Photo: CBP; Illustration: Sergio Ortiz Borbolla
Photo: CBP; Illustration: Sergio Ortiz Borbolla
WOLA and the Kino Border Initiative have documented many examples of abusive or improper conduct committed by U.S. border authorities. We have also identified glaring flaws in the accountability process at the Department of Homeland Security (DHS).
We present this extensive report in several sections. Section I covered the scope of the abuse problem and the need for accountability. Here in Section II, we explain how the accountability system is meant to work at DHS, which has four different agencies—with overlapping mandates—tasked with investigations or rights protection at the border.
Subsequent sections will discuss what happens at key points of failure along the way toward accountability, and will issue recommendations for complaints, investigations, discipline, oversight, and organizational culture.
This “second path” involves several accountability offices that people outside of the government—such as individual migrants who have experienced abuse by Customs and Border Protection (CBP) personnel and advocates who support them at the U.S.-Mexico border—may petition to file a complaint. These include:
These accountability offices have overlapping authority, and both non-governmental actors and those within government struggle to understand which are responsible for taking action in which cases. As the examples below illustrate, these offices often pass complaints between one another, resulting in weaker accountability: wait times of months to years to receive any communication from these agencies, or complaints even getting completely lost in the process.
The DHS Office of Civil Rights and Civil Liberties (CRCL) investigates civil rights and civil liberties complaints filed by the public and government agencies. Under Title 6 U.S. Code, Section 345 and Title 42 U.S. Code, Section 2000ee-1, CRCL’s Compliance Branch can investigate civil rights and civil liberties complaints, such as discrimination based on a protected characteristic (such as race, religion, sexuality), violation of rights while in immigration detention or as a subject of immigration enforcement, violation of due process rights, and physical abuse or any other type of abuse. [6] In addition to responding to individual complaints, CRCL provides policy advice to DHS and its agencies on civil rights and civil liberties issues.
Advocates have been in conversation with CRCL, trying to understand more clearly the Office’s response to complaints. CRCL Compliance officials have explained that when they receive a complaint, they may or may not investigate it. The CRCL Process Team intakes all complaints and tags them with keywords, such as “excessive use of force” or “medical care.” The CRCL Process Team may flag a complaint for investigation if the case satisfies certain conditions: that the allegation is within its jurisdiction; that it is related to an issue it has not yet covered; that it is part of a pattern showing potential civil rights or liberties violations; that it is particularly concerning or egregious; and that the Team has enough information to fully investigate. If these conditions are met, the Process Team brings the complaint to a Team meeting to decide whether an investigation should be opened.
When CRCL is considering investigating a complaint, the agency must first send it to the DHS OIG, which has the “right of first refusal.” DHS OIG can investigate allegations of criminal, civil, and administrative misconduct by DHS employees, contractors, grantees, and programs. [7] If OIG does not keep the complaint, then CRCL can investigate.
According to DHS’s Management Directive 810.1, which dates back to 2004, within 5 days of deciding it will not investigate, the OIG must return the complaint to the DHS agency that forwarded the complaint. There is no time limit, however, for OIG to decide whether to take on a case in the first place. [8]
If CRCL does investigate a complaint, it can do a “short form” investigation, a full investigation, or refer it to the agency (such as CBP or ICE) whose personnel allegedly perpetrated the abuse to have its Office of Professional Responsibility investigate the complaint. Upon concluding an investigation, CRCL can make recommendations to the agency or to DHS (about 18 percent of complaints closed in 2021 resulted in recommendations to an agency), or it can close a complaint with informal advice (about 12 percent of complaints closed in 2021 resulted in informal advice). [9] CRCL requests that DHS agencies respond to its recommendations within 60 days, either to concur and provide a plan for implementation, or to not concur and explain why. CRCL states that it monitors its policy recommendations, but it is unclear how it does so, as the Office has no power to enforce its recommendations.
The most common action that CRCL takes, though, is recording the complaint in its database, which it calls the “information layer,” and taking no further action to investigate. CRCL Compliance has shared with advocates that 70 percent of complaints that the Office receives are not investigated: instead, they are added to the information layer for analysis of patterns and trends. In 2022, CRCL opened 829 complaint investigations out of 2,400 complaints received, meaning it sent about 65 percent of complaints that year to its information layer. There is not currently transparency regarding under what conditions CRCL considers that a pattern may exist and an investigation is necessary, beyond the requirement that a large, but unspecified, number of similar complaints emerge.
CRCL is not the only DHS accountability office tasked with investigating civil rights concerns. The DHS Office of Inspector General (OIG) has overlapping authority, according to Management Directive 810.1, that charges it with investigating “allegations [that] reflect systemic violations, such as abuses of civil rights, civil liberties, or racial and ethnic profiling, serious management problems within the department, or otherwise represent a serious danger to public health and safety.” [10] The CBP Office of Professional Responsibility (OPR) also investigates civil rights violations, especially when they may involve a criminal violation that could result in charges against a CBP agent. These overlapping mandates mean that accountability offices pass complaints between one another in an attempt to establish which is competent in which situations.
CBP also has its own accountability mechanisms that may investigate civil rights concerns or employee misconduct. Members of the public can send complaints to CBP OPR using a public portal. However, CBP also uses a DHS database called the Joint Intake Center (JIC), which the Department calls a “central clearinghouse” for allegations of misconduct regarding CBP or ICE. From the JIC, CBP forwards serious allegations to DHS OIG for right of first refusal.
JIC personnel may decide that a complaint does not constitute misconduct serious enough to send to the DHS OIG, and on to OPR. Such cases deemed to be “lesser or administrative misconduct” are sent instead to local CBP sector leadership, where local management may lack incentive to investigate and discipline its own agents.
Allegations of misconduct that OPR does send to the JIC, and that the OIG does not keep for investigation, may then be sent back to CBP’s Office of Professional Responsibility (OPR) for investigation. OPR is charged with investigating allegations of “employee corruption and serious misconduct,” use of force incidents and deaths in CBP custody, among other responsibilities. [11] OPR is headquartered in Washington DC and maintains field offices throughout the United States.
OPR was created in 2016 through the Trade Facilitation and Trade Enforcement Act. This law gives OPR criminal investigative authority and also creates overlapping responsibility with DHS OIG, which still has not been resolved. In 2020, Congress authorized $74.3 million to hire 300 additional OPR investigative agents to staff up to 550 investigative special agents, determined to be the correct ratio to CBP’s 46,000 agents in the field. After the 2022 Homeland Security Appropriations Act released the funds, OPR began the process of getting staffing levels up to 700 personnel, including investigative agents and support staff, which would be twice the number of investigators as DHS OIG.
While this sounds like a robust investigative capacity, the 2023 CBP budget request noted that 60 percent of OPR’s budget “is consumed by legally required five-year reinvestigations for Federal employees.” [12] Further, subsequent Appropriations bills have expanded OPR’s role further, to include responsibilities such as the implementation of body-worn cameras for CBP agents and oversight of detention standards.
Advocates are concerned, meanwhile, that OPR is hiring agents who previously worked with Border Patrol Critical Incident Teams, units that, until their October 2022 dissolution, would arrive on-scene and carry out their own investigations. These Critical Incident Teams stood accused of tampering with evidence and obstructing investigations in order to exonerate agents.
The Office of the Immigration Detention Ombudsman (OIDO) is another accountability office within DHS, created by the Consolidated Appropriations Act of 2020. [13] OIDO takes individual complaints about conditions in DHS custody using a case management model, conducts unannounced visits to detention facilities, and makes recommendations to DHS agencies. The statute establishing OIDO requires that the Office’s functions be “complementary” to existing DHS agencies’ functions, including CRCL.
As a newer accountability office, OIDO currently monitors detention conditions in 20 states. In these areas of operation, OIDO prioritizes presence in ICE detention due to limited capacity, and does not yet monitor conditions in CBP custody in all of its locations. For instance, OIDO is not yet monitoring CBP custody conditions in Arizona.
In conversations with advocates, DHS staff recommended that complaints regarding DHS detention be sent only to OIDO, in order to avoid delays caused by the need to resolve jurisdictional overlap between accountability offices. Staff shared that the OIG does not have first right of refusal over complaints sent to OIDO, as is the case for OPR and CRCL. However, other accountability offices suggest sending complaints to multiple offices given their overlapping authority.
OIDO’s 2022 report to Congress described the overlap between OIDO and CBP OPR in particular. [14] The report stated that OIDO has established a partnership with CBP’s Joint Intake Center, and that “cases involving CBP are now deconflicted by being redirected to OIDO for intake and processing using combined resources.” The report describes specially trained OIDO employees who can access the JIC and choose to open cases that other offices, such as OIG and CRCL, have declined. According to the report, this allows OPR to focus on other cases.
This collection of DHS and CBP accountability offices is intended to provide pathways for individuals to seek accountability and justice after experiencing abuse at the hands of CBP personnel. Each office has its own online portal through which complaints may be filed:
It would take an individual hours to fill out the information at the separate portal corresponding to each accountability office that might have authority over a complaint. In practice, these mechanisms are only accessible to individuals accompanied by a civil society organization that can help navigate their overlapping authorities, find ways to simultaneously notify various offices of the same complaint, and dedicate time to sending follow-up messages when there is no response, as these offices recommend that complainants do if they do not hear back. Even then, a well-equipped civil society organization is at a disadvantage if it lacks years of hard-won knowledge about the most effective channels for initiating complaints, which may vary by sector and by the degree of interest and political will shown by agencies’ local-level management.
Civil society is disenchanted with these processes, after seeing a majority of complaints result in no accountability. Even when advocates send an email containing the complaint and “CC” every existing accountability office, these mechanisms routinely fail to provide accountability or redress for well-documented examples of abuse of migrants.
[6] “Establishment of Officer for Civil Rights and Civil Liberties | Homeland Security,” U.S. Department of Homeland Security, August 22, 2022, https://www.dhs.gov/publication/establishment-officer-civil-rights-and-civil-liberties; “42 USC 2000ee-1: Privacy and Civil Liberties Officers,” U.S. Code, December 17, 2004, http://uscode.house.gov/view.xhtml?req=(title:42%20section:2000ee-1%20edition:prelim); “Compliance Branch | Homeland Security,” U.S. Department of Homeland Security, March 16, 2023, https://www.dhs.gov/compliance-branch.
[7] “Frequently Asked Questions,” DHS Office of Inspector General, accessed May 13, 2023, https://www.oig.dhs.gov/about/faqs.
[8] “Management Directive System MD Number: 0810.1” (Department of Homeland Security, June 10, 2004), https://www.oig.dhs.gov/sites/default/files/0810.1%20The%20Office%20of%20Inspector%20General.pdf.
[9] “U.S. Department of Homeland Security Office for Civil Rights and Civil Liberties Fiscal Year 2021 Annual Report to Congress” (Washington: U.S. Department of Homeland Security, December 12, 2022), https://www.dhs.gov/sites/default/files/2022-12/FINAL%20CRCL%20FY%202021%20Annual%20Report_508.pdf.
[10] “Management Directive System MD Number: 0810.1.”
[11] “Office of Professional Responsibility,” U.S. Customs and Border Protection, December 30, 2022, https://www.cbp.gov/about/leadership-organization/professional-responsibility.
[12] “U.S. Customs and Border Protection Budget Overview” (Washington: Department of Homeland Security, March 28, 2022), https://www.dhs.gov/sites/default/files/2022-03/U.S.%20Customs%20and%20Border%20Protection_Remediated.pdf.
[13] “6 USC 205: Ombudsman for Immigration Detention,” U.S. Code, December 20, 2019, https://uscode.house.gov/view.xhtml?req=(title:6%20section:205%20edition:prelim).
[14] “2022 OIDO Annual Report to Congress.” June 15, 2023, https://www.dhs.gov/sites/default/files/2023-06/2022%20OIDO%20Annual%20Report.pdf.
This report was made possible, and tremendously improved, by editing, design, research, communications, and content contributions from Kathy Gille, Joanna Williams, Ana Lucía Verduzco, Zaida Márquez, Sergio Ortiz Borbolla, Milli Legrain, and Felipe Puerta Cuartas. We could not do this work without the generosity of our supporters; please become one of them.
