US Border Patrol is out of control

On March 20, the Michigan Attorney General's Public Integrity Unit charged two U.S. Border Patrol agents with theft and misconduct while on duty. The two agents allegedly stole from a home while executing an agency-authorized search warrant. The case exemplifies the type of unchecked abuse and corruption that has become so rampant within the U.S. Bureau of Customs and Border Protection (CBP).

From 2010 to 2014 CBP agents  shot and killed 28 people. Other charges against CBP agents included drug trafficking, theft, assaults, kidnapping and rape. Investigative reports from multiple sources paint a picture of a law enforcement agency that is out of control. Even worse, most of its victims are people who cannot fight back — undocumented immigrants and refugees with limited or no access to U.S. courts.

Report after report recounts tales of unchecked abuse of power. Agents frequently respond to cross-border rock throwing with deadly force. Sometimes CBP officers step into the path of moving cars to justify shooting the drivers as a “response to deadly force.” The agency has refused to ban either practice, disregarding recommendations from a report that it commissioned. Other kinds of corruption also plague the agency. A 2011 internal study by the CBP found that the agency’s disciplinary system “does not foster timely discipline or exoneration.” 

The story of failure traces back to 2001. After 9/11, any legislation to protect U.S. borders sailed through Congress. Need more agents? Done. More money? Done. Lawmakers were eager to support border enforcement. In 2003, they merged the previously understaffed Border Patrol with Customs enforcement and Department of Agriculture inspectors to create the CBP. The new agency now has more than 60,000 employees, a $12.4 billion annual budget and a reputation for corruption and abuse. On average, at least one agent is arrested daily for misconduct, according to Politico Magazine’s Garrett M. Graff.

What happened was predictable. But no one bothered to consult law enforcement experts. Effective law enforcement requires high standards, careful screening of candidates for criminal backgrounds and for psychological fitness, and intensive training by experienced officers. The rush to fill a lot of vacant positions meant inadequate screening and skimping on training.

“[Illegal entry] is now less than a third of what it was in the year 2000, and it’s at its lowest level since the 1970s,”  Secretary of Homeland Security Jeh Johnson said in October. The estimated number of undocumented immigrants in the United States has dropped by more than a million since 2006. Yet throwing money at CBP remains a way for Congress to boast of protecting borders and getting tough on immigration. The agency continues to grow, with 2,000 new jobs listed in 2014.

“From an integrity issue, you can’t grow a law enforcement agency that quickly,” Robert Bonner, the former federal judge who headed up CBP’s reorganization, told Politico last year. Not only did the old Border Patrol more than double in size, it also merged employees from customs, immigration and agricultural inspectors.

CBP’s record on corruption and abuse is appalling. The Center for Investigative Reporting (CIR) has documented cases of excessive force, drug smuggling, theft and numerous other abuses. “Between 5 and 10 percent of border agents and officers are actively corrupt or were at some point in their career,” James F. Tomscheck, the former CBP chief of internal affairs, told CIR in August.

A 2011 CBP internal study of employee integrity questioned whether the problems could be attributed to the surge in hiring, but acknowledged the severity of the problem. The report attributed the spike in cases of abuse to lack of psychological assessments and ethical training for officers. 

CBP’s problems start at the top. While Congress was happy to appropriate money for enforcement and more officers, it balked at confirming CBP commissioners, leaving the agency without a confirmed commissioner for five years. The current commissioner, R. Gil Kerlikowske, was confirmed in March 2014. But his authority was undercut from the very beginning.

Graff’s article tells the story of a CBP agent who arrested, kidnapped and raped three women from Honduras, and tried to kill two of them. This happened in March 2014, just days after Kerlikowske’s confirmation. The commissioner’s statement condemning the kidnapping and rape was stalled for two days while he argued with senior CBP officials.

An agent under his command committed a heinous act. When FBI agents approached the suspect’s apartment, where one of the victims was naked and tied to a chair, the CBP agent shot and killed himself. Yet Kerlikowske’s subordinates prevented him from immediately denouncing the crime.

CBP’s defensiveness and disregard for the law appear pervasive. While only a small number of its agents commit violent or criminal acts, indifference to immigrants' legal rights seems to be standard practice across the agency.

Border Patrol agents are required by law to ask whether a person they detain is afraid to return home. If migrants express fear of return, the law requires agents to refer them for a “credible fear” screening by an asylum officer, who can assess eligibility. The law requires referral precisely because CBP agents are not qualified to make eligibility determinations.

In case after case, migrants report that CBP agents refused to allow them to tell their stories to an asylum officer. Instead, they tell people fleeing gang violence, rape and persecution that they have no rights.

From excessive force and shootings to peremptory denial of access to asylum, the CBP violates the laws it is charged with upholding. Reform is imperative. It should begin with implementation of the recommendations of the 2013 study conducted by the Police Executive Research Forum, ranging from training to prohibition of use of deadly force unless officers’ lives are actually threatened.

The second sets of recommendations come from CBP's own internal studies that called for polygraph and psychological testing for all job applicants, and for ethics and integrity training across the agency. A third step would be actual and transparent reporting of misconduct, corruption and disciplinary actions against agents who break the law. Ultimately, respect for the law must begin with those charged with upholding it.