Holding DHS Accountable for a Child’s Death in the Custody of Border Patrol

ProPublica published an extensive investigative report last week detailing the circumstances surrounding the death of 16-year-old Carlos Gregorio Hernandez Vasquez. The teenager died in Customs and Border Protection (CBP) detention in May, approximately one week after entering the United States – even though children are not supposed to be held by CBP for more than 72 hours before being transferred to Health and Human Services (HHS). Carlos had boarded a raft on the Rio Grande with dozens of others and was promptly apprehended by U.S. Border Patrol agents after landing in Hidalgo, Texas. He was separated from his adult sister, with whom he had been travelling, and placed in CBP custody, where he apparently developed and then died from the flu.

A Child’s Death and Its Aftermath

While Carlos’s death was reported in the press at the time, the new ProPublica report includes a video appearing to be from the time period before and after Carlos’s death in the CBP cell. (Carlos’s family has since indicated that they had not seen the video and had not consented to its release or distribution.) The video appears to show that – contrary to DHS’s public explanation last spring when his death was first reported – Carlos did not receive proper welfare checks during the night, and was found lifeless by his cellmate in the morning. These new circumstances raise grave questions about whether the government and individual CBP officials will face legal consequences for failing to provide him with adequate medical treatment; failing to monitor his deteriorating health; and, potentially, attempting to conceal the actual circumstances of his death.

The ProPublica report explains that there is an open internal DHS Office of Inspector General (OIG) investigation of the circumstances surrounding the death, following an earlier local law enforcement investigation conducted by the Weslaco county police department. The police investigation apparently did not result in enforcement action. Meanwhile, the administrative process within DHS is awaiting the outcome of the OIG investigation. It should not go unnoticed that this death occurred during a period of heightened instability in the agency’s leadership ranks. Carlos’s death took place the month after Secretary Kirstjen Nielsen resigned, and during the period when CBP was under the direction of an acting director, John Sanders, since former DHS Acting Secretary Kevin McAleenan had been the CBP Chief before being elevated to acting secretary. Sanders resigned shortly after the incident and told ProPublica that “I really think the American government failed these people. The government failed people like Carlos,” he said. “I was part of that system at a very high level, and Carlos’ death will follow me for the rest of my life.”

Avenues of Accountability

Press reports last spring stated that in addition to the local police and DHS OIG investigation, the FBI also was conducting an investigation. Given the information released by ProPublica, that FBI investigation should include a civil rights investigation for color of law violations (that is, unlawful acts by CBP officials), and obstruction of justice, given the report of potentially falsified logs. Jurisdiction for such investigation would reside with the FBI’s McAllen Resident Agency, San Antonio Division.

The status and outcome of that FBI investigation is important and should not be delayed pending the separate DHS OIG process. The death of a child in federal custody must be subject to greater scrutiny than administrative measures alone. Not only is DHS’s border security, immigration and law enforcement activity in need of greater internal oversight and accountability mechanisms, but there are certain circumstances where individual accountability is necessary to punish and deter wrongdoing. To be clear, this is a pro-law enforcement and pro-security argument. In order for law enforcement and homeland security professionals to maintain order and effectiveness in carrying out their lawful duties, individual instances of wrongdoing must be subject to meaningful accountability.

There should also be a public accounting of the results of the FBI investigation. As discussed here in the context of family separation, federal law provides that civil rights violations that take place while enforcing the law may also amount to federal crimes under Section 242 of Title 18. According to the ProPublica report, Carlos had a fever, was administered medication, then was returned to a holding cell, contrary to medical advice. The cell — visible in the video posted online by ProPublica – was akin to a prison cell, containing, apparently, only what appear to be cement block benches, and a toilet area. The report alleges that a CBP officer recorded conducting multiple welfare checks during the night; however, the video shows none, and four hours of the video during which those checks purportedly took place were not provided by CBP to the local police.

We do not have any basis to know why the local police received an incomplete video, but the missing four hours of the video is beyond curious. It is potentially criminal. If efforts were taken to delete or sequester the missing four hours, that would constitute obstruction of justice. If individuals coordinated their efforts to shield that portion of the video from law enforcement investigators, then those individuals have potential legal exposure for conspiracy to obstruct justice.

In addition to the FBI’s criminal and civil rights investigation, there may be civil recourse for Carlos’s family. The U.S. government may be subject to a wrongful death claim on the grounds that CBP agents negligently deprived Carlos of proper medical care. Such claims are permitted by the Federal Tort Claims Act (FTCA), which waives sovereign immunity for the U.S. government when its officers commit acts that would give rise to tort claims were they committed by private parties. (We discuss civil liability extensively with respect to family separation in the immigration context more broadly in a forthcoming scholarly article previewed here).

A private institution with custody of a severely ill child would certainly be vulnerable to tort liability on facts similar to those reported about Carlos’s situation. Before he was transferred to the Weslaco station where he died, Carlos was seen by a nurse practitioner in McAllen. She administered ibuprofen and Tylenol and ordered Tamiflu. She recommended that Carlos receive additional medical attention within two hours, and that he should be taken to an emergency room if his symptoms persisted or worsened. According to ProPublica’s investigation Carlos was not seen again by a health care worker for about 18 hours, when another nurse practitioner, this time at Weslaco, administered Tamiflu but left no record of any other medical treatment or examination. The time lapse between these two medical interventions strongly suggests a breach of the basic duty of care that tort law places upon anybody who has taken physical custody of a child, making it impossible for anybody else to assist him with known medical needs.

Additionally, the contract nurse practitioners who saw Carlos at McAllen and then at Weslaco may be liable for medical malpractice. It seems self-evident that Carlos should have been transferred to a hospital, and the question is why he wasn’t. It could be that medical advice was not followed, and it could also be that he was not properly examined and treated. If the medical professionals who evaluated him failed to provide medical care that conforms to the standard set by comparably situated nurse practitioners, and if these failures played a substantial causal role in Carlos’ demise, Carlos’ family would be able to recover damages for his death from the nurse practitioners and, perhaps more importantly, from the medical services agency who employed them.

One avenue of damages recovery less likely to be available to Carlos’s family is a Bivens action. The Supreme Court has stated that such actions, which can provide a basis for damages awards against federal officials who violate federal civil rights, are now “disfavored.” A currently pending Supreme Court case asks whether a Bivens remedy is available to the family of a Mexican child who was shot and killed in Mexico by a CBP officer who was standing in the United States. Because that killing is treated as having occurred outside the United States, remedial claims cannot proceed under the FTCA.

Here, by contrast, there is no question that the full protection of U.S. law applies. In keeping with the Supreme Court’s developing approach to Bivens actions, lower federal decisionmakers have found that when a tort action is permitted under the FTCA, this cuts strongly against allowing a Bivens action for the same conduct. So precisely because Carlos’s family seemingly has a viable tort claim against the U.S. government, they are less able to sue the responsible officials (here, CBP officers) for damages for the violation of Carlos’s substantive due process right to life. This underscores the need for the FBI to pursue its investigation of the civil rights violations suggested by the circumstances of Carlos’s death. Criminal penalties are the only specific remedies likely to be allowed here to vindicate Carlos’s civil rights, and to ensure that CBP treats migrants and asylum-seekers – and especially children — as human beings.

The work of customs and border protection officers is difficult and challenging law enforcement and security work. The increased detention of children, including those who arrive alone and those separated from their families, has stressed the agency. Agents have not been provided with sufficient resources, guidance, or facilities to care for the increased number of migrant children. But once these children are in the United States, they must be treated with dignity, and they are protected by our laws. A thorough federal criminal investigation under the civil rights laws is warranted in this case, and the public should expect to know the results of the full investigation, including the consequences imposed on those responsible for Carlos’s preventable death.

Image: In this handout photo provided by the Office of Inspector General, overcrowding of families is observed by OIG at the U.S. Border Patrol McAllen Station Centralized Processing Center on June 11, 2019 in McAllen, Texas.

 

About the Author(s)

Carrie Cordero

Senior Fellow at the Center for a New American Security; adjunct professor at Georgetown Law, where she previously served as Director of National Security Studies. You can follow her on Twitter (@carriecordero).

Heidi Li Feldman

Professor of Law at Georgetown University Law Center, with a courtesy appointment in the Philosophy Department at Georgetown University. Follow her on Twitter (@HeidiLiFeldman).

Chimène Keitner

Alfred & Hanna Fromm Professor of International Law at UC Hastings College of the Law. She served as Counselor on International Law at the U.S. Department of State 2016-2017. Follow her on Twitter (@KeitnerLaw).