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Glaring Need for Robust Structures of Accountability and Hiring at CBP   

 

A Long-term Border Patrol Agent Accused of Being a Serial Killer is the Latest Example of an Agency in Need of an Overhaul

The Associated Press recently reported that a ten-year U.S. Border Patrol agent and “supervisor was charged Saturday 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.”

This is not a an isolated incident.  As the New York Times reports, in April, another Border Patrol agent 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.”       

These incidents call into question structures of accountability and hiring:  Does the Border Patrol, have appropriate mechanisms in place to prevent further incidents like these?  The answer is an emphatic “no.”

CBP’s Lack of a Serious Accountability Structure

The Border Patrol is part of Customs and Border Protection (CBP), 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.   

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, has 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.

The 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.”

In these cases, 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.”   

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.  

Recently, 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 a pattern and practice of abuse of migrant children by the Border Patrol that has been unchecked.  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.”

Unchecked Corruption

Government documents recently obtained by the Project for Government Oversight show at least 200 Border Patrol agents arrested for corruption from October 2004 through mid-March 2018.  

Despite this, Trump Wants to Grow the Border Patrol While Lower Hiring Standards

In an effort to meet “to meet President Trump’s quota” of 5,000 new Border Patrol agents, Foreign Policy obtained internal memos “seeking approval to relax some stringent [hiring] standards” including “a request to potentially loosen congressionally-mandated requirements such as a polygraph, as well as an entrance exam and background check.”  That was just one month into the Trump presidency and at a time when the Border Patrol could not even fill existing positions and retain agents already in its ranks.  

Just a few months later, the Republican-controlled House of Representatives passed a bill that would allow CBP to waive the polygraph for some new hires, a Congressionally-mandated requirement enacted after a series of misconduct cases in the mid-2000s.  This, despite the fact that 60% of CBP applicants fail the polygraph and several admitted to serious crimes in the middle of polygraph tests, such as child pornography, sex with a minor, domestic violence, and felony theft.

Ominously, a deputy CBP commissioner under George W. Bush warned last year, “We actually lived through this….If you start lowering standards, the organization pays for it for the next decade, two, or three.”  Indeed, the recent arrest of a 10-year veteran of the Border Patrol accused of killing four women may have been hired under weaker hiring standards from the last decade.  

According to the San Diego Tribune, in an effort to rapidly grow the Border Patrol in the mid-2000s, “Hiring standards were lowered, training at the Border Patrol Academy truncated, and background checks — a crucial step — were delayed or not performed at all.”  Applicants who were once denied entry due to criminal issues were welcomed, including one who had been previously terminated for criminal concerns and was later “convicted in federal court of bribery and sentenced to 12 years in prison.”  

Ur Jaddou, Director of DHS Watch, a project of America’s Voice, said:  “Law enforcement agents sworn to protect and serve the public must be held to high standards both through hiring and strong accountability structures.  But multiple reports have shown that CBP’s accountability structures are woefully lacking and way behind other large law enforcement agencies. Efforts to lower hiring standards must be resisted to avoid a return to a time when the number of agents was prioritized over the hiring and retention of qualified and professional agents.  Without making accountability a priority, we should expect multiple reports of abuse, corruption, and crime to continue.”