Paper Trail

Homeland Security officials contradict each other regarding an investigation that may have never occurred

Documents recently obtained by the Tucson Weekly appear to contradict statements made to this paper and other media outlets regarding mistreatment of detainees by the U.S. Border Patrol--and in the process, officials from the U.S. Department of Homeland Security may also have misled several members of Congress.

Although an investigation of those alleged abuses purportedly began three years ago, the Border Patrol and other agencies within the U.S. Department of Homeland Security have repeatedly cited their inability to locate information about any such probe. Other times, they've contended that they passed responsibility for the investigation to other branches within the department.

Meanwhile, human-rights activists argue that abuses of illegal immigrants in Border Patrol custody continues.

"We hear of so many cases of abuse in detention that we can't even begin to deal with them all," says attorney Isabel Garcia, of the immigration rights group Derechos Humanos. "Everywhere I go to speak, I hear complaints about abuse."

The specific allegations arose in 2004 at the Border Patrol's station in Douglas, where then-Senior Border Patrol Agent Ephraim Cruz raised concerns, in a series of memos to his superiors, that detainees in the roomy new facility were being shoehorned into overcrowded cells--even when other cells remained empty.

Cruz claimed that immigrants--including pregnant women, children and the elderly--sometimes weren't fed for up to 20 hours. Cruz also said that searches of immigrants were haphazard: He snapped Polaroids of detainees displaying their overlooked watches, belts and makeup kits. Knives and guns have been found in cells, he says, placing both detainees and agents at risk.

According to Cruz--and despite much-heralded post-Sept. 11 security measures--screening for non-Mexican detainees remains poor. And agents routinely release unaccompanied minors "to anybody who claims that they are this person's father, uncle or guardian," he says. "It's a regular practice."

In addition, he says, there was direct physical abuse of detainees, including use of the notorious and painful "chair," in which people are forced into a chair-like position with their backs pressed against the wall for long periods of time.

Cruz says his concerns we repeatedly ignored. And in an apparent act of retaliation, in July 2005, he was indicted for bringing an illegal immigrant through the Douglas port of entry.

The immigrant, a woman, was well-known on the Douglas Border Patrol social scene, and recently had been dating several agents. Another agent was also in the car with Cruz that night. However, only Cruz was arrested for transporting an alien. In March, a Tucson federal jury acquitted him of all charges.

Immediately following that acquittal, Gus Soto of the Border Patrol's Tucson Sector told the Arizona Daily Star that an ongoing investigation of detainee issues raised by Cruz was being conducted by the DHS Office of Inspector General (OIG)--and that the sector had not yet heard back from the OIG.

However, Tamara Faulkner, a spokeswoman for the OIG in Washington, D.C., said earlier this year that her office had not investigated complaints made by Cruz. "In this case," Faulkner said, "the complaints were ... referred to U.S. Immigrations and Customs Enforcement Office of Professional Responsibility. ... That was done some time ago."

But nearly three years earlier, Clark Kent Ervin, then the inspector general for the DHS, had written to then-Rep. Jim Kolbe regarding Cruz's complaints. "Our Office of Audits is initiating a review of the treatment of aliens held on immigration charges, including U.S. Immigration and Customs Enforcement (ICE)'s monitoring and oversight of the conditions of confinement for detainees," said Ervin's June 2004 letter.

"The OIG will examine existing reports and allegations related to abuse of detainees," Ervin continued. "The OIG will examine existing reports and allegations related to abuse of detainees, assess conditions at selected detention facilities, and assess ICE's Detention and Removal Office's implementation of its new detention standard, issued in July 2003, that requires ICE officials to visit detainees regularly to monitor conditions of confinement and address concerns."

And in August 2004, Robert L. Harris, deputy chief of the Office of Border Patrol, wrote to Agent Cruz: "Currently, the concerns you have raised are under investigation by the U.S. Immigration and Customs Enforcement's Office of Professional Responsibility. Therefore, CPB is unable to intervene in this matter."

Four months later, however, then-Tucson Sector Chief Michael Nicely responded to an inquiry from Arizona Sen. Jon Kyl, writing that a probe of allegations by Agent Cruz had already been completed--by Faulkner's OIG and the Border Patrol.

"Dear Senator Kyl," Chief Nicely wrote on Dec. 3, 2004. "Thank you for the opportunity to respond to the letter addressed to your office by Mr. Ephraim Cruz. ... Mr. Cruz has made allegations concerning the management at the Douglas Station and at the Tucson Sector regarding the treatment of illegal aliens and other issues.

"These issues were addressed at the Sector Level and the Douglas Station level as well as forwarded to the Office of the Inspector General (OIG) for review," he wrote. "The OIG found that his allegations were unsubstantiated."

Near the end of the letter, Chief Nicely took Cruz to task: "Mr. Cruz states in his letter that these problems continue to exist. He has failed to bring these issues to the immediate attention of any of his supervisors at the time of the 'incident' and makes general statements without justification."

Chief Nicely has since retired; attempts to contact him were unsuccessful. Andrea Zortman, a Border Patrol spokeswoman stationed in Tucson during the period of Cruz's complaints, and now in the agency's Washington, D.C., headquarters, has for weeks failed to provide any information to the Weekly regarding this investigation. She didn't return a later phone call seeking information about Chief Nicely's letter. Nor has Agent Soto returned several phone calls regarding the contradictory timeline reflected in his statement to the Star.

ICE officials say they did not conduct the investigation. And the OIG's Tamara Faulkner, contacted last week, declined to comment regarding abrupt differences between her statements and the information contained in letters from higher officials.

It all makes Cruz shake his head. Particularly galling, he says, are claims made by Nicely, considering that Agent Cruz relayed his concerns to superiors repeatedly, perhaps obsessively, in memo after memo.

Cruz was recently forced to resign his position with the Border Patrol. But he thinks he knows why officials are stumbling over themselves, and why results from this probe are seemingly impossible to find: It never occurred. He says he was never interviewed by any investigators regarding his allegations.

"During my trial, the top two OIG people from Tucson even said they had never heard my name regarding abuse reports, that it wasn't even in their system," he says, "And then the Border Patrol was saying, long before, that the Office of Inspector General was looking into the matter, that they we're conducting the investigation.

"These guys just can't get their stories straight."

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