One Widow's Quest to Make Border Patrol Pay for Killing Her Husband

On May 31, 2010, Anastasio Hernandez-Rojas, an undocumented immigrant and longtime resident of San Diego, died after being beaten and tased by US Customs and Border Protection agents. He was allegedly resisting arrest upon reentering the United States from Mexico, where he was born.

The incident was captured on a cellphone video and seen by two eyewitnesses, both of whom said Rojas "offered little or no resistance," as documented in an expose by PBS in partnership with the Investigative Fund. In the video, Rojas appears to handcuffed, face down on the pavement, curling into a fetal position as the blows rain down. He died about two days later.

"He was tortured," Maria Puga, Anastasio's widow, told me recently. Her husband's death was ruled a homicide by the San Diego coroner, though meth in his system and preexisting heart disease were also deemed contributing factors in the final autopsy.

The video made national and international headlines, shining a spotlight on the use of force by the Customs and Border Protection (CBP), America's largest law enforcement agency, and one that enjoys expansive powers critics say have gone unchecked for years. Now a petition filed by the Rojas family before an international tribunal offers a path to shaming—if not necessarily holding accountable—border guards who abuse immigrants in the Trump era.

"This case was emblematic of the patterns of violence, abuse, and impunity that we have seen inside CBP for many years," Christian Ramirez, director of the Southern Border Communities Coalition, a network of community organizations that has worked with the Rojas family and has long assailed the lack of transparency and accountability mechanisms inside the agency, told me.

Check out the VICE News Tonight segment on how the US already has a border wall with Mexico, and it doesn't do very much.

Rojas's death sparked congressional inquiries and prompted the release of new CBP guidelines, which included limits on the use of excessive force and restrictions on when weapons can be discharged by agents. While she would not comment directly on the Rojas case, CBP spokesperson Jennifer Gabris told VICE, "Our agency has taken and variety of steps and policies to increase transparency and accountability and enhance our agents' and Officers' Use of Force training."

Gil Kerlikowske, who served as CBP commissioner under Barack Obama after taking over in 2014, said the Rojas case was among "numerous concerns" he heard voiced by border stakeholders. But Kerlikowske believes the CBP has dramatically changed for the better since the incident. "We made transparency and accountability part of the culture," he told me.

Critics aren't so sure.

While Rojas's case may have helped force some reforms within the agency, the officers involved in his death were never charged criminally. And in 2015, the feds decided that the "evidence was insufficient to pursue federal criminal civil rights charges," either, according to a Justice Department press release. (The Justice Department, now led by Attorney General Jeff Sessions, declined to comment on the case.)

Puga and her allies have since questioned the speed and thoroughness of the investigation, and alleged that agents destroyed evidence and were allowed to control the crime scene for hours afterward.

But deferring to the border agents was consistent with a pattern in which CBP officers seldom face charges for the use of deadly force. Since Rojas's death, the agency has been involved in the deaths of dozens of people, most of them unarmed, on the US/Mexico border; only one CBP employee has faced a murder charge for these deaths.

"We have offered so much power to this agency they feel that they are untouchable," Ramirez told me.

Speaking to VICE through a translator, Rojas's widow described the decision not to charge her husband's killers as "maddening."

"There was plenty of evidence to indicate that crimes were committed," Maria Puga, mother of five US-born children, added. "We feel disillusionment with the government because they did not give us justice."

But in March 2016, after exhausting all domestic legal options, the Rojas family—represented by the clinic at the University of California-Berkeley Law School—filed a petition before the Inter-American Commission on Human Rights (IACHR) on the grounds that the US investigation did not meet international standards, and that Rojas's rights were violated

Last month, the IACHR—a quasi-judicial body mandated to both promote and protect human rights—accepted the petition, officially called Family Members of Anastasio Hernandez-Rojas v. United States.

As the most prominent regional body for human rights to which the US has at least historically shown some deference, the IACHR is a "vital tool both for accountability and for raising awareness of US policies and practices that contravene globally excepted HR norms, " according to JoAnn Ward, director of the Human Rights in the US Project at Columbia Law School.

The Trump administration now has until August to respond to accusations of obstruction of justice, torture, and extra-judicial killing. The latter is noteworthy, as this is believed to be the first time the US government is facing such allegations at the IACHR. In February, the United States agreed to pay $1 million to Rojas's children to settle their domestic lawsuit.

It remains unclear whether the Trump administration will bother responding to the accusations. "The United States received a petition on this matter on May 12. We are in the process of reviewing it," a State Department official said in an email statement, adding, "We have tremendous respect for the IACHR and make every effort to respond to petitions properly before the IACHR in a timely manner."*

Indeed, according to Ward, silence would be a departure from US policy of submitting legal briefs and attending IACHR hearings. But if the administration declines to respond, the tribunal has the authority to impose a decision that, while powerless to arrest or imprison the agents, could have an impact on federal policy down the road.

"Past decisions have been important in changing the policies and practices within the federal government," Ward told me, citing the example of Jessica Lenahan (Gonzales) v. United States of America, a domestic violence and human rights case that helped change US policy on gender-based violence. "The IACRH will likely make recommendations that touch on policies and practices of CBP and ways they can improve both investigations into and preventions of future deaths," Ward added.

For Roxanna Altholz, the Berkeley Law Clinic attorney representing the Rojas Family, the case is important because it should bring attention to the limitations of the use of force standards within US law enforcement agencies, especially those that deal with immigrants. These issues aren't isn't exactly out of the news these days, with the Trump administration apparently still determined to erect a wall at the border and deport more undocumented people.

"We make allegations that this is not an isolated incident but a pattern of abuse and impunity at the border," Altholz told me. "This case exposes the cracks and gaps that exist in our current system that allows law enforcement to get away with murder."

The IACHR investigation comes at a time when CBP is set to expand its numbers of agents by at least 5,000 and relax hiring standards to meet that goal. This is expected to include omission of the requirement for some CBP job applicants to pass a polygraph—or lie detector—test, which supporters of the new standards have called too rigid.

But critics say previous CBP expansion via eased hiring standards brought heightened corruption, and more incidents of abuse by agents.

"The agency doubled in size between 2005 and 2011, but did not sufficiently scale up proper vetting of recruits or internal controls," according to the Washington Office on Latin America, a NGO promoting human rights.

Gabris, the agency spokeswoman, insisted these fears are unfounded. "CBP does not agree with the perception that Border Protection agents hired during the previous surge are more corrupt or have more integrity issues than those hired before or after the surge," she said in a statement.

For his part Gil Kerlikowske, the former CBP boss, does have concerns about omitting polygraph tests for new recruits.

"The largest hiring push was 07–08, and that was done without the polygraph and by reducing the amount of academy training time," he told me. "Both of those things can have a negative effect." (Kerlikowske took care to note that since then, the academy for prospective agents has been completely restructured.)

Meanwhile, when Maria Puga hears about more officers and looser hiring standards, she can't help but think back to her husband's death.

"It is something that worries me a lot because obviously we don't want violence to go up with this," Puga, who hopes her family's case can bring awareness to these issues and change the practices of CBP, told me. "I want to make sure that stops so that no family has to go through what we did. That is everything to us."

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*This story has been updated to include comment from the State Department received after initial publication.