A Border Patrol agent lets a resident to pass the otherwise blocked-off intersection of Bankard and Morley avenues on the night of June 16, 2021, several hours after an agent shot an undocumented migrant woman in the head.

On a February evening in 2019, a U.S. Customs and Border Protection officer shot and critically injured 21-year-old Angel Mendivil Perez at the Dennis DeConcini Port of Entry in Nogales.

Years passed. Mendivil sued the government. And today, federal officials are remaining silent on their investigation of the shooting.

In March, the NI requested updates from the U.S. Attorney’s Office, the FBI and U.S. Customs and Border Protection regarding three incidents since 2019 in which Border Patrol agents or CBP officers shot people in Santa Cruz County.

Neither the FBI or CBP responded. A spokesperson for the USAO declined to comment, or even confirm whether the investigations were ongoing.

The result is that more than three years after it happened, the public still doesn’t know if the federal government thinks the officer who shot Mendivil in 2019 had legal justification, or acted criminally. The same goes for two other local cases in which Border Patrol agents shot civilians, one of them fatally.

Meanwhile, investigations conducted by local prosecutors into other police shootings have unfolded with significantly less delay.

On May 24, 2021, a total of 10 officers with the Nogales Police Department and/or Santa Cruz County Sheriff’s Office fired at Glen Ray Cockrum Jr. at three locations, eventually killing the 39-year-old truck driver from Arkansas on North Grand Avenue.

Four months later, the Arizona Department of Public Safety turned over its investigation of the incident to County Attorney George Silva. On Oct. 15, 2021, Silva notified the sheriff and police chief that he had decided the shooting was justified. A few days later, he released the 700-plus-page investigation to the Nogales International.

So why have the federal investigations taken so much longer?

Mendivil’s case, for instance, involved a single officer firing his gun while on duty; what’s more, the officer was stationed at a border crossing filled with potential eyewitnesses and security cameras.

“I hate to be the bearer of bad news,” D. Brian Burghart said of the federal investigations in Santa Cruz County, “but don’t hold your breath.”

Burghart is a former newspaper editor and the founder of Fatal Encounters, a database that tracks officer-involved fatalities across the country. Speaking to the NI on Tuesday, he said that federal agencies are often opaque when it comes to public knowledge of such cases.

Years of waiting

Burghart estimates that over the years, he’s filed thousands of public records requests while seeking information on officer-involved incidents.

To request information about federal investigations, reporters and members of the public can file a Freedom of Information Act, or FOIA, request. But FOIA requests can take months, if not years. And then, they could still be declined.

Burghart remembered a call he’d received from the federal Bureau of Alcohol, Tobacco and Firearms, asking if he was still interested in a FOIA request concerning an incident in Alabama.

He’d filed the request five years before.

“I said, ‘Well, yes, I am,’” Burghart said.

Two years after that call, he added, he still hasn’t received any information on the case.

That level of opacity is increasing, according to the federal government’s own records.

In 2021, the Government Accountability Office reported that FOIA denials have risen in recent years. Between 2012 and 2019, the number of denied FOIA requests increased by 10 percent. And during the same time span, the number of partially denied FOIA requests shot up by 76 percent.

Federal case No. 1

The first – and the oldest – of the local CBP/Border Patrol shooting cases addressed in this story involved Mendivil, a Tucson resident and U.S. citizen who was 21 at the time.

On Feb. 7, 2019, Mendivil was reportedly driving south through the DeConcini Port of Entry when he was stopped by CBP officers conducting southbound inspections. A CBP media release at the time stated that Mendivil “accelerated the vehicle towards Mexico” during the questioning process. At that time, CBP said, an officer discharged his weapon.

After sustaining a gunshot wound, Mendivil was transported to a hospital in Nogales, Sonora. Later, still in critical condition, he received treatment in Arizona.

In February 2021, Mendivil filed a civil suit against the Department of Homeland Security. The suit alleges officers used “unreasonable and excessive force,” leaving Mendivil with a life-altering head injury.

The complaint also suggests that Mendivil still has his own questions about the details of the shooting – questions that have not been answered.

“He has not been able to obtain information of the precise location of the shooter or of his vehicle at the point of impact,” the complaint states.

The lawsuit remains in the discovery/deposition phase.

And while a criminal charge, such as assault on a federal officer, might be the expected outcome of a justified shooting in which the victim survives, Mendivil does not appear to have been criminally charged in the case.

The government also never publicly released the name of the officer who shot him, though Mendivil’s lawyer wrote in a court filing that the officer’s name had eventually been disclosed to him.

Federal case No. 2

On Sept. 21, 2020, a Border Patrol agent fatally shot 25-year-old Alejandro Beltran Figueroa in the Patagonia Mountains.

The following day, CBP released a statement on the incident, saying that the agent had been attempting to arrest a group of undocumented migrants when one individual – apparently Figueroa – attacked him with a knife.

“The Border Patrol agent sustained multiple stab wounds, but was able to fire his sidearm and fatally shot the assailant,” CBP said at the time.

The agency never named the agent or the person he shot. However, the NI found Figueroa’s name through a database managed by Humane Borders, a non-profit, with data from the Pima County Medical Examiner’s Office.

Federal case No. 3

On June 16, 2021, a Border Patrol agent shot 37-year-old Marisol García Alcántara, an undocumented migrant from Mexico, on Bankard Avenue in Nogales.

García had recently crossed the border with a group of migrants, she told the NI later that year. The group was being driven through Nogales in a van when a Border Patrol vehicle began following them.

Around 5 o’clock in the evening, an agent shot García above her eyebrow as she sat in a passenger’s seat. After receiving treatment, she was transported to a detention center, she told the NI, and then deported to Mexico.

Like Mendivil, she does not appear to have been charged with any criminal offense that would have justified a shooting. U.S. authorities have not said if the agent who shot her believed the van or anyone else traveling in it posed an immediate danger to their safety. They have also not identified the agent.

On Dec. 9, 2021, García signed a claim against CBP – the first step in setting up a civil suit. The claim states that García has sustained “bullet fragments being lodged into her brain,” and is enduring “permanent life-long consequences” as a result of the shooting.

Local cases

The case of Cockrum, the trucker shot and killed by police in Nogales last May, is one of several locally investigated cases that offer a sharp contrast to federal authorities’ slow and opaque methods.

In February, the Cochise County Sheriff’s Office reported that Border Patrol Agent Kendrek Staheli fatally shot Carmelo Cruz, an undocumented migrant, about 30 miles northeast of Douglas. Earlier this week, County Attorney Brian McIntyre announced that he reviewed the sheriff’s investigation and found the shooting to be justified. In the process, county officials provided a complete report of the investigation to the Sierra Vista Herald/Review.

McIntyre came to the decision less than three months after the shooting occurred – a far cry from the years-long investigations conducted by federal agencies.

Asked whether local and federal investigations generally differ in transparency, Burghart, who studies incidents nationwide, acknowledged that it can be difficult to make a blanket statement.

However, he added, locally led investigations have their own drawbacks – due to the collaboration between county government and local law enforcement, he said, there can be more room for potential bias.

“In general, I feel more confident in the results of state-led investigations,” he explained. “Because (state investigators) don’t work with these officers on a day-to-day basis.”

Arizona state police led the investigation of the fatal shooting of Cockrum. Neither state nor local authorities are known to have conducted their own investigations of the three federal officer-involved shootings examined in this story.

It wasn’t immediately clear why the Cochise County attorney decided to investigate the recent Border Patrol shooting near Douglas.

Power in 

In recent years, advocates and policymakers across the country have pushed for more transparency in the wake of officer-involved shootings.

In 2018, Calif. Gov. Gavin Newsom signed the Right to Know Act into law, requiring public knowledge of use-of-force incidents involving law enforcement. And earlier this week, CBP announced it would disband its critical incident teams. The controversial units were meant to internally investigate use-of-force incidents, but critics alleged they operated more as cover-up teams.

But federal investigations – generally conducted by the FBI under the guidance of the U.S. Attorney’s Office – remain sluggish.

Burghart contended that federal officials could do more in terms of providing information to the public. For example, he proposed, they could take up his job in collecting and publishing data on officer-involved shootings and other fatal incidents.

“The federal government could easily afford to collect this data if they wanted it,” Burghart said.

Without that effort, Burghart said, the responsibility falls to non-governmental agencies, like Fatal Encounters, a nonprofit whose team searches for officer-involved incidents manually.

“Which is just sort of a blunt instrument, just Google Alerts and research online,” Burghart added.

Currently, the FBI documents a limited number of use-of-force incidents across the country in an online database.

In 2021, however, only 41 out of 114 federal law enforcement agencies provided any data. CBP is one of those 41 agencies participating. But the database is vague: it documents only the number of incidents reported.

Locations, dates, names and other details are not shown in the database. The cases of Mendivil, Figueroa and Garcia, in other words, would be impossible to find.

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