WOLA: Advocacy for Human Rights in the Americas

AP Photo/Jose Luis Magana

13 Sep 2017 | Commentary

How to Protect DACA While Actually Securing the Border

‘You pass it, I’ll sign it, I want some border stuff.’ That’s what he said.” That, according to House Democratic Leader Rep. Nancy Pelosi (D-CA), is what President Trump told her during a recent meeting about preserving Deferred Action for Child Arrivals (DACA).

In other words, Trump said he’s willing to sign a bill allowing 800,000 undocumented young people who were brought here as children to remain in the United States. But he might only do so if congressional Democrats cut a deal that allows some new U.S.-Mexico border security spending. “We always want border stuff, so that’s not a problem,” Rep. Pelosi said. “Especially with all the technologies.”

Trump is also signaling that new border wall spending need not be part of this “border stuff.” “Whether or not that [the wall] is part of a DACA equation or whether or not that’s another legislative vehicle, I don’t want to bind ourselves into a construct that makes reaching a conclusion on DACA impossible,” White House legislative affairs director Marc Short said on September 12.

The possibility of a “wall”-free deal to save DACA is very good news. The next question, though, is complicated: if not wall construction, then what kind of border security measures or immigration restrictions would be enough to win over the President and a sufficient number of congressional Republicans? And are these acceptable, both morally and politically?

For both moral and practical reasons that we explain elsewhere, WOLA urges Congress not to include an expansion of Border Patrol personnel strength or ICE detention and deportation capacity as part of a DACA deal. We also oppose the draconian restrictions in legal immigration that some legislators are proposing.

Instead, there are several steps the U.S. government could take to invest in border security while actually making the border more secure. We offer the following suggestions.

1. Renovate land ports of entry, and staff them properly

The vast majority of heroin, fentanyl, methamphetamine, and cocaine that crosses the U.S.-Mexico border does so at “ports of entry,” the 48 official land crossings through which millions of people, vehicles, and cargo pass every day. “The most common method employed by Mexican TCOs [Transnational Criminal Organizations] involves transporting drugs in vehicles through U.S. ports of entry,” the U.S. Drug Enforcement Administration (DEA) reported in its 2016 National Drug Threat Assessment. “The big issue, really, right now on drugs coming into the United States is the ports of entry,” then-Secretary of Homeland Security John Kelly said in April.

Ports of entry are overwhelmed: entering the United States routinely takes 1-2 hours of waiting in vehicle lines. But the ports’ needs are unmet. Infrastructure is dilapidated: the Department of Homeland Security (DHS) has identified about $5 billion in construction and renovation needs (a figure that includes some non-U.S.-Mexico border ports).

While Border Patrol has about 16,717 agents stationed at the U.S.-Mexico border, the agency that staffs the ports of entry—the Customs and Border Protection Office of Field Operations—had 6,323 in 2015, even after a 2014 appropriation sought to increase its worldwide personnel level by 2,000. Today, there may be a few hundred less due to attrition, and the agency has documented a need for 2,107 additional officers and agents this year. (Note: U.S. Customs and Border Protection, or CBP, is the parent agency of both Border Patrol and the Office of Field Operations. CBP, along with Immigration and Customs Enforcement (ICE), is part of the Department of Homeland Security.)

The White House border security proposals going through Congress seek to hire 500 Border Patrol agents and 1,605 ICE personnel in 2018. They suggest no increase for personnel at the ports of entry. “I am deeply concerned that all of the rhetoric and all of the budget requests have focused on the border and not the ports of entry,” Sen. Claire McCaskill (D-MO), the ranking Democrat on the Senate Homeland Security Committee, said in April. “That there is no plan to increase resources at the ports of entry, which we know, along with the mail, is the primary place that drugs are coming into our country.”

If Republicans and Democrats wish to get behind a common-sense border security proposal this year, they would do well to provide U.S. land ports of entry with what they need to function more quickly and to find concealed drugs.

2. Give Border Patrol the proven sensor and communications technology it needs, where it doesn’t raise civil-liberties concerns for border-zone residents.

Federal law enforcement agencies need the best possible visibility of what is crossing the border. There have been promising trials showing that low-cost sensor and communications equipment —integrated fixed towers, remote video surveillance systems, tethered aerostats, dismounted radars, and others—can do this. Aging, low-resolution cameras on the line could also be upgraded.

Any effort to increase funding for these systems, however, must be extra-mindful of civil liberties. U.S. citizens living near the border should not find themselves caught in a 1984-style web of government surveillance.

These concerns are especially acute with more sophisticated drone technology. “Many Americans worry that unmanned aircraft systems (UAS) can be used inappropriately to monitor, track, or surveil their movements without the benefit of a warrant,” the House Appropriations Committee noted last year. Heavy use of drones like CBP’s fleet of nine Predator-Bs “would effectively put anyone living near the border under a state of perpetual surveillance for no reason other than their geographical location,” noted a recent investigation by The American Conservative. “This is a clear violation of the Fourth Amendment rights of law-abiding Americans.”

Another important reason not to rush into a drone-buying spree is their high operational cost. The U.S. Government Accountability Office reported earlier this year that CBP spent $5,878 per flight hour to operate its Predator-Bs in fiscal 2015.

3. More screeners and polygraph administrators to reduce hiring times while maintaining scrutiny

Border Patrol has been shrinking since 2013—but not because of budget cuts. Throughout CBP, the House Appropriations Committee reports that “attrition has outpaced net hiring by 445 positions through the first eight months of fiscal year 2017.” Border Patrol now has over 1,800 fewer agents than it did in 2013, though its funded staffing level remains the same.

The main reason is the agency’s hiring and screening process for would-be recruits. “At the current hiring rate, approximately 113 applicants go through the process in order to hire a single officer or agent,” Rep. Martha McSally (R-AZ), the chairman of the House Homeland Security Border Security Subcommittee, said in June. “That means CBP needs to have hundreds of thousands of people apply just to meet their current needs.… [I]t takes more than 292 days for these 12 distinct steps, on average, to hire a new officer or agent. And even with the newer expedited system that is supposed to condense these steps into just several days, it still takes an average of 160 days to complete the process. Very few people can wait somewhere between 6 months to a year for a job.”

There is a strong reason for such a restrictive hiring process: to be a Border Patrol agent is to occupy one of the law enforcement positions most vulnerable to corruption anywhere in the United States, and thorough screening is important. Still, Rep. McSally and other members of Congress have proposed legislation that would allow many applicants with former law enforcement or military experience to avoid polygraph testing, a stage of vetting that has ensnared 65 percent of CBP applicants (compared to 35 percent for other U.S. law-enforcement agencies). Other legislators have objected strongly; Sen. Richard Durbin (D-IL) worries that “this could lead to weakening your standards and an increase in corruption and misconduct.”

There is a way to reverse U.S. border security agencies’ attrition while maintaining stringent anti-corruption standards for new recruits. The Homeland Security Department could greatly increase its capacity for vetting, hiring new personnel to perform background checks and training more staff to carry out polygraphs. After the agency stops shrinking, the Department could use this expanded vetting capacity to perform post-employment checks on existing personnel as an additional safeguard.

Expanding vetting capacity would cost money. But if Congress is moving toward increased border security expenditure, this is a priority on which both parties may find agreement.

4. Provide inducements to retain existing border security personnel

Attrition can also be reversed with more competitive salaries for existing agents. Border Patrol can also fill gaps in security coverage by offering financial and career inducements—bonuses, “hardship pay,” moving expenses, and paths to promotion—for agents who are willing to move from “quieter” border sectors to sectors facing more migration, trafficking, and other challenges.

Increased funds to retain and relocate current Border Patrol agents would be more cost-effective than a much larger outlay to recruit and train 5,000 new agents, as the White House proposed in January.

5. More search-and-rescue capacity

Between 1998 and 2016, Border Patrol recovered the remains of 6,915 migrants on U.S. soil. Nearly all died of dehydration, exposure, or drowning as they got lost in deserts and scrublands.

This death toll is a national horror, and increased border security funding could reduce it dramatically. Already, growth in Border Patrol’s BORSTAR (Search, Trauma and Rescue) units has helped reduce deaths; the agency reported 3,964 rescues in 2016, up from less than 1,500 in 2011 and 2012. More could be done here: search and rescue should be part of any border security funding increase that accompanies a deal to save DACA.

6. Body cameras

Border Patrol has been gradually warming to the idea of wearing body cameras to document agents’ interactions, especially in use-of-force cases. Agents who field-tested cameras in 2015 “were very positive about it,” then-CBP Commissioner Gil Kerlikowske told Congress. “The Border Patrol Council, the union, in this particular case, has indicated support for body-worn cameras, so we would be looking at the technology.” Additional border security funding could support more development and testing, and then wider deployment, of body cameras that can function properly in the rugged conditions under which many agents operate.

7. More CBP Internal Affairs investigators

In 2015 and 2016, a CBP Integrity Advisory Panel, headed by a former New York police chief and a former DEA administrator, issued sets of recommendations to improve CBP’s and Border Patrol’s anti-corruption and use-of-force policies. One of their most emphatic recommendations was a dramatic expansion of CBP’s Office of Internal Affairs, which investigates allegations of misconduct or corruption.

Due to what the Integrity Advisory Panel called “an inadvertent, unintended consequence of the Homeland Security reorganization of March 2003,” CBP began its existence with no internal affairs investigators at all. “CBP has had to rebuild its internal affairs capability, but it is still far below what is needed. Currently, CBP’s Office of Internal Affairs is woefully understaffed. CBP has approximately 218 Internal Affairs investigators for a workforce of nearly 60,000 employees, 44,000 of whom are law enforcement officers.”

This, the panel concluded, leaves a shocking shortfall: “the failure to adequately staff CBP Internal Affairs with sufficient 1,811 criminal investigators to promptly and thoroughly investigate allegations of internal corruption and other serious misconduct leaves CBP with an enormous vulnerability: the risk of systemic corruption and potential scandal.” It also leaves Border Patrol agents in limbo, as investigations drag on for months without resolution.

WOLA welcomes the proposed $45 million budget increase for CBP’s Office of Professional Responsibility (OPR) in 2018. However, a great deal more hiring is needed to reduce risks of corruption along the border, where ruthless organized crime groups seek any advantages they can find. This should be a priority for any additional border-security funds.

8. And finally: comprehensive immigration reform

Democratic Leader Pelosi is correct: additional “border stuff” should not be a problem. WOLA hopes that these suggestions allow Democrats and Republicans to find the common ground necessary to ensure a legislative fix that allows 800,000 hard-working, contributing young people to stay here in America.

We have to note, though, that none of this discussion should be necessary. A DACA fix puts a band-aid on a problem affecting less than 10 percent of the undocumented population. Additional border security spending hardly affects the incentives that draw hundreds of thousands of people each year to try to enter the United States without documents. These piecemeal strategies would not be necessary if both parties could come together on real, comprehensive reform to the U.S. immigration system.

That would take more than six months, however, and the clock is ticking for DACA recipients. The priority for now must be to give these young people the peace of mind they deserve. If that requires new border security initiatives, then let’s spend U.S. tax dollars on initiatives that will truly secure the border.