SAN DIEGO — The United States did not respond by deadline in an international human rights case alleging that border officials used excessive force when they killed Anastasio Hernández Rojas in 2010 and that they were not held accountable because of a system of impunity that protected those involved, according to documents in the case.
This is the first known case that the Inter-American Commission on Human Rights, part of the Organization of American States, has taken regarding a killing by U.S. law enforcement.
The attorneys representing Hernández Rojas' family said that the Biden administration's failure to respond at all to the evidence submitted by their team runs counter to the administration's claims to be a global leader on human rights and democracy.
"If the United States does not respond in a timely and diligent manner, that is giving authoritarian regimes in the Americas permission to do the same," said Roxanna Altholz, co-Director at UC Berkeley Law School's International Human Rights Law Clinic and co-counsel in the IACHR suit. "We're talking about the worst violations in the hemisphere. That's the docket of the Inter-American Commission — and this case certainly fits in that docket."
The U.S. State Department, which is responsible for representing the United States in cases before the international tribunal, said it is working to respond to the commission. It did not respond to follow up questions from The San Diego Union-Tribune about what deadline it believes it is working under or the ramifications of the missed deadline.
"The United States takes very seriously the petitions filed before the Inter-American Commission on Human Rights, and we work diligently to respond to those petitions," the State Department said through an official who declined to be named. "The United States is working through the IACHR, as is standard procedure, to respond to this petition. We have no further comment at this time."
Hernández Rojas was killed by Customs and Border Protection officers and Border Patrol agents who beat and tasered him in the process of deporting him at the San Ysidro Port of Entry. Evidence has surfaced in the international case suggesting that a special team from Border Patrol worked to cover up what happened.
The Trump administration tried to get the case dismissed in the admissibility phase by arguing that there had been justice because the family received a $1 million settlement in 2017 in a civil suit. The commission rejected that argument and allowed the case to proceed to the merits stage.
In a document provided to Hernández Rojas' attorneys, the IACHR indicated that the final deadline for any submissions from the Biden administration to reply to the lengthy packet of evidence and testimonies submitted on behalf of the family as part of the merits briefing would be October 13. That deadline cannot be extended any further, the document says.
But there have been no filings from the Biden administration.
That means that the commission can accept as fact the information submitted during the merits phase by attorneys representing the family of Hernández Rojas, Altholz said.
Altholz said the missed deadline is in indication that the United States is not working diligently to respond.
"The Biden administration is seeking to be a global leader, so be a global leader. If they're saying they're working diligently and seriously, then work diligently and seriously," Altholz said. "It has to be more than words in an email."
Maria Puga, the widow of Hernandez Rojas, said that she hopes the case will help families like hers.
"Our communities deserve answers, and we will not stop until we get them," Puga said. "Anastasio was a husband, a father, a brother, and a son. And we honor him by fighting for our dignity, fighting for our human rights. I hope President Biden hears my plea that he acknowledges my grief and holds border agents accountable."
Altholz, who has litigated cases before the commission for decades, said many of the cases the tribunal hears involve extrajudicial killings. Sometimes countries are ordered to apologize publicly, provide reparations to victims and their families and reopen criminal cases.
"The commission will not just determine whether the United States is responsible for the killing and coverup but also what the state must do to repair the harm it has caused," she said. "One of the reasons that victims and family members and advocates appeal to the Inter-American Commission is because their decisions do have an impact."
Altholz plans to request a hearing in the case for 2022.
