Groups Welcome Release of CBP's Use-of-Force Policy as a First Step

EL PASO — Texas-based civil liberties and immigrant rights groups are welcoming the release of U.S. Customs and Border Protection’s use-of-force policy and a new directive for U.S. Border Patrol agents as a signal of greater transparency, but those groups — along with some Texas congressmen — argue that more should be done.

The advocates say that more directives should be made public and that the agency should also address activity by CBP officers at the ports of entry, not just Border Patrol agents. 

On Friday, U.S. Border Patrol Chief Michael J. Fisher instructed field agents to avoid shooting at vehicles that are only fleeing the scene and to consider all available alternatives to firing their weapons when “projectiles” are hurled at agents, including rocks, a common weapon for would-be crossers caught attempting to enter the country illegally. 

“Agents shall not discharge firearms in response to thrown or hurled projectiles unless the agent has a reasonable belief based on the totality of the circumstances to include the size of nature of the projectiles that the subject of such force poses an imminent danger of death or serious injury,” Fisher wrote in his directive, which he said clarified “existing guidelines.”

The agency also released its 2010 Use of Force Policy Handbook, a 100-page manual that was produced in 2010 under former CBP Commissioner Alan Bersin. Advocates and lawmakers, including U.S. Rep. Beto O’Rourke, D-El Paso, have tried repeatedly to have the federal agency make the handbook public.

There have been more than 6,000 assaults on U.S. Border Patrol agents since 2007, Fisher said, which have resulted in the killing of three agents. Those include 1,713 rock-throwing incidents, which have resulted in 43 uses of deadly force and the deaths of 10 would-be border crossers.

Among the fatalities in recent years are 15-year-old Sergio Adrián Hernández Güereca, who was shot in 2010 by a Border Patrol agent in Ciudad Juárez, and Guillermo Arévalo Pedroza, 36, who was shot and killed in 2012 by Border Patrol agents on the banks of the Rio Grande in Nuevo Laredo. The San Antonio Express-News has reported that Arévalo’s widow said her slain husband was not throwing rocks at the agents.

Astrid Dominguez, the lower Rio Grande Valley’s advocacy coordinator for the American Civil Liberties Union of Texas, said last week’s directive indicates progress. But CBP officers and the ports of entry should also be scrutinized, she said. In December, the ACLU filed suit against CBP officers in El Paso and a local hospital district after a U.S. citizen from New Mexico was subjected to unwarranted searches, including vaginal probes and a CT scan.

“This changes policy strictly for Border Patrol agents. There is still a need for the Office of Field Operations, the CBP officers that are at the ports to also be accountable for their actions,” she said. “There has to be transparency within the entire agency.” 

Dominguez said that CBP would go a long way toward accomplishing that goal if it released in its entirety the Police Executive Research Forum report the agency commissioned. That report is said to be a more comprehensive and critical assessment of CBP's policies, but it has not been made pubic.

Public affairs officers with CBP did not respond to a request for comment on the report or the suggestions of additional oversight.

O'Rourke is working with U.S. Rep. Steve Pearce, R-N.M., to craft legislation that would mandate more oversight of CBP agents and that "paves a path to understand and mitigate border deaths," according to a statement. An aide to O'Rourke said they hope to file the bill this week. But aside from that legislation, he said the Department of Homeland Security, which oversees CBP, could make greater gains.

“The Department’s release of their existing use of force policies is a good first step, but self-policing within DHS has not resulted in the administrative policy changes that would ensure everyone is treated with dignity and respect," he said.

"That is why DHS should also release other reviews on its use of force policies such as the full PERF report and its internal responses to that report. Additional oversight and accountability measures from Congress are needed.”

U.S. Rep. Henry Cuellar, D-Laredo, also congratulated the Department of Homeland Security on its efforts, but he said more transparency could be accomplished. 

"I am glad to see the Department of Homeland Security make available these documents outlining their use of force policy," he said in an email. "I have confidence in the men and women who protect our border, both those in green uniforms and the customs officers in blue, but it is important for DHS to remain accountable and transparent."

The Border Network for Human Rights, an El Paso-based advocacy group, said last week’s directive should spur more action in the coming months. Jose Manuel Escobedo, the network’s deputy director of policy, said the group was hopeful that legislation would be enacted that mandates oversight, as opposed to a directive that might not be followed.

“Congress has an appetite for accountability within" the Department of Homeland Security,” he said. “They scrutinized [former DHS Secretary Janet Napolitano] very closely.”

Like Dominguez, he said the directive is a good start, but not the “end all” solution.

“What we want to see are these guidelines permeated, actually applied, and so that’s the next step,” he said. “Making sure there is an administrative push, that they are applied properly sector by sector. But ultimately we need legislation that mandates more professionalism and better training and more oversight.”