A Rise in Deadly Border Patrol Chases Renews Concerns About Accountability

The increasing number of deaths adds urgency to questions about when and how agents should engage in high-speed chases as they pursue smugglers and migrants.

Angie Simms had been searching for her 25-year-old son for a week, filing a missing persons report and calling anyone who might have seen him, when the call came last August. Her son, Erik A. Molix, was in a hospital in El Paso, Texas, where he was strapped to his bed, on a ventilator and in a medically induced coma.

Mr. Molix had suffered head trauma after the S.U.V. he was driving with nine undocumented immigrants inside rolled over near Las Cruces, N.M., while Border Patrol agents pursued him at speeds of up to 73 miles per hour. He died Aug. 15, nearly two weeks after the crash; even by then, no one from the Border Patrol or any other law enforcement or government agency had contacted his family.

The number of migrants crossing the border illegally has soared, with the Border Patrol recording the highest number of encounters in more than six decades in the fiscal year that ended Sept. 30. With the surge has come an increase in deaths and injuries from high-speed chases by the Border Patrol, a trend that Customs and Border Protection, which oversees the Border Patrol, attributes to a rise in brazen smugglers trying to flee its agents.

From 2010 to 2019, high-speed chases by the Border Patrol resulted in an average of 3.5 deaths a year, according to the American Civil Liberties Union. In 2020, there were 14 such deaths; in 2021, there were 21, the last on Christmas.

The agency recorded more than 700 “use of force” incidents on or near the southern border in the last fiscal year. Customs and Border Protection does not disclose how many of those ended in death, or how many high-speed chases take place each year.

Crossing the border without documentation or helping people do so is full of risk regardless of the circumstances, and stopping such crossings — and the criminal activity of smugglers — is central to the Border Patrol’s job. But the rising deaths raise questions about how far the agency should go with pursuits of smugglers and migrants, and when and how agents should engage in high-speed chases.

Customs and Border Protection has yet to provide Ms. Simms, a fifth-grade teacher in El Paso, with an explanation of what happened to her son. She saw a news release it issued two weeks after the crash; officials say it is not the agency’s responsibility to explain. She said she understood that officials suspected her son was involved in illegal activity, transporting undocumented immigrants.

“But that doesn’t mean you have to die for it,” she said.

Customs and Border Protection, which is part of the Department of Homeland Security, has a policy stating that agents and officers can conduct high-speed chases when they determine “that the law enforcement benefit and need for emergency driving outweighs the immediate and potential danger created by such emergency driving.” The A.C.L.U. argues that the policy, which the agency publicly disclosed for the first time last month, gives agents too much discretion in determining the risk to public safety.

In a statement to The New York Times, Alejandro N. Mayorkas, the secretary of homeland security, said that while “C.B.P. agents and officers risk their lives every day to keep our communities safe,” the Homeland Security Department “owes the public the fair, objective and transparent investigation of use-of-force incidents to ensure that our highest standards are maintained and enforced.”

But previously unreported documents and details of the crash that killed Mr. Molix shed light on what critics say is a troubling pattern in which the Border Patrol keeps its operations opaque, despite the rising human toll of aggressive enforcement actions.

Early on Aug. 3, a Border Patrol agent saw an S.U.V. traveling slowly just north of Las Cruces with what appeared to be a heavy load, according to a report from the New Mexico State Police.

When the S.U.V. swerved to avoid a Border Patrol checkpoint, on a lonely stretch of road about 70 miles north of the border, the agent and a colleague in a separate car started chasing it. They pursued it for about a mile before one of them “clipped the vehicle and it rolled,” according to local emergency dispatch records. The S.U.V. was carrying migrants from Ecuador, Honduras, Guatemala and El Salvador, and eight of its 10 occupants were ejected. An Ecuadorean man later died, as did Mr. Molix.

The New Mexico State Police was among the agencies that responded to the crash. 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.

Critical incident teams are rarely mentioned by Customs and Border Protection or the Border Patrol. There is no public description of the scope of their authority.

Luis Miranda, a spokesman for Customs and Border Protection, said the teams consist of “highly trained evidence collection experts” who gather and process evidence for investigations, including inquiries into human smuggling and drug trafficking. He also said the teams assist in investigations conducted by the agency’s Office of Professional Responsibility, which looks into claims of agent misconduct and is akin to internal affairs divisions of police departments.

Another Homeland Security official, who was authorized to speak to a reporter about the teams on the condition that the official’s name was not used, confirmed another role they have: collecting evidence that could be used to protect a Border Patrol agent and “help deal with potential liability issues,” such as a future civil suit.

Andrea Guerrero, who leads a community group in San Diego and has spent the past year looking into critical incident teams and their work, said it was “an outright conflict of interest” for the division charged with investigating possible Border Patrol misconduct to rely on assistance from Border Patrol agents on the teams. She has called on Congress to investigate and filed a complaint with the Homeland Security Department.

Customs and Border Protection officials said the El Paso sector’s critical incident team merely helped with measurements for a reconstruction of the crash outside Las Cruces; the Office of Professional Responsibility, they said, is investigating the incident. Yet a member of the El Paso critical incident team reached out to the state police in the days after the crash seeking the department’s full report for its own Border Patrol administrative review, according to an email released by the state police.

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Eileen Sullivan