Adam Isacson
With this series of weekly updates, WOLA seeks to cover the most important developments at the U.S.-Mexico border. See past weekly updates here.
Border Patrol’s vehicle pursuits and “Critical Incident Teams” get more scrutiny
A front-page story in the January 10 New York Times drew attention to Border Patrol’s frequent high-speed vehicle chases, and to its use of secretive investigative teams whose main mission appears to be to exonerate agents.
Citing the American Civil Liberties Union (ACLU), the Times found that 21 people died in vehicle collisions in 2021 after Border Patrol agents pursued them at high speed. That is up from 14 in 2020 and an average of 3.5 per year from 2010 to 2019. The Southern Border Communities Coalition counts 49 deaths since 2010 in vehicle collisions involving Customs and Border Protection (CBP, Border Patrol’s parent agency).
A 2019 ProPublica study examining three years of data found that one in three Border Patrol vehicle pursuits ended in a crash: at least one every nine days. Some injure innocent bystanders. The overall number of pursuit-related injuries jumped 42 percent during the first two years of Donald Trump’s administration.
Times reporter Eileen Sullivan cites the example of 25-year-old Erik A. Molix, who died near Las Cruces, New Mexico, in August 2021. Molix was transporting nine undocumented migrants in a sport utility vehicle; agents chased him at speeds reaching 73 miles per hour. A Border Patrol vehicle clipped Molix’s SUV, sending it tumbling off the road. Molix and an Ecuadorian migrant died. Molix’s mother, a 5th-grade teacher in El Paso, found out about her son’s death from a CBP news release. While he may have been doing something illegal, she told the Times, “That doesn’t mean you have to die for it.”
A July 2020 complaint filed by Shaw Drake, an attorney at ACLU Texas’s El Paso office, contends, “The high number of injuries and deaths resulting from Border Patrol’s actions suggest either that the policy fails to protect the safety and lives of pursuit subjects or that agents are consistently acting outside the bounds of agency policy.” Drake continues:
Under certain circumstances, a high-speed vehicle pursuit can constitute use of deadly force. …Border Patrol pursuits continue to include lethal tactics, such as boxing in moving vehicles, puncturing tires and other methods aimed at spinning vehicles off the road. These chases also happen in treacherous weather conditions and in populated locations including school zones, residential areas, and strip mall parking lots. Moreover, Border Patrol agents have no official cutoff speed.
Border Patrol had long refused to make public its vehicle pursuit policy, declining requests from the ACLU, Sen. Dianne Feinstein (D-California), and others. A redacted version appeared in November. “A vehicle pursuit is authorized,” it reads,
when there is reasonable suspicion to believe the occupant(s) of the vehicle failed to stop at an immigration checkpoint, failed to yield to an Officer’s/Agent’s attempt to stop a vehicle for an underlying violation of law, or committed a vehicle incursion into the United States at or between a POE [Port of Entry], and both the Officer/Agent and the pursuit supervisor have determined that the law enforcement benefit of the vehicle pursuit outweighs the risk to the public.
That standard appears to exceed those of most U.S. law enforcement agencies. Justice Department guidelines, the ACLU complaint points out, state that “[f]or anyone other than a violent felon, the balance weighs against the high-speed chase.” The ACLU told the Times that Border Patrol “gives agents too much discretion in determining the risk to public safety.”
At the site of the crash that killed Erik Molix, New Mexico State Police body camera footage captures a Border Patrol agent saying, “Our critical incident team is coming out. They’ll do all the crime scene stuff—well, not crime scene, but critical incident scene.”
“Critical incident teams are rarely mentioned by Customs and Border Protection or the Border Patrol,” the Times pointed out. “There is no public description of the scope of their authority.” Their mission is controversial: a key role of Border Patrol investigators on these teams is “collecting evidence that could be used to protect a Border Patrol agent and ‘help deal with potential liability issues,’” an unnamed Department of Homeland Security (DHS) official told the Times.
The existence of units that show up at crime scenes just to find exculpatory information or narratives had avoided scrutiny until October 2021, when the Southern Border Communities Coalition filed a DHS Inspector-General complaint and called on Congress to investigate Border Patrol Critical Incident Teams’ (BPCITs) activities. The Coalition’s letter to Congress calls these units seriously into question:
BPCITs began in 1987 in the San Diego sector, followed by other sectors thereafter. They are known by many names including Sector Evidence Teams and Evidence Collection Teams. Their stated purpose is to mitigate civil liability for agents. There is no known equivalent in any other law enforcement agency. They are not independent investigators seeking facts. Instead they seek to exonerate agents. They act as cover-up units, protecting agents, rather than the public, and they answer to no one except the Border Patrol chiefs that control them.
The BPCITs are not authorized by Congress to engage in federal investigations in agent-involved killings and other use-of-force incidents. That authority is given to the FBI, the DHS Office of Inspector General (OIG), and in limited circumstances to the CBP Office of Professional Responsibility (OPR). They are also not formally deputized by any of these agencies to investigate. They are simply unlawful.
Every day that BPCITs continue to exist, abuses go unchecked and agents get away with murder.
The Times notes that a Critical Incident Team arrived on the scene in Nogales, Arizona in June 2021 shortly after a Border Patrol agent shot an unarmed undocumented woman in the head while she sat in the backseat of a car. Marisol García Alcántara spent three days in a hospital and was deported to Mexico 22 days after that, without ever being interviewed by U.S. law enforcement.
Alarms sound about Texas’s troubled National Guard border deployments
A series of reports since December 8 in Army Times, an independent news organization reporting on U.S. military issues, has highlighted a crisis of low morale, lack of mission clarity, payment and equipment shortfalls, discipline problems, and now a rash of suicides among national guardsmen assigned to two deployments at the U.S.-Mexico border, especially in Texas.
The first, a federal government mission to support CBP, was begun by Donald Trump in 2018 and today continues to post 4,000 guardsmen across the entire border. The second, begun in March 2021 by Texas Gov. Greg Abbott (R), a fierce critic of the Biden administration, has sent—by the governor’s office’s count—10,000 of the Texas National Guard’s 23,000 members to the border. This deployment is part of a border mission that Abbott calls “Operation Lone Star.”
In the U.S. system, national guardsmen are soldiers who receive the same military training, wear the same uniforms, and hold the same ranks as the regular military. Like reservists, though, they are normally civilians. Most spend about one weekend per month and two weeks per year undergoing training, and are called up in emergencies. Guardsmen are normally under the command of state governors, though (as happened often in Iraq) they can be called on to perform federal missions. In Texas right now, missions under both federal and state authority are operating at the border with Mexico. The state mission, commanded by Gov. Abbott, is larger.
Both missions are troubled. Army Times reported on January 13 that U.S. Northern Command—the Defense Department geographic combatant command that manages U.S. military activity in the United States, Canada, Mexico, and the Bahamas—is launching an investigation “into a wide range of alleged issues” with the federal deployment. Northcom’s independent investigation team, headed by a general and “composed of senior members,” will “take the time required to thoroughly answer the Commander’s inquiry.”
Also on January 13, 13 Democrats from Texas’s U.S. House of Representatives delegation wrote to the inspector-general of Texas’s state Military Department calling for an investigation of “deplorable conditions for our National Guard troops participating in ‘Operation Lone Star.’” The letter cites low morale in the state mission; payment discrepancies; “lack of cold weather equipment, body armor, first aid kits,” and sleeping facilities; guardsmen trespassing on private land; and “a growing number of confirmed deaths by suicide.”
Army Times found that four guardsmen assigned to the Operation Lone Star state mission died by suicide between October 26 and December 17. Another shot and killed himself in an alcohol-related incident on January 1, and two survived suicide attempts in late December and on January 9.
“The thing that’s most alarming about these four suicide deaths is that they happened in a two month span. And when you see clusters like that starting to form in a very short time frame, that’s what gets really alarming,” Davis Winkie, the Army Times reporter who has driven most coverage of the Guard deployments’ crisis, told Slate’s “What Next” podcast. “I had better conditions in Iraq than some of these soldiers have on the Texas border,” said retired Command Sgt. Maj. Jason Featherston, who was the Texas Army National Guard’s senior enlisted advisor until November 2021.
Even as they live crowded into trailers, the guardsmen don’t appear to have much to do. “There’s a sub task force that’s ostensibly building a border wall right now where I had a soldier reach out to me to say we’ve actually only had two workdays in the last two months. Other than that, we’re just manning guard posts around our base camp,” Winkie told Slate.
Operation Lone Star’s state-run National Guard deployment—whose 10,000 personnel count may include Texas state police—has already cost Texas $412 million, could amount to $2 billion during fiscal 2022, and would jump to $2.7 billion in 2023, according to estimates obtained by the Dallas Morning News. Meanwhile, Texas has slashed its tuition assistance budget for guardsmen in half, as part of across-the-board budget cuts.
The federal mission is also troubled, as Army Times reported in early December and WOLA’s December 10 border update summarized. Three soldiers died in 2021 in motor vehicle and alcohol-related incidents, and commanders carried out more than 1,200 legal and disciplinary investigations into misconduct allegedly committed by the 4,000-person force.
Critics of Gov. Abbott’s deployment charge that, as commander in chief of Texas’s National Guard, he is politicizing a military force. “It is clear State leadership does not have our troops’ best interest in mind. Instead, they continue to use them as political props,” reads the letter from the Democratic members of Congress. Winkie told Slate that Operation Lone Star became more openly politicized over the course of 2021: “it started to change as we got into the fall months and when it appeared certain as well that Abbott was going to be facing a primary challenge from the right.” Guardsmen’s participation shifted from being voluntary to mandatory.
Abbott’s most prominent challenger in the Republican primary for Texas’s 2022 gubernatorial election is Allen West, a former congressman who first gained notoriety for beating and simulating the execution of an Iraqi policeman in 2003. Sgt. Featherston, the retired Texas National Guard senior enlisted advisor and vocal critic of Operation Lone Star, spoke at a press conference West organized in early January. Abbott’s likely Democratic opponent in the general election, former El Paso congressman Beto O’Rourke, wrote a January 2 column in the Houston Chronicle accusing the governor of dealing “a slap in the face to the men and women who’ve signed up to serve this state and country in uniform.”
Abbott defended himself by citing 476 suicides within the larger U.S. military over the first nine months of 2021 (the Texas Tribune could only find an official tally of 380). This number is similar to 2018 (541), 2019 (498), and 2020 (580).
Meanwhile, late in the week of January 3, a Honduran migrant drowned in a flooded gravel pit after running away from National Guard soldiers near Eagle Pass, Texas. It was a very rare case of a civilian death involving U.S. military personnel operating on U.S. soil.
The new “Remain in Mexico” closely resembles the old “Remain in Mexico”
As of January 10, DHS had returned 249 adult asylum seekers to Mexico since December 8, under the court-ordered restart of the Trump administration’s “Remain in Mexico” policy, which sends Western Hemisphere asylum seekers back to Mexico to await eventual hearing dates in the United States. Of that total, 229 had been sent from El Paso back across to Ciudad Juárez, and 20 from San Diego to Tijuana. As last week’s update notes, the overwhelming majority have been citizens of Nicaragua, Cuba, and Venezuela. By January 12, the border-wide number of returned migrants had risen to 256, noted a new Human Rights First report.
During Remain in Mexico’s first iteration (January 2019 to January 2021), Human Rights First was able to document over 1,544 abuses and violent crimes committed in Mexico against migrants placed in the program. The organization’s January 13 report counts “over 8,705 reports of kidnappings and other violent attacks against migrants and asylum seekers blocked in and/or expelled to Mexico” since the Biden administration took office. The victims have been kept in Mexican border cities by the U.S. government’s Title 42 pandemic expulsion policy, continued port of entry closures to asylum seekers, and the revived “Remain in Mexico.”
For more background on Remain in Mexico, see our December 3 and August 27 updates (among others), and a historypublished on January 7 by the American Immigration Council.
The Human Rights First report finds that the program is returning asylum seekers to Mexico despite often quite strong claims of fear. It cites findings of the Border Project, run by the Jones Day law firm: of 87 returnees consulted in Ciudad Juárez in December, 70 percent “had been persecuted by Mexican police and other government officials,” but were sent back anyway. Among several examples cited is “a Nicaraguan asylum seeker who was kidnapped and tortured by electrocution and beatings for three weeks in Reynosa in November 2021,” with photos and video evidence sent by his kidnappers to extort his relatives, who still did not pass a non-refoulement interview and was sent to Ciudad Juárez in December.
For an article in the January 8 San Diego Union-Tribune, reporter Kate Morrissey interviewed the two Colombian men who were the first to be sent back to “remain” in Tijuana. She found that their experience “included many of the issues that plagued the program under the Trump administration.”
The Biden administration’s December 2 guidance for the restarted program promised access to counsel. But Morrissey found that “the two Colombian men were not allowed to speak with attorneys while in U.S. custody.” The wife of one of the men, a green card holder in the United States, could have hired an attorney for him to support his claim of fear of return to Mexico, but officials denied his request to call her.
The men, who had turned themselves in to U.S. personnel in order to seek protection after receiving urgent threats in Colombia, recounted miserable treatment in CBP custody. They were placed in a cell in a Border Patrol station with “dozens of other men,” forced to sleep on the floor for nearly a week, with lights always on, for lack of bed space. They were not given an opportunity to bathe or shower. “Though they do not speak much English, they realized that agents were speaking badly about them, they said. They recognized words like ‘stupid’ and phrases like ‘go back to your country.’”
As required by the new guidelines, a Border Patrol agent asked the men if they were afraid to return to Mexico, although they said “another agent tried to keep that official from asking the question.” Under the Biden administration’s new guidance, after expressing fear the men were entitled to 24 hours to contact an attorney before speaking with an asylum officer. It was during those 24 hours, they said, that CBP personnel refused to allow them “to make any calls or otherwise access legal counsel.”
They said an agent told them that no matter what happened, they would be sent back to Mexico. So, when the asylum officer asked if they wanted to wait longer in custody in order to access attorneys, the men waived that right, not wanting to spend more time in the crowded cell with their fate already decided.
The men added that they were not asked detailed questions about their medical history, even though the Biden administration’s new guidelines specify medical conditions for exemption from the program. Though the new guidelines specify that those subject to Remain in Mexico are to receive COVID-19 vaccinations if they need them, one man who had only received the first of his two shots was sent over the border before officials could administer his vaccine.
CBP meanwhile confused the men’s paperwork, Morrissey found. Each man had the first page of the other’s notice to appear in court. And at first, they were scheduled for hearings months beyond the six-month limit that the Biden administration had agreed with Mexico. They managed to reschedule for February after raising the issue with their asylum officer.
Now in Tijuana, the Colombian men told Morrissey that they are “confused and terrified.” They refused to provide their names, fearing that their notoriety leaves them exposed to extortion or attack. “We’re the two from Colombia,” one said. “Everyone knows we’re them. We already have problems.”
Meanwhile, legal service providers continue to avoid involvement in the new Remain in Mexico, The Hill reports; an October letter from 73 service providers had notified the Biden administration that they would not enable the renewed program by participating in it. Many fear for their security while attending to clients in Mexican border towns; attorneys had been threatened while trying to do that during the earlier iteration of Remain in Mexico.
In The Hill, Nicholas Palazzo of the El Paso-based Las Américas Immigrant Advocacy Center summed up concerns about the impossibility of representing “Remain in Mexico” clients:
To assume that an organization will have the capacity to provide an attorney on the spot—‘cause they’re being called on a hotline—and drop everything to speak with someone, prepare them, discussing an incredibly traumatizing series of events, while also explaining a confusing legal standard over the phone while the person is in CBP custody and then hopefully represent them on the phone, I mean, there are very, very few organizations, if any, at least on the border, that will have actual capacity to do that. …This is a problem of the administration’s own creation. You can’t really blame anyone else but the administration for designing a program that is inherently flawed and then expecting that legal organizations are going to be able to drop everything to assist people on the fly like that.
Links
- A heavily redacted report from the DHS Inspector-General finds that CBP officers “did not evaluate unsubstantiated information, and made unsupported conclusions” when they revoked the “trusted traveler” status of two U.S. citizens whom they believed were aiding migrant caravans in 2018 and 2019. NBC’s San Diego affiliate talks to a pastor who is suing because CBP officers, believing she was tied to a caravan, requested that the Mexican government deny her entry.
- Vice President Kamala Harris is considering attending the inauguration of Honduran President-Elect Xiomara Castro, CNN’s Priscilla Álvarez tweeted.
- The humanitarian group Humane Borders recovered more than 220 sets of human remains in southern Arizona in 2021, the bodies of migrants who perished of dehydration or exposure in the state’s deserts. “In Arizona, the death toll was at least on par with a 10-year high in 2020,” Fronteras Desk reports.
- The Arizona Daily Star updates on CBP’s proposed border wall “remediation” projects in Arizona, for which the agency is seeking public input. The report notes that this will probably include closing small gaps where Trump-era construction segments did not fully meet up. Environmental defenders point out that these gaps are some of the only remaining corridors for migratory wildlife. Arizona Sen. Mark Kelly, a Democrat, voiced support for closing the gaps in a December statement.
- CBP reportedly encountered more than 29,000 undocumented migrants in its Yuma sector, in southwest Arizona and southeast California, in December. That monthly number is more than any of the Yuma sector’s full-year encounter totals between 2008 and 2018. Many are Haitians who continue to be quickly placed on expulsion flights to Haiti, the Washington Examiner notes.
- Panama’s migration authorities reported apprehending 133,726 migrants in 2021, more than in the previous 11 years combined. About three quarters were Haitian, or the Chilean or Brazilian-born children of Haitian citizens. Caitlyn Yates of the Migration Policy Institute summarizes the data on Twitter, pointing out that Panama’s numbers fell sharply at the end of 2021.
- A letter from 35 Democratic senators, including Majority Leader Chuck Schumer, asks the Departments of Homeland Security and State to grant or re-designate Temporary Protected Status for citizens of El Salvador, Guatemala, Honduras, and Nicaragua for humanitarian reasons.
- Reports continue to emerge of a migrant caravan likely to depart from Honduras on January 15. (No caravan has succeeded in reaching Mexico’s U.S. border since late 2018.)
- The sheriff of Real County, Texas (pop. 3,400, about 100 miles from the border) “is under criminal investigation for allegedly having his deputies illegally seize money and a truck from undocumented immigrants during traffic stops,” before handing them over to Border Patrol, the Texas Tribune reports.
- Migrant smugglers’ fees to reach the United States from Quetzaltenango, Guatemala have risen from about $3,200 in 1996 to over $18,000 today, Al Jazeera finds.
- A new filing from the Biden administration’s Family Reunification Task Force notifies that it has reunited 112 children with parents who were separated from them by the Trump administration’s “zero tolerance” policies. The task force has yet to reach the parents of 237 children. At the same time, the administration is arguing in federal court that families whom the Trump administration separated are not entitled to financial damages. Meanwhile, media reports that victims of family separation might receive financial compensation have already caused some families to receive calls from extortionists, the Associated Press reported.
- CBP’s warehouse-sized “Ursula Avenue” processing facility for migrants in Texas’s Rio Grande Valley sector, first opened during the first child migrant crisis in 2014, will reopen in a matter of weeks after more than a year of renovations. Its new design will no longer include its notorious pens surrounded by chain-link fencing.
- Tijuana’s El Imparcial newspaper reports that a smuggling network charges an increasing number of migrants from Russia up to $10,000 to cross into the United States. CBP data show that of the 1,711 Russian migrants the agency encountered in November 2021, 95 percent crossed in the San Diego sector, which abuts Tijuana. That number more than doubled in three months.
- During the holidays (December 30), Border Patrol’s El Paso sector tweeted about the apprehension of five migrants from Turkey, accompanying it with a graphic bearing the words “TURKISH INCURSION” in bright red letters.