Castro shooting

Border Patrol agents, an FBI investigator and rescue personnel from the Rio Rico Fire District gather along State Route 289 west of Nogales on Nov. 16, 2010, after Border Patrol Agent Abel Canales shot Jesus Castro Romo of Mexico in a nearby canyon area.

A Nogales, Sonora man who was shot by a Border Patrol agent during an illegal border crossing has filed suit against the federal government, claiming that the agent used excessive force or was negligent when he shot him while he was sprawled face-down on the ground.

What’s more, the Nogales International has learned, the agent who shot Jesus Enrique Castro Romo near Walker Canyon west of Nogales on Nov. 16, 2010, was indicted nearly a year later in a separate case. In that indictment, he is accused of accepting a bribe on Oct. 30, 2008 in exchange for allowing vehicles filled with drugs and/or illegal immigrants to pass through the Border Patrol’s Interstate 19 checkpoint.

The corruption charges against the agent, Abel Canales, do not prove that he wasn’t justified when he shot Castro. But they could potentially undermine his credibility as a witness in the civil suit if they lead to a conviction or guilty plea, lawyers and legal experts say.

In addition, the fact that Canales was in the field with a gun more than two years after investigators allegedly observed him taking a bribe from traffickers raises questions about the government’s approach to reining in potentially corrupt Border Patrol agents.

“The sheer negligence of the government to permit someone like this to continue to be employed and run around with a uniform and a gun, I mean, that raises that whole issue,” said Castro’s lawyer William Risner, who said he was unaware of the connection between the shooting and corruption cases until reached for comment this week by the NI.

Risner filed a complaint at U.S. District Court in Tucson against the U.S. government on Castro’s behalf on Jan. 13, alleging that the Walker Canyon shooting “resulted from the negligent use of the officer’s firearm or was excessive force.” The claim asks a judge to award unspecified damages to compensate Castro for costs incurred as a result of the shooting, as well as “further relief as seems proper.”

The shooting

The complaint says that on or about Nov. 16, 2010, Castro, then 38, illegally crossed into the United States west of Nogales as part of a group of undocumented immigrants.

“After, arriving at a clearing on higher ground the group noticed Border Patrol agents on horseback down below,” the complaint says. “The group decided to head back to Mexico.”

However, while allegedly heading back to Mexico, the group was detected by the mounted patrol. Castro made a “short attempt to flee,” the complaint says, but then stopped and surrendered.

Then, while Castro was reportedly walking with his hands on his head, a Border Patrol agent on horseback allegedly began hitting him on the head with his lasso.

“After warning the agent several times to stop hitting him, Mr. Castro Romo could no longer take the pain from the lasso hitting his scalp and ran,” the complaint says. The agent rode after him and allegedly bumped him with his horse, knocking him face-first to the ground.

“That is when Mr. Castro Romo felt a ‘warm’ feeling on his back after hearing a single gun shot. He had been shot by the agent,” the complaint says. The agent then allegedly shouted an obscenity and left the scene.

An hour-and-a-half later, Castro was airlifted to University Medical Center in Tucson where he underwent surgery. He was discharged from UMC on Nov. 26, 2010, but has yet to fully recover, the complaint says.

“Mr. Castro Romo has suffered from extreme pain and is continuing to suffer from constant pain. His injuries are permanent,” it says, adding that Castro is the provider for four children and that he has and will continue to lose income due to the employment limitations caused by his injuries.

At the time of the incident, a lawyer for the Border Patrol agents’ Local 2544 union said that that the agent, who the NI later confirmed to be Canales by obtaining investigative reports from the case, said he shot Castro in self-defense.

The lawyer, Jim Calle, said that after Castro took off running, he picked up a rock and threatened the agent with it. The agent was able to convince Castro to drop the rock after advancing on him with his horse, Calle said. But then Castro picked up another rock.

“When he did it a second time, from about four feet away, the agent felt he had no option but to employ deadly force and to shoot this man,” Calle said at the time.

The investigative reports obtained by the NI suggest that Castro may have been the guide, or “coyote,” for the group of migrants. A woman who fled the horse patrol with Castro, and who was apparently the only eyewitness to the shooting other than Castro and Canales, reportedly told investigators that she did not have to pay a smuggler for her passage to Tucson because she was traveling with Castro. Still, she denied that he was the group’s guide.

However, another member of the group reportedly said he was 100-percent sure that Castro was the guide.

If Castro were the guide, it would give him greater motivation to avoid arrest, since the penalties for human smuggling are stiffer than for a simple undocumented border-crossing.

Risner said Castro was merely a migrant looking for a job to earn cash for the upcoming Christmas holiday season. “He was a guy looking for work,” he said.

The FBI initially investigated the incident as an assault on a federal officer, but court records show that Castro was charged only with illegal re-entry after deportation – he had previously been picked up by Border Patrol and deported through Nogales in May 2007.

Castro pleaded guilty to the re-entry charge, and on March 9, 2011, was sentenced to time served (less than four months) and deported back to Mexico.

Asked this week if Castro was still under investigation for assault on a federal officer, or if Canales is under criminal investigation for shooting Castro, the U.S. Attorney’s Office in Arizona declined to comment.

As for the U.S. Attorney’s Office’s formal response to Castro’s civil complaint, it has yet to file one. Risner said the government was granted an extension for its response after it cited a conflict of interest in the case.

That conflict of interest likely stems from the fact that the U.S. Attorney’s Office is currently prosecuting Canales on bribery and conspiracy charges.

Bribery case

According to a federal indictment filed last fall at U.S. District Court in Tucson, at 10:22 a.m. on Oct. 30, 2008, a U-Haul truck pulled up to Canales while he was working at the Border Patrol checkpoint on I-19. After Canales asked the driver if he was a U.S. citizen, the man replied “buenos dias,” and Canales waved him through without further questioning.

Canales knew that the truck was loaded with narcotics and/or illegal immigrants, the indictment alleges, because he had arranged its safe passage during a series of phone calls with a co-conspirator in the days prior. He had also arranged safe passage through the checkpoint for a vehicle carrying drugs or immigrants on Oct. 27, 2008, the indictment says.

On the evening of Oct. 30, 2008, authorities say, Canales drove his 2001 Dodge pickup truck to a side parking lot at the Nogales Wal-Mart and met with his co-conspirator, who, a few hours earlier, had been given a manila envelope containing $8,000 from the two suspected owners of the load in the U-Haul.

“Canales, who was still wearing his Border Patrol uniform, exited his truck, approached the window of the co-conspirator’s vehicle and returned to his truck with a manila colored envelope,” the indictment says.

However, Canales was not charged until three years after the alleged incident; the indictment was filed Oct. 27, 2011.

Court records show that Canales pleaded not guilty to the charges and a judge has set an April 27 deadline for plea negotiations. A trial is tentatively scheduled to begin May 15.

Sean Chapman, the Tucson-based lawyer representing Canales in the bribery case, did not return a call requesting comment.

According to Ted Schmidt, a fellow at the American College of Trial Lawyers and an adjunct lecturer at the University of Arizona’s James E. Rogers College of Law, if Canales is convicted or pleads guilty in the bribery case, it could undermine his credibility in the civil suit brought by Castro.

“The mere fact that he’s been charged with something, indicted for something, would be inadmissible. It could be considered highly prejudicial and it doesn’t really prove anything,” Schmidt said. “But if he’s convicted or pleads guilty to any crime that involves dishonesty and/or a felony, then he can be impeached with that in the civil case.”

Castro’s own credibility is almost certain to be an issue in the case. After all, he pleaded guilty to a felony charge related to the shooting incident: the re-entry after deportation charge for which he was sentenced in March 2011.

Time lag

The fact that it took three years for federal prosecutors to indict Canales in the bribery case, and that the Border Patrol kept him fully armed and in the field in the meantime, raises questions about possible government negligence in the Walker Canyon shooting incident. After all, if Canales had been indicted sooner, or if he had been assigned to desk duty as the investigation proceeded, he wouldn’t have shot Castro in November 2010 and the government wouldn’t be at risk of a large payout in a civil suit.

Adam Aguirre, spokesman for No More Deaths, a migrant-aid group that recently published a report titled “Culture of Cruelty” that alleges widespread abuse of illegal immigrants by Border Patrol agents, said the agency does a poor job of holding agents accountable for bad behavior. He thinks the problem is exacerbated by the Border Patrol’s lack of transparency and the absence of independent oversight of the agency.

“The Border Patrol wants us to believe that a few bad apples doesn’t mean the whole bunch is rotten,” Aguirre said. “But what we’re seeing is quite simply a systemic problem – an entire culture where excessive force or violence or some sort of action that crosses the line is being taken, and it’s not being dealt with at all, or being dealt with in insufficient ways.”

Border Patrol spokesman Lloyd Easterling declined to comment on the agency’s handling of the Canales case, citing an ongoing investigation.

In general, Easterling said, the Border Patrol works closely with other law enforcement agencies when its agents are under investigation.

“It is important to note that the Border Patrol does not investigate its own; CBP Internal Affairs and the Office of Inspector General handle that responsibility along with other agencies and departments,” he said. “Each incident must be handled on a case-by-case basis and handled accordingly, pending the status of any investigation.”

At the moment, Easterling said, Canales is on indefinite suspension without pay.

It’s possible that the government left Canales in the field in an effort to further develop its investigation and arrest more suspects in the alleged bribery/trafficking conspiracy. However, if that was the case, it doesn’t appear that the plan was successful, since Canales was the only defendant named in the indictment that came three years later.

The NI posed a series of questions to the U.S. Attorney’s Office in Arizona regarding the shooting and bribery cases, including questions about the investigation into the Walker Canyon shooting and the delay in indicting Canales in the corruption case. However, spokesman Bill Solomon declined to answer until the cases are resolved.

“Given the fact that all of your questions relate to ongoing cases, we’re going to decline comment,” he said.

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