Border Patrol Agent. Photo credit: Josh Denmark/CPB

The U.S. Department of Justice announced Friday that it will not pursue criminal charges against federal agents involved in a scuffle that resulted in the death of a Mexican national in their custody at the San Ysidro Port of Entry five years ago.

Officers with the Border Patrol and Immigration and Customs Enforcement struck Anastasio Hernandez-Rojas, 42, with batons and repeatedly shocked him with an electric stun gun while he was prone and shackled at the San Diego border-crossing facility on May 28, 2010.

Hernandez-Rojas passed out and stopped breathing during the protracted struggle. He died three days later when his family decided to take him off life support.

Postmortem exams showed that Hernandez-Rojas died of a heart attack that he suffered while being restrained. Listed in his autopsy report as contributory factors were acute methamphetamine intoxication, pre-existing heart disease, the level of physical exertion he underwent during the tussle, the shocks from the stun gun and “positional restraint.”

Accounts of Hernandez-Rojas’ death and the release of citizen videos of the encounter prompted widespread outrage and calls for change in government handling of suspected undocumented immigrants in border areas.

In explaining its decision against seeking prosecution against the agents involved in the deadly confrontation, the Justice Department stated that its “comprehensive investigation” convinced “a team of experienced federal prosecutors … that the evidence was insufficient to pursue federal criminal civil rights charges.”

“Under the applicable federal criminal civil rights law, prosecutors must establish beyond a reasonable doubt that an official willfully deprived an individual of a constitutional right, meaning that the official acted with the deliberate and specific intent to do something the law forbids,” the department asserted in a prepared statement.

The DOJ concluded that “the federal government could not prove beyond a reasonable doubt that the (personnel) acted willfully, that is with the specific intent to deprive the victim of a constitutional right.”

“Specifically, the federal government cannot disprove the agents’ claim that they used reasonable force in an attempt to subdue and restrain a combative detainee so that he could be placed inside a transport vehicle.”

Officials from the Department of Justice Civil Rights Division, the FBI and the Department of Homeland Security’s Office of the Inspector General met with members of Hernandez-Rojas’ family and their representatives to inform them of the determination, according to the DOJ.

Several of those relatives reacted to the decision bitterly.

Hernandez-Rojas’ widow, Maria Puga, said she and the rest of his loved ones had “waited more than five years for an answer to our pain, and we are sad, disillusioned and angered by today’s announcement.”

“We expected and hoped for a more positive response, given the brutality we saw in eyewitness videos,” she said in a statement released by Southern Border Communities Coalition. “The government failed to deliver justice today.”

Puga said the personnel involved in her late husband’s death “got away with murder.”

Likewise, Hernandez-Rojas’ mother, Luz Rojas, said the Department of Justice ruling “is not justice.”

“It seems like justice is only for the wealthy and not for the poor,” she stated in comments released by the border coalition. “It took five years of struggle just for them to deny us. They say that no one is responsible for the death of my son, but they are responsible. The agents (who) beat him, electrocuted him, and choked him are responsible.”

The fatal fracas erupted as Border Patrol agents were trying to escort Hernandez-Rojas back over the international line after he was caught entering the United States illegally, according to federal officials.

When the personnel removed a set of handcuffs they had put on Hernandez- Rojas, he began “grappling” with them and then resisted their efforts to restrain him again, according to the Justice Department. At that point, two ICE officers and another USBP agent joined the struggle, striking Hernandez-Rojas with their batons.

The federal personnel again cuffed Hernandez-Rojas’ wrists, after which he continued to struggle and kick at them, according to the DOJ. The agents then called for backup and a transport vehicle to take Hernandez-Rojas to a holding area, since he was no longer eligible for voluntary return to his home country.

As agents tried to place Hernandez-Rojas in the transport van to take him back to their station, he again resisted and attempted to kick them. Customs and Border Protection officers responded, and one of them used an electric stun gun to try to subdue Hernandez-Rojas.

Shortly thereafter, Hernandez-Rojas’ breathing slowed and he lost consciousness, according to the DOJ. Officers administered CPR prior to the arrival of paramedics, who took over the emergency treatment and transported him to a trauma center.

— City News Service

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