Despite new memo, advocates say Border Patrol’s shadow police units still have no legal authority

Customs and Border Protection (CBP) has issued a memo that claims to limit the power of the shadow police units that have for years worked to cover up abuses by border agents, including the brutal death of Anastasio Hernandez Rojas in 2010. The Feb. 2 memo loops in the Office of Professional Responsibility (OPR), which investigates misconduct among federal employees. It”;s signed by Border Patrol Chief Raul Ortiz and OPR Assistant Commissioner Matthew Klein.

But advocates say that the response in reality confirms what they”;ve been insisting: Border Patrol”;s Critical Incident Teams (BPCITs) have been in existence for years without legal authority, they continue to lack legal authority, and the federal government continues to be evasive about the units.

“;CBP, the agency that oversees Border Patrol, failed to meaningfully respond to the specific requests for information from Congress and failed to identify any legal authority under which BPCITs operate,”; Southern Border Communities Coalition (SBCC) said this week. “;Instead, the agency issued a memo that suggests the BPCITs may be legitimate and that their activity could be regulated. But the fact is that BPCITs have no legal authority to engage in the investigation of agent misconduct.”;

Lawmakers have backed this up in their calls for federal investigations. “;Despite the apparent lack of authority to investigate agent misconduct, the CBP appears to have created Critical Incident Teams to investigate and collect evidence following incidents that may create criminal or civil liability, including allegations of excessive use of force,”; bicameral lawmakers told the Government Accountability Office comptroller in a Jan. 24 letter.

That call from 10 congressional chairs came only after pressure from advocates like SBCC, and CBP is issuing this memo only because of the ongoing pressure. But the memo doesn”;t change the fact that these secretive units shouldn”;t exist at all, advocates continued.

“;BPCITs have no legal authority,”; tweeted Jenn Budd, a former Senior Border Patrol agent turned whistleblower. “;@CBP cannot issue guidelines for BPCITs because the Border Patrol has no legal authority to have CITs. @CBP does not have the power to give authority.”; She later wrote that by issuing this memo, Biden administration officials “;are admitting that these teams were illegal for decades and now they are just going to bless them as legal. Got it. This is whitewashing in real time. This is a coverup of the coverup teams.”;

Lawmakers have said that these units have existed since at least 1987. Disturbing reports have revealed how the units helped cover up the brutal murder of Hernandez Rojas, who was hog-tied, beaten, and Tased into unconsciousness by border agents. Earlier this year, the Los Angeles Times reported that as many as 17 agents were involved in his killing. He was a dad of five U.S. citizens. While a court in 2017 approved a $1 million settlement for his family as part of a wrongful death lawsuit, the Justice Department two years prior had declined to pursue federal charges against agents involved in his death, citing “;insufficient”; evidence.

More recently, officials have publicly said these units have also been dispatched to Border Patrol”;s deadly car chases. The New York Times reported an official confirmed the units are “;collecting evidence that could be used to protect a Border Patrol agent and “;help deal with potential liability issues,”; such as a future civil suit.”;

No memo can fix this, advocates say. No memo can erase the harm they”;ve done, either. The units need to be completely eliminated, and its victims need accountability.

“;Agents should not be in the business of investigating themselves,”; said SBCC Director Vicki B. Gaubeca. “;These shadow units have an inherent conflict of interest in protecting agents and because of that they should not be anywhere near an agent-involved investigation. Their stated purpose of mitigating liability for agents can never be reconciled with neutral fact finding. Their involvement compromises any investigation. Moreover, their interference could amount to obstruction of justice, which should be prosecuted.”;

RELATED: CBP commissioner defends Border Patrol’s cover-up units as ‘vitally important’

RELATED: Ten congressional chairs are seeking a review of Border Patrol’s secretive cover-up units

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