Border Patrol is grappling with misconduct cases in its ranks

One by one, Border Patrol agents took the witness stand in the federal courthouse here last week to testify against a fellow officer, their faces creased with anguish.

By their accounts, Agent Jesus Enrique Diaz Jr., a husband and father with seven years on the job, tortured a 16-year-old drug smuggler two years ago by wrenching his handcuffed arms upward as he pressed a knee into his back. In an effort to make the boy reveal where he had hidden marijuana bundles near the Rio Grande, Diaz also kicked him and dropped him face-first on the ground, agents testified.

No one stopped the alleged assault as the 110-pound juvenile screamed, but some agents talked afterward about the “disgust” they felt and reported it. “I knew that what he was doing was wrong,” Agent Gabriel Lerma testified.

The result was a rare Justice Department prosecution of a Border Patrol agent on civil rights charges, and the latest indication of problems within the Border Patrol, which has grown rapidly in recent years to become the second-largest police agency in the country with sworn officers after the New York Police Department.

Diaz denies the allegations — he is also charged with lying to investigators — and the case ended in mistrial Thursday because a juror was taking notes in violation of the judge’s instruction. A retrial is planned, and Diaz remains on unpaid suspension.

Regardless of the outcome, the Border Patrol is grappling with a spate of misconduct cases in its ranks, which have expanded from 4,000 agents in the early 1990s to 21,000 today.

In the last 18 months, five Border Patrol agents have been accused or convicted of sex crimes, including one agent who pleaded guilty in January to raping a woman while off duty, and another who is accused of sexually assaulting a migrant while her young children were nearby in a car.

Another agent, Gamalier Reyes Rivera, is jailed in San Diego on $10-million bail, awaiting trial on attempted murder charges in a hatchet attack that paralyzed a man.

In June, Agent Eduardo Moreno pleaded guilty to a federal civil rights charge for assaulting a migrant in 2006 at a processing center in Nogales, Ariz.

That same month, a Border Patrol agent shot and killed an unarmed 15-year-old Mexican in El Paso after a group of young men threw rocks at the agent, authorities said. A poor-quality cellphone video of the incident shows that the teen was a considerable distance away, on the Mexican side of the border, when he was shot.

That case is under investigation, as is a San Diego incident in May, when Border Patrol agents were involved along with customs personnel in the death of a detainee who was beaten and shocked with a Taser up to four times. The agents said the detainee became violent while being deported to Mexico. The Taser, the beating and methamphetamine in the detainee’s system all were factors in his death, according to the San Diego County medical examiner.

The Border Patrol treats detainees “very, very poorly,” said Tony Payan, a political scientist who studies the agency at the University of Texas at El Paso. “They see themselves as a quasi-military body defending the country. Add to that the fact that they are expanding rapidly, and you have thousands of rookies who have very little experience.”

U.S. Customs and Border Protection, or CBP, the Border Patrol’s parent agency, said in a statement that “the overwhelming majority of CBP agents and officers perform their duties with honor and distinction.... We do not tolerate corruption or abuse within our ranks, and we fully cooperate with any criminal or administrative investigations of alleged misconduct by any of our personnel, on or off duty.”

The Border Patrol added about 9,000 agents between 2005 and 2009. The agency said it employs a rigorous vetting process for new recruits.

CBP is “fully aware of and deeply concerned about arrests of our employees,” the agency said. Since October 1, 2004, there have been 1,493 arrests of CBP employees — a figure that includes Border Patrol and customs agents — for off-duty misconduct and 114 arrests for corruption, the agency said.

Unlike most major police departments, including those in New York, Los Angeles and Chicago, the Border Patrol does not publish information about how often or under what circumstances it uses force.

The Justice Department has brought only eight criminal civil rights cases against Border Patrol agents since 2004, records show. The cases are extremely difficult, prosecutors say, because agents are loath to report peers and juries are reluctant to convict those standing guard along the country’s borders.

In 2008, Agent Nicholas Corbett was tried twice for second-degree murder after prosecutors said forensic evidence suggested he shot and killed an unarmed migrant at close range in Arizona and lied about it. Both juries deadlocked, and Corbett remains a Border Patrol agent, according to a CBP official who did not want to speak publicly about a personnel matter.

Although the job can be dangerous, the typical Border Patrol agent is much less likely to encounter an armed or violent subject than a police officer in New York or Los Angeles, records show.

The Border Patrol reported that 121 agents were injured in assaults in the year from October 2008 to September 2009. At the time, the agency employed about 17,500 agents. The LAPD could not provide injury statistics but says that among its 10,000 officers, 400 were subjected to aggravated assaults in 2008.

The teenage alleged victim in the Diaz case testified that he was paid $250 to smuggle a backpack filled with marijuana over the Rio Grande into Eagle Pass, Texas, on Oct. 16, 2008. The teen initially denied carrying drugs.

Diaz was among a group of agents that came upon the teen and a man hiding under a downed tree. Strap marks on their shoulders suggested they had been carrying heavy backpacks, a sign of drug couriers.

Border Patrol agents refer to the migrants they detain on a regular basis as “bodies,” according to testimony in the Diaz case. That lingo is not a function of race, most analysts agree, because most agents are Latino. In the Diaz case, the defendant and most of the agents who testified against him are Latino.

The teen’s hands were cuffed behind his back and he was face down in the grass when Diaz began forcing his arms up at a 90-degree angle to his back, agents said. They said the boy made no attempt to flee or resist.

“You could tell he was in pain. He was screaming,” Lerma testified.

Court records in the case say Diaz was accused of abusing a detainee in 2005, though they don’t say what came of the accusation.