You're HBO and your latest release is an explosive documentary about one of the most controversial sectors of the United States government: the Border Patrol. What do you do to get as much attention as possible?
We're watching their strategy play out right now.
“Critical Incident: Death at the Border” chronicles the death of Anastasio Hernández Rojas, a 42-year-old undocumented immigrant who died in 2010 days after immigration agents handcuffed, beat and Tasered him near the San Ysidro port of entry after attempting to deport him to Mexico. The Border Patrol at the time said they used force after Hernández Rojas, who had lived in this country since he was 15, resisted.
The case attracted international attention and Hernandez Rojas' family received a $1 million settlement from the federal government, which declined to file criminal charges against those involved in his death even though the San Diego County Coroner's Office ruled it a homicide. Enter John Carlos Frey, a reporter who has followed the story for almost 15 years and who is one of the protagonists of “Critical Incident.”
He knocks on the doors of agents who were there when Hernández Rojas died, uncovers footage that contradicts the Border Patrol's official narrative, and uncovers a secret Border Patrol unit tasked with “mitigating” use-of-force incidents that was disbanded in 2022. The documentary includes an interview with a whistleblower who claimed bosses told him to manipulate evidence to exonerate the agency for Hernández Rojas' death. It also alleges that the cover-up reached Customs and Border Protection Commissioner Rodney Scott, who was deputy chief of Border Patrol for the San Diego region when Hernández Rojas died.
Scott appears near the end of “Critical Incident” to dismiss those “allegations” and declines to comment on any culpability those involved may have had, citing ongoing litigation. “This case from more than a decade ago was thoroughly investigated and resolved by the Department of Justice and local authorities,” a Department of Homeland Security spokesperson told the Times in a statement when I asked for comment on the documentary's findings. “Efforts to smear CBP and ICE agents as breaking the law are defamatory, irresponsible, and only reveal the media's desire to mislead the American people.”
“Critical Incident” is tense, disturbing, timely and lasts a brisk hour and a half. It deserves as many viewers as possible and an advertising campaign as ubiquitous as the one HBO is currently pushing for its hit hockey romance, “Heated Rivalry.”
Instead, the network launched “Critical Incident” on Dec. 29, when most Americans were lost in a haze of Christmas leftovers, “Avengers: Endgame” reruns and college football games. It's not listed alongside other recently released documentaries on HBO's website, and I couldn't find it under the “Newly Added” tab of the network's streaming app.
Director Rick Rowley was diplomatic about his documentary's “difficult” release date, saying he has a “limited view” of HBO's decision. However, he is confident that “this film will have a long life because these [Border Patrol] The problems become more pressing as the days go by.”
Frey was not so polite: “If I were an executive and published it on that date, I would be fired.”
Rodney Scott, then a nominee for U.S. Customs and Border Protection commissioner, arrives at a Senate confirmation hearing in April 2025.
(Stefani Reynolds/Bloomberg via Getty Images)
An HBO spokesperson rejected Frey's criticism, stating, “The documentary actually premiered during one of the platform's highest usage times and we're proud to say the film is doing very well, even appearing in the top 10.”
In development for four years, Frey said “Critical Incident” was supposed to air just before the 2024 election. He showed me a text message from a senior producer attesting to this. But HBO stuck to it even when a Senate committee questioned Scott about Hernández Rojas' death during his confirmation hearing last April, which is not included in the documentary. The documentary did not air even as the Border Patrol's invasion of cities far from the US-Mexico border over the past year made the “Critical Incident” story told more relevant than ever.
HBO “buried it on purpose,” Frey, 56, told me over breakfast in Boyle Heights. He blames the current political environment, specifically Netflix's proposed $82.7 billion bid to acquire HBO's parent company, Warner Bros., which federal regulators would have to approve. The last thing executives want to do right now, Frey argued, is anger President Trump by promoting a documentary attacking his spate of deportations.
“They buried him on the worst day of the year, when no one was looking, and of course they're going to deny it,” Frey said.
“That, of course, is not true,” the HBO spokesperson said.
Deck the migration It's personal for Frey, who grew up in Tijuana and Imperial Beach overlooking the U.S.-Mexico border fence. When he was 12, a Border Patrol agent approached his mother, who had a green card at the time, while her son was playing outside.
“He wouldn't believe anything she would say and wouldn't let her go to our house to get her documents,” Frey said. He is of average height, with a deep voice and a crooked chest, and tends to answer questions with questions. “Why would she? The agent deported her.”
As an adult, Frey began covering the Border Patrol in the post-9/11 era. Like today, it was expanding rapidly and aggressive tactics, such as smashing car windows when occupants did not resist and officer-involved shootings, were endemic. The case of Hernández Rojas came into their scope after someone approached him claiming to have images of his death.
“The original narrative was that Anastasio became belligerent, was subdued and died,” Frey said. “The case was closed, the Border Patrol had canceled it.”
Initially, the source was too scared to share their recording, but Frey eventually convinced them after sending them his stories about repeated Border Patrol abuses of power. What he saw — about a dozen Border Patrol agents surrounding Hernández Rojas, who was face down and moaning, Tasing him and punching him while onlookers yelled at them to stop — left the journalist “disgusted.”
The footage eventually aired on a 2012 PBS show, making the story go national. Frey's continued work on the case eventually caught the attention of Rowley, whose documentaries about neo-Nazi groups, the murder of Washington Post columnist Jamal Khashoggi and the war on terrorism have earned him Emmy Awards and an Oscar nomination.
The documentary filmmaker wanted to examine Border Patrol impunity and, he said, “Anastasio's story is one of the few stories that takes you to the top. And you have to work with John if you're going to do Anastasio's case. He's not afraid.”
Rowley is proud of his final product, but admitted that he is “used to having more press around the release of a movie, especially a movie about… the country's biggest domestic issue, especially in the last year.”
That's what pisses Frey off most about the release of “Critical Incident.”
“The stories I used to hear – 'The Border Patrol broke my windows, left me bloody, grabbed me without asking any questions' – are now in the neighborhoods,” he said. He twisted a napkin and tossed it into the pile of twisted napkins next to his coffee cup.
“It's a deliberate choice when you're going to release a documentary and how. If I were HBO and I had evidence of a murder by the feds, I would have started with that in my promotion. I think it's a selling point, especially with the [immigration] raids. Instead, they have me hugging someone in the trailer.”
Frey shook his head. “We made a good movie, but half the battle is getting people to see it.”
