deported back to Mexico a month after the shooting. “No one investigated,” she said. “I returned to Mexico without making a statement.”

A long fight for accountability

As recently as last November, CBP defended Border Patrol’s Critical Incident Teams that responded to García Alcántara’s shooting. “These teams consist of highly trained personnel available to respond around the clock to collect and process evidence related to CBP enforcement activities as well as critical incidents,” reads a statement the agency gave to Phoenix TV station, ABC 15 Arizona . “In the case of serious incidents involving CBP personnel, members of these teams are sometimes called upon to assist investigators from CBP OPR and other local, state, and federal law enforcement agencies.”

The decision to phase out the Critical Incident Teams came in early May, in the form of a memo from CBP Commissioner Chris Magnus, Biden’s pick to lead the agency. Starting in October, only the CBP Office of Professional Responsibility – without assistance from Critical Incident Teams – will respond to and process the scenes of critical incidents involving border enforcement personnel, such as those that result in the use of force, death, or serious injury. “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," reads Magnus’ memo. The agency will also beef up the number of people working on investigations for OPR.

Members of the Border Patrol Victims Network, a group that seeks an end to what it calls a “culture of violence and impunity” within the Border Patrol, during a demonstration in Nogales, Sonora, Mexico, on June 24, 2020. Photo Richard Boren/Border Patrol Victims Network.

These changes are considered a victory for immigrant rights advocates and families of victims of Border Patrol misconduct who had long pushed for an end to the Critical Incident Teams and had prodded Congress to take action. “The records generated by the Critical Incident Teams are inherently unreliable, these are investigative teams whose mandates were to protect their own and minimize their exposure to civil liability,” said ACLU of New Mexico staff attorney Rebecca Sheff.

In response to concerns raised by advocates , the House committees on Oversight and Reform and Homeland Security sent a letter last January alerting CBP that they were investigating the teams, specifically whether they had “interfered with criminal, civil, or administrative investigations of the use of force by Border Patrol agents to protect these agents from being held accountable for potentially serious misconduct.” The same day, a group of Democratic lawmakers had requested that the U.S. Government Accountability Office conduct a review of CBP’s use of Critical Incident Teams.

Since Magnus was sworn in last December to lead CBP, immigrant rights advocates had hoped he would start enacting some of the reforms Biden had campaigned on. As Tucson Police Chief, Magnus was known for being an outspoken critic of Trump's immigration policies and said that Tucson's leaders “take pride in being welcoming to immigrants.”

Sheff called the new CBP policy a “welcome change” in direction for the Biden administration on Border Patrol accountability and shows “the agency is, at least, somewhat responsive to border communities, and to the families affected by this.”

“I'm delighted they did it,” said WOLA’s Isacson. “I think this was Chris Magnus' first real test on doing something on accountability that changes the way CBP operated for 35 years.” At the same time, Isacson noted, “there is a long way to go for accountability, this is a baby step.” Isacson said another step he would like to see would be more funding and oversight over the appropriate entities tasked with conducting Border Patrol misconduct investigations, including more monies for the DHS Office of Inspector General, the CBP Office of Public Responsibility, and the DHS Office for Civil Rights and Civil Liberties.

“Independent investigators should now consider reopening these cases to ensure that families harmed find closure and justice."

Immigrant rights advocates say it is also necessary to have independent investigators re-examine old cases that may have been tainted by the Critical Incident Teams and carry out new investigations to hold Border Patrol agents accountable for any misconduct.

"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," Vicki B. Gaubeca, director of the Southern Border Communities Coalition said in a press release. "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."

Living Through Pain

Late last year, García Alcántara filed a claim against the Border Patrol’s Nogales station, a first step in filing a federal lawsuit. The claim says the bullet wound resulted in permanent life-long consequences, including injuries such as “intracranial hemorrhage, orbital fracture, skull fracture, with bullet and broken bone fragments entering her left frontal lobe.” Doctors have also told García Alcántara that she is at risk of suffering from facial paralysis or becoming epileptic. “I don’t know if I will wake up blind or with no memory one day, which makes me sad,” she said.

In the meantime, she is still waiting to learn whether the Border Patrol agent who shot her received any discipline.

"I am asking for justice, so they don't keep doing this," said García Alcántara. "I am also asking for a public apology from the person who did this. I'd like to know why he did this to me since I didn't do anything to him.

—

Abraham Marquez is a freelance writer from Inglewood, California, focusing on immigration, and politics.

The Fight for Accountability