Anastasio Hernandez Rojas
Anastasio Hernandez Rojas. Photo credit:

Immigrants’ rights groups Thursday called on prosecutors to investigate the actions of a group of Border Patrol agents involved in a fatal altercation with a man at the San Ysidro Port of Entry.

Activists with the San Diego Immigrant Rights Consortium and Alliance San Diego want the San Diego County District Attorney’s Office to pursue the decade-old case and possibly file criminal charges.

They alleged at a downtown news conference that Border Patrol agents tampered with evidence related to the investigation into the death of Anastasio Hernandez-Rojas, 42.

The groups contend Hernandez-Rojas was struck with batons and repeatedly shocked with an electric stun gun while he was prone and shackled at the San Diego border-crossing facility on May 28, 2010.

He died three days later at a hospital.

Though the Department of Justice announced in 2015 that it would not prosecute any of the agents involved, the case is currently under review by the Inter-American Commission on Human Rights, an international organization that examines potential violations.

Attorneys representing Hernandez-Rojas’s family say that in preparing for the case before the commission, they examined the San Diego Police Department’s investigative record into his death.

The file, they said, indicates that the Border Patrol’s Critical Incident Investigative Team – or CIIT – interfered with the SDPD probe.

The groups allege CIIT withheld key information and conducted a parallel investigation into the death despite lacking jurisdiction. They also accuse border agents of destroying and concealing evidence.

County prosecutors said in a statement that they have not received a case to review. They also would not comment on the Department of Justice’s review of Hernandez-Rojas’ death.

“The District Attorney’s Office stands ready to pursue justice when the evidence supports it and where we have jurisdiction,” the statement read.

Representatives with U.S. Customs and Border Protection did not respond to a request for comment.

Among the groups’ allegations, contained in a Thursday letter to District Attorney Summer Stephan:

  • CIIT never notified SDPD of the death, which the department learned about through a media inquiry about 15 hours later.
  • That CIIT altered an initial Border Patrol report indicating Hernandez-Rojas was compliant with the first border agent who contacted him. The alleged alteration of this report “fed into a narrative that he was aggressive, non-compliant and on drugs,” the letter states.
  • Methamphetamine intoxication was referenced in the Department of Justice’s 2015 statement, but this was based on a blood sample that does not correspond with any blood draws performed on Hernandez-Rojas at the hospital.

The letter further states that hospital records show his blood did not indicate any detectable drugs in his system.

In the case before the human-rights commission, attorneys for Hernandez-Rojas’ family submitted filings they say includes testimony from three key figures who were part of CBP and the Department of Homeland Security during the death investigation.

James F. Tomsheck, then an assistant commissioner of CBP’s Internal Affairs Office, alleged that the agency’s Deputy Commissioner David Aguilar indicated he wanted reports to reflect that Hernandez-Rojas was “standing, unrestrained and combative when he was tasered.”

According to the filings, Tomsheck also said Aguilar “wanted me to falsify reports and did not want this critical portion of events to be accurately documented.”

John Dupuy, who worked as DHS assistant inspector general for investigations, said that there was an eyewitness video that “directly contradicted CBP’s version of the event.” Attempts to reopen the investigation after discovery of this footage, though, were rebuffed.

James Wong, then-deputy assistant commissioner of CBP’s Internal Affairs Office, also alleged that Border Patrol agents erased some eyewitness footage.

“It may have been proper for these videos to be copied and preserved by Border Patrol. However, by destroying the videos, agents tampered with evidence and should have been prosecuted for that conduct,” Wong said.

In 2017, the family agreed to a $1 million settlement to end their federal lawsuit in the case.

– City News Service