This article was produced by Capital & Main. It is published here with permission.
Nearly 15 years after Anastasio Hernández Rojas’ wife began pushing for justice in her husband’s killing, an international human rights commission found that U.S. border officials were responsible for his death — and that they tortured him before he died.
Officials beat and shocked Hernández Rojas with a Taser while they were deporting him to Mexico through the San Diego border in May 2010. He was hospitalized and died a couple of days later.
This is the first time that the Inter-American Commission on Human Rights, part of the Organization of American States, of which the United States is a member, has made a ruling about a law enforcement killing on U.S. soil.
In a decision published Wednesday, the commission called for reopening a criminal investigation into the officials involved in Hernández Rojas’ death, as well as just punishment for U.S. officials who it said helped cover up what happened.
“I am at peace, waiting to see what the government does with what’s being ordered. What we want is ‘Here is the truth. This is what happened,’ ” Hernández Rojas’ wife, Maria Puga, said in Spanish. “What’s left for me is to keep supporting and keep fighting for other families.”
The case involves the Trump administration’s pick for Customs and Border Protection commissioner, Rodney Scott, who was in charge of the San Diego Border Patrol Sector at the time of Hernández Rojas’ death. Sen. Ron Wyden, D-Oregon, learned of the commission’s decision during Scott’s confirmation hearing Wednesday after questioning Scott about his actions at the time.
Maria Puga stands in front of a mural memorializing her husband, Anastasio Hernández Rojas, in San Diego’s Chicano Park. (Photo by Barbara Davidson/For Capital & Main)The U.S. State Department, which handles cases before the commission, deferred to the Department of Homeland Security when asked for comment. Homeland Security and U.S. Customs and Border Protection did not respond to requests for comment.
The government had argued in 2022 that the commission didn’t have jurisdiction in the case because the family had previously agreed to a $1 million settlement, but the commission rejected this reasoning.
In the decision released Wednesday, the commission critiqued the discrimination that Hernández Rojas faced from U.S. law enforcement as a Latino and as a migrant. The tribunal’s findings also condemned Customs and Border Protection’s use-of-force policies and called for major changes to bring those policies in line with international human rights guidelines. Customs and Border Protection is the largest law enforcement agency in the U.S.
“This commission has expressed concern that several U.S. laws do not require the use of non-violent means before resorting to the use of force, do not provide for the use of lethal force as a last resort, do not require a warning to be given prior to the use of lethal force, or do not clearly and objectively define the situations in which the use of lethal force is authorized, thus leaving a wide margin of discretion for interpretation by police officers,” the decision said.
Puga said she hopes that the government implements the commission’s recommendations.
“If they follow through with that, there will not be another family affected like ours,” Puga said.
Cases from other countries decided by the commission have resulted in monuments being built to memorialize victims, formal apologies, reopening of criminal cases and changes in law and policy, among other outcomes. Including the U.S., there are 34 member countries in the organization.
The commission’s findings could set a precedent for other cases currently before the agency involving U.S. police killings of Black people, according to Roxanna Altholz, director of the Human Rights Clinic at UC Berkeley’s School of Law and an attorney who represents the family of Hernández Rojas. That includes the high profile cases of Michael Brown Jr., whom police killed in Ferguson, Missouri, in 2014, and Sandra Bland, who died in police custody in Texas in 2015.
“In the United States, what we’ve heard over and over again was these killings of 11-year-olds, killings of unarmed civilians, killings of people who are begging for mercy as Anastasio was are maybe the result of just bad apples, and what this case stands for very clearly is this is the result of a bad system,” Altholz said. “It’s the result of use-of-force laws that violate international standards and fail to protect civilian life. It’s the result of a justice system that has proven itself incapable of holding law enforcement agents accountable.”
Though the commission does not have a police or military enforcement component, its decisions act much like the consent decrees set up between the U.S. Justice Department and local law enforcement agencies who are found to have discriminatory practices, Altholz said. The commission will now monitor the U.S.’ compliance and continue to hold hearings to push the State Department for reforms.
“Unfortunately, the United States has joined countries like Colombia and Argentina and Chile and Guatemala that have been condemned by the Inter-American Commission for committing life-and-limb crimes, life-and-limb human rights violations,” Altholz said.
If the U.S. does not comply, it could put into jeopardy the country’s status in policing human rights in other parts of the world, Altholz said. Just last year, the U.S. Treasury Department sanctioned entities in several countries, including Iran, Nicaragua and Venezuela, for human rights violations.
For Andrea Guerrero, executive director of Alliance San Diego and another attorney on Hernández Rojas’ case, the decision offers hope in a moment when many human rights advocates in the U.S. are struggling to see a way forward.
“Why do we fight? Because sometimes we win,” Guerrero said.
A deportation and a killing
The commission’s decision detailed the facts of the case as constructed through a review of hundreds of pages of police records and other materials submitted by attorneys representing the family as well as testimony from a hearing held in 2022.
Born in San Luis Potosí, Mexico, Hernández Rojas came to San Diego when he was 15, according to the commission’s document. About six years later, Hernández Rojas met his wife, and they had five children.
Days after he turned 42 in May 2010, Hernández Rojas was arrested on suspicion of attempting to steal food and beverages from a supermarket, the decision document said. He was deported about two weeks after he was booked into the county jail.
A couple of weeks later, Hernández Rojas tried to come back to his family and crossed the border with his brother. They were apprehended and taken to the Chula Vista Border Patrol Station in San Diego County.
Testimonies about what happened there offer conflicting accounts.
According to two agents’ declarations, Hernández Rojas initially refused to throw away a bottle of water that he had with him. One of the agents threw the water bottle in the trash and sent him to an interview room. But according to testimony from Hernández Rojas’ brother, as Hernández Rojas was emptying the water bottle into the trash, an agent got angry and took the bottle from him, pushed him into the wall and kicked him in the foot before sending him to the interview room.
An agent’s declaration confirmed that Hernández Rojas complained of pain in his ankle and asked for medical treatment. But the two agents who were with him in the interview room said that they looked at his ankle and decided he didn’t need treatment. One said in his declaration that he believed that migrants frequently lied about medical needs.
The commission found that this denial of medical care was the first of many violations of Hernández Rojas’ rights based on discrimination toward him as a migrant.
The agents decided to deport Hernández Rojas right away and took him to the deportation gate at the San Ysidro Port of Entry, known in the agency as “Whiskey-2,” where they took off his handcuffs.
From there, the testimonies grew even more disparate.
Two agents said that Hernández Rojas went “crazy,” and one said he pushed and grabbed at officials. Immigration and Customs Enforcement officers who joined the scene said he punched at officials. Other officials said they didn’t see him hit or assault anyone.
The ICE officers beat him with a steel baton, according to the commission’s summary of the facts of the case, and a group of four officials knocked him down and handcuffed him face down on the ground as more officers joined them.
At this point, Hernández Rojas began asking for help in Spanish. Over the course of the beating, his cries caught the attention of many who were crossing back from Mexico through the port of entry.
Witnesses said they saw officials kneel on the back of Hernández Rojas’ neck and lower back while others punched, kicked and stomped him.
Customs and Border Protection Officer Jerry Vales went up to Hernández Rojas and told him to stop resisting, according to witness testimony. The witnesses saw Vales kick him “like a football kick,” the decision report said.
Vales did not respond to Capital & Main’s attempts to reach him via social media accounts.
Vales then used his Taser at least four times on Hernández Rojas. The device recorded two administrations at five seconds long, a third at 13 seconds and a fourth at 12 seconds. That final administration was in “drive stun” mode, with the Taser pressed directly to Hernández Rojas chest, which caused immediate convulsions, the report said.
Witnesses said that Hernández Rojas’ body went limp after he was shocked by the Taser and that officials continued to beat him.
The beating and deployment of the Taser, the commission found, amounted to torture.
“So you have U.S. law enforcement personnel committing one of the worst crimes that we recognize as humanity, the act of torture,” Altholz said. “It’s a crime that is put on equal level by international law as slavery.”
The commission found no argument to justify using a Taser on Hernández Rojas while he was on the ground with his hands cuffed behind his back and in particular condemned the use of the device in drive stun mode.
When the officials noticed that Hernández Rojas no longer had a pulse, they called for medics. They said the EMTs came right away, but the medical examiner’s report noted that resuscitation was delayed. Hernández Rojas was taken to Sharp Chula Vista Medical Center, where he was declared brain dead.
He died three days later.
Puga holds a set of rosary beads given to her while she kept vigil at Hernández Rojas’ bedside. (Photo by Barbara Davidson/For Capital & Main)A cover-up
In the moments after beating Hernández Rojas, border officials erased video from phones and cameras that people crossing through the port of entry had used to record the officials’ actions.
The officials didn’t report the incident for more than four hours, and the Border Patrol sent its own investigative team to the scene. Known as a critical incident team or critical incident investigation team, these units have since been accused of covering up evidence in multiple cases where border officials may have used excessive force, including in the case of Hernández Rojas.
The San Diego Police Department, which should have been the law enforcement agency responsible for an investigation, did not learn about what happened until around noon the following day when a KPBS journalist called to ask about the incident. That meant that the crime scene was not preserved or documented for more than 15 hours.
San Diego police did not respond to a request for comment.
Meanwhile, according to declarations from three government whistleblowers submitted with the case, officials high up in the U.S. government began to try to spin the narrative.
“There are only two instances where, in my 40 years in law enforcement, I was ordered to falsify reports,” James F. Tomsheck, assistant commissioner for Customs and Border Protection’s Office of Internal Affairs at the time of the killing, said in a declaration.
One of those instances was in the case of Hernández Rojas, Tomsheck said.
Jim Wong, who was Customs and Border Protection’s deputy assistant commissioner for internal affairs at the time of the killing and who also contributed a declaration in the case, said the international commission’s findings made him feel validated, especially on behalf of Tomsheck, who died last year.
“I really have no stake in it other than the fact that there was an injustice done, and if you don’t attempt to right what’s wrong, then you’re part of what’s wrong,” Wong said.
Based on the information gathered initially from border officials, San Diego police issued a news release referring to Hernández Rojas as the aggressor, and the early investigation characterized the border officials as the victims.
Police were never able to obtain video footage of the scene from Customs and Border Protection because officials initially sent the wrong files and then the footage was recorded over, according to the police report.
Border Patrol’s investigative team issued an administrative subpoena to obtain Hernández Rojas’ medical records from the hospital but did not provide those documents to San Diego police. It also participated in witness interviews.
Agents were also present for the autopsy, where a toxicology screening found traces of methamphetamine. (The presence of Border Patrol agents during the autopsy, as well as agents’ requests for blood samples at the hospital, has raised questions for Hernández Rojas’ family.)
Ultimately, the medical examiner officially declared the case a homicide but could not say definitively how much the drugs might have contributed to his death. A second autopsy requested by the family concluded that it was the trauma from the beating that killed Hernández Rojas.
When asked about the case, the San Diego County Medical Examiner’s Office said that it conducts “independent objective determinations for all deaths falling under its jurisdiction as a service to the public.”
Nearly two weeks after Hernández Rojas’ death, the first video of the beating that had escaped border officials’ attempts to erase evidence was aired on a television news broadcast.
It was only then that police began interviewing witnesses who were passersby at the port of entry, and the narrative of what happened began to shift from Hernández Rojas as the aggressor to him as the victim.
More than a month after his death, San Diego police referred the case to the U.S. Attorney’s Office. That office declined to comment.
In 2012, a second video surfaced in an episode of PBS’ weekly news report Need to Know with a clearer picture of what officials did to Hernández Rojas.
“Almost immediately, the FBI called me after it was released,” recalled Ashley Young, who was in her early 20s at the time and spending a holiday weekend in San Diego with a friend when she saw what was happening to Hernández Rojas and decided to film it.
“I can’t spend a Memorial Day weekend without thinking about Anastasio and about what happened and what I witnessed,” she added.
The Department of Justice later held grand jury proceedings. In 2015, more than five years after the killing, the Department of Justice closed its investigation without filing any charges. In a news release, the department cited methamphetamine as a contributing factor in Hernández Rojas’ death.
The commission in its decision pointed to the second autopsy examiner’s finding that Hernández Rojas was alive and calling for help when officials beat him, suggesting that was what killed him rather than the presence of any drugs.
The evidence and testimony from the grand jury proceedings were never made public. The commission took issue with this as well and called on the U.S. to make grand jury proceedings more transparent and accessible to victims and their families.
“Impunity in such cases not only facilitates its repetition but could also represent a form of social acceptance of these events that continuously fuel the discrimination cycle against migrants,” the commission said.
Seeking justice
Puga has never stopped demanding justice for her husband.
In 2016, attorneys filed a petition with the Inter-American Commission on Human Rights on behalf of the family. The family pushed in 2021 for San Diego prosecutors to reopen cases against the border officials involved in Hernandez Rojas’ death after learning about the extent of the cover-up through work on the case for the commission.
“Having true justice would be taking them all to court and to jail,” Puga said.
Puga visits her husband’s grave in San Diego. (Photo by Barbara Davidson/For Capital & Main)The Mexican government also has followed the case closely. Last year, on the 14th anniversary of Hernández Rojas’ death and the 100-year anniversary of the creation of the Border Patrol, Mexico issued a statement condemning the agency’s use of force on its citizens.
The decision from the commission feels like a step in the right direction, Puga said.
It called for full reparations for the family, including mental health support, and reopening the criminal investigation. It said state officials who participated in the killing or cover-up should be held accountable through administrative, disciplinary or penal measures.
It also emphasized the importance of correcting the United States’ official narrative to show that Hernández Rojas was the victim in the encounter.
Lastly, it called for measures to keep similar incidents from happening again, including changing use-of-force standards to match the international guidelines of necessary and proportional rather than the United States’ legal measure of reasonable belief, which the commission called “broad and unclear.” In those measures, it also said the U.S. should prohibit the use of Tasers in drive stun mode because of the harm they’re known to cause and provide more training to police officers on the use of force and human rights.
Though Puga said she knows that the U.S. is not likely to comply with the commission’s recommendations while President Donald Trump is in office, she remains hopeful that the country will eventually follow through.
She said that if Trump wants to go after criminals in the U.S., he should start with border agents.
After waiting 15 years for justice, she said she still has some fight left in her to keep pushing.
“This was a case in which the whole community and organizations were supporting us,” Puga said. “So this decision is for all of us, but for my family it’s something — it’s a relief — more than anything, at last the truth is being told.”
She has been taking flowers to her husband’s grave at a hilly cemetery in San Diego every week or two for nearly 15 years. She talks to him daily, often holding up a tear-stained photo of him in her bedroom.
After the attorneys came to her home to tell her about the commission’s decision, she went to tell her husband the news.
“I told him, ‘Yes, we could,’ ” she said. “It’s not going to stay in impunity. I thanked him for giving me that bravery.”
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