1 Record of Alleged Abusive or Improper Conduct where the accountability status is “Under Congressional Investigation”

October 27, 2021

The Southern Border Communities Coalition (SBCC) surfaced the issue of Border Patrol’s “Critical Incident Teams,” which often arrive at the scene when agents may have committed wrongdoing. The SBCC submitted a letter to congressional leaders requesting that they hold hearings into these units’ activities. While Critical Incident Teams may have other roles, coming up with exculpatory evidence to protect agents strongly appears to be one of them. No other law enforcement agency, the SBCC contends, has a similar capability, and the Teams’ existence is not specifically authorized by law.

SBCC was alerted to the teams’ role while carrying out advocacy around the case of Anastasio Hernández, a Mexican citizen whom border agents beat and tasered to death in a 2010 case caught on cellphone video. The Coalition found that a Critical Incident Team failed to notify San Diego police, controlled police investigators’ witness lists, tampered with evidence, sought to obtain Hernández’s medical records, failed to preserve video evidence, and “contacted the FBI and asked them to charge Anastasio with assault while he lay brain dead in the hospital. The FBI declined.”

Critical Incident Teams have existed in some form at least since 1987. (Their “challenge coin,” depicted in SBCC’s document, says “Est. May 21, 2001” and includes images of a chalk outline and a rolled-over vehicle.) They are almost never mentioned in Border Patrol or CBP statements. “Their existence poses a threat to public safety,” SBCC argued, “by concealing agent misconduct, enabling abuse, and exacerbating impunity within the nation’s largest law enforcement agency, U.S. Customs and Border Protection (CBP). Immediate investigations into BPCITs are imperative.”

A January 10, 2022 front-page New York Times story about Border Patrol vehicle pursuit tactics included an account of Critical Incident Teams’ presence after an August 3 crash in New Mexico:

Body camera footage from a state police officer captured one of the Border Patrol agents saying: “Our critical incident team is coming out. They’ll do all the crime scene stuff—well, not crime scene, but critical incident scene.” The agent said that he and his colleague would give statements to the team, which it would share with the police.

This article also noted Critical Incident Teams’ role in the Border Patrol shooting of Mexican migrant Marisol Gómez Alcántara while she sat in the backseat of a vehicle in Nogales, Arizona.

CBP briefed House members about the Critical Incident Teams in late 2021, but this “did not fully address our questions,” Rep. Bennie Thompson (D-Mississippi), chairman of the House Homeland Security Committee, told the New York Times. As subsequent information requests got no replies from the agency, Congress issued two letters on January 24, 2022. Ten chairpeople of House and Senate Judiciary, Homeland Security, and Oversight committees and subcommittees wrote to Comptroller-General Gene Dodaro, who heads the U.S. Government Accountability Office (GAO, the Congress’s auditing and investigative arm), asking GAO to produce ar report about the teams (original link). The chairs of the House Homeland Security and Oversight Committees, Rep. Thompson and Rep. Carolyn Maloney (D-New York) wrote to CBP Commissioner Chris Magnus, informing him in a more strongly worded message that they are launching their own joint investigation into the Critical Incident Teams (original link). The Thompson-Maloney letter required that CBP turn over a list of documents by February 7.

Bloomberg Government asked CBP Commissioner Magnus, a former Tucson, Arizona police chief who has been in his position since early December, about the Critical Incident Teams. A statement responded that “U.S. Customs and Border Protection’s specialized teams are ‘vitally important’ in the collection and processing of evidence related to enforcement activities,” Bloomberg reported. Magnus said that CBP would work with the committees and with GAO.

A May 3, 2022 memorandum from CBP Commissioner Chris Magnus terminated the Critical Incident Teams, transferring their duties to CBP’s Office of Professional Responsibility (original link). “By the end of FY [Fiscal Year] 22,” it reads, “USBP will eliminate all Critical Incident Teams and personnel assigned to USBP will no longer respond to critical incidents for scene processing or evidence collection.”

An August 11, 2022 letter from the SBCC warned that “the CBP Office of Professional Responsibility (OPR) is hiring” members of the to-be-dissolved Critical Incident Teams. OPR is CBP’s internal affairs body that investigates and sanctions agents for misconduct, including improper use of force.

— Vicki B. Gaubeca, Andrea Guerrero, “Request for congressional investigations and oversight hearings on the unlawful operation of the U.S. Border Patrol’s Critical Incident Teams (BPCITs)” (San Diego: Southern Border Communities Coalition, October 27, 2021) https://d3n8a8pro7vhmx.cloudfront.net/alliancesandiego/pages/3292/attachments/original/1635367319/SBCC_letter_to_Congress_Final_10.27.21.pdf?1635367319.

— Eileen Sullivan, “Democrats in Congress Seek Review of Teams Within the Border Patrol” (New York: The New York Times, January 24, 2022) https://www.nytimes.com/2022/01/24/us/politics/border-patrol-critical-incident-teams.html.

— “Oversight and Homeland Security Chairs Request Information from Customs and Border Protection on Potential Misconduct of Specialized Teams” (Washington: U.S. House of Representatives, January 24, 2022) https://homeland.house.gov/news/correspondence/oversight-and-homeland-security-chairs-request-information-from-customs-and-border-protection-on-potential-misconduct-of-specialized-teams.

— “House & Senate Committee Leaders Request GAO Audit of CBP ‘Critical Incident Teams’” (Washington: U.S. House of Representatives, January 24, 2022) https://homeland.house.gov/news/correspondence/house-and-senate-committee-leaders-request-gao-audit-of-cbp-critical-incident-teams.

— “CBP Eliminates Border Patrol Cover-Up Units” (Southern Border: Southern Border Communities Coalition, May 6, 2022) https://www.southernborder.org/for_immediate_release_cbp_eliminates_border_patrol_cover-up_units.

— Chris Magnus, “Critical Incident Response Transition and Support” (Washington: Customs and Border Protection, May 3, 2022. https://assets.nationbuilder.com/alliancesandiego/pages/409/attachments/original/1651850948/Critical_Incident_Response_Signed_Distribution_Memo_%28508%29.pdf?1651850948

— Vicki Gaubeca, Andrea Guerrero, “New information that raises the stakes on the investigation of Border Patrol Critical Incident Teams (BPCITs) and implicates other parts of CBP” (San Diego: Southern Border Communities Coalition, August 11, 2022) https://assets.nationbuilder.com/alliancesandiego/pages/409/attachments/original/1660253686/Letter_to_Congress_re_BPCIT_Aug_2022_r1.pdf?1660253686.

Sector(s): Border-Wide

Agency(ies): Border Patrol, Critical Incident Teams

Event Type(s): Evading Oversight

Last Known Accountability Status: Shared with Congressional Oversight Committees, Under Congressional Investigation, Under GAO Investigation

Victim Classification: Female, Mexico, Single Adult