Death in Nogales | S. C. Cornell

On January 30, 2023, a forty-eight-year-old Mexican man named Gabriel Cuen Buitimea made his way into the Sonoran desert a few miles east of Nogales, Arizona, where the thirty-foot-high metal beams of the border wall abruptly drop into sawhorses and cattle fencing.¹ Around noon Cuen Buitimea and a group of men hopped the sawhorses, set foot in the United States, and ran north. Some time later they heard what sounded like a Border Patrol car and fled in various directions. At 2:30 PM Cuen Buitimea was walking south with a Honduran man named Daniel Ramirez; they intended to return to Mexico and try to cross again later. They were on the Vermilion Mountain Ranch, a 170-acre property owned by Wanda and George Alan Kelly, retirees in their seventies. The border wall was visible on the horizon. The ranch house was 115 yards away, behind a thicket of bare mesquite trees. Ramirez later said he did not notice it, though he did see the Kellys’ skinny red horse in a nearby pasture.

As the two men walked by, Alan, as he is called, was in the kitchen making a sandwich, and Wanda was in the living room petting her cat. Fox News was on; at that hour it was airing an interview with Carlos Giménez, a Republican congressman from Florida. “There’s people probably in Mexico right now trying to get over,” Giménez said. “Our estimates are there’s one and a half million getaways in the last—since, you know, the Biden Administration took over.”

Suddenly Alan told Wanda to be quiet. She looked out the living room’s picture window and saw two men walking about a football field away, carrying—she later told the jury—at least one rifle. Alan went to the coat tree and removed an AK-47, while Wanda dialed the number of Jeremy Morsell, a Border Patrol agent with whom her husband was friendly. When Morsell answered, she passed the phone to Alan, who was heading out to the patio. According to Morsell’s testimony, Alan said on the phone that five men running south across his property had shot at him and that he was returning fire. Wanda remained in the living room with her back to the window. She heard gunshots. Detectives would later point to bullet casings found on the patio the next morning, which suggest that Alan fired nine shots.

Ramirez, testifying in March of this year with the aid of a translator, denied that he or Cuen Buitimea had carried a weapon, much less that one of them had initiated a gunfight. In his telling, the shots came out of nowhere; he assumed Border Patrol had opened fire. Cuen Buitimea was struck in the back. He clutched his chest and shouted, “Me dieron!”—“They hit me!” Ramirez saw the horse rear and concluded that it had taken a bullet meant for him. He jumped over Cuen Buitimea’s dying body and ran for the border, a mile and a half away. Ramirez spent the next weeks sick in bed. “I was dying of the very fright,” he later said in court. “I even dreamed of it.”

By 2:36 PM Morsell had passed a report up the chain of command and called Kelly back. Kelly, who was checking on his horse, now clarified that the men had been far enough away that he couldn’t see if they were armed. About twenty minutes later officers from Border Patrol and the sheriff’s department arrived and fanned out to search for an active shooter. The only person they found was Kelly, walking near his barn with his rifle and his two black labs. Deputies recalled that Kelly said he had gone outside with his AK-47—“this baby’s always by the door”—but that he did not mention having fired any shots. Instead he claimed that, once outside, he had heard a single shot and seen five men, who may or may not have been armed, running as if from gunfire. If he ever found himself in such a situation again, a deputy advised him, he should shelter in place and call 911.

An hour or so after the officers left, Kelly was walking his property when his labs alerted him to the presence of Cuen Buitimea’s dead body in the high grass. He stayed there for three minutes to make sure the body wasn’t breathing. Then he went back to the house. He left a voicemail for Morsell saying that something serious had happened, and also sent a text: “CALL ME IMMEDIALY!” Morsell called back a few minutes later. In court, he described Kelly’s demeanor on this phone call as evasive and nervous. According to Morsell, Kelly hemmed and hawed, but eventually dropped a hint: “You know how shots were fired earlier? Something was possibly struck.” Kelly asked if Morsell was going to report this; Morsell did so at once.

The border as we know it is a modern invention. Arizona did not become a state until 1912, and the US did not make it a crime to cross its borders without permission until 1929. As late as 1980, during a Republican primary debate, Ronald Reagan summarily dismissed the idea of a border “fence.” Even before the border was built, however, there were border vigilantes. In The Injustice Never Leaves You: Anti-Mexican Violence in Texas, the historian Monica Muñoz Martinez describes the early-twentieth-century reign of terror carried out by the Texas Rangers—a group composed mostly of armed volunteers, many of them recent immigrants to the area, who worked to consolidate white control of the land on which indigenous Americans and Mexicans had long lived.² During a particularly bloody ten-month period between 1915 and 1916, the Rangers and other vigilantes lynched between one hundred and three hundred Mexicans and Mexican Americans.

In Migra!: A History of the US Border Patrol, the historian Kelly Lytle Hernández argues that during that period, white citizens and law enforcement viewed the violent control of the border as their shared prerogative.³ When the United States Border Patrol was established in 1924, the head of the Bureau of Immigration clarified that its agents “possess no more powers than does the ordinary citizen.” Early agents, who were often recruited from the Rangers, were not trained; they were simply issued guns and encouraged, when stopping potential liquor smugglers, to discriminate by race. The infamous agent Charles Askins Jr. put his body count at “twenty-seven, not counting [blacks] and Mexicans.”

The area’s new class of white landowners had an ambivalent attitude toward migration. They relied on Mexicans for ranching and farming labor; in the 1920s, during the era of quotas by nationality, agribusiness lobbyists ensured that Mexican immigration was never capped. But landowners also relied on Border Patrol’s threat of deportation and violence to keep their workforce desperate and transient. Some borderlands ranchers came to view themselves as junior agents of a sort. A 1958 article in The Arizona Republic enthusiastically describes the joint efforts of Border Patrol and Nogales ranchers to track down “undesirable aliens”—in this case, “a brother and his 16-year-old sister who had left their home in Zacatecas to find work.” In the Seventies the Ku Klux Klan organized patrols up and down the border with binoculars and listening devices. By the Aughts, one Arizona rancher, Roger Barnett, claimed to have apprehended over 10,000 migrants while patrolling his property with a sidearm. He then turned groups over to the Border Patrol, whose agents apparently took his actions in stride. (Eventually, an Arizona jury found Barnett guilty of assaulting a Mexican American family who had been deer-hunting on his property.)

Border lynchings of a kind persist to this day in the Nogales area. In 1992 an agent shot a twenty-six-year-old man named Dario Miranda Valenzuela, who was carrying a water bottle that the agent claimed to take for a gun. The Los Angeles Times reported that the agent allegedly asked his partner for help covering up the murder, then headed out for a night of drinking with friends. In 2011 a nineteen-year-old man named Carlos LaMadrid was fleeing into Mexico when an agent shot him in the back and killed him. The next year an agent shot through slots in the border wall and hit sixteen-year-old José Antonio Elena Rodríguez ten times in the back and head. Both LaMadrid and Elena Rodríguez were posthumously accused of either throwing rocks or associating with rock throwers. In 2021 Marisol García Alcántara was sitting in a car on the Arizona side of Nogales, expecting to be arrested for crossing, when an agent shot through the window and struck her in the head. She miraculously survived and was promptly jailed. None of these agents has been convicted of a crime. “Frankly,” Marcos Moreno Báez, the head of the Mexican consulate in Nogales, told me, “it reminds me a bit of the Trayvon case.”

Tacit community and government support for vigilantism is nothing new. Nor is the flow of migrants across the border: as a percentage of the US population, the number of migrant encounters during the peak in 2023 was only slightly higher than that of peaks in the Eighties and the Aughts. Meanwhile the US birth rate has remained under replacement level since 1971. Even as migrants have for decades kept the country from economic and demographic stagnation, both Democrats and Republicans have long considered an increase in border crossers a political liability and seen a violent response to migrants as a political boon. In 2010, shortly before a shooter nearly killed her, the Arizona Democratic congresswoman Gabby Giffords asked a White House official to send the National Guard to the border to bolster her reelection chances. In this year’s presidential debate, Kamala Harris, who once supported the decriminalization of border crossing, bragged that she had endorsed an effort to hire 1,500 new Border Patrol agents. (The agency’s staff has already quintupled since the Nineties.)

As both parties continue to militarize the border, Republicans have begun to give voice to what is hard not to see as a longing to kill. In 2022, a few months before the killing of Cuen Buitimea, Blake Masters, an Arizona Republican running for Senate, released a campaign ad in which he brandished a rifle in the Sonoran Desert and announced that “it wasn’t designed for hunting. This was designed to kill people.” He went on to win some 47 percent of Arizonan voters, including 40 percent of Latino voters. In 2023 the government of Texas ordered soldiers to deny migrants water and, according to a leaked email from a state trooper, to push everyone, including babies, into the Rio Grande, which it has filled with razor wire. The email also describes two incidents from the same day in which a four-year-old passed out from exhaustion and a nineteen-year-old pregnant woman was caught in the razor wire and miscarried. “The only thing that we’re not doing is we’re not shooting people who come across the border,” Governor Greg Abbott said this year, “because, of course, the Biden administration would charge us with murder.”

When two detectives charged George Alan Kelly with murder, he seemed to take it stoically: he shook their hands and thanked them for their professionalism. The broader reaction to his arrest, however, shows that the spirit of the Texas Rangers lives on—that many Americans continue to be astonished and offended that they might be punished for killing a migrant on the border. In the months after Kelly’s arrest, 12,000 people signed a petition asking for his release. Online fundraisers collected almost half a million dollars, which he used to pay bail. Early fans left comments making clear that they supported Kelly not because they thought he was innocent—framed for the killing—but because, as in any perceived wartime, killing had become the patriotic thing to do. One YouTube comment on a video of the preliminary hearing reads, “Only stopping these invaders in this way—no matter sex or age—will send the signal to stop this invasion.”

If, as these fans believed, Kelly was in the right and the law was in the wrong, the only thing to do was to change the law. Arizona already had a stand-your-ground law, known as a castle doctrine, which allows people to use deadly force against trespassers to protect their home. But the law didn’t seem to apply here: nobody had tried to enter or harm the Kelly house. In February 2024, about a month before Kelly’s trial, Arizona Republicans conveniently attempted to close this “loophole.” Citing “increasingly larger numbers of migrants or human traffickers moving across farm and ranch land,” a state representative proposed an amendment expanding the castle doctrine to apply to any part of one’s property. The bill passed the Arizona house and senate along party lines. During the third week of the trial, Democratic governor Katie Hobbs vetoed it. The legislation, she wrote, “would further embolden a culture of armed vigilantism.”

Such a culture was present at the trial, which began on March 21. During jury selection, a priest who said that “life is more important than property” was excused because of his work commitments; a landscaper who doubted whether people in the country illegally should enjoy “the protection of the law” was seated. During the five-week proceedings, dozens of curious people stopped by to watch, many of them Latino, almost all sympathetic to Kelly. Some told me they thought that ranchers on the border were getting a raw deal. This is true, though not for the reasons that Kelly’s supporters might assume. In the last three decades, as the militarization of border areas has pushed clandestine crossers farther into the scrub, the resulting manhunts have weakened residents’ civil liberties: within twenty-five miles of a border, immigration agents can go onto private land without a warrant. Periodically both migrants and agents cut holes in ranchers’ barbed-wire fences, through which cows can escape.

Kelly himself is not a professional rancher; according to Wanda, the only animals on the property on the day of the killing were the two dogs, the cat, the skinny red horse, and a few of the neighbor’s cows. Cuts in his fencing, much discussed at the trial, would not have affected his income, which, according to a filing by his lawyer, comes entirely from social security—a fund that undocumented immigrants prop up. Nevertheless, Kelly has long given the impression that he considers himself a victim of immigration. Police reports from 2003 to 2005, as well as the deposition of Agent Morsell, detail a pattern of distress calls to 911 and later to Border Patrol in which Kelly repeatedly alleged that he had been fired at or robbed. None of these claims could be confirmed; in a deposition, Morsell recalled communications with Kelly where the retiree “kinda stormed” and “ranted.” Police reports suggest that officers indulged Kelly even when they doubted he was telling the truth.

In 2013 Kelly self-published a novel, Far Beyond the Border Fence, about a man named George who lives with his wife, Wanda, on a ranch near the border called the VMR, presumably for Vermilion Mountain Ranch. Early in the book George complains that Obama’s victory halted construction of the border wall, leading to a free-for-all. (In fact Obama added more miles to the border wall and removed more people from the country than has Trump.) As a result of this ploy to “buy the votes of Hispanics living legally and illegally in the US,” George and his family lived in a “war zone” where they “had no other choice but to protect their lives and property by risking their very lives.” Doing his part, George “kept a constant vigil” and “slept with one ear open.” Together with his foreman, he “had to patrol the ranch daily, armed with AK-47’s. Sometimes they were able to intercept the illegals and apprise law enforcement.”

In one scene, described by the prosecution as an “almost dead-on” match for the events of January 30, George opens fire with his AK-47 on two men riding south on horseback through his property, emptying “a clip as close to the horses as he could without hitting them, the horses that is.” He then eagerly reports what he’s done to the sheriff:

They wrote it all down and, when the Sheriff asked if George thought that he had hit either of the riders, George told him that if he had hit one, he hadn’t hit him hard enough. The Sheriff didn’t reply, he just smiled and shook his head. George then told the Sheriff that if he didn’t want him to protect his property by whatever means necessary, he had better arrest him there and then. The Sheriff acted like he didn’t hear George, but, as he left the ranch, he told George privately that if he ever did shoot a Mule he didn’t want to know about it.

In the weeks before January 30, the real George Alan Kelly texted a friend that he was “OVERRUN WITH DRUG CARTEL. AK GTN A LOT OF WORK,” and that there were “27 ILLEGALS GROWIN DAISIES AS OF LST NT.” On the night of the alleged murder, Wanda told detectives that in the past her husband had fired warning shots at crossers. When a detective informed her that the body found on her property had a gunshot wound, she replied, “Well, if you knew the things that been going on out there, you wouldn’t be waiting around.”

What was going on out there? In statements, Wanda mentioned fence cutting; a single incident two or three years ago (just after Biden’s victory) in which she saw armed men walking on her property; and evidence of migrants having camped there on two occasions. (The trash they left behind included condoms, a word she was reluctant to say.) During the investigation she claimed that since early 2021 she has not felt safe enough to go out for walks: before giving a year, she asked a detective, “Was President Biden in ’20 or ’21?” Her husband, who regularly patrolled the property with his AK-47, had told her about crossers perhaps six or seven times during their two decades on the property. She told the jury that January 30, 2023, was the most she had ever feared for her husband’s life, the closest to the house anyone had ever come.

Wanda’s portrait of life outside Nogales is more levelheaded than Alan’s, but it still clashes with the story I heard from a neighbor, who described the area as “tranquil and beautiful.” None of the four local Border Patrol agents who took the stand and were asked about incidents in the area in the last ten years could recall seeing an AK- or AR-type rifle used by anyone other than residents who were hunting. (The Tucson Sector Border Patrol, which includes Nogales, has in the last year seized approximately one gun for every five thousand migrants it apprehended.) Morsell estimated that 98 to 99 percent of those detained in the area are migrants rather than narcotics smugglers; another agent said that there hadn’t been a narcotics seizure in the area in two years.

The Kellys’ backyard is clearly neither drug-ridden nor a “war zone.” And yet in certain respects the area is deadly. Starting with the Clinton administration, the federal government has enforced a policy known as Prevention Through Deterrence, which aims to force crossers into more dangerous terrain. The result has been what the anthropologist Jason De León calls “a killing machine that simultaneously uses and hides behind the viciousness of the Sonoran Desert.”⁴ Since 1994, Border Patrol has documented the deaths of over ten thousand border crossers, most often from dehydration, exhaustion, or cold: humanitarian groups estimate that the number is many times higher.

In 2022, 173 migrants were found dead in southern Arizona alone. One of them was a forty-five-year-old Mexican woman named Griselda Alvarez Lopez, who was found by a Border Patrol officer on the dirt road that leads to the Kelly house. She had died of hypothermia, a fact the Kellys did not initially learn. “They told us that she was killed,” Wanda said in a deposition. “I don’t know, I didn’t need to hear all of it.” 

During the post-arrest questioning, a detective asked several times if Kelly had shot out of fear. Kelly didn’t at first take this opportunity to bolster a self-defense case; instead, during the first thirty minutes of the interview, he did not mention that he had fired any shots at all. Only when the detective once again promised to run ballistics—overpromised, as it turned out, since the fatal bullet was never found—did Kelly admit that he had fired his rifle. He claimed, however, to have shot over the men’s heads. When the detective asked, using air quotes, if the men had ever pointed their “rifles” at him, Kelly recalled that they had, even though in several statements earlier that day he had been unsure if the men were armed at all. “If a guy’s running with a rifle and—and—and he turns,” Kelly said, “he’s gonna turn and he’s gonna point it at you, just in a—in a—in a mode of turning, he’s gonna point it at you.”

These additions to Kelly’s story proved crucial for his legal strategy. The pointed rifle became the center of the self-defense argument. The notion that he had fired upwards suggested an exculpatory angle that seemingly hadn’t occurred to some of his earliest supporters—that someone else had fired the fatal bullet. The defense introduced the court to the term “rip crews”—gangs of thieves who rob rival drug or migrant smugglers at gunpoint. They pointed to the oddly high position of Cuen Buitimea’s backpack as he lay face down—which the crime scene cop had attributed to a forward fall—and to a broken buckle on his fanny pack. It was as if, the defense attorneys argued, his belongings had been ripped from him in a robbery gone wrong. (Any thieves on the scene did not bother to steal his wallet, which contained about $100 worth of pesos, and none of the Border Patrol officers questioned about rip crews at the trial could recall one being reported in the area in the last decade.)

In the courthouse I asked Kelly’s supporters which of his defenses they subscribed to. Had he killed Cuen Buitimea but been justified in doing so, or had a member of a rip crew fired the fatal shot? Everyone who was willing to answer blamed the cartels. But everyone also left room for self-defense. “I don’t know what I would do if illegals were crossing my property all the time,” a retiree told me. “I’m an Arizonian, so I can feel for him,” a real estate agent from Tucson said. “I know those ranchers go through hell.” One woman told me both that she thought the cartels had committed the murder and that self-defense “is important for every single American.” I came to see the cartel-shooter theory as a sort of moral pressure valve to be opened when one grew uncomfortable with taking the more explicitly pro-murder stance.

If you own a weapon that shoots bullets so powerful that they can kill from eight hundred yards away, or even from the falling arc of a warning shot, you can kill a person without knowing you did. “Did you shoot this gentleman?” the detective asked Kelly during the interrogation on the night of Gabriel Cuen Buitimea’s death. “No, as far as I know,” he said, “I mean how—how can I know that?” If this was confusing to the defendant, it was also confusing to the jurors, who deadlocked after three days of deliberation. In the end, a defense lawyer told the media, only a single juror maintained Kelly’s guilt. After the judge declared a mistrial, Daniela Cuen Alvarado, one of Cuen Buitimea’s eight children, summed up the outcome for a reporter: “The man had a right to kill my father just for being there. Imagine if, when they came over here, we decided to do the same.”

In July, Judge Thomas Fink ruled that Kelly cannot be retried. He dismissed “as pure speculation” the idea that the jury was influenced by “current public opinion about immigration, the border, and the use of firearms,” and wrote of the prosecution’s case that “the evidence simply was not there.” The prosecution has filed an appeal, which will drag on for months. This May, in a teary interview with NewsNation, Kelly expressed his utmost sympathy for the family of Gabriel Cuen Buitimea. “But it’s not my fault,” he said, “I didn’t do it. Somebody else is responsible for that. And whoever he is, he’s going to have to live with it.”