New Border Patrol report shows “no action taken” in more than 95% of misconduct cases

Sergio Hernandez was just 15 years old when he was fatally shot by a U.S. Border Patrol agent. Hernandez had been on the Mexican side of the southern border when the agent, Jésus Mesa Jr., fired the deadly shot from American soil.

What was unique about the 2010 case was that someone had managed to capture the violent incident on a cell phone camera, as many alleged incidents of Border Patrol brutality occur in stretches of desert remote enough that no one else is around to witness them. The video evidence — which seemed at odds with Mesa’s defense that he was justified in using deadly force because he feared for his life — brought a deluge of public scrutiny to the Border Patrol and its practices.

In the aftermath of Hernandez’s death, U.S. Customs and Border Protection commissioned a study in 2013 examining the agency’s use-of-force guidelines. The results were troubling enough that in 2014, the CBP instituted new reporting protocols to address excessive force allegations, which included a Spanish-language form to make it easier for immigrants to file complaints of misconduct.

The agency also now ensures that anyone who files a complaint is interviewed before being removed from the country. The Office of Professional Responsibility, which is responsible for CBP programs related to “corruption, misconduct, or mismanagement,” may also intervene to conduct its own investigation, another condition included in the new protocols.

An agency spokesperson said on Friday that it has taken steps to increase transparency and “enhance our agents’ and officers’ use-of-force training.”

“CBP takes allegations of employee misconduct, to include allegations of excessive force, seriously,” the spokesperson said.

But on Wednesday, a new report from the American Council on Immigration suggested these changes aren’t doing much to help the CBP’s problem with violence or how it deals with reports of violence.

Out of the 1,255 cases in which an outcome was reported by Border Patrol, almost 96% of them resulted in “no action” taken against the accused agent. Sixty percent of the reported cases involved allegations of physical abuses, including running over immigrants with patrol vehicles, putting a taser into an immigrant’s mouth and forcing a man to “slide his hands over barbed wire.”

“It appears that either those changes weren’t enough, or that they were on paper but don’t actually impact the way agents act on the ground,” Reece Jones, author of Violent Borders, said in an interview Friday. “It’s hard to say which of the two it is.”

Jones said he hadn’t expected to see a huge improvement — after all, the American Council on Immigration’s report only covers data from 2012 to 2015. But that there’d been no apparent improvement at all was disappointing, albeit unsurprising.

“The report said what I expected it to say,” Jones said.

Jones has good reason for his pessimism. While some of the reporting protocol may have changed at the agency, he argues that its militaristic culture remains the root of the problem.

“People who have been in the military come back and take jobs at the border,” Jones said. “This is not a war job. It’s not a job where you should use force first; you’re not fighting the enemy. Part of that mentality affects agents’ interactions with people they encounter at the border.”

Treating Border Patrol as an extension of the country’s military has been hugely beneficial for CBP, according to Jones, who said the strategy has resulted in increased emphasis on the importance of CBP and has thus led to more funding for the agency.

Jones said those issues make for a Border Patrol that’s eager to overlook use-of-force allegations.

During his time as head of Internal Affairs, James Tomsheck went to great lengths to expose Border Patrol’s corruption and mishandling of excessive force allegations. His dedication to these issues earned him a “3R letter” in 2014, giving him the option to either accept reassignment, resign or retire. He wouldn’t be allowed to continue as head of Internal Affairs; he chose retirement.

“Just about every major newspaper in the country ... printed stories that I had been fired because I had been insufficiently aggressive in dealing with excessive use of force and that I had failed to discipline BP agents,” Tomsheck told the Nation in April. “Exactly the opposite of that is true.”

“Border patrol needs to become more transparent in how they do business or they’re not going to have the trust of much of the American public.”

In Tomsheck’s absence, Border Patrol continues to be sloppy with keeping track of misconduct complaints and lenient with the agents who receive them, according to the American Council for Immigration’s latest report.

“One of our biggest recommendations is that [CBP] start collecting data and have someone else who’s observing this data and keeping track of it so it’s usable by the public,” Walter Ewing, one of the report’s authors, said in a Friday phone interview. “Border patrol needs to become more transparent in how they do business or they’re not going to have the trust of much of the American public.”

Ewing wasn’t sure CBP, an agency he said had a “longstanding culture of secrecy,” would heed any of their recommendations. Jones suspected that at one time it might have — under former President Barack Obama.

“The new administration is encouraging agents to be more — not less — aggressive,” Jones said. “A report like this would have had more impact in the past, but at this point it’s just not a priority of the administration to fix these problems.”