Border Patrol killings of migrants raise questions on training, accountability
Tim Johnson, McClatchy Foreign Staff
Dec 17, 2015 at 6:03 PM
APACHE, Ariz. (MCT) – On a chilly January night near the Mexican border, a Border Patrol agent peeled away from colleagues and chased Gabriel Sanchez Velazquez through desert scrub. Two shots rang out.
When the agent returned, he said that Sanchez, a sinewy 5-foot-9 car mechanic who spoke English well after spending 15 years in the United States, had leapt from under a mesquite bush and lunged to seize the agent's service firearm, forcing him to shoot. No one else has come forward to contradict his story.
Sanchez's death was the 20th fatal shooting of a civilian by a U.S. Border Patrol agent since 2010 as the agency expanded rapidly. Last week, another shooting took place, bringing the total to 21.
The killings expose what lawyers and civil rights advocates assert are far-reaching problems in the nation's largest federal law enforcement agency.
Those problems, critics charge, include a resistance to adopting safeguards on the use of lethal force, watered-down training standards amid rapid expansion and a mentality that anything goes in the battle to secure America's borders.
Of the 21 dead, 16 were Mexican or Guatemalan. Most of the victims were unarmed, and some were on Mexican soil. One was a 16-year-old who was shot multiple times in the back as he stood on the Mexican side of the border fence. None of the shooters is known to have been disciplined, and the circumstances of most of the cases have not been aired in public. Sanchez's wife and children _ all American citizens _ are still trying to learn the name of the man who shot him.
The spate of homicides raises an uncomfortable question, the critics say: Do Border Patrol agents have a green light to fire on and kill Mexican and Central American migrants?
Guarding the U.S. border is an issue of national security, and Border Patrol advocates argue that the agency's mission can be dangerous, though the number of armed confrontations appears minimal. One agent died in a shootout on Dec. 14, 2010, with bandits in Arizona's Peck Canyon. Another notorious case happened Oct. 2, 2012, when an agent was shot and killed not far from the canyon. That incident, however, turned out to be "friendly fire," when two agents responded to a tripped motion-detection sensor.
"You're working in remote areas that are intimidating and desolate. You're often many miles from backup. You're dealing with groups that outnumber you and that you must handle alone," said Shawn Moran, a spokesman for the National Border Patrol Council, a union for agents.
"To claim that the Border Patrol has an itchy trigger finger, we dismiss that. It's a very restrained force," Moran said.
Border Patrol public affairs officer Douglas Mosier said he couldn't comment on the agency's policies and referred a reporter to the Department of Homeland Security in Washington, where a spokesman, Peter Boogaard, declined to comment.
The Mexican government calls the use of lethal force against its migrants disproportionate and is demanding more thorough inquiries.
If anyone other than a lone Border Patrol agent saw what happened to Sanchez shortly after 8:30 p.m. on the cold night of Jan. 16 not far from Arizona's southeastern border with New Mexico, they're not talking.
A deeper look into the Sanchez case reveals discrepancies among various federal, state and county agencies over what occurred.
It also reveals something else: The death of the 31-year-old Sanchez left a wake of grieving kin who are American citizens. Sanchez had spent half his life in the United States. Among his immediate family are an 11-year-old son with cerebral palsy, who lives with his mother in California, and an 8-year-old son who lives with Sanchez's widow in Phoenix. All hold U.S. citizenship.
The widow, Nataly Molina Tebaqui, says she'll file a federal lawsuit once her attorney can identify the Border Patrol agent who shot her husband in the head and chest. The federal government has refused to release his name.
"I want him to go to jail. I want him to feel my pain. I want his wife and his sons to feel the pain," said Molina, a 30-year-old accountant. "Why couldn't he have shot him in the leg or the arm?"
In statements immediately after the death, Customs and Border Protection, a federal agency under the Department of Homeland Security, and the Cochise County Sheriff's Office, which was called in to probe the killing, stated as fact that Sanchez had struggled for the agent's gun and was killed as a result.
A 12-page autopsy report by the Medical Examiner's Office in Pima County, however, offers a different picture. The report, dated Feb. 5, notes that Sanchez was shot in the upper part of his right temple and in his chest.
"Manner of death: homicide," it says.
The trajectory of the bullet wound to the head, it adds, is downward and the bullet appears lodged in the neck. The pathway of the wound to the chest is also downward, indicating that Sanchez was below the agent's firing hand, squatting or perhaps on the ground.
On the night of his death, Sanchez was dressed for warmth and to conceal himself in the dark, perhaps looking more menacing than his 161-pound frame might justify.
In addition to two pairs of dark pants and a dark jacket, Sanchez wore black gloves, a face mask and what the autopsy report called a black beanie. He carried a small pocketknife. Lab tests performed by the coroner showed he had no drugs or alcohol in his system.
Sanchez felt more at home north of the border.
When he came to the United States in the late 1990s, he followed a path well traveled by his extended clan in the dusty town of Mapastepec in Chiapas, widely considered Mexico's poorest state, which abuts Guatemala. His mother toiled as a hotel maid in Annapolis, Md., and his aunt's family lives in Jupiter, Fla.
Sanchez moved to Florida for a year or so, then went on to Arizona, where he bought cars and repaired them for resale.
He met his first partner in a coin laundry.
"Gabriel was my first love, and I was his first love," said Misty Hale.
While the relationship didn't last long, Hale said Sanchez always provided money for the care of their son, who uses a wheelchair and requires around-the-clock attention. Sanchez regularly traveled to Southern California to visit the boy.
"He wasn't a deadbeat dad," she said.
Sanchez, who never obtained residency, was deported in 2008 but returned over the border within days, Molina said. Then on April 8 of last year, U.S. marshals came knocking at the door. Molina said someone had placed a call to alert them to Sanchez. He was charged with illegal re-entry. After four months' detention, Sanchez was deported again. He settled in Agua Prieta, a Mexican border town about a four-hour drive from Phoenix.
Molina said she suspected that Sanchez had planned to surprise her by showing up for her birthday on Jan. 20. A phone call from the Mexican consulate in Tucson summoned her instead to identify his body through photos.
The Mexican Foreign Secretariat says it's "profoundly concerned" about the killings of Mexican migrants by Border Patrol agents.
"The use of lethal force in border control operations is unacceptable," it said after the latest killing of a Mexican, Jesus Flores Cruz, on Feb. 18 near the Otay Mesa border crossing east of San Diego. It demanded that Border Patrol agents alter their use-of-force policies "as soon as possible" to conform to recommendations by the agency's own Office of the Inspector General and by the Police Executive Research Forum, a nonprofit organization in Washington that's been advising law enforcement agencies for more than three decades.
After the DHS refused for years to say when Border Patrol agents are empowered to use lethal force, Homeland Security Secretary Jeh Johnson said Feb. 7 that his department would release the use-of-force policy soon.
"They treat them like they are nuclear launch codes," said James Duff Lyall, a staff attorney in the Tucson office of the American Civil Liberties Union, a nonprofit group that advocates for migrant rights
At least eight of the 21 agent-related deaths involved Mexicans who allegedly were throwing rocks at agents, often across the border fence. In three of the cases, the victims were minors. Agents shot one of those youths, Jose Antonio Elena, who was 16, multiple times in the back through the fence in Nogales. The Border Patrol declined to release video of the incident taken from an overhead camera.
Supporters of the agency say drug traffickers sometimes deploy rock throwers to divert agents from focusing on smuggling routes.
They also dispute that lethal Border Patrol encounters happen with unusual frequency, given the challenges and dangers of the job. Moran, the Border Patrol union leader, compared the agency with the Los Angeles Police Department and the Los Angeles County Sheriff's Department, which he said had numbers of deputies and officers similar to the Border Patrol in recent years.
"In 2012 alone, they shot and killed 48 suspects," Moran said.
Still, relatives of some victims say their deaths were unjustified. One man, Guillermo Arevalo Pedroza, was at a barbecue to celebrate a family birthday on the southern bank of the Rio Grande in Nuevo Laredo, Mexico, on Sept. 3, 2012. Border Patrol agents said they were responding to rock throwing.
"In no case is there any agent publicly known to have faced any discipline or consequences whatsoever," Lyall said. "If you look at many of these incidents ... the evidence shows that there was no justification for the fatal use of force."
The ACLU has called on Customs and Border Protection, the umbrella agency under Homeland Security, to equip its officers with body-worn cameras, saying evidence shows that the use of such recording gear cuts the use of lethal force but also protects agents from false accusations of misconduct.
Amid concerns about migration and border safety, the Border Patrol ballooned from about 11,000 agents in 2006 to some 21,300 today. Roughly 85 percent of the agents are along the Southwestern U.S. border.
In parts of the sprawling Southwest, federal agents vastly outnumber local and state law enforcement officers. The Cochise County Sheriff's Office, which patrols the southeast corner of Arizona, has 86 deputies to cover an area nearly the size of Connecticut and Rhode Island combined, said spokeswoman Carol Capas. In contrast, the Border Patrol maintains roughly 1,000 agents moving through her county, she added.
The migrant-smuggling industry in Mexico has largely fallen into the hands of organized crime, and Capas said local law enforcement was grateful for the support.
"There's more of an aggressive criminal element," said Capas, referring to smugglers of undocumented migrants and illegal narcotics. "They are more willing to fight for their loads, rather than dump them and run."
Daniel R. Ortega, a Phoenix attorney who's helping Sanchez's widow in her claim for redress from the federal government, said county and state attorneys were loath to prosecute cases against Border Patrol agents fingered in killings.
"One, they only have the version of the facts that the Border Patrol agents give, and two, these are highly political and emotional cases because the community is in such an uproar right now over undocumented immigration," Ortega said. "There are biases in convicting law enforcement officers for having shot someone."
Relatives of victims are often on the bottom rungs of the economic ladder, and some fail to have immigration papers themselves, Ortega said, leaving them with little power to pursue lawsuits.
Ortega said that when Border Patrol agents killed migrants, they commonly alleged either that the migrants were throwing rocks or were trying to steal the agents' weapons.
"All of these aliens are not armed. So the only way a Border Patrol agent can justify shooting someone is that he was in imminent fear of death or injury and he had to take action," Ortega said. Afterward, few can refute the version. "The alien is dead. He can't tell you what happened."
When other Border Patrol agents or migrants are near the scene of a killing, authorities decline to identify them so that they might corroborate or deny the agent's account. Two migrants were with Sanchez and detained on the night of his death when he bolted away through scrub. One, a minor, reportedly was guiding the other two. What they saw is unknown. Both appear to be in U.S. detention centers.
"I can confirm to you that there were witnesses but I can't give you their identities," said Reyna Torres Mendivil, the top Mexican Foreign Secretariat official in charge of protecting Mexicans abroad.
Meanwhile, Sanchez's relatives simmer.
"What we all believe is that (the Border Patrol agent) fired at him because he wanted to shoot him," said Madai Velazquez Espinoza, Sanchez's aunt who lives in Florida. "That uniform doesn't give you a right to kill people."
Her son, Manuel Coutino, said the trajectories of the bullets told the story.
"How could there have been a struggle? He was on the ground," he said.
The Mexican government helped Sanchez's family return his corpse to his hometown in Chiapas state, where he was buried Feb. 8. Some 300 to 400 people turned out for the funeral. His widow posted a memorial video to him on her Facebook page, showing them during happier times.
She also voiced rage.
"Help me make the whole world understand that the United States gives uniforms to murderers," Molina posted.