Immigrant Groups Ask DA To Investigate CBP Role In Man's Death

SAN DIEGO, CA — Immigrants' rights groups Thursday called on the San Diego County District Attorney's Office to investigate and possibly pursue criminal charges against a group of Border Patrol agents involved in a fatal 2010 altercation with a man at the San Ysidro Port of Entry.

The San Diego Immigrant Rights Consortium and Alliance San Diego allege that Border Patrol agents tampered with evidence related to the investigation into the death of Anastasio Hernandez-Rojas, 42. The groups allege Hernandez-Rojas was struck with batons and repeatedly shocked with an electric stun gun while he was prone and shackled at the San Diego border- crossing facility on May 28, 2010. He died days later at a hospital.

Though the Department of Justice announced in 2015 that it would not prosecute any of the agents involved, the case is currently under review by the Inter-American Commission on Human Rights, an international organization that examines human rights violations.

Attorneys representing Hernandez-Rojas's family say that in preparing for the case before the IACHR, the San Diego Police Department's investigative record into the death was examined, which allegedly indicates the Border Patrol's Critical Incident Investigative Team -- or CIIT -- interfered with SDPD's investigation.

The groups allege CIIT withheld key information from SDPD and conducted a parallel investigation into the death despite lacking jurisdiction to do so, during which the groups allege Border agents destroyed and concealed evidence.

In response to a request for comment, the San Diego County District Attorney's Office said in a statement that it has not received a case for review and could not comment on the Department of Justice's review of the case.

"The District Attorney's Office stands ready to pursue justice when the evidence supports it and where we have jurisdiction," the DA's statement read.

Representatives with U.S. Customs and Border Protection did not immediately respond for a request for comment.

Among the groups' allegations is that CIIT never notified SDPD of the death, which the police department only learned about through a media inquiry about 15 hours later, the groups alleged in a letter dated Thursday to San Diego County District Attorney Summer Stephan. They also allege CIIT altered an initial Border Patrol report indicating Hernandez-Rojas was compliant with the first Border Agent who contacted him. The alleged alteration of this report "fed into a narrative that he was aggressive, non-compliant and on drugs," the letter states.

Methamphetamine intoxication was referenced in the Department of Justice's 2015 statement, though the groups allege this was based on a blood sample that does not correspond with any blood draws performed on Hernandez- Rojas at the hospital. The letter states hospital records show his blood did not indicate any detectable drugs in his system.

In the case before the IACHR, Hernandez-Rojas' family's attorneys submitted filings they say includes testimony from three key figures who worked for CBP and the Department of Homeland Security during the death investigation.

In the filings, James F. Tomsheck, then an assistant commissioner of CBP's Internal Affairs Office, alleged that CBP Deputy Commissioner David Aguilar indicated he wanted reports to reflect that Hernandez-Rojas was "standing, unrestrained and combative when he was tasered" and Aguilar "wanted me to falsify reports and did not want this critical portion of events to be accurately documented."

John Dupuy, who worked as DHS assistant inspector general for investigations starting in 2012, said that there was an eyewitness video that "directly contradicted CBP's version of the event," but attempts to reopen the investigation after discovery of this footage was rebuffed, he claimed.

James Wong, then-deputy assistant commissioner of CBP's Internal Affairs Office, also alleged that Border Patrol agents erased some eyewitness footage.

"It may have been proper for these videos to be copied and preserved by Border Patrol. However, by destroying the videos, agents tampered with evidence and should have been prosecuted for that conduct," Wong said.

In 2017, a lawsuit resulted in a $1 million settlement was reached with Hernandez-Rojas' family.

— City News Service