Opinion: The U.S. Border Patrol is hiding information. Here’s what it doesn’t want you to know and why.

At least since 1987, the United States Border Patrol has operated unsanctioned cover-up units known as Critical Incident Teams. These special units have concealed, altered and destroyed evidence to obstruct justice, and now Congress has requested an investigation into them and asked that Customs and Border Protection (CBP), the Border Patrol’s parent agency, turn over documents related to them.

But Congress doesn’t have to wait for the documents. It can end these secretive units now and open the door to prosecuting agents who have obstructed justice.

In a Jan. 24 letter to CBP Commissioner Chris Magnus, Rep. Carolyn B. Maloney, chair of the Committee on Oversight and Reform, and Rep. Bennie G. Thompson, chair of the Committee on Homeland Security, wrote that Congress has authorized the FBI, the Department of Homeland Security’s Inspector General’s office and CBP’s Office of Professional Responsibility to investigate powers use-of-force incidents involving Border Patrol agents. “Congress has not provided the Border Patrol with specific authority to conduct investigations of its agents’ misconduct,” they wrote.

But the Border Patrol has done this and must be fully investigated.

This probe comes after the Southern Border Communities Coalition (SBCC) requested that Congress investigate Border Patrol’s Critical Incident Teams because they illegally and routinely interfere with investigations when agents face allegations of misconduct and excessive force. SBCC, of which I am a steering committee member, seeks congressional hearings on the Border Patrol’s shadow units.

We did not know it at the time, but a Border Patrol secret cover-up team corrupted and hid crucial evidence in the investigation of the brutal beating and killing of Anastasio Hernández Rojas in May 2010, as Alliance San Diego outlined in a November letter to San Diego County District Attorney Summer Stephen. In that case, the Border Patrol Critical Incident Team controlled police access to information; withheld and corrupted evidence; failed to preserve video footage, leading to its destruction; intervened in witness interviews; altered government documents; inappropriately acquired medical records, and intruded in the autopsy. None of this is appropriate or legal.

In November 2015, Anastasio’s family asked me to join it in a meeting with representatives of the U.S. Justice Department (DOJ) in Downtown San Diego. At that meeting, the DOJ officials told Anastasio’s family that after a “comprehensive investigation” where they “devoted significant time and resources” to the case, they did not have sufficient evidence to pursue criminal charges against the federal immigration agents involved in the incident that led to Anastasio’s death.

But the DOJ never considered the obstruction of justice at play in the case. If the purpose of Border Patrol’s cover-up units is to mitigate liability for its agents, it surely worked to elude criminal charges in Anastasio’s case. To be sure, it was the Border Patrol’s secretive tampering of the investigation that denied Anastasio’s family the opportunity to reach justice following his death.

There is increasing exposure of how Border Patrol’s secret cover-up units exist to clean up its agents’ malfeasance. In June 2021, a Border Patrol agent shot unarmed Marisol García Alcántara in the head in Arizona. According to the Nogales police report, the Border Patrol’s Critical Incident Team with the FBI arrived to investigate the incident, but it is unclear to what extent the Critical Incident Team was involved in gathering information about the incident, and whether they influenced the reports about it.
García Alcántara survived, only to be deported with bullet fragments in her skull. She said no police investigator ever took a declaration from her about being shot.

Congress must act to end these units, especially because Border Patrol’s secret cover-up units are undertaking investigations without congressional authority. This makes them illegal. That Border Patrol agents are leading these investigations undermines any sense of accountability and transparency for an agency already accused of operating with impunity.

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