05/31/2012 01:45 pm ET Updated Jul 31, 2012

Getting Away With Murder at the Border

Co-authored by Michelle Brané, Director, and Jennifer Podkul, Program Officer, Detention and Asylum

It's been two years since Sergio Hernandez-Gueraca was killed by Customs and Border Protection agents. In June 2010, as 15-year-old Sergio was attempting to cross into the United States, a confrontation between a smuggler and Border agent broke out. According to allegations made by the U.S. government, Sergio threw rocks at the agents from the Mexican side of the border. The agents responded by shooting and killing him.

This month, the Department of Justice closed the investigation into Sergio's death. After over a year of investigations involving the Inspector General, FBI, U.S. Attorney's Office and the Justice Department's Civil Rights Division, the Justice Department declared that "there is insufficient evidence to pursue prosecution of the CBP [Customs and Border Protection] agent for a federal homicide offense." In essence, authorities found that the agent acted consistently with U.S. policies regarding the use of force.

That shooting a child who is throwing rocks is consistent with policies regarding use of force is unacceptable. It is true that rocks can do serious damage -- as Customs and Border Protection has demonstrated to us through video clips every time we visit the border. But is it really necessary to fire a gun to kill? That Sergio was 15 years old and was allegedly throwing rocks from across the border makes this scenario even more alarming. The question regarding the appropriate use of force becomes glaringly obvious. It is problematic that firing into Mexican territory at children throwing rocks could ever be considered an appropriate use of force consistent with U.S. policy.

Unfortunately, Sergio's case is not an anomaly. Since 2010, Border Patrol agents have killed at least seven members of border communities -- half of them minors -- and seriously injured several others. To date, Customs and Border Protection has not taken any action against the agents involved. Neither has there been a public investigation, which would help families understand why their loved ones were killed or injured.

Calls are growing for the U.S. government to make reforms in the immigration system and to closely examine the impact of U.S. border security policies on the safety of migrants crossing into the country. Customs and Border Protection currently operates under very little oversight and with little transparency. They have few public policies or procedures in place to provide guidance to agents on how to protect vulnerable migrants, including how to address incidents of sexual assault, family separation or allegations of abuse. Numerous migrants have reported abusive treatment by border patrol agents and inadequate conditions at border patrol stations and short-term facilities. Agents have also failed to identify and respond to migrants' accounts of sexual assault and trauma and their fear of persecution.

While no one would deny that the work Customs and Border Protection does is difficult and at times dangerous, we are deeply concerned by the lack of a public internal investigation of the agents involved in these cases and by the finding that the shooting of Sergio is consistent with policy. The Department of Homeland Security must review Custom and Border Protection's use of force policy to ensure that it is appropriate and reasonable.

As the number of unaccompanied children and families migrating to the United States rises, it is essential that our enforcement system be modified to acknowledge and address the need for protection that motivates and compels them to migrate. The U.S. government must address this humanitarian crisis right away.