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What Happens To Border Patrol Officials After They Harm Migrants?


Images from the U.S.-Mexico border are highlighting questions about accountability for border control. Photos show agents using their horses to stop Haitian migrants. Those men are on administrative duty, and the Department of Homeland Security is investigating. President Biden has called their behavior outrageous, saying those people will pay.

So how often do Border Patrol agents pay when they harm migrants? Andrea Guerrero is executive director of Alliance San Diego. Her organization is working on cases of alleged abuse by Border Patrol agents.


ANDREA GUERRERO: It's a pleasure to be here, Ari. Thank you.

SHAPIRO: So when President Biden says those people will pay, are there actual tools right now for an administration to make that happen?

GUERRERO: Unfortunately, the accountability system at Customs and Border Protection, which is the mother agency for Border Patrol, are broken, which leads to impunity. And that is dangerous not just for the migrants, but for all of us who are living in the border region.

SHAPIRO: To help people understand what the rules actually are - I think many of us are familiar with the level of immunity from prosecution that police face or that members of the military have. Do Border Patrol agents have similar protections? Is that what we're looking at?

GUERRERO: Right. So there is immunity. There's no right of action to sue a federal officer. There's that kind of immunity. But there's also impunity with a P - impunity - meaning that officers are able to get away with abusing people, violating civil and human rights without repercussions, and that is very dangerous.

SHAPIRO: But I'm curious. If they can't be brought to trial in criminal court, what is the mechanism?

GUERRERO: There are very few mechanisms, right? One is to file complaints with the federal government. Those go nowhere. The other is to attempt to get into the court system using a constitutional claim. And the other is to turn to local police departments and bring charges against agents for their actions when they're not on duty. So for example, in Arizona, there are currently several agents who are facing sexual assault charges because of local law enforcement.

SHAPIRO: Your organization represents the family of a man named Anastasio Hernandez Rojas, who died at the San Diego border in 2010. The medical examiner ruled his death a homicide at the hands of Border Patrol. And you're bringing this case before the Inter-American Commission on Human Rights. According to your website, this is the first known extrajudicial killing case that will be decided by this commission involving the United States. Why take this case to this court more than a decade later?

GUERRERO: Because our domestic criminal justice system has failed us. U.S. Border Patrol is nearly a century old, and no agent has ever been held accountable. And that's not a mistake. That is by design, and that is something that needs to be addressed.

SHAPIRO: You've said that the agents have faced no accountability. Was there any consequence whatsoever? What happened to the people involved in that death?

GUERRERO: Even though Anastasio was killed by a dozen agents, there were no agents ever held accountable, no agents who ever lost a day of work, no agents who were ever prosecuted. There was no apology given to the family. And that is simply unacceptable.

SHAPIRO: Was anyone even, like, assigned to desk duty, as far as you know?

GUERRERO: As far as we are aware, no one suffered any repercussions. And so, you know, Ari, I can't emphasize enough how dangerous the situation is. Border Patrol is part of CBP, the largest law enforcement agency in the country. It has more resources, more agents, more jurisdiction and more power than any other law enforcement agency in the country. And the case of Anastasio is our opportunity to bring all of that to the fore in an international tribunal to put on trial the impunity of the United States agents at the border.

SHAPIRO: Does this international tribunal, the Inter-American Commission on Human Rights, have the authority to hand down a criminal conviction or impose a sentence on individuals? Or is this more investigative, more symbolic?

GUERRERO: It is not a criminal tribunal. It is an international human rights tribunal, and it is unique in its role in its ability to render a judgment of whether the United States has violated its obligations in international treaties to protect human rights. And we've laid out a very strong case of how it has done that, not just in the killing of Anastasio, but in the cover-up. And that's what we're really concerned about in that case and in every other case and, you know, moving all the way into last week with the Haitian migrants.

And so, you know, when President Biden says they're going to pay, and Secretary Mayorkas says we know how to maintain integrity in an investigation, my answer to that is, you never have. You, the U.S. government, have never maintained the integrity of an investigation. And structurally, you're not set up to do that.

SHAPIRO: Andrea Guerrero is executive director of Alliance San Diego. Thank you very much.

GUERRERO: Thank you. Transcript provided by NPR, Copyright NPR.

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Ari Shapiro has been one of the hosts of All Things Considered, NPR's award-winning afternoon newsmagazine, since 2015. During his first two years on the program, listenership to All Things Considered grew at an unprecedented rate, with more people tuning in during a typical quarter-hour than any other program on the radio.
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