WOLA: Advocacy for Human Rights in the Americas

(AP Photo/Cedar Attanasio)

28 Apr 2022 | Commentary

Border Oversight: Monitoring Conduct and Accountability in U.S. Border Law Enforcement

In more than a decade of research and advocacy around security, migration, and human rights at the U.S.-Mexico border, WOLA staff have learned and heard many things about our government’s border law enforcement agencies, Customs and Border Protection (CBP) and its Border Patrol component.

Some of what we hear is positive. We hear about Border Patrol agents and CBP officers risking their lives trying to rescue migrants from drowning or dehydrating. We hear about agents and officers giving back to their communities. In some cases, we hear about them processing arriving asylum seekers with efficiency and sensitivity. We hear about them responding to emergency calls, or gathering intelligence about transnational organized crime. While there’s much about the overall strategy we’d change, the agents themselves are often dedicated and honorable, and we hold in high esteem many whom we’ve met.

But there’s a dark side. We also hear a lot that concerns us. It comes via the media, from non-governmental partners at the border, from migrants, from former officials, and at times from agents’ and officials’ own statements. Much of what we learn recalls behaviors and patterns we have seen elsewhere in our Latin America-based work, typical of powerful military and police forces in the region that have abused human rights with impunity.

We hear about agents and officers misusing lethal force, carrying out dangerous vehicle pursuits, inflicting suffering on migrants in custody, separating families, exposing vulnerable people to danger, confiscating cash, ID cards, and other belongings, racially profiling, using abusive language, and much else. When this behavior happens, public complaints often go nowhere, and an internal affairs and inspector-general apparatus issue few meaningful punishments. Though we believe the vast majority of CBP officers and Border Patrol agents are honorable and committed to their mission, we hear about them protecting their abusive colleagues, blocking oversight with a “wall of silence”—a phenomenon all too common in law enforcement agencies at all levels.

We keep hearing about these indicators of a troubled culture at CBP and Border Patrol. It’s a scattered mass of troubling items, dispersed like puzzle pieces, and often forgotten. WOLA staff felt we needed to capture all that we’d been hearing. So for much of the past year we’ve been recording every credible allegation that has come our way. We built a database of events at the border, starting in 2020.

We invite you to tour this resource at borderoversight.org, a standalone WOLA website. In addition to the Border Oversight database, you can find a library of nearly 300 reports about the border since 2020: from WOLA and other NGOs, from official government sources, and from in-depth media reporting. You can also find our collection of 50 current infographics illustrating border trends ranging from migrant nationalities to drug seizures.

The result so far shows us that U.S. border agencies’ “dark side” is really big. The Border Oversight database is a living document subject to constant change, but as we launch it, it has over 200 entries. Each is a plain-language description of what happened, with careful citations and links to all source documents. We’ve organized it so viewers can track events by (a) the types of abuse or improper behavior; (b) the geographic areas where they occurred; (c) the agencies alleged to be responsible; (d) characteristics of the victims; and (e) the last known step taken to hold the alleged abusers accountable.

The word “database” sounds cold and clinical, but what we’ve created is certain to elicit an emotional response. WOLA’s Border Oversight database is hard to read for very long. It is upsetting. It’s painful to know these sorts of things are happening on U.S. soil, with this frequency, and with such scarce accountability. Among the 200+ entries:

  • In August 2021 after dark outside Eagle Pass, Texas, a Salvadoran man who had reportedly been “unruly” became “unresponsive” while shackled. He died “on the hood of a nearby Border Patrol vehicle.”
  • In June 2021 an agent fired a 9-millimeter pistol round at a vehicle in Nogales, Arizona. The bullet penetrated the skull of a Mexican woman in the backseat, who survived but was deported without ever talking to an investigator.
  • In January 2021 in Hidalgo, Texas, agents shot and killed a Cuban migrant who emerged from the Rio Grande holding a stone. His partner called it a “murder.”
  • A Black U.S. diplomat who had been assigned to the U.S. consulate in Ciudad Juárez described CBP officers subjecting her to regular, blatant racial profiling whenever she crossed back into El Paso. She got no responses for 18 months from CBP’s Office of Professional Responsibility.
  • Data compiled by ACLU and reproduced by the New York Times show that 21 people died in vehicle collisions in 2021 after Border Patrol agents pursued them at high speed. That was up from 14 in 2020 and an average of 3.5 per year from 2010 to 2019.
  • We’ve recorded many examples of agents telling asylum seekers that they are being transported to be processed for asylum and reunited with relatives in the United States, when in fact they were expelling them into Mexico or by air back to Haiti.
  • CBP’s Office of Professional Responsibility (OPR) opened 516 investigations into use of force incidents in 2020, 17 of them for use of deadly force. Of use-of-force cases closed with a disciplinary outcome, just 1 resulted in a removal, 2 in reprimands, and 5 with counselings.

WOLA’s Border Oversight database is far from comprehensive. Migrants released from custody aren’t always able to find  someone willing to record their testimony, even when they’re willing to talk about what happened to them. Only a few places along the border have organizations, shelters, advocates, or journalists that systematically record these kinds of events or accompany victims. Our database shows more events in some border sectors than others. That’s not necessarily because those sectors are “worse”: it more likely means that there is better non-governmental reporting there.

This makes us concerned that what’s in the Border Oversight database is just the tip of a large iceberg. While we have probably captured the most serious abuses, like fatalities, we’re certain that we’ve barely scratched the surface on the “everyday” abuses that point to organizational culture problems. Even so, our database holds numerous accounts of miserable conditions and mistreatment in custody; denial of food, water, and medical care; non-return of personal belongings and documents; dangerous or inappropriate deportations; ignoring threatened migrants’ pleas for protection, and even taking delight in doing so; abusive language; lying to or deliberate misleading of migrants; and racial profiling.

The database also tracks accountability, though information about investigations’ outcomes is scarce. We have found very few examples of consequences for the actions described here. The Department of Homeland Security (DHS) internal oversight system seems either too overwhelmed, slow, or reluctant to keep up with the steady stream of allegations. Three agencies have overlapping responsibilities, insufficient budgets and manpower, and have been hampered by internal turf battles and lack of external political backing. (They are DHS’s Inspector-General, DHS’s Office of Civil Rights and Civil Liberties, and CBP’s Office of Professional Responsibility.) The result is a very low probability of consequences, which likely contributes to troubling behavior patterns.

The House of Representatives’ Oversight Committee found that CBP meted out far less than the recommended punishments to agents who posted racist, sexist, and violent images and messages to an explosively controversial internal Facebook group. DHS Inspector-General investigators confirmed that a secretive CBP “Tactical Terrorism Response Team” had launched probes against many Americans, including journalists, with no imaginable ties to terrorism. Another secretive Border Patrol structure, “Critical Incident Teams,” was found to be carrying out parallel “cover-up” investigations of use-of-force incidents, gathering information to exonerate accused agents.

With 60,000 members, CBP is the United States’ largest federal law enforcement agency. Donald Trump sought to use them in new, politicized contexts all around the country. Political leaders in both parties frequently propose to increase their budget and workforce—which quintupled between 1992 and 2012—still further. The troubling information in our database shows how urgent it is that we stop and re-evaluate CBP’s and Border Patrol’s organizational culture before expanding them any further.

Many factors have likely contributed to the development of a culture so permissive of abuse. We hear about a “cowboy” or “paramilitary” history of an agency that developed as migrant hunters working in remote areas where nobody was watching. Some analysts write about Border Patrol’s racist origins in the 1920s. We hear about an agency that grew very fast in the 1990s and 2000s, especially after the September 11 attacks. We hear about an agency that was created, along with DHS, in 2003, without its own internal affairs capacity, which has since had to be built on the fly. We hear about a failure to adapt to the past 10 years’ sudden change in the profile of a typical migrant: from a single adult seeking to avoid capture, to a child or family seeking to turn themselves in and requiring asylum processing. We see a reluctance to carry out necessary oversight among political leaders who profess to revere law enforcement.

Many of these causes are management failures. Some are political failures. What WOLA lacks so far is a detailed understanding of personnel training, and of the kinds of worldviews that are shared from the Academy to the daily muster. We have little visibility on the attributes and behaviors that get agents promoted and more highly paid, and which ones get agents ostracized and marginalized. We do have a sense of what appear to be strong incentives to stay quiet and keep one’s head down, even when the agent is a victim, as in sexual harassment cases, and of some of the obstacles faced by oversight personnel who would do a more energetic job.

WOLA looks forward to having more discussions about this organizational culture’s origins in the next several months, using the Border Oversight database as a tool. We hope that this tool and these discussions will add constructive new momentum to an already rich body of work about remedies, including important contributions from the Southern Border Communities Coalition, the ACLU, the Kino Border Initiative, the American Immigration Council, the Project on Government Oversight, and others. That momentum, in turn, must lead to a strategy for overcoming the obstacles in the way of stopping  the behaviors we’ve documented here, and keeping them from resurging regardless of which political party is in power.

The need for reform is clear. The human cost is too great to keep the institutional culture crisis at CBP and Border Patrol off the agenda. It falls on those of us in civil society to organize, research, and make as much noise as we can. Congress, meanwhile, can improve its oversight efforts: more investigations, more hearings, more information requests, and more consideration of reforms to improve incentives and accountability.

Most agents and officers, we believe, are basically good people who understand the complexities of managing a rapidly changing border. They do it every day. We hope that they, too, are frustrated by the numbing regularity of reports of abuse, both severe and everyday, committed against vulnerable people. A real problem exists. We need to engage in real dialogue about how to fix it.

WOLA thanks the organizations at the border who are working most assiduously to do their duty, as citizens, of overseeing those whom we’ve trusted to protect us. The Border Oversight database frequently cites the work of groups like the Kino Border Initiative in Arizona; the Border Human Rights Network and ACLU Texas in El Paso; Alliance San Diego; and national groups like Human Rights First and the Southern Border Communities Coalition. It owes a debt to investigative reporters at outlets like ProPublica, the Texas Tribune, the Rio Grande Valley Monitor, the San Diego Union-Tribune, and other national and local media. We are thankful for the work they are doing along the border all the time, usually with little funding or gratitude. We wish there were more of them, with more resources.