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Advocates ask San Diego district attorney to charge Border Patrol agents in alleged cover up

The widow of Anastasio Hernández Rojas, Maria Puga
Maria Puga, the widow of Anastasio Hernández Rojas, poses in front of a mural honoring her late husband, who was killed by border officials in 2010.
( Courtesy: Alliance San Diego )

The groups said agents tampered with evidence, obstructed justice in the case of the killing of Anastasio Hernandez Rojas

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The widow of Anastasio Hernández Rojas, joined by advocates, Thursday called on San Diego’s district attorney to investigate a group of Border Patrol agents and charge them with obstructing justice in the case over her husband’s killing.

The demand comes after a letter sent to Congress last week called for an investigation into special Border Patrol units whose role, according to agency documents, is to mitigate officials’ liability. The letter alleged that the San Diego unit covered up what really happened when Hernández Rojas was killed by officials at the San Ysidro Port of Entry in 2010, and that similar units are operating all along the border.

For the record:

7:22 a.m. Nov. 5, 2021The original version of this article incorrectly referred to the medical record of Anastasio Hernández Rojas as being under seal. While other documents cited in the letter are under a protective order, the parts of the medical record cited in the letter as evidence are available in police records.

“I’m here with a broken heart to see my children suffering all these years, and I can’t rest and I can’t let Anastasio rest because it’s not right what they did. It’s not right,” his widow Maria Puga said in Spanish, standing across the street from the Hall of Justice in downtown San Diego. “There are thousands of families like me suffering.”

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Accompanied by attorneys, Puga then delivered a letter to District Attorney Summer Stephan’s office detailing the evidence that has been gathered about the units and their involvement in the aftermath of Puga’s husband’s death.

The letter suggests charging five agents and three high-level officials with preparing false evidence, offering false evidence, destroying and/or concealing evidence, tampering with witnesses, and engaging in a conspiracy to obstruct justice.

“We know that anybody else, any other individual would have faced prosecution for things such as altering documents, for getting rid of evidence, for talking to witnesses and not providing testimony to any other agencies,” said Dulce Garcia, executive director of Border Angels and chair of the San Diego Immigrant Rights Consortium, one of the groups supporting Puga. The Southern Border Communities Coalition and Alliance San Diego, which sent the earlier letter to Congress, are also among those groups.

“Any other community member would have been prosecuted,” Garcia said. “Yet we allow Border Patrol to engage in these horrific activities.”

Stephan’s office declined to comment on Puga’s request.

Customs and Border Protection, the parent agency to Border Patrol, did not comment on the record about the situation. On background, the agency said that the San Diego unit in question was disbanded several years ago. Units in other regions, the agency said, collect evidence in a variety of situations, including in use-of-force investigations involving agents.

But the San Diego unit still existed when Hernández Rojas was killed, and, according to the letter, its members deliberately interfered with the San Diego police investigation.

Revelations about these units came through human rights attorneys investigating the 2010 killing of Anastasio Hernández Rojas at the San Ysidro Port of Entry

Oct. 28, 2021

A combination of Border Patrol agents and CBP officers swarmed Hernández Rojas at the port of entry, some beating him, kicking him and shooting him with a Taser while he was already down on the ground. He ended up hospitalized and brain dead. He would die a few days later.

Instead of contacting San Diego police, which had jurisdiction to investigate, Border Patrol’s own investigative unit began working at the scene and at the hospital, according to the letter and police records. That unit, the letter says, does not have any federal authority to do so.

San Diego police found out about the incident the following day, when a reporter called to ask the department for comment.

According to police records cited in the letter, members of the special Border Patrol unit were present for briefings and interviews. They also controlled the witness list of agents, the letter says, and took their own photos at the autopsy.

“Their presence at each of these critical phases prohibited witnesses and agents from speaking openly about what happened,” the letter says. “It also gave [the Border Patrol team] an opportunity to handle and mishandle evidence and spin the narrative as they saw fit to decrease the liability of Border Patrol.”

Agents on the team altered the original apprehension report from the Border Patrol agent who caught Hernández Rojas and his brother crossing into the United States, the letter says, by removing language that indicated Hernández Rojas was compliant with the agent before giving the report to San Diego police.

One of the agents went to the hospital before San Diego police knew about the case and asked the doctor to draw blood to test for drugs, according to the letter. There do not appear to be results for that blood sample in the medical record, the letter says.

Agents also used an administrative subpoena to obtain Hernández Rojas’ medical records, according to police documents cited by the letter. Administrative subpoenas are not supposed to be used in criminal investigations.

“Citing HIPAA regulations and their department policy, Border Patrol refused to provide investigators with a copy of the records,” the police documents say.

The letter calls this action direct interference in the San Diego police’s ability to gather evidence in the case.

San Diego police previously declined to comment on possible obstruction of justice in the case, citing a pending hearing before the Inter-American Commission on Human Rights into the matter.

Agents also did not give police the right video footage in the case, police records show.

In the autopsy report published in 2010, the medical examiner relied on blood drawn before Hernández Rojas’ death to test for drugs. However, the times that the toxicology report says the samples were drawn do not correspond to blood draws in his medical record, which is available in police documents and cited in the letter.

A hospital blood test that is part of police records didn’t detect drugs in Hernández Rojas’ blood. However, the medical examiner’s toxicology report found evidence of methamphetamine in the disputed blood sample.

The letter says this blood sample raises further questions about the Border Patrol unit’s potential tampering in the case.

Dr. Steven Campman, chief medical examiner for the county, said that his office has documentation showing the transfer of the blood samples between the hospital lab and his office.

A second toxicology report was added to the autopsy more than three years later, about two weeks after a civil suit over Hernández Rojas’ death called the blood sample in the first toxicology report into question. It also found presence of methamphetamine.

According to Campman, the blood in the second report was drawn during the autopsy. The report itself does not indicate the date the specimen was collected nor the date it was tested.

Campman said that the additional testing was requested by the pathologist who performed the autopsy at the end of August 2013 and that the tests were run over the next several weeks. He did not have information about why that request was made.

“It is not unusual for additional testing to occur, particularly in homicide cases or others where the toxicological findings are of interest to a party or parties at a later time,” Campman said.

The Justice Department cited the presence of methamphetamine in Hernández Rojas’ blood as a reason not to prosecute in the case when it finally announced the decision five years after the killing.

The Border Patrol team also made a report with the information its members gathered, the letter says, but agents did not give that document to San Diego police. Instead, it was shared with defense attorneys who were representing the agents involved, the letter says.

“They were running a parallel investigation for their own purposes — to protect agents and the agency from civil liability,” the letter says.

Several former high-level officials from Customs and Border Protection, the parent agency to the Border Patrol, have spoken out about what they witnessed during the case.

Testimony from James Wong, then-deputy assistant commissioner for internal affairs at CBP, and James Tomsheck, then-assistant commissioner at the CBP internal affairs office, said both Mike Fisher, then-chief of Border Patrol and David Aguilar, then-deputy commissioner of CBP, participated in the cover-up. Rodney Scott, who was head of the San Diego Border Patrol Sector at the time and went on to become Border Patrol chief, was also implicated in the letter.

Fisher declined to comment on the situation when reached by phone. Scott and Aguilar did not respond to requests for comment.

The Union-Tribune also made attempts to reach the five San Diego agents named in the letter as participating in Border Patrol’s investigation. Some could not be found. Others did not respond. It is not clear how many of them still work for Border Patrol.

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