[Pages S3461-S3463]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                       Nomination of Rodney Scott

  Mr. WYDEN. Mr. President, I rise to oppose the nomination of Rodney 
Scott to lead the U.S. Customs and Border Protection Agency. In my 
view, this is yet another appalling nomination from the Trump 
administration.
  As a senior Federal official, agents in Mr. Scott's direct chain of 
command tried to cover up their culpability in the beating death of a 
man in their custody with his help. His record, in my view, is 
disqualifying for someone seeking one of the most important law 
enforcement posts in the Nation.
  U.S. Customs and Border Protection has extraordinary discretion to 
conduct searches of Americans' belongings and phones and to interrogate 
American citizens at border crossings and to seize illicit goods. The 
Agency has more than 60,000 employees. Leading this Agency requires 
someone whose judgment and character are unquestioned. Mr. Scott does 
not meet that bar.
  In 2010, Mr. Scott led the San Diego sector of the Border Patrol, a 
position that included oversight of a unit that tampered with evidence 
after agents beat and tased Mr. Anastasio Hern ndez-Rojas while in 
their custody. He died of those injuries soon after.
  This unit taped over recordings of the incident and served an illegal 
subpoena on the hospital for the man's medical records and then refused 
to share them with local law enforcement. This is according to 
allegations filed with the Inter-American Human Rights Commission of 
the Organization of American States and by police investigators.
  The actions were so egregious that the Human Rights Commission 
concluded a few weeks ago that the U.S. Government violated Mr. Rojas's 
family's right of access to justice.
  Mr. President, I ask unanimous consent that the Critical Incident 
Team's and DHS Inspector General's reports about the incident, first 
obtained by the Project on Government Oversight, be printed in the 
Record.
       There being no objection, the material was ordered to be 
     printed in the Record, as follows:

Department of Homeland Security Office of Inspector General--Report of 
                             Investigation

     Case Number: I10-CBP-SND-00957.
     Case Title: Use of Force Incident (Death of Anastacio 
         Hernandez Rojas).
     Report Status: Final.
     Alleged Violation(s): 18 USC 242: Deprivation of Rights Under 
         Color of Law.


                                SYNOPSIS

       This investigation was initiated on May 29, 2010, based 
     upon receipt of a referral from the Joint Intake Center, 
     Washington, D.C., reporting that (b) (6), (b) (7)(C));, 
     Customs and Border Protection Officer (CBPO)), CBP, San 
     Diego, California, used a non-lethal, Electronic Control 
     Device (ECD) commonly known as a ``Taser,'' to subdue 
     Anastacio Hernandez-Rojas, an undocumented alien (UDA), 
     during an altercation on May 29, 2010, with several U.S. 
     Department of Homeland Security officers. Hernandez-Rojas as 
     subsequently lost consciousness and was transported to a 
     local hospital, where he was placed on a ventilator and 
     declared brain dead by medical personnel and subsequently 
     died on May 30, 2010.
       Our investigation, which included a review of the San Diego 
     Police Department (SDPD), Homicide Detail Report Number 10-
     027149, did not disclose any evidence of misconduct or 
     violations of Use of Force policies of CBP or Immigration and 
     Customs Enforcement (ICE) by the CBP and ICE employees 
     involved in the incident. Our review revealed that during the 
     voluntary return of Hernandez-Rojas, he became verbally and 
     physically combative after he was released from his 
     restraints at the pedestrian gate and assaulted the Border 
     Patrol Agents (BPAs) who were escorting him. Even after he 
     was restrained again in handcuffs after the assault, 
     Hernandez-Rojas' resistance and combative behavior continued 
     when DHS personnel attempted to place Hernandez-Rojas into a 
     government vehicle which led to the deployment of the ECD by 
     CBPO b6, b7c. The deployment of the ECD and the level of 
     force utilized by the DHS personnel during the incident were 
     found to be in accordance with both CBP and ICE use of force 
     policies.
       The U.S. Department of Justice (USDOJ), Civil Rights 
     Division, Washington, D.C. declined prosecution of DHS 
     personnel citing lack of prosecutorial merit.

                            Reporting Agent

     Name: (b) (6), (b) (7)(C).
     Title: Special Agent.
     Signature: (b) (6), (b) (7)(C)
     Date: 7/8/11.

                          Approving Official.

     Name: (b) (6), (b) (7)(C).
     Title: Special Agent-in-Charge.
     Signature: (b) (6), (b) (7)(C).
     Date: 7/14/11.

                             Distribution:

     San Diego Field Office: Original.
     Headquarters: cc
     Componenet(s): cc
     Other: cc


                                DETAILS

       This investigation was initiated on May 29, 2010, based 
     upon receipt of a referral from the Joint intake Center, 
     Washington, D.C., reporting that that (b) (6), (b) (7)(C), 
     Customs

[[Page S3462]]

     and Border Protection Officer (CBPO), CBP, San Diego, CA, 
     used a non-lethal, Electronic Control Device (ECD) commonly 
     known as a ``Taser,'' to subdue Anastacio Hernandez-Rojas, an 
     undocumented alien (UDA), who was physically combative with 
     several U.S. Department of Homeland Security (DHS) officers. 
     Hernandez-Rojas subsequently lost consciousness and was 
     transported to a local hospital, where he was placed on a 
     ventilator and declared brain dead by medical personnel. 
     Hernandez-Rojas died on May 30, 2010. (Exhibit 1)
       Allegation: DHS employees used excessive force thereby 
     violating the civil rights of Anastacio Hernandez-Rojas.
       On August 3, 2010, DHS Office of Inspector General (OIG) 
     reviewed the San Diego Police Department (SDPD) Homicide 
     Detail Case Number 10-027149, reporting that on May 28, 2010, 
     U.S. Border Patrol Agents (BPA) apprehended Anastacio 
     Hernandez-Rojas and b6, b7c, (b) (6), (b) (7)(C), (b) (6), 
     (b) (7)(C), while attempting to enter into the United States 
     illegally near Otay Mesa Mountain, San Diego, CA. Anastacio 
     Hernandez-Rojas and (b) (6), (b) (7)(C) were subsequently 
     transported to the United States Border Patrol (USBP), Chula 
     Vista Border Patrol Station (CHU), San Diego, CA., for 
     processing and removal from the United States.
       The report reflected that (b) (6), (b) (7)(C), BPA, USBP, 
     CHU, San Diego, CA. and (b) (6), (b) (7)(C) (b) (6), (b) 
     (7)(C), processed Anastacio Hernandez-Rojas and (b) (6), (b) 
     (7)(C) (b) (6), (b) (7)(C) for removal and during processing, 
     Anastacio Hernandez became verbally agitated and abusive 
     towards the BPAs and that he refused to follow verbal 
     commands provided by BPA's. Subsequently, (b) (6), (b) 
     (7)(C), Supervisory Border Patrol Agent (SBPA), USBP, CHU, 
     San Diego, CA., ordered that Anastacio be returned to Mexico 
     for humanitarian reasons. (b) (6), (b) (7)(C) and (b) (6), 
     (b) (7)(C) subsequently transported Anastacio to a pedestrian 
     gate west of the SYS POE, commonly referred to as the 
     ``Whiskey Two'' gate for removal from the U.S. While at the 
     Whiskey Two gate, Anastacio Hernandez-Rojas became physically 
     combative towards (b) (6), (b) (7)(C) and (b) (6), (b) (7)(C) 
     when they removed his handcuffs. (b) (6), (b) (7)(C), 
     Immigration Enforcement Agent (IEA), U.S. Immigration and 
     Enforcement (ICE), Enforcement and Removal Operations (ERO), 
     San Diego, CA., and (b) (6), (b) (7)(C), IEA, ICE, ERO, San 
     Diego, CA observed Hernandez-Rojas' assaultive behavior and 
     attempted to render assistance to (b) (6), (b) (7)(C) and (b) 
     (6), (b) (7)(C) in regaining control of Hernandez-Rojas (b) 
     (6), (b) (7)(C) and (b) (6), (b) (7)(C) deployed expandable 
     batons and delivered strikes to Hernandez-Rojas' lower body 
     and Hernandez-Rojas was again restrained using handcuffs 
     placed behind his back. (b) (6), (b) (7)(C), BPA, USBP, 
     Imperial Beach Station (IMB), San Diego, CA., was assigned to 
     the Whiskey Two area and observed and subsequently assisted 
     the DHS employees struggling to control Hernandez-Rojas and 
     called via radio for a supervisor. (b) (6), (b) (7)(C) then 
     assisted the other officers with the restraint of Hernandez-
     Rojas.
       According to the SDPD report, based upon his assaultive 
     behavior towards DHS employees, Hernandez-Rojas' voluntary 
     return to Mexico was rescinded and efforts were made to place 
     Hernandez-Rojas into custody for prosecution. When attempts 
     were made by (b) (6), (b) (7)(C) (b) (6), (b) (7)(C) (b) (6), 
     (b) (7)(C) (b) (6), (b) (7)(C) (b) (6), (b) (7)(C) to place 
     Hernandez-Rojas into a nearby USBP unmarked vehicle, 
     Hernandez-Rojas continued physical resistance and assaultive 
     behavior, by kicking towards USBP and ERO personnel. 
     Hernandez-Rojas was physically placed onto the ground in an 
     effort to stop his assaultive behavior.
       The SDPD report reflected that (b) (6), (b) (7)(C), acting 
     Supervisory BPA (SBPA), Imperial Beach Station (IMB), San 
     Diego, CA. arrived at the Whiskey Two gate with a government 
     owned vehicle (GOV) equipped for prisoner transport minutes 
     after being summoned by (b) (6), (b) (7)(C). At that time, 
     (b) (6), (b) (7)(C)(b) (6), (b) (7)(C)(b) (6), (b) (7)(C)(b) 
     (6), (b) (7)(C)(b) (6), (b) (7)(C) attempted to place 
     Hernandez-Rojas, who was restrained by handcuffs into (b) 
     (6), (b) (7)(C) GOV for transport. The report reflects that 
     Hernandez-Rojas struck his head against the rear passenger 
     door window of the transport GOV while agents attempted to 
     aid his entry into the vehicle. Hernandez-Rojas was placed on 
     the ground outside of the transport GOV due to his continued 
     active resistance of DHS officers' efforts to control him.
       The SDPD report reflected that (b) (6), (b) (7)(C), CBPO, 
     CBP, SYS POE, San Diego, CA. responded to the area and 
     deployed his Taser International, Model X-26, Electronic 
     Control Device (ECD), commonly referred to as a ``Taser'' on 
     Hernandez-Rojas in an attempt to control him, due to 
     Hernandez-Rojas kicking and actively resisting. When the ECD 
     was no longer utilized on Hernandez-Rojas, (b) (6), (b) 
     (7)(C), CBPO, CBP, SYS POE, San Diego, CA. and (b) (6), (b) 
     (7)(C) assisted by grabbing Hernandez-Rojas' legs. Hernandez-
     Rojas then became unresponsive and the employees present 
     initiated first aid, including Cardio Pulmonary Resuscitation 
     (CPR) to Hernandez-Rojas until the arrival of emergency 
     medical personnel.
       According to the SDPD report, the San Diego Fire 
     Department's Engine 29 and Medic 29 responded to the scene 
     and continued providing first aid to Hernandez. Hernandez was 
     transported to the Sharp Chula Vista Hospital, where he was 
     determined to be ``brain dead'' according to medical staff.
       The SDPD report reflected that on June 8, 2010, (b) (6), 
     (b) (7)(C), Lieutenant, Homicide, San Diego Police 
     Department, San Diego, CA., received information from a 
     Mexican media outlet that (b) (6), (b) (7)(C), a civilian 
     witness, had recorded the incident involving DHS employees 
     and Anastacio. (Exhibit 2)
       The DHS OIG received and reviewed the training records for 
     (b) (6), (b) (7)(C) and (b) (6), (b) (7)(C). The review 
     revealed that on August 11, 2009, (b) (6), (b) (7)(C) passed 
     the Basic Course for the expandable baton when he attended 
     the Immigration Enforcement Academy at the Federal Law 
     Enforcement Training Center in Brunswick, GA. On September 
     24, 2009, (b) (6), (b) (7)(C) received training and passed 
     expandable baton training. [Agent's Note: ICE IEA certifies 
     each agent with the expandable baton on a quarterly basis and 
     the certification is valid for one year.] (Exhibit 3)
       The DHS OIG reviewed five videos dated May 28, 2010, which 
     were provided by (b) (6), (b) (7)(C) (b) (6), (b) (7)(C) (b) 
     (6), (b) (7)(C) a civilian witness present in the area of the 
     Whiskey Two gate at the approximate time of the incident with 
     Hernandez-Rojas. The videos were grainy in appearance, poorly 
     lit, and of poor overall image quality. No investigative 
     value was derived horn the review. (Exhibit 4)
       The DHS OIG attempted to have the videos recorded on May 
     28, 2010, by (b) (6), (b) (7)(C) (b) (6), (b) (7)(C) (b) (6), 
     (b) (7)(C) enhanced by the CBP Chicago Laboratory, Chicago, 
     IL., to improve the picture quality of the video. Video 
     enhancement efforts failed to improve the overall quality of 
     the footage, which remained dark, grainy and lacking 
     contrast. No individuals or movements could be identified 
     from the video. (Exhibit 5)
       The DHS OIG reviewed CBP Directive No. 4510-029, Policy on 
     the Use of Electronic Controlled Devices'' (Policy). The 
     policy pertaining to ECDs was defined as ``a device that uses 
     short-duration electronic pulses to overload a targeted 
     muscle system, causing neuro-muscular incapacitation, with 
     minimal risk of serious physical injury or death. The CBP 
     policy did not prohibit the use of a reasonable number of ECD 
     cycles for the purpose of controlling and restraining a 
     handcuffed subject who demonstrated active resistance. 
     (Exhibit 6)
       The DHS OIG interviewed (b) (6), (b) (7)(C), CBPO, Primary 
     Firearms Instructor, CBP, Otay Mesa, CA. (b) (6), (b) (7)(C) 
     stated that CBPOs are trained to use necessary numbers of 
     cycles to gain control of a suspect and explained that the 
     ECD has an internal log which records deployments of each 
     ECD. (b) (6), (b) (7)(C) explained that the log records the 
     amount of time the trigger is depressed and it does not 
     capture data when the device was properly deployed or if the 
     ECD made direct contact with an object. (b) (6), (b) (7)(C) 
     confirmed that (b) (6), (b) (7)(C) received training and was 
     certified to carry an ECD at the time of the incident. 
     (Exhibit 7)
       The DHS OIG transported the ECD, Serial Number X00-419194, 
     used in the Hernandez-Rojas confrontation to its 
     manufacturer, Taser International, for testing. The ECD was 
     evaluated and determined to be functioning within required 
     specifications. (Exhibit 8)
       The DHS OIG reviewed CBP training records pertaining to (b) 
     (6), (b) (7)(C). The records verified that on December 2, 
     2009, (b) (6), (b) (7)(C) received training and 
     recertification for the electronic control device (ECD). 
     (Exhibit 9)
       The DHS OIG reviewed the ICE Interim Use of Force Policy. 
     The ICE policy does not prohibit the use of a collapsible 
     baton, straight baton, or impact weapon on a handcuffed 
     subject. [Agent's Note: (b) (6), (b) (7)(C) and (b) (6), (b) 
     (7)(C) deployed their issued expandable batons and delivered 
     strikes to Hernandez-Rojas at a time when Hernandez-Rojas was 
     released from his handcuffs and fighting with BPAs.] (Exhibit 
     10)
       The DHS OIG reviewed a copy of the San Diego County Medical 
     Examiner, Autopsy Report, Case Number 10-1101, pertaining to 
     the post mortem examination of Hernandez-Rojas. The autopsy 
     report concluded that Hernandez-Rojas' cause of death was 
     anoxic encephalopathy due to resuscitated cardiac arrest due 
     to acute myocardial infarction while being restrained and the 
     manner of death as homicide. (Exhibit 11)
       The DHS OIG interviewed (b) (6), (b) (7)(C), Doctor of 
     Osteopathy (DO), Chief Medical Examiner, San Diego County, 
     San Diego, CA, regarding the autopsy report pertaining to 
     Hernandez. (b) (6), (b) (7)(C) stated that Hernandez-Rojas' 
     use of methamphetamine was prior to his arrest and that 
     Hernandez-Rojas' heart attack likely began when he had 
     collapsed at the Whiskey Two gate area. (b) (6), (b) (7)(C) 
     said that there was no medical evidence that Hernandez-Rojas 
     was a victim of excessive force. (Exhibit 12)
       The DHS OIG discussed the results of this investigation 
     with the United States Department of Justice (DOJ), Civil 
     Rights Division (CRD), Washington, D.C., who declined 
     prosecution of any DHS employee involved in this matter, 
     citing that insufficient evidence existed to prove that any 
     crime was committed. (Exhibit 13)


                                exhibits

------------------------------------------------------------------------
                 Number                            Description
------------------------------------------------------------------------
1......................................  Memorandum of Activity, Receipt
                                          of Complaint, dated May 31,
                                          2010.
2......................................  Memorandum of Activity, San
                                          Diego Police Homicide Report,
                                          dated August 3, 2010.
3......................................  Memorandum of Activity, Records
                                          Review, dated June 2, 2010.
4......................................  Memorandum of Activity, Review
                                          of videos, dated August 18,
                                          2010.
5......................................  Memorandum of Activity,
                                          Laboratory Coordination, dated
                                          September 16, 2010.

[[Page S3463]]

 
6......................................  Memorandum of Activity, Review
                                          of ECD Policy dated August 12,
                                          2010.
7......................................  Memorandum of Activity,
                                          Interview of (b) (6), (b)
                                          (7){C), dated September 13,
                                          2010.
8......................................  Memorandum of Activity,
                                          Diagnostic test of Taser,
                                          dated October 18, 2010.
9......................................  Memorandum of Activity, Records
                                          Review, dated June 3, 2010.
10.....................................  Memorandum of Activity, ICE
                                          Interim Use of Force Policy,
                                          August 19, 2010.
11.....................................  Memorandum of Activity, Review
                                          of Autopsy Report, dated
                                          August 20, 2010.
12.....................................  Memorandum of Activity,
                                          Interview of (b) (6), (b)
                                          (7)(C), dated August 23, 2010.
13.....................................  Memorandum of Activity, U.S.
                                          Attorney Coordination, dated
                                          May 3, 2011.
------------------------------------------------------------------------

                  Critical Incident Investigative Team


                            san diego sector

       On Friday May 28, 2010, at approximately 1:00 a.m., the 
     Critical Incident Investigative Team responded to an assault 
     on a Federal Agent resulting in a civilian death. The 
     following report is the product of the Critical Incident 
     Investigative Team's investigation into this matter and is 
     based solely on the results of said investigation.
       This report is available upon approval of the Chief Patrol 
     Agent of the San Diego Border Patrol Sector. Requests for 
     copies of this report strait be submitted in writing to the 
     Chief Patrol Agent at the address shown on the following 
     page.
       Subpoenas for documents and/or investigating agents of the 
     Critical Incident Investigative Team should be directed to 
     the Chief Patrol Agent, attention Office of the Assistant 
     Chief Counsel.
     Case Agent: Senior Patrol Agent, Critical Incident 
         Investigative Team.
     Date Submitted:
     Reviewing Supervisor: Supervisory Border Patrol Agent, 
         Critical Incident Investigative Team.
     Date Approved:

                  Critical Incident Investigative Team


                            san diego sector

     Reviewed: Assistant Chief Patrol Agent, Critical Incident 
         Investigative Team Program Coordinator.
     Date Approved:
     Critical Incident Investigative Team
     San Diego Sector:
     Office: 3752 Beyer Blvd, San Ysidro, California 92173-1952.
     Mail: United States Border Patrol, San Diego Sector, Critical 
         Investigative Team, 2411 Boswell Road, Chula Vista, 
         California 91914-3519.
     Phone:
     Fax:
     Approved: Paul A. Beeson, Chief Patrol Agent, San Diego 
         Sector.
     Date Approved:
     Chief Patrol Agent:
     Office: 2411 Boswell Road, Chula Vista, California 91914-
         3519.
     Mail: Chief Patrol Agent, United States Border Patrol. 2411 
         Boswell Road, Chula Vista, California 91914-3519.
     Phone:
     Fax:
     Office of Assistant Chief Counsel
     San Diego Sector:
     Office: 2411 Boswell Road, Chula Vista, California 91914-
         3519.
     Mail: United States Border Patrol, San Diego Sector Counsel, 
         2411 Boswell Road, Chula Vista, California 91914-3519.
     Phone:
     Fax:
  Mr. WYDEN. Mr. President, Mr. Scott admitted before the Finance 
Committee that he signed the illegal subpoena and expressed no remorse 
for his actions. He appears so unfazed by these allegations of brazen 
lawlessness that it seems inevitable he will sanction similar abuses of 
power if he is confirmed to lead Customs and Border Protection.
  Since Donald Trump took office, on far too many occasions, CBP has 
shown contempt for the constitutional rights of Americans. For example, 
in Texas, a 10-year-old U.S. citizen was left in Mexico with her family 
after being stopped by CBP on her way to a doctor's appointment for 
brain cancer treatment.
  In Washington, CBP detained a family of six, including a pregnant 
mother who was still breastfeeding her baby, a U.S. citizen. CBP held 
them in a windowless cell for 24 days. They had no access to due 
process or ability to contest their detention.
  In Arizona, a 19-year-old U.S. citizen with intellectual 
disabilities, who has difficulty speaking, writing, and reading, was 
arrested by CBP and charged with illegal entry, despite being an 
American. CBP kept him detained for 10 days.
  There are countless gut-wrenching stories like this. Courts have 
already raised concerns about CBP's inability to uphold the 
Constitution.
  I am of the view that America needs strong enforcement at the border 
to protect our people against criminals and drug traffickers, but that 
does not have to come at the expense of violating Americans' 
constitutional rights.
  Our country does not need a border Agency that indiscriminately 
violates the rights of Americans or one that feels like it is above due 
process and above the law. That doesn't make our country safer. It only 
leads to corruption, more wrongful arrests, and more wrongful deaths.
  Americans do not need to choose between security and our rights. We 
can have both, just as Ben Franklin said many years ago. I fear that 
confirming Mr. Scott would make our country less secure and less free. 
For that reason, I strongly oppose this nomination.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant executive clerk proceeded to call the roll.
  Mr. HOEVEN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HOEVEN. Mr. President, I ask unanimous consent that the next vote 
be called.
  The PRESIDING OFFICER. Without objection, it is so ordered.