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At international human rights hearing, United States declines to argue details of 2010 border killing – The San Diego Union-Tribune

  • Attorney Daniel Albert
  • Family Law
  • At international human rights hearing, United States declines to argue details of 2010 border killing – The San Diego Union-Tribune

Before she testified in front of an international human rights tribunal, Maria Puga took a rosary that has hung in her car for 12 years and placed it around her neck.
She said she had used the beads to pray for her husband, Anastasio Hernández Rojas, when he was hospitalized after being beaten by U.S. border officials as he was being deported at the San Ysidro Port of Entry in 2010. The rosary is now one of the last mementos she has of the man whose killing would be the subject of the hearing Friday.
The Inter-American Commission on Human Rights is a body within the Organization of American States — an entity that includes the United States. The commission often hears cases about massacres, extrajudicial killings, disappearances and torture committed by governments in the Western Hemisphere. When Puga spoke before the tribunal on Friday, it was the first time the commission had taken up a case about a killing by U.S. law enforcement.
During the hearing, which took place via Zoom, Puga, along with two attorneys supporting her family, argued that the United States should be instructed to apologize to her family and to reopen its investigation into the killing of Hernández Rojas by Customs and Border Protection officers and Border Patrol agents. They also implored the U.S. to adjust its laws on use of force to match international human rights standards.
“We want justice. We want to rest. We want a little peace in our family. What they did to my husband was murder,” Puga told the panel of commissioners in Spanish. “They destroyed my family.”

The attorneys in the case had already submitted to the commission evidence they’d found that suggested a plot to cover up officials’ responsibility in the killing and obstruct San Diego police’s investigation. Their allegations extended high into the ranks of the agencies involved. That evidence led them last year to denounce what they termed “shadow units” or secretive investigative teams within U.S. Border Patrol that operated, according to documentation from the San Diego unit itself, to mitigate liability for the agency.
Officials representing the United States at the hearing declined to engage on the merits of the case. Instead, the U.S. government asked the commission to throw the case out — as it had requested in legal filings earlier in the process — because the family filed a civil lawsuit in U.S. federal court that reached a settlement in 2017 for $1 million. The United States also did not file any written response to evidence submitted by Puga’s attorneys before the hearing.
“We will not be discussing or debating the details of what happened in May 2010. It was clearly a tragic event and loss of life,” said Thomas Hastings, the State Department official who represents the U.S. in the Organization of American States. “You have our sympathies.”

Two Department of Homeland Security officials who joined Hastings addressed current structures for investigating border officials’ misconduct as well as changes in use-of-force policies and trainings since 2010. They also noted that the controversial investigative teams within Border Patrol had been disbanded.
The United States declined to answer questions from the commissioners during the hearing, saying its officials would follow up in writing. They will have 30 days to do so.
Among the questions, U.S. officials were asked to clarify whether torture is legal in the United States, whether it believes all of its border officials actually follow all trainings in every moment while on the job, whether the civil settlement with the family waived their right to impartial criminal proceedings and whether what happened to Hernández Rojas was in line with use-of-force standards at the time.

Andrea Guerrero, executive director of Alliance San Diego and one of Puga’s attorneys, told the commissioners that the changes made by CBP would not have prevented Hernández Rojas’ death.
“CBP is the greatest threat to human rights in the United States,” Guerrero said.

Roxanna Altholz, co-director of the International Human Rights Law Clinic at UC Berkeley and an attorney in the case, took issue with the United States’ position that the commission shouldn’t hear the case because of the settlement.
Governments cannot kill and pay to avoid responsibility, she said.
The government of Mexico praised the commission for taking on the case.

“This is a landmark case because it reveals an excessive use of force and a lack of accountability, which has had a negative impact on Mexicans,” the statement said.
Rafael Barriga, a Mexican immigration official who witnessed CBP officers and Border Patrol agents beating Hernández Rojas and shooting him with a Taser, told the commission what he had seen during his shift back on May 28, 2010.

He said that at around 9 p.m., a woman came into the office that received deportees to say a Latino man was being beaten. Barriga said he went out and could hear cries of the bystanders pleading with U.S. officials to stop hitting someone. He could also hear the man, who he learned later was Hernández Rojas, crying out in pain. The officials moved the man, and then suddenly Barriga could see for himself what was happening.
“I never imagined I would see that in my time as an official,” Barriga said. “They brought him on the ground, rolling him, kicking him as though he were a barrel, as though he couldn’t feel pain.”
Hernández Rojas was handcuffed, he said.

He saw the officials use Tasers though in no moment did he ever see Hernández Rojas do anything to threaten or harm the officials, he said. He said at one point, an official got close enough to him that he was able to ask whether it was necessary to have so many officers to control one person and about the person’s condition. He said the official responded coldly for him not to worry about that.
He said none of the officials called for medical help until after the Taser had been used several times, and an official noticed that Hernández Rojas was unconscious and unresponsive.
As Barriga described the scene, Puga began to cry. She hadn’t heard his story before.

Barriga said he testified before a federal criminal grand jury convened about the case and that the prosecutor’s tone and questions made him feel like the lawyer wanted to bring his credibility into doubt. In 2015, the Department of Justice declined to prosecute in the case, citing claims from CBP that Hernández Rojas was combative and a toxicology report during his autopsy that showed presence of methamphetamine. The subsequent investigation that revealed the interference by the Border Patrol investigative unit by Althoz and Guerrero has raised questions about these findings.
Guerrero said the commissioners’ decision will likely come sometime next year. Even if they instruct the United States to do what the family has asked for, it’s not clear whether the U.S. would be willing to comply.

After the hearing ended, Puga quickly moved from the classroom at the Cesar Chávez campus of the San Diego College of Continuing Education where she, Barriga, Guerrero and Althoz participated via Zoom to the room where several of her family members watched. She held her daughter in a long embrace, and then the family and attorneys discussed their frustration that the United States had stayed quiet.
Then Puga did what she has done so many times over the last 12 years. She gathered herself and went to a press conference to call for justice for her husband.
“They just thought he was one more immigrant who was going to disappear,” she told the crowd. “But here we are.”

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