WOLA: Advocacy for Human Rights in the Americas

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7 Aug 2017 | Commentary

Four Common Misconceptions about Increasing the Size of Border Patrol

Misconception 1: There is a shortage of Border Patrol agents in every sector of the U.S.-Mexico border

The Trump administration is proposing to increase the U.S. Border Patrol’s personnel strength by 5,000 agents. Its 2018 Homeland Security budget request to Congress includes $100 million to hire the first 500.

Five thousand new hires would increase the agency’s size by more than a quarter. In April 2017, Border Patrol had 19,565 agents, with a funded level of 21,370. 16,717 were stationed at the U.S.-Mexico border. The Trump administration proposal would continue more than two decades of sharp growth—from 4,028 agents in 1993 to 21,444 in 2011. (We discuss the post–2011 reduction below.)

Of those 16,717 agents, 4,704 “were assigned to leadership or administration duties” at the U.S.-Mexico border, the Department of Homeland Security (DHS) Inspector General reported in July, leaving “about 12,013… assigned to directly engage in conducting apprehensions and arrests on the Southwest Border.” It went on, “Border Patrol officials estimated 2,000 Border Patrol Agents are actually performing intelligence work,” which would reduce the number of patrolling agents at the border still further. The Inspector General’s conclusion: “The use of Border Patrol Agents performing duties not directly tied to ‘ensuring complete operational control of the border’ calls into question the Department’s operational need for 5,000 new agents.” There may not be a “shortage” at all.

Before another across-the-board hiring surge, we need to ask whether the perceived “shortage of agents” is true border-wide. Does the border suffer from a lack of Border Patrol agents, or is the problem concentrated only in a few sectors?

Border Patrol divides the U.S.-Mexico border into nine sectors. The level of illegal activity varies across them, but the level of Border Patrol personnel does not vary as much. In the Rio Grande Valley sector, the easternmost part of the border, drug seizures—especially cocaine and cannabis—are high. The average agent there apprehended 60 migrants in 2016, or 1 every 6 days. On the other end of Texas, the average agent in the El Paso sector apprehended 11 migrants last year, or one every 33 days. That sector also ranks near the bottom for drug seizures. Yet El Paso’s 2016 staffing strength of 2,240 agents was almost three-quarters that of Rio Grande Valley (3,135 agents).

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Some of the sector-by-sector imbalance in Border Patrol workloads happened because threats shift faster than personnel. Increased security operations in one sector cause increased migration to other sectors. But Border Patrol has not been agile in keeping up. Large numbers of agents remain in formerly active sectors, and few get transferred to newly active sectors.

There’s a good reason for this. Border Patrol agents are civilian law enforcement personnel. They have homes and families, and often have roots in their communities. Moving from urban sectors, with amenities and well-funded schools, to isolated rural outposts can take a toll on families. Unlike soldiers, management can’t redeploy agents en masse with a single order.

Still, they need to be where the threats are. This means spending more on incentives to entice agents to move. These include funds to cover moving expenses, bonuses and higher salaries, and a clearer path to promotions for those who go to less sought-after sectors.

The Homeland Security Department’s budget request includes $21 million to transfer about 770 agents who volunteer for it next year. One of this program’s purposes, though, is to help mid-career agents “relocate to a more desirable location,” the budget request explains. While this may improve morale, it does not address the stark imbalances in Border Patrol workloads across sectors. That would call for a different, larger relocation program.

Even if Border Patrol quadrupled the relocations account to $84 million, it would still be cheaper than hiring 500 new agents at $100 million. It costs much more to hire and train a Border Patrol agent, and to give him or her years of experience, than it does to transfer and compensate an existing, experienced Border Patrol agent from a quiet sector.

Misconception 2: Increasing Border Patrol would reduce cross-border drug trafficking

To understand cross-border drug trafficking, it is necessary to understand the difference between the 44 official land border crossings, or “ports of entry,” and the vast spaces between them.

The ports of entry are where U.S. border authorities seize the majority of heroin and opioids, methamphetamine, and cocaine. “The big issue, really, right now on drugs coming into the United States is the ports of entry,” Homeland Security Secretary John Kelly told a Senate committee in April. But Border Patrol is not primarily responsible for the ports of entry: its focus is the spaces between them and the interior.

Instead, interviewing border crossers and inspecting their vehicles and cargo is the job of Customs and Border Protection (CBP) agents. While Border Patrol is also part of CBP, the agents at the ports of entry work for another branch of the agency, CBP’s Office of Field Operations.

Any effort to reduce cross-border drug trafficking, then, must focus on the ports of entry and the CBP officers who operate them. As evidenced by long waits at border crossings and estimates of tons of drugs that get through, ports of entry are undermanned. Yet the Trump administration’s Homeland Security budget request includes no funds to increase the number of CBP officers.

Misconception 3: A Border Patrol hiring surge would not affect corruption or human rights abuse within the agency

To be a Border Patrol agent is to occupy one of the law enforcement positions most vulnerable to corruption anywhere in the United States. Mexican cartels, and other criminal organizations moving contraband across the U.S. border, enjoy stratospheric profits. They have deep pockets and seek to corrupt or blackmail security personnel on both sides of the line.

Corruption grew as a concern during the 2004-2011 recruiting drive that doubled Border Patrol. Between 2006 and 2011, CBP agents at the border (of whom Border Patrol agents are a majority) faced 19,905 allegations of misconduct or corruption. 2,170 employees throughout CBP were arrested for misconduct or corruption between 2005 and 2012. While misconduct (drunk driving, domestic abuse, detainee abuse) is the largest category, a Center for Investigative Reporting report documented 153 serious corruption cases between 2005 and 2011. The 2016 report of the CBP Integrity Advisory Panel, a Homeland Security Department commission headed by former New York Police Department Chief William Bratton and former Drug Enforcement Administrator Karen Tandy, noted:

Over the past decade, the number of allegations of corruption involving CBP employees, both Border Patrol Agents and CBP Officers at the ports of entry, may be increasing as has the public perception, through the media, of increasingly pervasive corruption within CBP’s ranks. Moreover, there is data indicating that arrests for corruption of CBP personnel far exceed, on a per capita basis, such arrests at other federal law enforcement agencies.

Border Patrol’s earlier hiring surge took place with less rigorous screening than today. The 2010 Anti-Border Corruption Act tightened background checks, including a rigorous polygraph exam. Agent Joel Luna did not need to take a polygraph before he joined the force in 2009. In February, a Texas court sentenced Luna to 20 years in prison for working with Mexico’s Gulf cartel.

Luna’s story, which involves a headless body being extracted from a Gulf of Mexico estuary, is grim and preventable. It is a warning of what could happen if hiring standards and integrity measures ease amid a hiring surge.

Most Border Patrol agents are honorable, high-integrity individuals. Still, another rapid staffing increase could expand the risk of corruption for a few reasons:

a) The ratio of experienced supervisors to new recruits will shrink.

Already, about half the force has less than 10 years of experience. Onboarding 5,000 more agents within 5 years would mean that by 2023, 40 percent of the force would have less than 5 years of experience. (The estimate includes another 1,000 hires per year to keep up with normal attrition.) Any organization that grows this fast will face management challenges. For Border Patrol, these get compounded by transnational criminal organizations’ persistent below-the-radar efforts to subvert agents.

b) The urge to reduce hiring and screening standards will grow.

Unable to keep up with staff attrition, Border Patrol has been shrinking since 2012. Throughout CBP, the House Appropriations Committee reports, “attrition has outpaced net hiring by 445 positions through the first eight months of fiscal year 2017.”

The main reason is the agency’s hiring and screening process for would-be recruits. Recent reforms have reduced the average time it takes to hire a new agent from a stunning 460 days to as little as 6 months to a year.

The DHS Inspector General estimates that Border Patrol would need to attract about 750,000 applicants to increase by 5,000. That’s more than 1 percent of the entire U.S. population between 21 and 35 years of age.

Beyond red tape in the hiring process, would-be recruits fail background and integrity checks at an eye-popping rate. In compliance with the 2010 Anti-Border Corruption Act, prospective CBP hires undergo the Law Enforcement Pre-Employment Test (LEPET) polygraph exam. About 65 percent of CBP applicants fail this exam. This is almost double the failure rate of other law enforcement agencies’ applicants (about 35 percent).

CBP contends that the LEPET test is too time-consuming and “adversarial.” It is switching to a less intense polygraph, a modified version of the Test for Espionage and Sabotage designed for civilian analysts. Legislation advancing in both houses of Congress would waive the polygraph entirely if applicants are former military personnel who underwent similar testing earlier in their careers.

WOLA, a human rights organization, claims no expertise on polygraph techniques. Law enforcement agencies, though, hold them in high regard. We note that former CBP Assistant Commissioner for Internal Affairs Jim Tomsheck (2006–2014), who developed the current LEPET test, has voiced very strong concerns that a less rigorous exam could worsen corruption within Border Patrol. “My professional opinion,” Tomsheck wrote in May, “is that if Congress allows CBP to reverse the progress made following the Anti-Border Corruption Act there will be many false negatives allowing dangerous applicants to pass the vetting process.”

Before relaxing integrity standards, we need more information. Common sense would dictate that we first understand why CBP applicants fail the current test at such a high rate. CBP should also make public whether Border Patrol agents with military backgrounds are more or less represented on the list of agents sanctioned for misconduct, corruption, or human rights abuse.

We note, too, that the 2016 CBP Integrity Advisory Panel went beyond endorsing rigorous polygraphs for new hires. It also recommended subjecting active-duty agents to random and targeted integrity checks.

c) With rhetoric about “unshackling” agents, the Trump administration is fostering a culture of resistance to scrutiny.

The National Border Patrol Council, the union representing most agents, made clear its displeasure with the Integrity Advisory Panel’s recommendations. It rejected the Panel’s call to more than double the number of Internal Affairs investigators to 550 as “throwing numbers at a problem.” On the union’s podcast, an agent complained, “The entire report assumes that we are all corrupt and need to be treated as such.”

Of course not all agents are corrupt. But the agency must still pursue good-faith efforts to root out the few who are, and the Panel judged that current efforts are “woefully understaffed.”

The Trump administration’s rhetoric is upholding resistance to accountability. The National Border Patrol Council endorsed Donald Trump during the Republican primary season. Its president served on Trump’s transition team. “The union supported this candidate for president, and now very much appears to be directing things – which is absolutely unheard of in law enforcement,” Gil Kerlikowske, the CBP commissioner during the Obama administration’s last two and a half years, told The Washington Post. President Trump promised the union, “we’re going to let them [Border Patrol] do their job the way they want to do it. That’s going to be a big change, because right now they’re being held back.” Trump’s Homeland Security Secretary, John Kelly, lashed out in April against “advocacy groups” and other critics who have “discouraged” border-security personnel “from doing their jobs for nearly a decade.”

Such rhetoric fosters already-strong resistance to scrutiny. We see a stronger instinct to “circle the wagons” when credible allegations of abuse or corruption emerge. The Arizona-based Kino Border Initiative, a Jesuit migrant defense organization, has carefully documented frustrations in attempting to register abuse complaints with CBP. According to several reports, CBP officers at ports of entry are illegally turning away more asylum-seekers. In a May report on the phenomenon, Human Rights First found “a marked shift in the conduct of some CBP officers towards asylum seekers since the election of President Trump.”

In a climate of resistance to scrutiny, violations like these—as well as incidents of corruption—could multiply. Add a massive hiring surge, and the agency could find itself in a full-blown institutional crisis. Such a crisis would play right into the hands of organized crime. This would undermine the majority of Border Patrol agents who are scrupulously honest.

WOLA welcomes the proposed $45 million budget increase for CBP’s Office of Professional Responsibility (OPR). This would increase OPR’s 2018 budget to $205 million, or 1.8 percent of CBP’s total budget. The burden of overseeing a massive hiring surge, though, would overwhelm any new capabilities that the increase gives OPR. As the Integrity Advisory Panel argued in unflinching terms, OPR lacks resources to hold accountable the force that exists today.

Misconception 4: Threats at the U.S.-Mexico border demand a big border-wide Border Patrol increase

To evaluate that claim, we need to look at potential cross-border threats. Four are most cited: undocumented migration, drugs, “spillover” violence from Mexico, and terrorism.

  • Migration is currently at 40-year lows, a result of both demographics (a sharp drop in children per family in Mexico) and the past 25 years’ border security crackdowns. The 408,870 people apprehended by Border Patrol in 2016 were the fourth fewest since 1972. Of these, 3 out of every 10 were Central American children and family members seeking protection from violence. Border Patrol agents say they don’t even have to chase them: in most cases, these migrants seek them out and ask for asylum or protection. The number of apprehended undocumented Mexican citizens, meanwhile, has been in a steady decline since 2004. The 190,760 apprehended in 2016 were the second-fewest since 1969.
  • Seizures of many drugs are increasing along the border. Though cannabis is becoming less prevalent, CBP and the DEA report finding more cocaine, heroin, and methamphetamine in recent years. As noted above, though, most of these high-value, low-volume drugs are smuggled through ports of entry. These are manned by CBP agents, not Border Patrol. Increasing Border Patrol, then, would have a negligible effect on seizures of these drugs.
  • Though Mexican border states are suffering a renewed worsening of violent crime, the U.S. side of the border sees little “spillover” violence. Communities on the U.S. side are safer than most communities in the U.S. interior. There are 23 cities of over 100,000 people within 100 miles of the Mexico border. Of those 23, 18 had violent crime rates below the national average in 2015, the last year for which FBI data exist. The city with the worst rate, Tucson, is not even in the United States’ top 80.
  • It is important to remain vigilant about the possibility that international terrorists might seek to cross the border illegally to do harm on U.S. soil. It is a relief to report that almost no cases in public knowledge have even come close to that scenario. (Instead, U.S. terror suspects have tended to be citizens, residents, or to have valid, or expired, U.S. visas.) Along with thorough intelligence work, preparing for this hypothesis would mean ensuring that Border Patrol’s existing staffing is “right-sized” across all nine of its sectors.

The U.S.-Mexico border is a much different place than it was when the Clinton administration began expanding Border Patrol in the early 1990s. It has changed, too, since the Bush administration accelerated that expansion after the September 11, 2001 attacks. Undocumented migration has fallen to a small fraction of what it was 15 or 20 years ago. Trade has multiplied. New technologies are changing the way vigilance works. Ports of entry have grown in importance and can’t keep up with demand, whether for smooth cross-border commerce or for detection of illicit flows. Border Patrol is struggling to avoid shrinking without relaxing new hires’ integrity standards. And the agency’s current geographical deployment seems to reflect the way cross-border flows looked in the 1990s and 2000s.

The Trump administration proposes to address this new reality by returning to the same recipe of the past 25 years. It wants yet another across-the-board increase in Border Patrol staffing. And it wants it to happen with reduced scrutiny of agents’ background and performance. This is a misguided proposal. It springs from some basic misconceptions, and it requires an urgent re-thinking.