New Report Shows 'Deeply Troubling Failures' by Border Patrol in Boy’s Death, Key Congressional Leader Says

A new report details “deeply troubling failures” by U.S. Customs and Border Protection in the 2019 death of a Guatemalan boy in the agency’s custody, including the creation of false records suggesting he was monitored during the night, the chairman of the U.S. House Committee on Homeland Security said Friday.

Rep. Bennie Thompson, D-Miss., who leads the panel, called on the agency to “take corrective action to help ensure a tragedy like this never occurs again.”

“The committee will be continuing its investigation into this matter, including whether those who falsified records in this case were held accountable,” Thompson said.

Border Patrol agents recorded “hourly welfare checks that had not actually occurred” while 16-year-old Carlos Hernandez Vasquez died of the flu in his cell, but Justice Department prosecutors who reviewed the case found “no criminal intent” in his death and brought no charges, the Department of Homeland Security inspector general said in a news release this week. U.S. Customs and Border Protection, the parent agency of the Border Patrol, said it is reviewing the report to determine whether to take disciplinary action.

The report by the DHS Office of Inspector General confirms the findings of a ProPublica investigation in December 2019 into the death of Carlos, who lay dead for hours next to the toilet of Cell 199 in Weslaco, Texas.

The inspector general issued a three-paragraph news release on Wednesday but has not made available its report into Carlos’ death.

“The investigation determined that USBP did not conduct regular and frequent physical checks as required by the Customs and Border Protection National Standards on Transport, Escort, Detention, and Search policy,” the news release said.

The inspector general said it referred the findings to Justice Department prosecutors in McAllen, Texas, “who declined prosecution, citing a lack of any criminal violations and a lack of criminal intent,” the news release said. The inspector general’s investigation began shortly after Carlos’ death on May 20, 2019.

CBP issued a statement Friday saying the agency received the Office of Inspector General report this week and is reviewing the findings.

“CBP’s Office of Professional Responsibility is reviewing the OIG report to determine whether any areas require additional investigation. Once that process is complete, the OIG report will be referred to CBP management for review and evaluation. Should management determine there was a violation of agency policy or CBP’s Standards of Conduct, appropriate corrective action will be initiated in accordance with applicable law, regulations, and collective bargaining requirements,” the statement said.

Representatives of the DHS inspector general and the U.S. attorney’s office in Houston, which handled the case, did not immediately respond to requests for comment. The news release didn’t say when the findings were sent to federal prosecutors or when a decision was reached.

A medical examiner contracted by the inspector general to review Carlos’ death “identified the individual’s cause of death as natural from H1N1 and bacterial/staph infections, which would have resulted in a rapidly fatal outcome, even with immediate and appropriate treatment,” according to the news release.

Video and documents obtained by ProPublica from the Weslaco Police Department under Texas open records laws showed that Carlos had been diagnosed with the flu on May 19, 2019, at a Border Patrol station in McAllen, Texas, and moved to the smaller station in Weslaco. He was never sent to the hospital.

He received Tamiflu at 8 p.m. and was sent back to the cell he shared with another boy. He was given a meal just after midnight, which was the last time Border Patrol agents saw him alive, according to the Weslaco police report.

Police said Border Patrol later provided video of Carlos in his cell in two parts, a 33-minute clip that begins at about 1:13 a.m., and a 71-minute clip that begins at 5:48 a.m.

The first clip shows Carlos desperately ill, vomiting on the floor and making his way to the cell toilet. His roommate appears to be asleep under a Mylar blanket.

Carlos slides off the toilet and struggles on the floor for about three minutes before all motion stops at about 1:39 a.m. Police photos taken after his death show a large pool of blood around his head.

The second video clip provided to investigators begins at 5:48 a.m. with Carlos next to the toilet, in the same position as he was four hours earlier. His cellmate awakes at about 6:05 a.m., discovers Carlos lying next to the toilet and alerts agents. A physician’s assistant soon declares Carlos dead.

The video contradicted a Border Patrol press release that said Carlos was discovered during a welfare check.

The Border Patrol log documenting Carlos’ detention, which was obtained by ProPublica, said three welfare checks were made during the gap in the video, at 2:02 a.m., 4:09 a.m. and 5:05 a.m.

Carlos and his older sister left their home village in Guatemala in May 2019, hoping to join a brother in the United States, his family has said. They crossed the Rio Grande near Hidalgo, Texas, on May 13 as part of a group of about 70 migrants and were quickly taken into custody by the Border Patrol.

Carlos was separated from his adult sister, as required by law, and held by Border Patrol with other youth who came across the border without parents or guardians.

Such minors are supposed to be held by Border Patrol for less than 72 hours before being transferred to a Department of Health and Human Services agency. But in the spring of 2019, thousands of children were held well beyond the 72-hour limit as the number of migrants crossing the border continued to grow. Carlos was among more than 132,000 migrants taken into Border Patrol custody in May 2019, including more than 11,000 unaccompanied minors.

Carlos was held for six days at the main Border Patrol station in McAllen before being transferred to Weslaco after his flu diagnosis.

He was the last of six minors, ages 2-16, to die after being taken into Border Patrol custody between December 2018 and May 2019. Three of them, including Carlos, died of the flu.