In Landmark International Case, U.S. Fails to Answer to Allegations of Impunity of Border Agents

Family of Anastasio Hernández-Rojas urges the Biden administration to respond in case before the Inter-American Commission on Human Rights (IACHR)

SAN DIEGO, CA — At a moment when the United States wants to be a global leader on human rights and democracy, the Biden administration is failing to answer for violations of international human rights in the death of Anastasio Hernández Rojas. Anastasio’s family recently learned through their legal counsel, Alliance San Diego and UC Berkeley’s International Human Rights Law Clinic, that the U.S. Government has failed to file a response to allegations submitted by the family to the Inter-American Commission on Human Rights (IACHR). Anastasio’s family argued that border agents tortured and killed Anastasio in 2010 and then covered up their egregious misconduct by destroying, withholding, and altering evidence. 

The United States has disregarded an October 13, 2021 deadline and remained silent on allegations that border agents hogtied, dragged, beat, punched, kicked, and tasered Anastasio repeatedly and then kneeled on his prone body until he stopped breathing. Anastasio’s family has filed unprecedented and compelling evidence that a decision by the Department of Justice to close the criminal investigation without bringing charges against border agents was based on a biased and incomplete investigation. Border agents destroyed, concealed, and tampered with evidence to shield agents from accountability for the death. The fact that no one was held accountable for Anastasio’s death was not an accident. It was by design. Anastasio’s case reveals the gears of impunity that operated in Anastasio’s death and have continued to operate in border killings and abuse since.

This is the first case of an extrajudicial killing committed by the United States to be heard by the IACHR. Under the Trump administration, the Government argued that the case should be dismissed, which the Commission declined to do, finding prima facie human rights violations. Now the Biden administration has the obligation to respond.

The administration’s lack of response comes at a time when the actions of border agents are under increased public scrutiny, especially with new revelations that Border Patrol has been operating shadow cover-up units known as Critical Incident Teams, among other names, for at least three decades. Last month, the Southern Border Communities Coalition (SBCC) called on Congress to exercise its oversight powers and investigate these cover-up units, which are operating without statutory authority to tamper with evidence and protect agents from liability, thereby obstructing justice.

One of these shadow police units interfered with the local police investigation of Anastasio’s death. Then acting chief of the Border Patrol San Diego, Rodney Scott, oversaw the cover-up unit which destroyed video evidence, altered government documents and inappropriately used an an administrative subpoena to acquire Anastasio’s medical records and then refused to give the records to the police for their criminal investigation of border agents. Instead of Scott being examined for obstruction of justice, he was promoted to become the U.S. Border Patrol chief until August 2021. Maria Puga, Anastasio’s widow, recently called on the San Diego County District Attorney to bring obstruction charges against the border agents who interfered with the local police investigation.

Further underscoring the shield of impunity protecting border agents, Rodney Scott recently directed threats to a member of the legal team in the Anastasio case. In response to the posting of a news article about his role in the cover-up in Anastasio’s case, including his misuse of a subpoena, Scott told the team member that he had investigated her, which is a questionable abuse of his power, and then he used a well known rape threat against her in a public forum. For these actions, Scott was called before a judge for a hearing on a restraining order. Under oath, Scott did not deny allegations of misconduct during the investigation, but instead sought to legitimize it. He promised to take down the problematic and threatening post, but two weeks later, the post is still up

The impunity of border agents must end, and the Biden administration must act, beginning by answering to the allegations in the Anastasio case. Silence is complicity. The family of Anastasio will proceed to ask the IACHR for a hearing in this case in the spring of 2022. 

Maria Puga, wife of Anastasio Hernández Rojas said:

I seek justice not only for the death of my husband, but for all of the families who are fighting our own government to stop the impunity. Our communities deserve answers, and we will not stop until we get them. Anastasio was a husband, a father, a brother, and a son. And we honor him by fighting for our dignity, fighting for our human rights. I hope President Biden hears my plea that he acknowledges my grief and holds border agents accountable.

Roxanna Altholz, Co-Director at UC Berkeley Law School's International Human Rights Law Clinic and co-counsel in the IACHR suit said:

The United States is a party to international human rights litigation and the Biden administration’s silence has legal implications. The Inter-American Commission is the only international human rights body with jurisdiction to determine if the United States violated an individual’s human rights and instruct the government to repair the harm suffered. If the United States refuses to respond to the family’s serious allegations, the Commission will presume that the facts alleged are true in accordance with its rules of procedure.  

Andrea Guerrero, Executive Director of Alliance San Diego and co-counsel in the IACHR suit said:

The Biden administration’s failure to respond to the allegations of border agents’ abuse and impunity in the Anastasio case is both disappointing and damning. This case is a chance to get it right, apologize to the family, align policies and practices with our international human rights obligations, and set a new course for the United States. As the first case of its kind to be heard by the IACHR, it will create a precedent. What that precedent is will depend on the Biden administration and shape its legacy.  

Background on the Inter-American Commission on Human Rights (IACHR)

The IACHR is a part of the Organization of American States, the oldest regional international organization in the world, which is currently headquartered in Washington, D.C. In 1948, the United States became a member state of the OAS. The United States is active in the OAS, maintains a permanent mission to the organization, and is represented by ambassadors from the U.S. State Department. 

The IACHR was created by the OAS in 1959, and reviews claims of human rights violations committed by member states who have adopted agreements to protect human rights, including through the foundational American Convention on Human Rights (1969). Anastasio’s case is the first case against the United States that the IACHR is reviewing that addresses an extrajudicial killing by law enforcement. The case will set a precedent for other cases that follow, including cases of officer-involved killings of Black and Brown men and women across the country. 

About Alliance San Diego

Alliance San Diego is a non-profit and non-partisan community organization working to build a more inclusive democracy where everyone can achieve their full potential in an environment of harmony, safety, equality and justice. 

About UC Berkeley’s International Human Rights Law Clinic

The International Human Rights Law Clinic (IHRLC) designs and implements innovative human rights projects to advance the struggle for justice on behalf of individuals and marginalized communities through advocacy, research, and policy development.