Another Tragic Incident Exemplifying the Glaring Need for CBP Detention Overhaul and Robust Structures of Accountability and Transparency
We now know her name: Jakelin Amei Rosmery Caal Maquin.
According to the Washington Post, the U.S. Customs and Border Protection (CBP) disclosed that a “A 7-year-old girl from Guatemala died of dehydration and shock after she was taken into Border Patrol custody last week.” According to CNN, the agency has launched an internal investigation “to ensure all appropriate policies were followed.” But as the ACLU noted:
Lack of accountability, and a culture of cruelty within CBP have exacerbated policies that lead to migrant deaths….The fact that it took a week for this to come to light shows the need for transparency for CBP. We call for a rigorous investigation into how this tragedy happened and serious reforms to prevent future deaths.
Indeed, CBP has failed to implement appropriate structures of accountability and transparency despite multiple reports calling for such mechanisms.
Inhumane Conditions in CBP Detention Facilities
During the family separation crisis over the summer, parents and children held in CBP custody described horrific conditions. Many came seeking asylum only to be thrown into what most described as “dog cages” and “ice boxes” with highly unsanitary conditions. Guards kicked and taunted children; guards inhumanely separated and dehumanized parents and children who were forced to sleep on concrete floors in over-crowded, cold cells; adults and children used toilets in front of dozens of strangers in the middle of cells; food and water was often limited, even for young children; and there was limited to no access to phones. One mother said, referring to her 9 year-old son, “He wonders when we will get to the United States. I do not tell him that we are already here. He wouldn’t believe that the United States would treat us this way.”
Even CBP Commissioner Kevin McAleenan admitted during a Senate Judiciary hearing last week that CBP facilities are “incompatible” for asylum-seeking families and children. But before we credit McAleenan with transparency, it is now clear that the death of Jakelin occurred before his testimony, and CBP failed to notify Congressional appropriators within 24 hours as mandated by law. If anything, McAleenan hid the fact of the seven year-old’s death so his testimony would not be overwhelmed by the news.
Failure to Report Deaths in Custody
Over the summer, a father taken into CBP custody committed suicide after becoming distraught due to separation from his child under the Trump family separation policy. It was not CBP that reported this horrific incident; it came to light only because it was reported by the Washington Post one month after it occurred. CBP lacks a basic reporting structure for deaths in custody, something its sister agency ICE implemented a decade ago. Like ICE, CBP is mandated by law to report deaths in custody to Congress within 24 hours. But unlike ICE, CBP has shown that it does not comply with this requirement. Furthermore, unlike ICE’s very clear and public directive outlining Congressional and public reporting requirements for deaths in custody, CBP has not published such a directive.
CBP’s Track Record of Criminal Misconduct
In September, the Associated Press reported that a ten-year U.S. Border Patrol agent and “supervisor was charged…with murder in the deaths of four female sex workers following what authorities called a two-week killing spree that ended when a fifth woman escaped from him at a Texas gas station and found help.” The local district attorney said, “We do consider this to be a serial killer.”
In April, the New York Times reported on another Border Patrol agent who was “charged…[with] killing a woman with whom he was romantically involved and her 1-year-old son.” In May, Univision reported that a Border Patrol agent fatally shot an unarmed undocumented woman in the head, according to a video of the incident by a bystander.
In 2016, according to the New York Times, “a senior Border Patrol agent…was taken into custody and charged with distributing child pornography and attempting to entice a minor to engage in sexual activity.” Also, according to the New York Times, “In…2014, a Border Patrol agent in Texas kidnapped, attacked and sexually assaulted three undocumented immigrants: a woman and two teenage girls from Honduras.”
The General Accounting Office (GAO) found that CBP had opened and closed 20,333 misconduct cases in fiscal years 2014 through 2016. Of those cases, 9% were for criminal misconduct, 11% were detainee-related misconduct such as “physical or sexual abuse of detainees, use of force, or conditions of detention misconduct,” 17% for conflict of interest such as “misuse of position, association with known criminals or illegal aliens,” and 30% were for general misconduct such as “failure to follow procedures, rude conduct.”
Excessive Use of Force, Assault, and Child Abuse Unchecked
The media and non-profit organizations have revealed multiple incidents of excessive use of force, assault and child abuse.
In May, the Guardian reported:
The US government has paid out more than $60m in legal settlements [between October 2005 to July 2017] where border agents were involved in deaths, driving injuries, alleged assaults and wrongful detention, an analysis of more than a decade of official data reveals.
After four years of requests and a lawsuit, the ACLU obtained documents showing an unchecked pattern and practice of abuse of migrant children by the Border Patrol. Moreover, when the ACLU submitted 116 credible complaints of migrant child abuse to the DHS Office of the Inspector General (IG), the IG closed its investigation less than four months later without explanation. As ACLU explains, “complaints are routinely closed or deemed ‘unsubstantiated’ without any meaningful investigation.”
CBP’s Lack of a Serious Accountability Structure
Customs and Border Protection (CBP) is the largest law enforcement agency in the country and one of the largest in the world with a budget of $14 billion and more than 40,000 agents carrying 100,000 authorized guns. Despite its size, its accountability structure is small and weak, and it is seriously lacking in funding, staff and authority.
Alex Nowrestah, an immigration expert at the Cato Institute, writes:
These problems exist because Border Patrol isn’t monitored properly. After 9/11, Congress created a new agency called Customs and Border Protection (CBP) inside of the new Department of Homeland Security, which eventually came to house Border Patrol. Congress forgot to transfer Border Patrol’s old internal affairs department and didn’t create a new one. Only in August 2014 did [the] internal affairs department finally get the authority to investigate criminal misconduct.
A 2016 report by Homeland Security Advisory Council (HSAC) — headed by former New York City Police Commissioner William Bratton and former DEA Administrator Karen Tandy — compared staffing ratios for CBP’s internal affairs (IA) to comparable organizations. HSAC said, “an adequately staffed internal affairs component is an indispensable element for assuring integrity and ferreting out corruption within a law enforcement organization.” Calling CBP IA “woefully understaffed” with only 200 officers, HSAC recommended that CBP IA almost triple its staff for a total of 550 investigators within three years in order to bring CBP up to comparable levels as the FBI and the New York City Police Department. But nine months after receiving the HSAC recommendation, CBP had only initiated plans to hire 57 investigators. In fiscal year 2017, CBP only sought 30 more investigators, 60 in fiscal year 2018, and in the budget request for fiscal year 2019, CBP only sought to “sustain” 308 criminal investigators.
While CBP has been failing to grow its IA staff, it has embraced massive increases in Border Patrol agents. The Trump administration signed a $300 million contract to bring on 7,500 new agents.
According to Bryan Schatz of Mother Jones, in a piece dated April 24, 2018:
In early 2016, the Department of Homeland Security declared that corrupt border agents “pose a national security threat” and found that the CBP had a ‘broken disciplinary process.’ James Tomsheck, the former head of Internal Affairs at CBP, has repeatedly warned about corruption at the agency. He maintains that its background investigations of new employees are sorely lacking, that it sweeps corruption allegations under the rug, and that it largely resists efforts to clean house. In an interview with Mother Jones last year, Tomsheck claimed that the head of the Border Patrol agents’ union had ‘opposed every integrity proposal’ he had made during his eight years at CBP.
In 2016, the Homeland Security Advisory Council, stated that CBP “has never developed a truly CBP-wide process for receiving, tracking and responding to public complaints. Its disciplinary process takes far too long to be an effective deterrent.”
Even the former Commissioner of CBP, Gil Kerlikowske, stated, “We had a history of not addressing things as directly as we should.”
The General Accountability Office (GAO) agrees with the former commissioner. A GAO report from July says, “CBP officials told us [GAO] that CBP refers the majority of allegations — regardless of whether the investigator determines the allegation is substantiated or unsubstantiated — to its Labor and Employee Relations office for adjudication…[which] results in a large number of cases being closed with a final outcome of no action, action unwarranted, or allegation unsubstantiated.” In other words, for many cases, even substantiated cases, there is no accountability.
Of the 20,333 misconduct cases in fiscal years 2014 through 2016, the GAO found that CBP did “not consistently document the findings of misconduct investigations—for example, whether a misconduct allegation was found to be substantiated—in their case management systems.” Furthermore, GAO found that “oversight mechanisms to monitor internal control is limited.”
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said:
Tragedy after tragedy, report after report, CBP continues to fail to implement basic accountability and transparency structures that should help prevent many of these horrific incidents of death, suffering, and criminal misconduct. At the same time, CBP is seeking massive increases in the number of Border Patrol agents. It is time for Congress to investigate these horrific incidents and act through legislation and appropriations to ensure robust accountability structures and humane conditions of detention.
