Customs and Border Protection is slated to disband the Border Patrol’s Critical Incident Teams in October. These are internal units that have been part of investigations into use-of-force incidents involving Border Patrol agents, like shootings. 

Often dubbed “shadow units,” rights groups have argued these groups are illegal, because the Border Patrol is not authorized by Congress to investigate itself. They also argue units deployed at serious incidents have tampered with and contaminated evidence, making it more difficult or impossible to prosecute the agent involved. To date, no Border Patrol agent has ever been convicted of an on-duty killing.

Earlier this year, a trio of government probes were opened to investigate the units at the behest of multiple members of Congress.

In May, the agency said it would fully disband the units by Oct. 1, and all evidence processing in use-of-force incidents would be shifted to Customs and Border Protection’s Office of Professional Responsibility, or OPR, the investigative body authorized by Congress to investigate these incidents.

Andrea Guerrero is with the Southern Border Communities Coalition, the San Diego-based rights group that initially reached out to Congress requesting a probe into the Critical Incident Teams.

“The worst case scenario is they were engaged in obstruction of justice, which itself if a criminal offense for which they may be prosecuted,” she said. “So at a minimum, agents who have been working in a capacity with inherent conflict of interest should not be considered for the job of OPR investigator.”

But Guerrero says that’s exactly what they’ve found. She says since CBP’s announcement some Critical Incident Team members have already joined OPR. Her group detailed that and other findings in a new letter to Congress this week. The letter says the both Government Accountability Office, one of the bodies carrying out an investigation into the teams, and CBP leadership have confirmed the hirings with the Southern Border Communities Coalition.

A February memo from agency leadership required the Critical Incident Teams teams not to collect evidence, carry out interviews or other investigative procedures, unless requested to do so by OPR and under their guidance. That same month in Arizona, a 32-year-old migrant was fatally shot by a Border Patrol agent. The letter says in that investigation, “witnesses claimed that before they were detained, they saw agents move the body and tamper with the scene. Agents did not cede the body, witnesses, and evidence to local law enforcement until the next day. Additionally, four border agents attended the autopsy.”

In a statement, CBP said Critical Incident Team members continue to respond to scenes, but “their response must be done so at the direct request of the Office of Professional Responsibility (OPR) personnel and under the guidance of the OPR incident commander,” as detailed in the February 2022 memo. The statement said all personnel assigned to OPR must meet “stringent vetting and continuous suitability requirements,” and OPR “will review all candidates that apply for these positions and select the most qualified candidates, which may include prior U.S. Border Patrol CIT members.”