[Congressional Record Volume 171, Number 105 (Wednesday, June 18, 2025)]
[Senate]
[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.