WOLA: Advocacy for Human Rights in the Americas

(AP Photo/J. Scott Applewhite)

31 Jan 2019 | Commentary

Here’s a Better Way to Spend $5.7 Billion at the Border

Congressional negotiators have until February 15 to come up with a border security spending package that President Trump might sign into law. If they don’t, either the government will shut down again, or Trump may declare a “national emergency” to build a border wall—a step certain to face strong legal challenges. As legislators try to avert those outcomes, they would do well to keep in mind that:

  • The U.S.-Mexico border isn’t fully secure, but it’s more secure than it has been in decades. Apprehensions of migrants are near 45-year lows. U.S. border cities are among the nation’s safest. Border Patrol is five times larger than it was during the Clinton administration, and twice the size it was during the Bush administration. In 2018, the average agent apprehended 20.5 migrants all year—and 8 of them would have been children or family-unit members.
  • Radical solutions, then, aren’t needed. We’ve already been through several border-security overhauls: a buildup during the Clinton years, the creation of the Homeland Security Department, the 2006 Secure Fence Act. Another overhaul is unnecessary: it’s time to get under the hood, determine what is working, and fix what isn’t.
  • The crisis at the border is more “humanitarian” than “security.” Right now, 60 percent of all migrants being apprehended, or showing up without papers, are children and families. That has never happened before. As recently as 2012, the proportion was less than 10 percent. Most are from Central America, and most are asking for protected status.

What, then, is the best way for Congress and the White House to spend an additional $5.7 billion on border security? There is no shortage of needs. Here are a few.

1- Make the border’s 47 land ports of entry into facilities that can process far more asylum seekers and interdict far more drugs. “You are not breaking the law by seeking asylum at a port of entry,” Homeland Security Secretary Kirstjen Nielsen tweeted last June, at the height of the family-separation crisis. However, the ports of entry (POEs—the official border crossings), handled well under half of all border-area asylum requests in 2018. Customs and Border Protection (CBP) agents posted on the borderlines turned away thousands of asylum seekers, claiming that the POEs were at capacity. Meanwhile, the POEs are where border authorities seized, in the first 10 months of fiscal 2018, 90 percent of heroin, 88 percent of cocaine, 87 percent of meth, and 80 percent of fentanyl.

The ports of entry are overwhelmed—as evidenced by wait times to enter the United States that routinely exceed two hours. They have $5 billion in unmet infrastructure needs, and CBP is nearly 4,000 port officers below the level it needs. Congress and the White House could spend the $5.7 billion just on the POEs, and it would do a lot of good.

2- Invest in alternatives to detention for those awaiting asylum decisions. We need to come to terms with the reality that violence and unrest in Latin America, especially Central America, mean that these countries will be sending large numbers of asylum-seeking refugees to our border for the foreseeable future. (Mexico, too, has seen a fourteen-fold increase in asylum-seekers presenting themselves to Mexican authorities since 2014.) It will ultimately be up to judges (see the next point) to decide whether they have valid claims. In the meantime, we cannot—and should not—lock these people up: it’s harmful to children, it limits the access to legal counsel that asylum seekers need to make their case in court, and it’s an expensive, unnecessary drain on U.S. taxpayer dollars.

Instead, for a tiny fraction of the cost of locking up asylum seekers, alternative-to-detention programs can guarantee that they show up in immigration court. Detaining a family costs US$318.79 per day, and individual detention costs  $123.86, according to the 2019 Department of Homeland Security budget request. By comparison, an ICE-run Family Case Management Program (FCMP), which operated until the Trump administration ended it in 2017, cost only $36 per day, and 99 percent of families showed up for their court appearances. ICE’s Intensive Supervision Appearance Program also achieved a 99 percent appearance rate using a combination of telephone check-ups, in-person visits, and GPS monitoring.

3- Dramatically increase the number of immigration judges in order to reduce the staggering asylum backlog, while guaranteeing due process. The Justice Department currently employs only 395 immigration judges to deal with a backlog of nearly a million cases. At $1 million per courtroom, a billion dollars could more than triple that number, vastly reducing the backlog and slashing the amount of time—currently two or three years—that asylum seekers remain in the United States while awaiting a decision. An increase in judges, though, should not seek to speed cases to the extent that asylum seekers are unable to defend themselves properly. And most—especially toddlers who have been absurdly brought before judges to defend themselves alone— need expanded access to legal counsel to make their case. According to data gathered by TRAC at Syracuse University, asylum seekers with legal representation are four times more likely to win their cases.

4- Help Border Patrol adjust to the changed migrant profile by making short-term detention facilities more appropriate for children and families. The White House’s January 8 proposal to Congress included “$800 million to fund enhanced medical support, transportation, consumable supplies, and additional temporary facilities necessary to ensure the well-being of those taken into custody.” That is a common-sense measure and a rare recognition that the challenges at the border are not what they were even seven or eight years ago. But it should also come with increased capacity to process these families quickly: it makes no sense to bus asylum seekers between Border Patrol facilities around the desert because of processing delays.

Those four proposals could easily consume $5.7 billion, and more. But Donald Trump and other border hardliners have other priorities. They are pushing for measures that, while seeming tough, are out of step with current realities at the border. These measures include:

1- Most prominently, Trump is pushing for a “border wall,” or at least steel fencing—354 miles of which already exists along the border. Fences have a purpose: they slow down border-crossers for a few minutes. That doesn’t matter if the border-crosser is an asylum seeker who simply wants to climb over and get apprehended by U.S. authorities (perhaps after being turned away from an overwhelmed port of entry). It also doesn’t matter in rural areas, where a few-minute head start makes little difference since populated areas and main roads are hours’ walk away. Meanwhile, most densely populated areas along the border now have high pedestrian fencing.

In a normal presidential administration, we’d have a rational conversation about areas along the border where law enforcement professionals might say “some more barrier there would make my job easier.” Then, there would be orderly discussions with border communities, in which all stakeholders (property owners, Native American communities, local government, businesses, environmental organizations, migrant rights advocates) work out the design and placement.

But we’re not in a normal administration. Instead, this president’s rhetoric has made “the wall,” in the words of New York Times columnist Jamelle Bouie, “a lasting reminder of the white racial hostility surging through this moment in American history.” We cannot support building even a mile of new barrier under these circumstances—denying a voice to border communities and characterizing the “wall” as a means to keep out “rapists” and “animals” from Latin America.

2- The White House, and some legislators from both parties, are calling to use some of the $5.7 billion to hire more Border Patrol agents. This argument makes no sense at a time when even at its currently authorized personnel level, Border Patrol has about 2,000 vacant positions. Instead of authorizing more positions that are going unfilled, the agency needs funding for four things:

  • To hire and equip more screeners, so that agents can be onboarded more quickly while still undergoing rigorous screening to minimize risk of corruption or abuse. It takes 313 days to hire most Border Patrol agents because screeners’ caseloads are too high.
  • To incentivize Border Patrol agents to move to under-covered areas that are seeing a significant influx in crossings, such as Antelope Wells in New Mexico. In some sectors of the border that used to be more active, Border Patrol agents have less to do: it is common to see averages of less than 15 migrant apprehensions per agent per year, including asylum seekers. They should receive pay and other career incentives for agreeing to relocate.
  • Outsource the processing of asylum-seeking families and children. In Border Patrol’s Yuma sector in 2018, the Wall Street Journal reported, agents spent 25 percent of their time “on tasks like feeding children and chauffeuring families 200 miles to the nearest bus station, in Phoenix.” This is not what Border Patrol agents are trained for. These tasks, including paperwork, should be carried out by specially trained personnel hired for this purpose.
  • Professionalize the force through pay increases and stronger internal controls. Numerous press and investigative reports, whistleblower testimonies, and a 2015-16 CBP Integrity Advisory Panel report have raised concerns about use-of-force issues, an abusive culture, and corruption within Border Patrol. Merit-based pay increases and a greatly strengthened CBP Office of Professional Responsibility and Office of Internal Affairs are needed to reward professionalism and increase capacity to investigate and correct lapses.

What we propose here is not dramatic, sweeping, or particularly headline-grabbing. But it is appropriate for a border where security threats have calmed, and humanitarian needs have proliferated, over the past ten years. If we are to spend $5.7 billion in taxpayer funds on the border, we should be spending it on the border as it is today, and not a caricature of the past.