TUCSON, Arizona — A Mexican man shot by a U.S. Border Patrol agent in Arizona four years ago did not pose a threat, according to a letter by federal prosecutors in Arizona who reviewed the case.
Jesus Castro-Romo of Nogales, Sonora, was wounded in the stomach on Nov. 16, 2010, after being caught crossing illegally from Mexico into the Arizona desert.
Despite the finding by federal prosecutors, Abel Canales, who is no longer an agent, was found to be justified in the shooting by prosecutors in Colorado who reviewed the case.
Canales, in an unrelated case, pleaded guilty to taking a bribe and allowing a truckload of drugs and contraband to pass through a checkpoint on Interstate 19 in Arizona.
The case was taken over by Colorado prosecutors because the Arizona district had a conflict of interest.
The federal government is now facing a lawsuit in the shooting. A civil trial concluded in late July, but the federal judge overseeing it has asked both sides to present more information.
The shooting took place near Walker Canyon, when Canales spotted Castro-Romo and a half-dozen other migrants walking through the desert. Canales, who was on a horse, stopped the group and told them to stay on the ground while other agents arrived to help.
Canales told investigators that Castro-Romo picked up a rock but then dropped it when ordered to do so. Canales believes the migrant then made a motion indicating he was going to pick up the rock again, but Canales did not actually see Castro-Romo with a rock in his hand, according to the letter from the U.S. Attorney's Office in Arizona.
The letter, signed by former U.S. Attorney Dennis Burke, explained why prosecutors were declining to charge Castro-Romo with assault on a federal officer.
"It would be difficult, if not impossible, to prove that Castro-Romo had the requisite intent to commit a forcible assault. It is clear that he never threw a rock," the letter states.
Castro-Romo has permanent injuries and can only work low-impact jobs, according to the lawsuit.
"Mr. Castro Romo is the provider for his family with two children and two children from his previous marriage. He has lost income and will continue to lose income as a result of his loss of earning capacity," the lawsuit states. Castro-Romo is seeking nearly $13.2 million in damages.
The Border Patrol has been widely accused of using excessive force, especially in incidents in which agents are victims of rock-throwing. A lawsuit filed by the ACLU in Arizona on behalf of the mother of a Mexican teen who was shot and killed by an agent on the other side of the border alleges that agents indiscriminately fire at suspected rock throwers.
The agency will begin testing the use of body cameras on some agents next month. The head of internal affairs for Customs and Border Protection, the Border Patrol's parent agency, also recently said that an initial review of hundreds of use-of-force cases since 2009 found 155 of them merited more investigation.