5 Records of Alleged Abusive or Improper Conduct where the accountability status is “Lawsuit or Claim Filed”

February 19, 2022

News reporting datelined February 20 and 21 pointed to Border Patrol personnel shooting a migrant to death in an incident on the night of February 19, on a desert trail about 30 miles northeast of Douglas, Arizona. In a February 23 statement, CBP confirmed that as two Border Patrol agents were intercepting a group of migrants, one of the agents followed a migrant who attempted to escape and, “while taking him into custody discharged his firearm fatally wounding the migrant, tentatively identified as a citizen of Mexico” (original link). The agents were later identified as Kendrek Bybee Staheli, who fired the weapon, and Tristan Tang.

On the evening of February 24, the Cochise County, Arizona Sheriff’s Department posted a statement conveying the agent’s claims that 32-year-old Carmelo Cruz-Marcos, of Puebla, Mexico, resisted capture “then ran approximately six feet away before picking up a large rock and turning back towards the agent making a throwing motion with the hand that held the rock.” The agent then “fired his weapon an unknown number of times as he was in fear for his life and safety” (original link).

The agents requested medical assistance and Cruz-Marcos’s body was airlifted out the next day. As of February 24, 2022, the Cochise County Sheriff was investigating the shooting, as was the Pima County (Tucson area) Medical Examiner’s Office. The Medical Examiner determined that Cruz-Marcos died of multiple gunshot wounds. CBP notified the Mexican consulate, which confirmed that the decedent was a Mexican citizen. CBP reported that its Office of Professional Responsibility (OPR) was also reviewing the incident, as would CBP’s National Use of Force Review Board.

Investigators must determine whether the shooting was truly an act of self-defense or otherwise fell within CBP’s use of force guidelines, which prohibit using firearms “in response to thrown or launched projectiles unless the officer/agent has a reasonable belief, based on the totality of circumstances, that the subject of such force poses an imminent danger of serious bodily injury or death” (original link).

“There are multiple red flags in this investigation” so far, a February 23 statement from the Southern Border Communities Coalition (SBCC) contended. It noted that the Cochise County Sheriff’s Office (CCSO) disclosed on February 19 that Border Patrol had killed a migrant, then “removed that statement in subsequent press releases.” SBCC adds:

Instead of the CCSO processing the scene immediately, they waited a day. Even though the other migrants in the area were taken by agents to a Border Patrol station right away, CCSO did not recover the body of the deceased migrant until the following day. The CCSO does not appear to have collected any forensic evidence at all until the next day, including from the agent involved (clothing, fingerprints, ballistics or any other relevant evidence). Instead, they ceded the incident area to border agents who could have tampered with the scene.

SBCC has spearheaded an effort to shed light on Border Patrol’s Critical Incident Teams (BPCITs), secretive units that often arrive quickly at scenes of possible use-of-force violations like this one. The teams allegedly have a record of interfering with investigations and seeking to build narratives that might exonerate the Border Patrol agents involved.

In April 2022, the Los Angeles-based law firm Karns & Karns, LLP announced that it would be representing Carmelo Cruz-Marcos’s family in a federal tort claim—a precursor to a lawsuit—against Border Patrol. The claim appears to confirm that a Border Patrol Critical Incident Team took part in the investigation. The Tucson Sentinel reported that SBCC and the law firm “argued that the agents ‘prevented’ Cochise County officials from ‘immediately accessing the scene to conduct their own investigation.'”

The Cochise County Sheriff’s Office report on the incident, shared by the Intercept in May 2022, confirms that a Critical Incident Team was on the scene after the shooting. It also cites an English-speaking migrant who had accompanied Cruz-Marcos. That witness claims that he heard Agent Staheli shout “This is America motherf—” shortly before shots were fired. He also alleged that “Agent Tang had told Agent Staheli ‘it would all be ok and that he had his back.’ Carlos further said he heard Agent Tang tell Agent Staheli that he should say he was attacked with a rock.”

“Witnesses to the shooting say Carmelo was never a threat to any Border Patrol agent,” read a news release from the law firm. “The family is demanding an independent investigation of the incident by the FBI and an outside agency that can verify the evidence and facts.”

In a May 6 letter to the Cochise County Sheriff’s Department, Cochise County Attorney Brian McIntyre found insufficient evidence to contradict Agent Staheli’s account of the shooting, declining to move forward with a prosecution.

Five members of the group that traveled with Cruz-Marcos later said they were held in detention for a month and a half as witnesses to the shooting. They reported that CBP did not return their money or identification documents.

— “CBP Statement on Agent-Involved Fatal Shooting near Douglas, Ariz.” (Washington: U.S. Customs and Border Protection, February 23, 2022) https://www.cbp.gov/newsroom/speeches-and-statements/cbp-statement-agent-involved-fatal-shooting-near-douglas-ariz.

— “Sheriffʼs Office Investigates Agent Involved Incident” (Cochise County: Cochise County Sheriff’s Office, February 24, 2022) https://www.facebook.com/CochiseSO/posts/323152363179815.

— “US border agent kills man on rugged trail in Arizona” (Douglas: Associated Press, February 21, 2022) https://apnews.com/article/shootings-arizona-border-patrols-de7f3334b7a06e422d1a4de77dda1354.

— “Migrant killed by Border Patrol agent in Arizona, sheriff’s office says” (Cochise County: Fox 10 Phoenix, February 20, 2022) https://www.fox10phoenix.com/news/undocumented-immigrant-killed-by-border-patrol-agent-in-arizona-sheriffs-office-says.

— Paul Ingram, “Migrant killed by Border Patrol agent died from ‘multiple gunshot wounds'” (Tucson: Tucson Sentinel, February 23, 2022) https://www.tucsonsentinel.com/local/report/022222_bp_shooting/migrant-killed-by-border-patrol-agent-died-from-multiple-gunshot-wounds/.

CBP Use of Force Policy (Washington: U.S. Customs and Border Protection, January 2021) https://www.cbp.gov/sites/default/files/assets/documents/2021-Jul/cbp-use-of-force-policy_4500-002A.pdf.

— “Recent Killing By Border Patrol Another Example of Compromised Investigations and Possible Cover-Up” (Southern Border Communities Coalition, February 23, 2022) https://www.southernborder.org/recent_killing_by_border_patrol_another_example_of_compromised_investigations_and_possible_cover-up.

— Paul Ingram, “Family of man killed by BP agent near Douglas demands probe, may pursue lawsuit” (Tucson: The Tucson Sentinel, April 12, 2022) https://www.tucsonsentinel.com/local/report/041222_bp_shooting_probe/family-man-killed-by-bp-agent-near-douglas-demands-probe-may-pursue-lawsuit/.

— Paul Ingram, “Border Patrol’s forensic teams being eliminated after ‘cover up’ allegations” (Tucson: Tucson Sentinel, May 6, 2022) https://www.tucsonsentinel.com/local/report/050622_critical_incident_teams/border-patrols-forensic-teams-being-eliminated-after-cover-up-allegations/.

— Danyelle Khmara, “No charges in fatal shooting by Border Patrol agent in Arizona” (Tucson: Arizona Daily Star, May 10, 2022) https://tucson.com/news/local/border/no-charges-in-fatal-shooting-by-border-patrol-agent-in-arizona/article_00e44308-cfbc-11ec-8249-fb2c6862d456.html.

— “Office Report for Incident 22-03910” (Cochise County: Cochise County Sheriff, March 2022) https://www.documentcloud.org/documents/22005859-cochise-county-sheriff-investigation-into-border-patrol-killing-of-cruz-marcos.

— Ryan Devereaux, “‘This Is America Motherfucker’: Witnesses Describe Border Patrol Killing of Mexican Migrant” (United States, The Intercept, May 12, 2022) https://theintercept.com/2022/05/12/border-patrol-migrant-killing-coverup/.

Sector(s): Tucson

Agency(ies): Border Patrol, Critical Incident Teams

Event Type(s): Use of Force

Last Known Accountability Status: Lawsuit or Claim Filed, Under Local Police investigation, Under OPR Investigation

Victim Classification: Mexico, Single Adult

October 26, 2021

A letter to CBP’s Chief Information Officer from the National Archives’ Chief Records Officer voices concern about CBP personnel’s use of the messaging applications WhatsApp and Wickr. (original link) Laurence Brewer’s letter seeks “to ensure that CBP is communicating to all employees that they cannot use these applications to circumvent their records management responsibilities.”

The letter, which requests a report from CBP about these apps’ use, cites findings from an October 2021 DHS Inspector-General report about improper CBP targeting of U.S. citizens during 2018-19 “migrant caravans.”

With respect to WhatsApp, the OIG report notes that their ability to determine whether proper processes and procedures were followed was hampered by a failure to retain communication records, including records in WhatsApp (page 4). Further, the OIG report states that there are “instances of CBP officers not documenting information they obtained during caravan-related inspections” (page 12); that CBP officials did not retain communication records (page 17); and that “the CBP officials failure to retain WhatsApp messages likely violated DHS and CBP records retention policies because the messages were information that CBP created or received in carrying out its mission and contained substantive information that was necessary to adequately and properly document the activities and functions of the CBP officials” (page 28).

Additionally, the OIG report found that during this operation, it is not even clear if CBP policies permit the use of WhatsApp.

With respect to Wickr, NARA is concerned about the use of this messaging application as it has the capability to auto-delete messages after a specified period of time has passed. In light of the information in the OIG report, NARA is concerned about agency-wide deployment of a messaging application that has this functionality without appropriate policies and procedures governing its use.

NBC News reported that CBP had spent more than $1.6 million on Wickr, which is owned by Amazon, since 2020. The nonprofit watchdog group Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit against CBP in March 2022 after CBP failed to respond to a records request about its use of Wickr.

— Laurence Brewer, Letter to Eric Hysen, Chief Information Officer, Customs and Border Protection (Washington: National Archives and Records Administration, October 26, 2021) https://www.archives.gov/files/records-mgmt/resources/ud-2022-0001-dhs-cbp-open-letter.pdf.

Ben Goggin, Louise Matsakis, “Border Patrol’s use of Amazon’s Wickr messaging app draws scrutiny” (United States: NBC News, April 3, 2022) https://www.nbcnews.com/tech/tech-news/border-patrols-use-amazons-wickr-messaging-app-draws-scrutiny-rcna21448.

— “CREW sues for records on CBP contract with Wickr, ‘auto-burn’ encrypted messaging app” (Washington: Citizens for Responsibility and Ethics in Washington, March 2, 2022) https://www.citizensforethics.org/legal-action/lawsuits/crew-sues-for-records-on-cbp-contract-with-wickr-auto-burn-encrypted-messaging-app/.

Sector(s): Border-Wide

Agency(ies): CBP

Event Type(s): Evading Oversight

Last Known Accountability Status: Lawsuit or Claim Filed

Victim Classification:

June 16, 2021

A Border Patrol agent in Nogales, Arizona fired a 9 millimeter handgun round at a white Kia SUV, striking Marisol García Alcántara, a 37-year-old undocumented Mexican mother of three who was riding in the vehicle’s backseat. Ms. García Alcántara was struck in the head and wounded.

On December 9, 2021, Ms. García Alcántara filed a Federal Torts Claim Act claim with CBP seeking compensation for the injuries she suffered (original link). This is a required step before filing a lawsuit. It claims that Ms. García Alcántara was “unarmed and defenseless, and represented no risk of harm to anyone,” and that she “does not know the name of the agent who employed this deadly force.”

According to the police report, a Border Patrol agent told Nogales police that “all he could say was that they had a fail to yield with the Kia, and one shot was fired. Agent Serrano [Border Patrol Supervisor T. Serrano #N55] did not provide me with further information” (original link).

Ms. García Alcántara disputes whether the vehicle in which she was a passenger failed to yield. “The car was slowing down to comply when she felt a strike to her head,” she told the San Diego Union Tribune.

After the incident, she was taken to Tucson for brain surgery. She spent three days in the hospital, was taken to the Florence, Arizona ICE detention facility, and was deported to Mexico on July 15, 2021. She was not interviewed by any agency investigating her shooting. “No one investigated. I returned to Mexico without making a declaration,” she told the Associated Press.

As a result of her bullet wound, the claim states, Ms. García Alcántara has “bullet fragments… lodged in her brain, with permanent life-long consequences. The injuries included intra-cranial hemorrhage, skull fracture, orbital fracture, with bullet and broken bone fragments entering her left frontal lobe.” The Union Tribune reported that Ms. García Alcántara “said she has dizzy spells, excruciating headaches and memory loss. Doctors also told her she’s at risk of becoming epileptic or suffering from facial paralysis in the future.” The BBC reported that she has problems remembering names and words.

A Border Patrol Critical Incident Team (CIT) and FBI agents later arrived on scene. The agency’s secretive CITs have come under increasing scrutiny since October 27, 2021, when an investigation by the Southern Border Communities Coalition (SBCC) alleged that one of their main roles is to gather evidence that might exonerate agents after an abuse occurs. “Marisol’s ability to seek justice, beginning with the filing of the FTCA claim, may be adversely affected by the actions of the CIT,” the SBCC wrote in December 2021.

Ms. Gómez Alcántara was among victims who spoke at a May 2022 SBCC press conference calling for the CITs’ abolition; a May 3, 2022 memorandum from CBP Commissioner Chris Magnus terminated the controversial units.

As of mid-December 2021, no information about this investigation’s findings has been made public. “The U.S. government’s decision to release only limited information about her case highlights how federal law enforcement agencies – which have a large, highly visible presence in Nogales – often feel little obligation to explain their actions to the public following use-of-force incidents,” Nogales International stated in a detailed October 2021 recounting of Ms. Gómez Alcántara’s story. The Associated Press reported in December 2021 that CBP’s Office of Professional Responsibility (OPR) was investigating the incident, as was CBP’s National Use of Force Review Board.

On December 23, 2021, a letter from CBP to an attorney representing Ms. García Alcántara requested information and documents about her medical treatments. If the agency does not report on its investigation by June 20, 2022, her attorney plans to file suit in federal court.

“I am asking for justice so they don’t keep doing this,” García Alcántara told the Union Tribune. “I am also asking for a public apology from the person who did this. I’d like to know why he did this to me since I didn’t do anything to him.”

— “Officer Report for Incident 210006105” (Nogales: Nogales Police Department, June 16, 2021) https://www.dropbox.com/sh/4r5dzamxq8fjzon/AABmConSjaFosUR6BRgh88Ula?dl=0&preview=Exhibit+E+-+Nogales+PD+report.pdf&emci=4a0bacf1-b15d-ec11-94f6-0050f2e65e9b&emdi=50f09884-b35d-ec11-94f6-0050f2e65e9b&ceid=6137030.

— Eugene Iredale, “Claim for Damage, Injury, or Death” (San Diego: Iredale & Yoo A.P.C., December 9, 2021) https://d3n8a8pro7vhmx.cloudfront.net/alliancesandiego/pages/3292/attachments/original/1639508803/Claim_Form_95_Signed_and_Redacted.pdf?1639508803=&emci=4a0bacf1-b15d-ec11-94f6-0050f2e65e9b&emdi=50f09884-b35d-ec11-94f6-0050f2e65e9b&ceid=6137030.

— “Marisol García Alcantara was shot by Border Patrol then deported now filing a claim against CBP” (San Diego: Southern Border Communities Coalition, December 15, 2021) https://www.southernborder.org/marisol_garcia_alcantara_was_shot_by_border_patrol_then_deported_now_filing_a_claim_against_cbp.

— Nick Phillips, “Woman shot in head by Border Patrol seeks answers” (Nogales: Nogales International, October 8, 2021) https://www.nogalesinternational.com/news/woman-shot-in-head-by-border-patrol-seeks-answers/article_0aae589a-2843-11ec-8050-df7bb17fa8bc.html.

— Kate Morrissey, “Woman shot in head by Border Patrol agent files claim for damages” (San Diego, San Diego Union-Tribune, December 15, 2021) https://www.sandiegouniontribune.com/news/immigration/story/2021-12-15/woman-shot-border-patrol-agent-claim.

— Anita Snow, “Mexican woman shot in head by US Border Patrol files claim” (Phoenix: Associated Press, December 15, 2021) https://apnews.com/article/shootings-arizona-22a67bc78bde39e2087a1d5a6c32097d.

— “Marisol García Alcántara, la mexicana que sobrevivió a un disparo de la Patrulla Fronteriza (y ahora va a demandar a EE.UU.)” (BBC News Mundo, La Prensa Libre, May 11, 2022) https://www.prensalibre.com/internacional/bbc-news-mundo-internacional/marisol-garcia-alcantara-la-mexicana-que-sobrevivio-a-un-disparo-de-la-patrulla-fronteriza-y-ahora-va-a-demandar-a-ee-uu/.

Sector(s): Tucson

Agency(ies): Border Patrol, Critical Incident Teams

Event Type(s): Use of Force

Last Known Accountability Status: Lawsuit or Claim Filed, Under FBI Investigation, Under OPR Investigation

Victim Classification: Female, Mexico, Single Adult

April 4, 2021

Three Black CBP officers stationed near the Canadian border in Michigan filed a lawsuit alleging that the agency “routinely targets and harasses” Black travelers. As reported by the Detroit Free Press, the suit pointed out that “nationwide, Black people account for less than 6% of the total CBP workforce of 21,185. More than 62% of employees are white; another 25% are Hispanic.” (The U.S. Census estimated that 13.8 percent of the U.S. population was “Black or African American alone” in 2021.)

— Tresa Baldas, “Customs and Border Protection officer says racism at Michigan-Canada border happens daily: ‘It needs to be exposed’” (Detroit: Detroit Free Press, April 4, 2021 https://www.usatoday.com/story/news/nation/2021/04/04/cbp-officers-lawsuit-racial-profiling-issue-us-canada-border/7076949002/.

Sector(s): Border-Wide

Agency(ies): CBP

Event Type(s): Racial Discrimination or Profiling

Last Known Accountability Status: Lawsuit or Claim Filed

Victim Classification: Black

June 16, 2020

In a claim filed under the Federal Tort Claims Act a year after these events, on June 16, 2021, Janine Bouey, a 60-year-old U.S. Army veteran and former Los Angeles Police Department officer, reported suffering inhumane treatment at the border. Bouey stated that she was repeatedly shackled, sexually assaulted (at one point with a canine), sworn at, and forced to disrobe without privacy by CBP agents who pulled her out of line while she was crossing into San Diego from Tijuana.

Alliance San Diego reported:

One year ago today, Janine was returning from her dentist and crossed the U.S. border at the Otay Mesa Port of Entry. She was singled out by a CBP officer while waiting in line. She was the only Black woman to be pulled from the line for questioning. The officer asked for Janine’s home address even though he was in possession of her license. The officer suggested that Janine might want his home address. The officer proceeded to escort her to a nearby building where she was eventually assaulted.

Ms. Bouey, who is Black, was released without any allegation of wrongdoing. When she complained to a younger Black CBP officer, he replied, “These things happen.” Ms. Bouey alleged that CBP officers committed “sexual assault, assault, battery, false arrest, false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, Bane Act violations, Ralph Act violations, equal protection violations, and California Civil Code section 49 violations.”

According to Alliance San Diego, “Janine filed a complaint with DHS about the officer’s actions shortly after the incident. To her knowledge, no disciplinary action was taken and the officers involved in the incident remain at work.” Her June 2021 claim was the first step in a lawsuit against DHS.

— Law Offices of Joseph M. McMullen, “Federal Tort Claims Act Administrative Claim, Claimants: Janine A. Bouey (DOB: 8/18/1959)” (San Diego: June 9, 2021) https://d3n8a8pro7vhmx.cloudfront.net/alliancesandiego/pages/3234/attachments/original/1623816903/FTCA_Claim.pdf?1623816903.

— “Abuse, Assault and Impunity at DHS Must Stop: Former LAPD Officer Subjected to Sexual Assault by DHS Sues the Agency” (San Diego: Alliance San Diego, June 16, 2021) https://www.alliancesd.org/abuse_assault_and_impunity_at_dhs_must_stop_former_lapd_officer_subjected_to_sexual_assault_by_dhs_sues_the_agency.

Sector(s): San Diego Field Office

Agency(ies): Office of Field Operations

Event Type(s): Abusive Language, Conditions in Custody, Racial Discrimination or Profiling, Sexual Assault or Harassment

Last Known Accountability Status: Complaint Filed with CRCL, Lawsuit or Claim Filed

Victim Classification: Black, Female, U.S. Citizen or Resident