A Bipartisan Attempt to Restore Credibility to the U.S. Border Enforcement System

U.S. Customs and Border Protection (CBP) has immense responsibilities and a vital mission: "to protect the United States against terrorist threats and prevent the illegal entry of inadmissible persons and contraband, while facilitating lawful travel, trade, and immigration." To that end, most CBP officers -- the Border Patrol agents who secure the territory between ports-of-entry (POEs) and Office of Field Operations (OFO) officials who cover POEs -- carry out their responsibilities with dedication and competence. CBP has committed itself to the highest law enforcement standards, including respect for civil and human rights. Border Patrol sectors and many individual CBP officers have worked cooperatively with local officials and community groups to increase public safety and curb human rights violations. Yet the same set of problems and abuses -- enabled by a hidebound culture, failure to discipline wayward agents, and a lack of accountability -- have plagued U.S. border enforcement efforts for many years and have now reached a crisis point.

Nearly fifteen years ago, I wrote an exhaustive report on the U.S.-Mexico border, which credited (most) border agents for their professionalism, restraint in responding to provocation, and even empathy with unauthorized migrants. However, the report also found that:

• Border enforcement policies drove migrants to perilous crossing routes, resulting in substantial deaths, which official tallies under-reported.

• A minority of agents responded with excessive force and violence when migrants scattered, hid or sought to evade arrest.

• Border Patrol agents shot rock-throwers, even those attempting to flee.

• A minority of Border Patrol and OSO officers engaged in gross and unprovoked misconduct.

• The Border Patrol used jacketed hollow-point bullets, which expanded on impact, creating massive tissue damage and blood loss.

• Agents conducted enforcement activities near church buildings, shelters, and other places where the well-being of immigrants and their families required them to be.

• The Immigration and Naturalization Service's complex and mostly inaccessible complaint system failed to curb or punish abuses, and was not used to detect and respond to patterns of abuse and misconduct.

• Lengthy border crossing delays hurt trade, commerce, and job creation in the United States.

Border enforcement staffing and funding has increased exponentially in the interim. In FY 2013, nearly three-quarters (more than 44,300) of CBP's staff and 55 percent ($6.56 billion) of the agency's funding went to border security functions. Perversely, the enforcement build-up has been accompanied by increased abuses and diminished accountability.

Since 2010, Border Patrol agents have shot more than 70 persons, killing 21, including several in Mexico. 43 shootings have occurred in response to rock throwing incidents, others have involved fleeing vehicles, and at least one has resulted in the death of an apparently innocent, 16-year-old boy. The Police Executive Research Forum has reportedly criticized CBP in an unreleased report for insufficiently investigating the shootings and for "self-defense" killings by agents who positioned themselves in front of moving vehicles. The Border Patrol recently "clarified" its use of force policies to prohibit agents from shooting at fleeing vehicles and at rock throwers unless they pose an imminent danger of serious injury or death to the agent or another person.

Over the last decade, several credible studies have found high-levels of physical and verbal abuse by federal immigration agents, freezing conditions in Border Patrol holding cells, and failure to return money, identification, cell phones and other possessions upon deportation. At a recent conference at Notre Dame University, one participant, who has extensively interviewed migrants, recounted that Border Patrol agents occasionally taunt those they apprehend by playing "La Cucaracha." In addition, rude and abusive treatment by OSO officers constituted a recurrent complaint (including from local elected officials) at a recent community forum in Anthony, New Mexico. Exacerbating matters, the CBP complaint system is so convoluted and opaque that sympathetic CBP officials have been known to advise border residents to bring their complaints to the Mexican consulate in order to increase the slim changes of a credible response.

Beyond these problems, corruption by border agents has become an endemic challenge, aggravated by the inefficient and negligent handling of complaints. Migrant crossing deaths remain unconscionably high, despite substantial decreases in illegal entries over the last 15 years. And DHS continues to purchase immense quantities of hollow point bullets.

On March 26, 2014, Congressmen Beto O'Rourke (D-TX 16) and Steve Pearce (R-NM 2) introduced the Border Enforcement Accountability, Oversight, and Community Engagement Act of 2014 (H.R. 4303). The Act would create a bi-partisan Border Oversight Commission, with subcommittees for the Southern and Northern Borders. The Commission would provide input on the impact of federal enforcement programs on local communities and would recommend ways to decrease civil rights violations, reduce border crossing deaths, and increase the safety of CBP officers. In addition, it would create an Ombudsman for Border and Immigration Related Concerns that would receive, evaluate and resolve complaints against CBP officers, solicit and address the enforcement-related concerns of border residents, inspect border facilities and produce an annual report to Congress with recommendations for systemic reforms. The Act also provides for training to increase the safety of CBP officers and to enhance their ability to detect vulnerable populations like trafficking victims. It would require a much needed assessment of staffing and infrastructure needs at POEs, with a focus on increasing security and reducing crossing delays. Finally, it would task CBP with producing a report on migrant crossing deaths (including its plans to reduce deaths) and require a GAO study of federal immigration enforcement "use of force" policies, practices and training.

For too many years, Congress and the Executive branch have failed to provide meaningful oversight of the Border Patrol and OSO to set standards for effective, rights-respecting enforcement, and to take sufficient steps to safeguard agents, migrants and border residents. The Obama administration should support H.R. 4303 and Congress should expeditiously consider and pass this balanced and bipartisan bill.