Border Security and the Southwest Border: Background, Legislation, and Issues
Congressional research reportSep 28, 2005
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Border Security and the Southwest Border:
Background, Legislation, and Issues
Lisa M. Seghetti, Coordinator
Section Research Manager
(name redacted)
Analyst in Domestic Security
(name redacted)
Analyst in Domestic Security
(name redacted)
Specialist in Immigration Policy
September 28, 2005
Congressional Research Service
7-....
www.crs.gov
RL33106
CRS Report for Congress
Prepared for Members and Committees of Congress
Border Security and the Southwest Border: Background, Legislation, and Issues
Summary
Border security has emerged as an area of public concern, particularly after the September 11,
2001 terrorist attacks. Although recent public concerns pertaining to border security may be
attributed to the threat of potential terrorists coming into the country, past concerns that centered
around drug and human smuggling and the illegal entry of migrants remain important issues. As
Congress passes legislation to enhance border security (e.g., P.L. 109-13) and the Administration
puts into place procedures to tighten border enforcement, concerns over terrorists exploiting the
porous southwest border continue to grow.
The U.S. border with Mexico is some 2,000 miles long, with more than 800,000 people arriving
from Mexico daily and more than 4 million commercial crossings annually. The United States and
Mexico are linked together in various ways, including through trade, investment, migration,
tourism, environment, and familial relationships. Mexico is the second most important trading
partner of the United States and this trade is critical to many U.S. industries and border
communities. In an effort to facilitate the legitimate flow of travel and trade, the governments of
the United States and Mexico signed the U.S.-Mexico Border Partnership agreement. The
agreement was accompanied by a 22-point action plan that included several immigration and
customs-related border security items.
While the northern and southwest borders share common issues, the southwest border has issues
that are unique. For example, the US-VISIT program was reportedly implemented at selected
southwest land ports of entry. Concerns about Mexican nationals who have Mexican border
crossing cards being excluded from the requirements of the program have been raised. Additional
issues such as the system used to verify Mexican border crossing cards (Biometric Verification
System) and the consolidation of immigration and customs inspectors have also raised concerns.
Arguably, the most pressing concern at the southwest border is the number of undocumented
aliens who still manage to cross the border every day, the majority of which are Mexican
nationals.
As the number of illegal aliens that are present in the United States continues to grow, attention is
directed at the border patrol and the enforcement of immigration laws within the interior of the
country. The Department of Homeland Security’s (DHS’s) Customs and Border Protection (CBP)
and Immigration and Customs Enforcement (ICE) units have launched several initiatives aimed at
apprehending illegal aliens and dismantling human and drug smuggling organizations. Despite
these efforts, the flow of illegal migration continues. Issues such as enforcement of immigration
laws and organizational issues such as inter- and intra-agency cooperation, coordination and
information sharing continue to be debated. In the view of some, a more comprehensive approach
that addresses the “push factors” of the sending countries and the “pull factors” of the United
States, coupled with more effective enforcement of current laws in the interior of the country may
once again merit examination. This report will not be updated.
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Border Security and the Southwest Border: Background, Legislation, and Issues
Contents
Introduction ................................................................................................................................1
Differences Between the Southwest and Northern Borders ..........................................................2
Context of Overall United States-Mexico Relations.....................................................................2
Importance of Mexico and the Bilateral Relationship.............................................................2
Mechanisms for Mexico-U.S. Interactions.............................................................................3
Bilateral/Trilateral Migration and Border Security Agreements..............................................4
Bilateral Migration Talks.................................................................................................4
Bilateral Partnership for Prosperity..................................................................................5
Bilateral Border Partnership (“Smart Border”) Agreement...............................................6
Trilateral Security and Prosperity Partnership of North America ......................................6
Monitoring the Border.................................................................................................................7
Monitoring the Border At Ports of Entry......................................................................................7
People-Related Inspections ...................................................................................................8
Border Partnership (“Smart Border”) Agreement .............................................................9
Secure Electronic Network for Travelers’ Rapid Inspection ........................................... 10
Goods-Related Inspections .................................................................................................. 11
Border Partnership (“Smart Border”) Agreement ........................................................... 12
Cargo Inspection Technology ........................................................................................ 13
Customs-Trade Partnership Against Terrorism (C-TPAT)............................................... 14
FAST ............................................................................................................................ 14
Customs Mutual Assistance Agreements (CMAA)......................................................... 15
Selected Inspections Issues.................................................................................................. 15
U.S.-VISIT ................................................................................................................... 16
Laser Visas (Mexican Border Crossing Cards)............................................................... 16
Biometric Verification System (BVS)............................................................................ 18
One Face at the Border.................................................................................................. 18
Monitoring the Border Between Ports of Entry.......................................................................... 18
Air and Marine Operations .................................................................................................. 19
Threats.......................................................................................................................... 19
Rationalization of Air and Marine Assets, Border Patrol and AMO ................................ 19
U.S. Border Patrol (USBP).................................................................................................. 20
Evolution of Border Patrol Strategy............................................................................... 20
New National Border Patrol Strategy............................................................................. 22
Apprehension Rates ...................................................................................................... 23
Other Than Mexican Apprehensions.............................................................................. 25
Selected Issues Between Ports of Entry ............................................................................... 26
Border Patrol Checkpoints ............................................................................................ 26
Expedited Removal....................................................................................................... 28
Physical Barriers ........................................................................................................... 29
Migrant Deaths ............................................................................................................. 30
Border Safety Initiative ................................................................................................. 32
Civilian Patrol Groups................................................................................................... 33
Illegal Migration and Indian Country ............................................................................ 34
Impact of Illegal Migration on Federal Protected Land .................................................. 36
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Border Security and the Southwest Border: Background, Legislation, and Issues
Interior Enforcement ................................................................................................................. 37
ICE Investigations............................................................................................................... 37
Arizona Border Control (ABC) Initiative....................................................................... 38
Human Smuggling ........................................................................................................ 38
Drug/Contraband Smuggling......................................................................................... 40
DHS Anti-Smuggling/Trafficking Strategy .................................................................... 40
ICE Storm..................................................................................................................... 40
Department of Justice Efforts .............................................................................................. 41
Organized Crime Drug Enforcement Task Force (OCDETF) ......................................... 41
Southwest Border Prosecution Initiative (SWBPI)......................................................... 42
High Intensity Drug Trafficking Area (HIDTA) ............................................................. 42
Detention and Removal....................................................................................................... 42
Selected ICE Issues................................................................................................................... 44
ICE Resources .................................................................................................................... 44
Customs Patrol Agents (Shadow Wolves) ...................................................................... 45
State and Local Law Enforcement ....................................................................................... 45
Detention Bed Space........................................................................................................... 47
Selected Crosscutting Issues...................................................................................................... 47
Systems Integration and Interoperability.............................................................................. 48
Technology and Staffing...................................................................................................... 48
Port of Entry Infrastructure ................................................................................................. 49
Repatriation ........................................................................................................................ 50
Organizational Issues .......................................................................................................... 52
Overall Effectiveness of Current Policies ............................................................................ 52
Figures
Figure 1. Busiest Land POE FY2002-FY2004 .............................................................................9
Figure 2. Top Five Busiest Land Ports of Entry, 2001 through 2003........................................... 11
Figure 3. SW Border Apprehensions by Fiscal Year................................................................... 24
Figure 4. SW Border Apprehensions, by Sector and Fiscal Year................................................. 25
Figure 5. Migrant Deaths Along the Southwest Border, by Fiscal Year....................................... 31
Figure 6. Migrant Mortality Rate per Apprehensions ................................................................. 31
Figure 7. Deportable Alien Located by ICE’s Southwest Field Offices, FY2000 to
FY2003.................................................................................................................................. 43
Figure 8. Number of Aliens Expelled by ICE’s Southwest Field Offices, FY2001 to
FY2003.................................................................................................................................. 44
Appendixes
Appendix. Legislation Affecting the Southwest Border.............................................................. 55
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Border Security and the Southwest Border: Background, Legislation, and Issues
Contacts
Author Contact Information ...................................................................................................... 58
Acknowledgments .................................................................................................................... 58
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Border Security and the Southwest Border: Background, Legislation, and Issues
Introduction
Border security has emerged as an area of concern for many, particularly after the September 11,
2001 terrorist attacks. Although recent concerns pertaining to border security may be attributed to
the threat of potential terrorists coming into the country, past concerns that centered around drug
and human smuggling and the illegal entry of migrants are still important issues. As the southwest
border increasingly becomes a focal point due to its myriad of problems, an issue for Congress is
how to successfully balance competing strategic goals while balancing the tactical policies to
achieve these goals. The strategic concern rests in a complex question: How do we balance the
need for more effective border control with the needs of free trade and economic growth? The
tactical concerns focus on balancing increased resources such as an ever-expanding workforce at
the border with the use of technology and intelligence without compromising the free flow of
commerce and travel. As Congress and Administration policymakers seek to achieve balance
between the strategic and tactical concerns the southwest border pose, they do so during an
unprecedented time of illegal migration across the border. In an attempt to normalize the flow of
needed workers across the border and address the economic imbalances in Mexico and other parts
of Latin America that drive the push incentive structure of migration to the United States, several
bills have been introduced that would overhaul the U.S. immigration system and tighten
enforcement of U.S. immigration laws in the interior of the country.1
Traditionally, border management consists of securing the border at ports of entry through the
inspections process as well as between ports of entry (POE) through the patrolling of the border
by the border patrol. Increasingly, border management, particularly along the southwest border,
also involves enforcing immigration and other laws well into the interior of the country. This
report discusses border security-related programs and initiatives that have an impact on the
southwest border. The programs and initiatives discussed are presented in a two-dimensional
framework: (1) enforcement efforts at the POE, between the POE and within the interior of the
United States; and (2) programs and initiatives that facilitate the flow of people and goods across
the border versus those initiatives that are geared towards controlling and interdicting people and
things that may be a threat to the national security. The report opens with a discussion of the
differences between the southwest and northern border. It then details the relationship between
the United States and Mexico, as it pertains to border security. Next, each major control point
(i.e., inspections, border patrol and interior investigations) that has a border security-related
component is discussed. The report then focuses on past and current congressional efforts to
secure the southwest border. It concludes with a discussion of some of the issues that are
crosscutting to the major areas covered in the report. An Appendix is provided for additional
discussion of legislation.
1
This report will not discuss or track legislation that has been introduced in the 109th Congress. The Appendix of the
report, however, does discuss legislation in the current and past Congresses that have been enacted.
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Differences Between the Southwest and Northern
Borders
The U.S. border with Mexico is approximately 2,000 miles long and is comprised of six Mexican
and four U.S. states.2 It features large tracts of desert land where temperatures average more than
100 degrees for part of the year, includes mountain ranges and rugged terrain, as well as the
waters of the Rio Grande River. The U.S. border with Canada, on the other hand, is more than
twice as long as the southwest border and covers seven Canadian provinces and 10 U.S. states.3
Among the northern border’s many challenging natural features are vast mountain ranges such as
the Rockies, the Great Lakes, many different river systems, and heavy snow and bitter cold
temperatures in the winter.
Although smaller by some 2,000 miles than its northern counterpart, the southwest border
exceeds the northern border with respect to the volume of travelers crossing it. For example, there
were 173 million inspections conducted at southwest land ports of entry in FY2004, compared to
52 million at northern land ports of entry.4 In addition to the volume of traffic at southwest land
ports of entry, the southwest border has a longstanding history of illegal migration and human and
drug smuggling activities. On average, the southwest border accounts for over 94% of all illegal
alien apprehensions each year.5 While efforts have been underway to strengthen both borders, the
southwest border efforts focus primarily on stemming illegal migration and human smuggling and
interdicting illegal drugs, while the northern border efforts focus on sharing information and
streamlining policies between the United States and Canada as well as facilitating trade.6
Context of Overall United States-Mexico Relations
Importance of Mexico and the Bilateral Relationship
Sharing a 2,000-mile common border and extensive interconnections through the Gulf of Mexico,
the United States and Mexico are so intricately linked together in a multiplicity of ways that
President Bush and other U.S. officials have stated that no country is more important to the
United States than Mexico. The southern neighbor is linked with the United States through trade
and investment, migration and tourism, environment and health concerns, and family and cultural
relationships. Mexico is the second most important trading partner of the United States, and this
trade is critical to many U.S. industries and border communities. At the same time, Mexico is a
major source of undocumented migrants and illicit drugs and a possible avenue for the entry of
2
The six Mexican states are Baja California, Sonora, Chihuahua, Coahuila, Nuevo Leon and Tamaulipas. The four U.S.
states are California, Arizona, New Mexico, and Texas.
3
The seven Canadian provinces are British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, and New
Brunswick. The 10 U.S. states are Washington, Idaho, Montana, North Dakota, Minnesota, Michigan, New York,
Vermont, New Hampshire, and Maine.
4
Data received from CBP Congressional Affairs Office on Jan. 6, 2005.
5
Ibid.
6
For additional information on immigration-related northern border security, see CRS Report RS21258, Border
Security: U.S.-Canada Immigration Border Issues, by Lisa M. Seghetti.
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terrorists into the United States. As a result, cooperation with Mexico is essential in dealing with
migration, drug trafficking, and border, terrorism, health, environment, and energy issues.
With a population of 105 million people, Mexico is the most populous Spanish-speaking country
in the world, and the third most populous country in the Western Hemisphere. This gives it a
diplomatic weight in the hemisphere as a leader of Latin American and Caribbean countries and
in the world as a leader of developing countries. With a gross domestic product (GDP) for 2004
of $657 billion, and worldwide turnover trade (exports and imports) for 2003 of $336 billion,
Mexico is a leading trader in the world, principally through its partnership with Canada and the
United States in NAFTA. In large part because of the United States, NAFTA is the world’s largest
free trade area, with about one-third of the world’s total GDP, and it accounts for about 19% of
global exports and 25% of global imports. Mexico is viewed by some as the least important
member of NAFTA, although its population of over 100 million is more than three times
Canada’s 32 million, and its GDP is nearly equal to that of Canada ($757 billion). About 37% of
the United States’ trade with NAFTA countries is with Mexico.
Under NAFTA, Mexico had total turnover trade (exports and imports) with the United States for
2004 of $266 billion, making it the second most important trading partner of the United States
(following Canada), while the United States is Mexico’s most important partner by far, providing
the market for 88% of Mexico’s exports and supplying 68% of Mexico’s imports. Since NAFTA
entered into force in 1994, total trilateral trade has more than doubled to $621 billion, while
Mexico-U.S. trade more than tripled from $82 billion to $266 billion. However, the United States
has experienced a generally growing trade deficit and critics argue that many U.S. jobs were lost
in the process. United States foreign direct investment was encouraged by NAFTA as well,
although the amount and proportion of U.S. direct investment in Mexico have declined from
$20.4 billion (77% of total investment) in 2001 to $5.3 billion (56% of total investment) in 2003.7
Mechanisms for Mexico-U.S. Interactions
The United State and Mexico have developed a wide variety of mechanisms for consultation and
cooperation on the issue areas in which the countries interact—with some overlapping in the
functioning of the various mechanisms. These include (1) periodic presidential meetings, (2)
annual cabinet-level Binational Commission meetings with 10 Working Groups on major issues,
(3) annual meetings of congressional delegations in the Mexico-United States Interparliamentary
Group Conferences, (4) NAFTA-related trilateral meetings under various groups, and (5) bilateral
border area cooperation meetings hosted by such entities as the Border Environment Cooperation
Commission (BECC), the U.S.-Mexico Border Health Commission, and the Binational Group on
Bridges and Border Crossings.
7
Major sources for this paragraph and the previous paragraph are The United States and Mexico at a Glance, U.S.
Embassy in Mexico website at http://www.usembassy.gov/Mexico/reade_info.html and NAFTA [at 10] on USTR
website http://ustr.gov/Trade_Agreements/Regional/NAFTA/NAFTA_at_10/Section_Index.html.
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Bilateral/Trilateral Migration and Border Security Agreements8
Turning to the central focus of this report, Presidents Bush and Fox have engaged regularly in a
series of discussions and agreements on closely related migration and border security issues, and
they were joined by Prime Minister Martin of Canada on March 23, 2005, for a trilateral
meeting.9 These discussions and agreements have fallen predominantly under the rubrics of the
Bilateral Migration Talks, the Bilateral Partnership for Prosperity, the Bilateral Border Partnership
Agreement, and the Trilateral Security and Prosperity Partnership of North America.10
Bilateral Migration Talks
When President Bush met with President Fox in February 2001, migration issues were among the
main topics, with Mexican officials expressing concern about the number of migrants who die
each year while seeking a non-sanctioned entry into the United States. For some time President
Fox has been pressing proposals for legalizing undocumented Mexican workers in the United
States through amnesty or guest worker arrangements as a way of protecting their human rights.
In the Joint Communique following the Bush-Fox meeting, the two presidents agreed to instruct
appropriate officials “to engage, at the earliest opportunity, in formal high level negotiations
aimed at achieving short and long-term agreements that will allow us to constructively address
migration and labor issues between our two countries.”11
During President Fox’s visit to Washington, DC, in 2001, the Presidents reviewed the progress
made by the joint working group on migration chaired by the U.S. Secretary of State and Attorney
General and the Mexican Secretaries of Government and Foreign Relations. The Presidents
instructed the high-level working group “to reach mutually satisfactory results on border safety, a
temporary worker program and the status of undocumented Mexicans in the United States ... as
soon as possible.” However, the talks stalled following the terrorist attacks upon the United States
in September 2001, and U.S. executive and legislative action focused on strengthening border
security and alien admission and tracking procedures.
When President Bush met President Fox in 2002, they noted that “important progress has been
made to enhance migrant safety ... by discouraging and reducing illegal crossings in dangerous
terrain,” and they charged the cabinet level migration group to continue the discussions under the
previous instructions.
In January 2003, President Fox designated Economy Minister Luis Ernesto Derbez as Mexico’s
new Foreign Minister, replacing Jorge Castaneda, who reportedly resigned, in part, out of
8
While the discussions and agreements center primarily on migration and border security issues, it is important to note
that Congress sets these policies.
9
Information on the meetings may be found on the websites of the U.S. Embassy in Mexico http://www.usembassymexico.gov/emenu.html, the Mexican Embassy in the United States http://www.embassyofmexico.org, the U.S.
Presidency http://www.whitehouse.gov and the Mexican Presidency http://envivo.presidencia.gob.mx/?NLang=en.
10
For more information, see CRS Report RL32735, Mexico-United States Dialogue on Migration and Border Issues,
2001-2006, by (name redacted). Information on closely related cooperation on counter-narcotics matters may be found
inCRS Report RL33806, Natural Resources Policy: Management, Institutions, and Issues, by (name redacted),
(name redacted), and (name redacted), and CRS Report RL32724,
Mexico-U.S. Relations: Issues for Congress, by (name
redacted) and (name redacted).
11
U.S. Department of State, Joint Communique, U.S.-Mexico Migration Talks and Plan of Action for Cooperation on
Border Safety, June 22, 2001. See http://www.state.gov/r/pa/prs/ps/2001/3733.htm.
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frustration with the lack of progress on a migration accord with the United States. Around that
time, disagreements were emerging between the countries over U.S. military action in Iraq,
although Mexico ordered special troops to secure airports, border posts, and other access points to
the United States when the military action began in March 2003. In mid-year, partly in reaction to
deaths of migrants, both countries took more forceful measures against smugglers and increased
warnings of the dangers of illegal entry into the United States.
In January 2004, President Bush offered an outline to overhaul the U.S. immigration system to
permit the matching of willing foreign workers with willing U.S. employers when no Americans
can be found to fill available jobs. Under the President’s outline, temporary legal status would be
available to new foreign workers who have work offers in the United States and to undocumented
workers already employed in the United States for a term of three years that could be renewed but
would end at some point. The proposal included some incentives to encourage workers to return
to their home countries, such as credit in the worker’s national retirement system and tax-deferred
savings accounts that could be collected upon their return.12
Bilateral Partnership for Prosperity
During President Fox’s official visit to Washington, DC., in early September 2001, the Presidents
launched the Partnership for Prosperity (P4P), a public-private alliance of Mexican and U.S.
governmental and business leaders, to promote economic development throughout Mexico, but
particularly in regions where lagging economic growth has fueled out migration.13 In accordance
with the instructions of the Presidents, a concrete plan of action was announced in March 2002 at
the time of the Monterrey conference, focusing on lowering the cost of sending money home,
promoting private investment in housing, promoting small and medium sized businesses to
generate employment, strengthening farmers and infrastructure, sharing ideas and best practices,
and linking institutions with shared goals.
Since then, Entrepreneurial Workshops have been held in 2003 and 2004 to encourage
networking between businesses, and reports on the Partnership were made to the Presidents at the
time of the annual Binational Commission meetings in 2002, 2003, and 2004. Following the 2004
meetings, then Secretary Powell noted that P4P programs had lowered the fees for transferring
funds from the United States to Mexico, brought together more than 1,400 business and
government leaders from both countries, and developed innovative methods to finance
infrastructure projects. Other major accomplishments were the establishment for the first time of
a Peace Corps program in Mexico; and the recent establishment of the Overseas Private
Investment Corporation (OPIC) in Mexico that is expected to provide over $600 million in
financing and insurance to U.S. businesses in Mexico. 14
12
For information on the President’s outline and various congressional initiatives, see CRS Report RL32044,
Immigration: Policy Considerations Related to Guest Worker Programs, by (name redacted). On the migration issue,
see also CSIS Mexico Project, Managing Mexican Migration to the United States—Recommendations for
Policymakers: A Report of the U.S.-Mexico Binational Council, Center for Strategic and International Studies (CSIS)
and Autonomous Technological Institute of Mexico (ITAM), Apr. 2004.
13
For background and results, see the information on the P4P on the Department of State website go to
http://www.state.gov/p/wha/ci/mx/c7980.htm.
14
See Remarks [by then Secretary of State Colin Powell] with Foreign Minister of Mexico, Luis Ernesto Derbez at a
Joint Press Availability, Nov. 9, 2004 on State Department website http://www.state.gov/secretary/rm/37998.htm.
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Bilateral Border Partnership (“Smart Border”) Agreement
When President Bush met President Fox in 2002, the Presidents announced the U.S.-Mexico
Border Partnership Agreement with a 22-point Action Plan. The agreement is also known as the
“Smart Border Agreement” because it calls for enhancing security by utilizing technology to
strengthen infrastructure while facilitating the transit of legitimate people and goods across the
border. 15 Under the first goal, to strengthen infrastructure, the countries pledged to take joint
action to harmonize, protect, finance, and plan border operations. Under the second goal, to
facilitate the secure flow of people, the countries agreed to advance mechanisms for pre-clearing
regular automobile travelers, obtaining advanced airplane passenger information, saving
endangered migrants, deterring alien smuggling, and sharing viewpoints and intelligence. Under
the third goal, to ease the safe flow of goods, the countries pledged to encourage private sector
involvement and to implement technology sharing programs to place nonintrusive inspection
systems at cross-border rail lines and high-volume ports of entry.
When the former Secretary of Homeland Security Tom Ridge and Secretary of Government
Santiago Creel met in 2003, they noted progress under the Border Partnership (see discussion on
U.S.-Mexico 22-point plan in “Monitoring the Border At Ports of Entry”). When the leaders met
in 2004, they signed the U.S.-Mexico Action Plan for Cooperation and Border Safety for 2004, as
well as a Memorandum of Understanding on the Safe, Orderly, Dignified and Humane
Repatriation of Mexican Nationals that provides for the return of migrants to their home towns.
Still later, following the 2004 Binational Commission meetings, former Secretary of State Colin
Powell emphasized the growing bilateral cooperation on border security matters between the
countries, including the creation of a new Working Group on Cyber-Security.
Trilateral Security and Prosperity Partnership of North America
In 2005, President Bush hosted meetings in Texas with President Fox and Canadian Prime
Minister Martin, in which the leaders established the trilateral “Security and Prosperity
Partnership (SPP) of North America,” that seeks to advance the common security and the
common prosperity of the countries through expanded cooperation and harmonization of policies.
To implement this partnership the leaders established ministerial-led working groups that were to
develop measurable and achievable goals and to report back to the leaders within 90 days and
semi-annually thereafter. 16
On June 27, 2005, Secretary of Homeland Security Chertoff and Secretary of Commerce
Gutierrez met with their Canadian and Mexican counterparts in Ottawa, Canada, and released a
Report to Leaders with initial results and proposed initiatives for the future under the Security and
Prosperity Partnership (SPP) of North America.17
In the security area, the report discussed efforts to establish common approaches to security to
protect against external and internal threats and to further streamline legitimate trade and travel.
Among these efforts, the countries would implement common border security and bioprotection
15
See information on the Border Partnership under the broader U.S.-Mexico Partnership heading on the Department of
State website http://www.state.gov/p/wha/rt/c6287.htm.
16
See the Joint Press Conference, the Joint Statement and the Fact Sheet on the initiative on the White House website
available at http://www.whitehouse.gov/news/releases/2005/03/20050323-5.html.
17
For more information on the initiative and the Report to Leaders, see the SPP website http://www.spp.gov.
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strategies, enhance infrastructure protection and emergency response plans, improve aviation and
maritime security and intelligence cooperation against transnational threats, and continue to
facilitate the legitimate flow of people and cargo at the borders. In the press conference, the
ministers highlighted the agreement to develop and implement common methods of screening
individuals and cargo, development of a unified trusted traveler program to expand upon the
SENTRI and FAST programs, and development of a collective approach to protecting
infrastructure and responding to various incidents.
In the prosperity area, the report discussed efforts to enhance North American competitiveness
and to improve the quality of life. To achieve this, the counties would improve productivity
through regulatory cooperation and harmonization; enhance cross-border cooperation on health,
food safety, and environmental protection projects; promote sectoral collaboration in energy,
transportation, and financial services; and reduce the costs of trade by increasing the efficiency of
the cross-border operations. In press statements, the ministers cited agreement on common
principles for electronic commerce, liberalization of the rules of origin on household appliances
and machinery, streamlining and harmonizing regulatory processes, and collaboration in the steel,
automobile and energy sectors to enhance competitiveness.
Monitoring the Border18
Prior to the creation of the Department of Homeland Security (DHS), many federal agencies and
subagencies were responsible for some aspects of border security. Today, DHS is the primary
agency that has border security-related responsibilities.19 DHS’ Directorate of Border and
Transportation Security includes the U.S. Coast Guard, the Bureau of Customs and Border
Protection (CBP) and the Bureau of Immigration and Customs Enforcement (ICE), among other
agencies. Within CBP is the U.S. Border Patrol, inspections activities of the former Immigration
and Naturalization Service (INS), U.S. Customs Service and the U.S. Department of Agriculture.
Within ICE are the investigative activities of the former INS and U.S. Customs Service; detention
and removal activities of the former INS; the Federal Law Enforcement Training Center; the
Transportation Security Administration; and the Federal Protective Service.
Monitoring the Border At Ports of Entry20
In 1789, Congress passed legislation that authorized the collection of duties on imported goods.21
In a subsequent piece of legislation, Congress established the U.S. Customs Service, which was
charged with collecting duties at U.S. ports of entry.22 The position of immigration inspectors was
formally created in 1891 after Congress passed legislation that created the Bureau of Immigration
18
For additional information on agencies responsible for border security, see CRS Report RS21899, Border Security:
Key Agencies and Their Missions, by (name redacted) .
19
DHS was statutorily created by Congress with the passage of the Homeland Security Act of 2002 (P.L. 107-296).
20
For additional information on the inspections process at the border, see CRS Report RL32399, Border Security:
Inspections Practices, Policies, and Issues, by (name redacted) et al.
21
1 Stat. 73.
22
The authority to collect duties and tariffs was established by the Tariff Act of 1789, passed by Congress on July 4,
1789. The fifth Act of the first Congress, passed on July 31, 1789, established the U.S. Customs Service.
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in the Department of the Treasury.23 Due to the increasing complexity of regulating immigration,
a new supervisory position was created in the then-Bureau of Immigration that oversaw the duties
of the new immigration inspectors. Prior to the creation of this specialized group of inspectors
that were charged with regulating immigration at U.S. ports of entry, customs inspectors were the
only presence at the ports of entry.24
Inspectors regulate people and goods that present themselves for entry at a designated port of
entry. While emphasis on the southwest border tends to be placed on who is seeking entry to the
United States, in recent years there has been a growing concern over what is coming into the
country. This section provides a description of the who and what that are present at southwest
land ports of entry (POE).25 In doing so, the section is divided into two parts: people-related and
goods-related26 inspections. While this may be a useful construct for the purpose of this report, it
is important to note that since the consolidation of the immigration and customs inspections
activities into CBP, efforts have been underway to present “one face at the border” and move
away from looking at inspections in terms of separate organizational structures for immigration
and customs inspections.
People-Related Inspections
There are 25 land POE along the southwest border,27 with over 800,000 people arriving from
Mexico daily. Over recent years, the southwest border has seen the highest volume of travelers
seeking entry into the United States. As Figure 1 illustrates, four of the top five busiest land POE
in FY2004 were in the southwest, with the San Ysidro land POE consistently ranking the busiest
of all land POE for passenger travel for several years. The majority of travelers seeking entry into
the United States at a southwest land POE are Mexican nationals who possess a Mexican border
crossing card (also known as Laser Visa). U.S. citizens and Legal Permanent Residents of the
United States make up the next largest group of individuals who seek entry to the United States at
a southwest land POE.
23
24
See the Immigration Act of 1891.
Customs inspectors were charged with levying a head tax on foreign nationals seeking entry to the United States.
25
For a discussion of the challenges facing lawmakers and policy makers to secure the border and the various programs
and initiatives in place at the border, see CRS Report RL32839, Border Security: The Complexity of the Challenge, by
(name redacted); CRS Report RL32840, Border and Transportation Security: Selected Programs and Policies, by Lisa
M. Seghetti, (name redacted), and (name redacted); and CRS Report RL32841,
Border and Transportation
Security: Possible New Directions and Policy Options, by (name redacted), (name redacted), and Lisa M.
Seghetti.
26
This section does not discuss the inspections activities performed by agriculture inspections. See CRS Report
RL32399, Border Security: Inspections Practices, Policies, and Issues, by (name redacted) et al.
27
There are six land POE in California; six in Arizona; two in New Mexico; and 11 in Texas.
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Figure 1. Busiest Land POE FY2002-FY2004
30,000,000
25,000,000
23,256,830
20,000,000
25,899,910
15,271,680
10,110,870
9,897,422
14,676,720
10,904,050
15,000,000
9,989,346
10,000,000
8,655,147
25,581,220
14,383,950
9,918,826
9,644,049
9,290,561
10,218,260
2003
2004
5,000,000
0
2002
San Ysidro, CA
Calexico, CA
Hidalgo, TX
Paso Del Norte, TX
Niagara Falls, NY
Nogales, AZ
Source: CRS Analysis of DHS Performance Analysis System (PAS) data.
Border Partnership (“Smart Border”) Agreement
As discussed above, on March 22, 2002 ,President Bush and President Fox of Mexico met and
endorsed the U.S.-Mexico Border Partnership agreement that was signed by Santiago Creel,
Secretary of Governance, and Colin Powell, former Secretary of State. The agreement was
accompanied by a 22-point action plan that included several immigration-related border security
items under the heading “Securing the Flow of People.” Following is a description of these items:
•
expanding the use of the Secure Electronic Network for Traveler’s Rapid
Inspection (SENTRI) program;28
•
establishing a mechanism to exchange advance passenger information for flights
between Mexico and the United States;
•
accelerating border safety collaboration to safeguard migrants who enter between
official POE or are smuggled into the United States; and
•
enhancing cooperative efforts to detect, screen and take appropriate measures to
deal with dangerous third-country nationals. 29
In addition to the aforementioned immigration-related border security items contained in the 22point plan, both countries have agreed to several items that pertain to securing the common
border infrastructure.30
28
For additional information on the SENTRI program, see discussion below.
See http://www.whitehouse.gov/infocus/usmxborder/22points.html.
30
Ibid.
29
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Border Security and the Southwest Border: Background, Legislation, and Issues
According to the Administration, progress has been made with respect to some of the
immigration-related border management items in the plan. For example, there are plans to expand
SENTRI to an additional three POE in 200531 and add additional SENTRI designated lanes at the
existing POE. Moreover, the United States is planning to establish a dedicated lane for
pedestrians at the San Ysidro (California) border crossing, and Mexico has begun efforts to
implement the Advanced Passenger Information System (APIS).32 Both governments also “plan
to accelerate their border safety collaboration to safeguard migrants by placing additional
personnel and life-saving equipment along the border....”33
Secure Electronic Network for Travelers’ Rapid Inspection
The Secure Electronic Network for Travelers’ Rapid Inspection (SENTRI) program is used at
several southwest land POE to facilitate the speedy passage of low-risk, frequent travelers.34
Unlike its northern counterpart, NEXUS, the SENTRI program is a unilateral initiative.35 Ports of
entry are selected based on the following criteria: (1) they have an identifiable group of low-risk
frequent border crossers; (2) the program will not significantly inhibit normal traffic flow; and (3)
there is sufficient CBP staff to perform primary and secondary inspections. Travelers can
participate in the program if (1) they are citizens or legal permanent residents of the United
States, citizens of Mexico or Canada, or legal permanent residents of Canada; (2) they have
submitted certain documentation and passed a background check; (3) they pay a user fee; and (4)
they agree to abide by the program rules. Participants in the SENTRI program are given a radio
transponder that triggers an automated system to review the Interagency Border Inspection
System (a background check system) and other records related to the vehicle and its designated
passengers once the vehicle enters a SENTRI lane.
Since the partial implementation of entry/exit controls at U.S. ports of entry, there have been
discussions on consolidating the SENTRI program and its northern counterpart (NEXUS). The
National Commission on Terrorist Attacks Upon the United States (9/11 Commission)
recommended consolidating frequent traveler programs into a single program and integrating it
with the databases and data systems that comprise the US-VISIT program.36 Subsequent to the
9/11 Commission’s recommendation, Congress mandated the integration of all databases and data
systems that process or contain information on aliens in the Intelligence Reform and Terrorism
Prevention Act of 2004.37 In addition to the integration of these databases and data systems, the
act requires the Secretary to develop and implement a plan to expedite the processing of
registered travelers through a single registered traveler program that can be integrated into the
broader automated biometric entry and exit data system.
31
The three POE are Calexico, CA; Laredo, TX; and Brownsville, TX.
32
APIS is used by airline carriers to submit electronically passenger manifests to customs and immigration officials
before arriving in or departing from the United States. The submission of the passenger manifests electronically prior to
arrival allows immigration officials to perform inspections on travelers in advance of their arrival.
33
U.S. DHS, “U.S.-Mexico Border Partnership Joint Statement on Progress Achieved,” http://www.dhs.gov/dhspublic/
display?content=570.
34
SENTRI is at the following southwest POE: Otay Mesa, CA; San Ysidro, CA; and El Paso, TX.
35
The NEXUS program, which is at selected northern land POE, permits U.S. citizens and legal permanent residents
and Canadian citizens and landed immigrants of Canada to pass through the United States or Canadian port without
being inspected.
36
See http://www.9-11commission.gov/.
37
§7208(e) of P.L. 108-447.
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Border Security and the Southwest Border: Background, Legislation, and Issues
Goods-Related Inspections38
While the majority of the focus at the southwest border is due to the volume of illegal migrants
who attempt to cross the border, commercial trade coming across the southwest border also poses
a potential risk. Similar to balancing enforcement without compromising the legitimate flow of
travel across the border, DHS officials must also balance enforcement with the free flow of trade
and commerce.
In FY2003,39 there were over 4 million commercial crossings at the southwest border. The
majority of the crossings were made by trucks (4,238,045), with rail crossings accounting for less
than 1% of commercial crossings at southwest land POE.
Figure 2.Top Five Busiest Land Ports of Entry, 2001 through 2003
1,600,000
1,403,914
1,441,653
1,354,229
1,400,000
1,200,000
1,000,000
697,152
731,291
708,446
800,000
400,000
200,000
659,614
705,199
600,000
660,583
368,395
256,715
390,282
276,390
406,064
261,140
0
2001
2002
Laredo, TX
Otay Mesa/San Ysidro, CA
Hidalgo, TX
Calexico East, CA
2003
El Paso, TX
Source: CRS analysis of Bureau of Transportation Statistics, Border Crossing: US-Mexico Crossing Data, Tables 1,
5, and 6. Accessed at http://www.bts.gov/programs/international/border_crossing_entry_data/us_mexico/pdf/
entire.pdf.
Notes: Data represent the number of truck crossings. Data are for both loaded and empty trucks.
As Figure 2 depicts, southwest POE saw a substantial volume of commercial crossings during
the period examined (2001-2003). The Laredo, TX POE consistently ranked number one in the
southwest for 2001-2003, leading the Otay Mesa POE (the next busiest crossing) by an additional
657 thousand commercial crossings in 2003.
38
In addition to the programs and activities that are mentioned below, CBP has an attache office in Mexico (as well as
in two other countries) that supports its border activities and programs including C-TPAT; the Immigration Security
Initiative (ISI); and the Container Security Initiative (CSI). CBP, “U.S. Customs and Border Protection Establishes
Attaché Program,” accessed at http://www.cbp.gov/xp/cgov/newsroom/press_releases/archives/2004_press_releases/
10042004/10202004.xml.
39
The latest data available on border crossings from the Bureau of Transportation is 2003.
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Border Security and the Southwest Border: Background, Legislation, and Issues
Border Partnership (“Smart Border”) Agreement
The U.S.-Mexico Border Partnership Agreement includes several customs-related items under the
heading “Securing the Flow of Goods.” These goal-related actions include
•
public/private sector cooperation: expand partnerships with private sector trade
groups and importers/exporters to increase security and compliance of
commercial shipments while expediting clearance processes;
•
electronic exchange of information: continue to develop and implement joint
mechanisms for the rapid exchange of customs data;
•
secure in-transit shipments: continue to develop and implement a joint in-transit
shipment tracking mechanism and implement the Container Security Initiative;
•
technology sharing: develop a technology sharing program to allow deployment
of high technology monitoring devices such as electronic seals and license plate
readers;
•
secure railways: continue to develop a joint rail imaging initiative at all rail
crossing locations on the U.S.-Mexico border;
•
combat fraud: expand the ongoing Bilateral Customs Fraud Task Force initiative
to facilitate joint investigative activities; and
•
contraband interdiction: continue joint efforts to combat contraband, including
illegal drugs, drug proceeds, firearms, and other dangerous materials, and to
prevent money laundering.40
On April 23, 2003, DHS issued a joint statement on progress achieved on the U.S.-Mexico Border
Partnership.41 Three working groups have been created to develop and implement initiatives
identified in the 22-point plan: the Border Working Group; the Enforcement Working Group; and
the Technology and Customs Procedures Working Group. According to DHS these groups have
been meeting on a quarterly basis, and their activities are coordinated by a central Coordinating
Committee. These groups were working primarily on the following specific goods-related
initiatives:
•
harmonizing and extending the hours of service, in coordination with the trade
communities, at the POE located at the border with Mexico;
•
deploying gamma ray inspection machines at railroad crossings;
•
expanding programs and partnerships with the private sector, such as the
Business Anti-Smuggling Coalition (BASC), the Customs-Trade Partnership
Against Terrorism (C-TPAT) and Mexico’s Compliant Importer/Exporter
Program (110 of the 300 largest traders, that account for 66% of the bilateral
trade, had already been certified by this program as of the 2003 update);
40
The White House Office of the Press Secretary, “Smart Border: 22 Point Agreement—U.S.-Mexico Border
Partnership Action Plan,” Washington, DC, Mar. 21, 2002, http://www.state.gov/p/wha/rls/fs/8909.htm.
41
U.S. DHS, “U.S.-Mexico Border Partnership Joint Statement on Progress Achieved,” http://www.dhs.gov/dhspublic/
display?content=570.
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Border Security and the Southwest Border: Background, Legislation, and Issues
•
exchanging core data on every transaction occurring through the common border
in an electronic environment;
•
testing and implementing cutting-edge technology such as electronic seals;
•
conducting joint investigations concerning fraudulent trade, which have led to
significant seizures of illegally transshipped or undervalued goods; and
•
developing systems to monitor in-transit shipments. 42
DHS and the Mexican Department of the Interior released a further update on the progress of the
U.S.-Mexico Border Partnership Agreement on January 17, 2005. In terms of the goods-related
action items, updates on progress include
•
rail security: capability to inspect 100% of rail cargo entering the United States
by the end of 2005;
•
harmonizing port operation schedules: at Otay Mesa, for example, both countries
have agreed to extend operating hours at the port to better accommodate the flow
of trade;
•
exchange of information: information exchange on all shipments and increasing
communications with the private sector to better secure the supply chain; and
•
Free and Secure Trade (FAST): FAST lanes have been implemented at the six
largest POE along the southwestern border.43
Cargo Inspection Technology
Cargo shipments may be targeted or randomly selected for a secondary inspection for both
security and trade compliance purposes.44 CBP has deployed a number of non-intrusive
inspection (NII) technologies at POE to assist customs inspectors with the inspection of cargos.
Large scale NII technologies include a number of x-ray and gamma ray systems. The Vehicle and
Cargo Inspection Systems (VACIS), which uses gamma rays to produce an image of the contents
of a container for review by the CBP inspector, can be deployed in a mobile or stationary capacity
depending upon the needs of the port. CBP has also deployed a rail VACIS system to screen
railcars. Other large scale NII systems include truck x-ray systems, which like the VACIS can be
deployed in either a stationary or mobile configuration; the Mobile Sea Container Examinations
Systems; and the Pallet Gamma Ray System. CBP is also continuing to deploy nuclear and
radiological detection equipment including personal radiation detectors, radiation portal monitors,
and radiation isotope identifiers to POE. Various canine teams are also deployed at POE to assist
in the inspection of cargo and passengers. CBP uses canine teams trained to detect several types
of contraband including narcotics, explosives, chemicals, and currency.
42
Ibid.
DHS and the Mexican Department of the Interior, The U.S.-Mexico Border Partnership: Progress Report 2002-2004,
Jan. 17, 2005, http://www.dhs.gov/interweb/assetlibrary/2004_US-Mex_Book.pdf. See below for a description of
FAST.
44
Secondary inspection could include a more detailed document check, passing the container through a radiation portal
monitor, taking an x-ray or gamma ray image of the contents of the container, and/or physically examining the cargo.
43
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Border Security and the Southwest Border: Background, Legislation, and Issues
Many of the systems mentioned above are deployed at POE along the southern border. As a part
of the U.S.-Mexico Border Partnership agreement, both CBP and Mexican Customs are deploying
the Rail Vehicle and Cargo Inspection Systems (RVACIS). In 2005, when the eighth RVACIS
becomes operational, CBP and Mexican Customs will have the capability to screen 100% of rail
traffic crossing the U.S.-Mexico border. Several POE along the southern border have installed
radiation portal monitors (RPM). RPMs are stationary devices that are passive detectors of
radiation that might be emitted from the vehicles passing between them. The most recent RPM to
become operational on the southern border is at the port of Calexico, CA, in January 2005.
Customs-Trade Partnership Against Terrorism (C-TPAT)
Initiated in April 2002, C-TPAT offers importers expedited processing of cargo if they comply
with CBP requirements for securing their entire supply chain. Applicants who receive a
certification from the CBP may benefit from fewer cargo inspections, as membership in C-TPAT
reduces a company’s overall risk score in the ATS.45 In developing C-TPAT, CBP consulted with
the trade community to arrive at a set of security recommendations specific to the various
segments of the supply chain: carriers, brokers, importers, manufacturers, warehouses, freight
forwarders, and domestic ports.
Eligibility for C-TPAT has rolled out in phases since the program’s inception. Currently, C-TPAT
is open to: all air, rail and sea carriers; brokers; freight forwarders; non-vessel operating common
carriers; United States, Canadian and Mexican highway carriers; and port authorities and terminal
operators. Beginning August 18, 2003, Mexican, and other CBP-invited foreign manufacturers
became eligible to participate in C-TPAT.
FAST
The FAST program is a bilateral agreement between the United States and Mexico46 that seeks to
“promote free and secure trade by using common risk management principles, supply chain
security, industry partnership, and advanced technology to improve the efficiency of screening
and clearing commercial traffic at the border.”47 The objectives of the program include offering
expedited clearance to carriers and importers enrolled in C-TPAT by reducing information
requirements, dedicating or designating lanes of approach for FAST traffic, and physically
examining cargo transported by low-risk participants with minimal frequency; streamlining and
integrating the registration process for drivers, carriers, and importers; ensuring that only low-risk
participants are enrolled; and providing a catalyst for both Customs administrations to participate
in enhanced technologies, such as transponders.48 In order for a shipment to qualify as a FAST
shipment and receive the expedited processing and clearance, the shipment must contain
qualifying goods from a C-TPAT approved manufacturer; be transported to the border (FAST lane
where available) by a C-TPAT certified highway carrier, in a truck with a driver carrying a FASTCommercial Driver card; and be destined for a C-TPAT approved importer. In addition,
45
U.S. General Accounting Office, Container Security: Expansion of Key Customs Programs will Require Greater
Attention to Critical Success Factors, GAO-03-770, July, 2003, p. 14.
46
FAST also operates on the northern border under a bilateral agreement with Canada.
47
CBP, “Fact Sheet: U.S. Customs and Border Protection—FAST Program,” http://www.cbp.gov/xp/cgov/import/
commercial_enforcement/ctpat/fast/us_mexico/.
48
Ibid.
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Border Security and the Southwest Border: Background, Legislation, and Issues
manufacturers, importers, and carriers enrolled in the U.S.-Mexico FAST program are responsible
for ensuring that all U.S.-bound loaded containers or trailers are secured with high security
mechanical seals. 49
FAST is currently operational at six POE on the southern border: Laredo, TX; Hidalgo/Pharr, TX;
El Paso, TX; Otay Mesa, CA; Brownsville, TX; and Calexico, CA. Each of these six FAST ports
has a dedicated FAST lane.50 CBP had plans to have FAST operational at the following additional
eight POE by the summer of 2005: Tecate, CA; San Luis, AZ; Douglas, AZ; Nogales, AZ; Santa
Teresa, NM; Del Rio, TX; Eagle Pass, TX; and Rio Grande City, TX.51 These FAST ports
accounted for 92% of commercial traffic along the southern border; and as of January, 2005, 15%
of U.S.-Mexico bilateral trade is being cleared through FAST lanes.52
Customs Mutual Assistance Agreements (CMAA)
CBP has negotiated CMAAs with 49 countries since joining the international Customs
Cooperation Council (CCC) in 1970. These agreements were based on the model bilateral
convention on mutual assistance adopted by the CCC in 1967, and are recognized by domestic
and foreign courts as a legal basis for cooperation. 53 The agreements allow for the exchange of
information, intelligence, and documents to assist in the prevention and investigation of customs
offenses. Each agreement is tailored to the capacities and policies of the country’s customs
administration, and can therefore be of particular use to ICE and CBP foreign attache offices.
CBP signed the CMAA with Mexico on September 30, 1976, which went into force January 20,
1977. This agreement was updated with the signing of a new CMAA on June 20, 2000.
Selected Inspections Issues
With respect to the inspections process at the southwest border, several issues are evident. While
there continues to be debate over what and who should be inspected and the extent of the
inspections (i.e., actual physical inspections versus a cursory review of the travel documentation),
there is also considerable debate with respect to the inspection technology used at POE, in
particular the entry/exit controls present at some POE.
49
See, CBP, U.S./Mexico C-TPAT/FAST Seal Requirements, http://www.cbp.gov/xp/cgov/import/
commercial_enforcement/ctpat/fast/us_mexico/mexico_manuf/manuf_seal_requirements.xml.
50
CBP, “Homeland Security Secretary Ridge Visits New FAST Lane at Calexico,” http://www.cbp.gov/xp/cgov/
newsroom/press_releases/departmental_press_releases/01142005_2.xml.
51
As of Sept. 8, 2005, CBP’s website still has these POE listed as “operational by summer 2005.” See
http://www.cbp.gov/xp/cgov/import/commercial_enforcement/ctpat/fast/us_mexico/.
52
DHS and the Mexican Department of the Interior, “The U.S.-Mexico Border Partnership: Progress Report 20022004,” Jan. 17, 2005, , pp. 3, 12, http://www.dhs.gov/interweb/ assetlibrary/2004_US-Mex_Book.pdf
53
CBP, “Customs Mutual Assistance Agreements by Country,” at http://www.cbp.gov/xp/enforcement/
international_activities/international_agreements/cmaa.xml.
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Border Security and the Southwest Border: Background, Legislation, and Issues
U.S.-VISIT54
In 1996, Congress first mandated that the former INS implement an automated entry and exit data
system (now referred to as the U.S.-VISIT program) that would track the arrival and departure of
every alien. 55 The objective for an automated entry and exit data system was, in part, to develop a
mechanism that would be able to track nonimmigrants56 who overstayed their visas as part of a
broader emphasis on immigration control. Following the September 11, 2001 terrorist attacks,
however, there was a marked shift in priority for implementing an automated entry and exit data
system. While the tracking of nonimmigrants who overstayed their visas remains an important
goal, border security has become the paramount concern.
Initial concerns surrounding the implementation of U.S.-VISIT centered on the potential
disruption in tourism and commerce. While these concerns have been abated by measures taken
by the Administration,57 additional concerns with respect to the program’s implementation still
exist. Some observers believe that the cost of fully implementing such a system will outweigh the
benefits. 58 Others express concern about the inadequacy of current infrastructure.59 Many
continue to question the purpose of such a system. Some argue that resources should be directed
at immigration interior enforcement, rather than on an expensive system whose capability is not
fully known. Despite these concerns, the Administration has reported successes in the program
since its implementation.60
Laser Visas (Mexican Border Crossing Cards)
Since 1953, the United States has made special accommodations for Mexican nationals who
frequently visit and conduct business in border communities. While both governments benefit
economically from the arrangement, critics have long complained about the difference in
treatment of Mexican nationals at the border when compared to their Canadian counterparts.61
Mexican nationals applying for admission to the United States as visitors are required to obtain a
visa or hold a Mexican border crossing card, now referred to as the Laser Visa.62 Canadian
nationals, on the other hand, are waived from the documentary requirements.63 These waivers,
54
For a complete discussion on the U.S.-VISIT program, see CRS Report RL32234, U.S. Visitor and Immigrant Status
Indicator Technology (US-VISIT) Program, by Lisa M. Seghetti and (name redacted).
55
Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (P.L. 104-208).
56
A nonimmigrant is a foreign national admitted to the United States on a temporary basis.
57
See for example the Administration’s current exemption of Mexican Border Crossing Card holders from the
requirements of the U.S.-VISIT program below.
58
EWeek, US-VISIT Is No Bargain, by Bruce Schneier, July 6, 2004; http://www.eweek.com/article2/
0,1759,1619924,00.asp visited Apr. 25, 2005).
59
See discussion in “Selected Crosscutting Issues” Section.
60
DHS, “Transcript of Press Conference with former Acting Secretary of Homeland Security Admiral James Loy on
the FY2006 Budget,” Feb. 7, 2005, at http://www.dhs.gov/dhspublic/display?theme=43&content=4338&print=true.
61
See for example, the Border Trade Alliance http://www.thebta.org/home.cfm.
62
From 1992 to 1998, border crossing cards were also issued to Canadian citizens. DOS and the former INS ceased
issuing the BCC and the combination B-1/B-2 visa and BCC to Canadian citizens, British subjects who reside in
Canada and landed immigrants in 1998.
63
The Canadian exception to the documentary requirements is based upon provisions in INA [found in §212(d)(4)(A)]
that permit the Attorney General, acting jointly with the Secretary of State, to waive either or both requirements of
§212(a)(7)(B)(i). Since the Homeland Security Act (P.L. 107-296) transferred most immigration-related functions from
(continued...)
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including the passport requirement, may be made on the basis of unforeseen emergency in
individual cases, on the basis of reciprocity with respect to nationals of foreign contiguous
territory, and for other reasons specified in the law. Canadian citizens, except after a visit outside
the Western Hemisphere, and American Indians born in Canada having at least 50% American
Indian blood, are among those who currently are waived from the documentary requirements for
admission.64
The Laser Visa is used by citizens of Mexico to gain short-term entry (up to six months) for
business or tourism into the United States. The visa can be used for multiple entries and is valid
for 10 years. Mexican citizens can get a laser visa from the Department of State (DOS) Bureau of
Consular Affairs if they are otherwise admissible as B-1 (business) or B-2 (tourism)
nonimmigrants.65 If the individual intends to go 25 miles or further inland and/or stay longer than
30 days,66 they are also required to obtain a Form I-94, Arrival/Departure Record.67 Upon
departure, Mexican nationals who have to complete an I-94 form are to deposit them in boxes at
POE.
Critics68 contend that Mexican nationals should be treated the same as most Canadian nationals
who also come into the country to shop or visit, but are not required to present travel
documentation. 69 Others assert, however, that some Mexican nationals who possess a border
crossing card overstay the terms of the card, which was, in part, the impetus for §110 of IIRIRA
(the entry/exit system requirement). Moreover, there had been additional concerns that the
Mexican border crossing card was increasingly being used fraudulently by individuals who would
not otherwise be eligible for admission to the United States They point to the 1996 Congressional
requirement that Mexican border crossing cards contain biometrics before such a requirement was
imposed on other travel documents in 2001.
While the Administration has maintained that Mexican nationals who have a Laser Visa will not
be subjected to the requirements of the U.S.-VISIT program, it is not clear if the administrative
exception will be permanent. Because of the exclusion of Mexican nationals who possess a Laser
Visa from the requirements of the program, anticipated concerns that the program would cause
massive delays at the border have abated. However, security concerns have been raised with
(...continued)
Department of Justice (DOJ) to DHS, it is assumed that the Attorney General’s authority for this provision now rests
with the Secretary of DHS.
64
With the passage of the Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458), Canadian
nationals and others for whom documentary requirements are waived, will need documentation to enter the United
States beginning in 2008.
65
For additional information on nonimmigrant admission to the United States, see CRS Report RL31381, U.S.
Immigration Policy on Temporary Admissions, by (name redacted) and (name redacted).
66
Mexican nationals who posses a Laser Visa and are traveling into the United States via the Tucson Border Patrol
Sector are permitted to travel within 75 miles of the border (see 8 CFR 235.1(f)(1).
67
For many years, the former INS had recorded nonimmigrant arrivals at airports on Form I-94, the Arrival/Departure
Record, which is a paper-based system that contains information that is later keyed into the Nonimmigrant Information
System (NIIS). The Form is a perforated numbered card and is composed of an arrival portion collected upon entry and
a departure portion that is returned to the alien passenger. Upon departure, the reverse-side of the departure portion is
completed by the departure carrier and submitted to DHS at the port of departure. Under current regulations, the
outbound carrier has 48 hours to submit the departure Form I-94 to DHS.
68
See for example, the Border Trade Alliance at http://www.thebta.org/home.cfm.
69
Under current law (P.L. 108-458), by 2008 Canadian nationals and other foreign nationals who are currently exempt
from the documentary requirements will have to show an approved document before entering the United States.
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respect to the Administration’s decision to exclude travelers who have a border crossing card
from the requirements of the program (see discussion below).
Biometric Verification System (BVS)
As stated previously, Mexican nationals who plan to stay in the United States for a specified
period of time, travel within a certain geographical distance from the border and have a Laser
Visa will be exempt from the requirements of the US-VISIT program. The Administration
exempted this category of individuals primarily due to the extensive background check that
includes the querying of several criminal and watchlisting databases that are already being
conducted on all Laser Visa applicants. The Administration also contends that the Laser Visa
document is read and scanned at the time the Mexican national presents himself for entry to the
United States at a POE, thus providing an extra layer of security. Observers contend, however,
that the equipment necessary to read and scan the documents is not present at every POE. The
POEs where the equipment is being piloted are reportedly in the secondary inspections area and
do not operate 100% of the time. Moreover, the BVS is not integrated with other critical data
systems and databases.
One Face at the Border
On September 3, 2003, CBP announced that it had developed a unified inspection force at the
border comprised of immigration and customs inspectors.70 It was believed that by merging these
inspection forces and cross-training the inspectors, the law enforcement responsibilities of the
individual inspector would be greatly increased. These expanded responsibilities compete for the
inspectors’ attention and include such diverse areas as evaluating terrorist threats; enforcing
customs rules relating to commerce; and enforcing immigration laws. Questions, however, have
been raised with respect to this initiative, including
•
Is the initiative working to its fullest potential, that is, are customs inspectors
performing secondary immigration inspections duties and are immigration
inspectors performing secondary customs inspections?
•
Is there an equal or otherwise appropriate amount of training in both customs and
immigration inspections?
•
What types of measures are in place to evaluate whether the cross-training of
inspectors is more efficient and produces a more secure border than the former
system of having inspectors with detailed expertise concentrated on one area?
Monitoring the Border Between Ports of Entry71
While the federal inspections process was codified by Congress in the 1700s and 1800s, it was
1924 when Congress recognized the need for enforcement measures to stem illegal entries
70
The inspections function of the Animal and Plant Health Inspection Service (APHIS) remained separate.
For additional information on the border patrol, see CRS Report RL32562, Border Security: The Role of the U.S.
Border Patrol, by (name redacted) .
71
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between ports of entry and passed legislation that formally created the border patrol.72 Prior to the
formal creation of a border patrol, the Bureau of Immigration in the Department of Labor had
maintained a small force of mounted guards on the U.S.-Mexico border. Recently, the Office of
Air and Marine Operations (AMO) was transferred to CBP. For the purpose of this report, AMO
is placed with the border patrol as an entity that monitors the border between the ports of entry.
Air and Marine Operations
The Office of Air and Marine Operations is a component of CBP, whose mission is to “protect the
American people and critical infrastructure by using an integrated and coordinated air and marine
force to deter, interdict, and prevent acts of terrorism and smuggling arising from the threats of
unlawful movement of people and goods across the borders of the United States.”73 In addition to
enforcement efforts in New York and Washington state, AMO has 12 Air and Marine branches,
two Surveillance branches, 11 Air Units and 16 Marine units located across the southern tier of
the United States and Puerto Rico.74
Threats
According to AMO, their operations are threat driven and the threat environment is, to some
extent, shaped by the operational successes and failures of the AMO itself, as well as other
foreign and domestic counter-narcotic operations. According to AMO, this relationship can be
seen, for example, where “interdiction successes in Central America, Mexico, and the Bahamas
pushed smugglers from the air to the water.” As evidence of this, AMO cites the Interagency
Assessment of Cocaine Movement, which reports that 96% of cocaine movement from South
America has a maritime component. 75 AMO has noted that the adaptability and flexibility of
smugglers and their organizations make the specific threat environment somewhat fluid. AMO
briefing materials indicate that in northern Mexico air drug smuggling consists of both marijuana
and cocaine transported from central and southern Mexico to the southwest border of the United
States; and that ‘go-fast’ boats and fishing vessels move multi-ton loads in the eastern Pacific,
while ‘go-fast’ vessels dominate the Caribbean in the marine environment.
Rationalization of Air and Marine Assets, Border Patrol and AMO
AMO was effectively transferred to CBP with the passage of the FY2005 DHS Appropriations
Act (P.L. 108-334), which moved the AMO funding lines from ICE to CBP. One of the
outstanding questions posed by this transfer is the degree to which (if at all) AMO assets (aircraft,
boats, and/or bases) will be consolidated with the air and marine assets of the border patrol.
Another outstanding question is whether or not the missions of AMO and the border patrol are
sufficiently similar to support this consolidation.
72
73
See the 1924 Immigration Act (4. Stat. 153) and a subsequent appropriations act (43 Stat. 240).
Customs and Border Protection, “Air and Marine Operations,” at http://www.cbp.gov/xp/cgov/border_security/amo/.
74
Customs and Border Protection, “AMO Overview,” at http://www.cbp.gov/xp/cgov/border_security/amo/
overview.xml.
75
Briefing materials supplied by AMO, during briefing attended by CRS Mar. 5, 2004, p. 8.
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U.S. Border Patrol (USBP)
While the USBP patrols both the northern and southwestern borders, the border with Mexico has
long been the flash point for illegal migration into the United States. Over the last seven years,
97% of all illegal alien apprehensions were made along the southwest border. As a result of the
heavy concentration of illegal migration, the USBP currently deploys 90% of their agents along
the border with Mexico. Operationally, the USBP divides the southwest border into nine sectors:
two in California, two in Arizona, and five in Texas.
The majority of illegal migration takes place between the ports of entry. As such, the border patrol
plays a central role in securing the southwest border and is where the majority of the programs
and initiatives are found. This section discusses the activities of the border patrol in some detail,
particularly as it pertains to the southwest border, including (1) a discussion of the border patrol
strategy; (2) the authority of the border patrol to stop and question individuals in vehicles that
pass through one of its interior checkpoint stations; and (3) the authority of the border patrol to
remove aliens from the United States without a formal court proceeding. The section concludes
with an analysis of selected issues that have an impact on border security at the southwest border.
Evolution of Border Patrol Strategy
A 1993 study commissioned by the Office of National Drug Control Policy concluded that the
southwest border was “being overrun.” According to the study, every night 6,000 illegal
immigrants attempted to enter the United States through a 7.5 mile stretch of the border near San
Diego. Additionally, the study concluded that drug smuggling was a serious problem along the
southwest border. Among several recommendations, the study concluded that the INS should
change its border security focus from arresting illegal migrants within the United States to
preventing their entry into the country.76
In 1994, the former INS began to implement a multi-year strategy, the National Strategic Plan
(NSP),77 aimed at strengthening enforcement of U.S. immigration laws. The strategy placed an
emphasis on decreasing the number of illegal immigrants coming into the United States by
increasing controls at the nation’s borders. By the United States fortifying more visible and
popular urban entry points for illegal migrants, less desirable and remote areas became the focal
point for the illegal migrants. The strategy had four phases that began with the border patrol
sectors with the highest levels of illegal migration activity. 78
•
Phase I: San Diego, CA and El Paso, TX sectors
•
Phase II: Tucson, AZ, Del Rio, TX, Laredo, TX and McAllen, TX sectors
•
Phase III: El Centro, CA, Yuma, AZ and Marfa, TX sectors
•
Phase IV: The northern border, gulf coast and coastal waterways
76
U.S. Government Accountability Office, Border Control: Revised Strategy Is Showing Some Positive Results,
GAO/GGD-95-30, Dec. 1994, pp. 5-8.
77
NSP has also been referred to as the National Border Patrol Strategy.
78
U.S. Department of Justice, INS Fact Sheet, INS’ Southwest Border Strategy, May 1, 1999.
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The focus of the NSP was an operational strategy known as “Prevention Through Deterrence.”
The strategy’s goal was to place border patrol agents and resources directly on the border in order
to deter the entry of illegal aliens, rather than attempting to arrest aliens after they have already
entered the country. According to CBP, achieving optimum deterrence would mean that
increasing the number of agents and resources in a sector would not necessarily result in an
increase in the number of unauthorized migrants apprehended in that sector.79 The “Prevention
Through Deterrence” policy was embraced by Congress, with both the House and Senate
Appropriations Committees in 1996 directing the INS to hire new agents, reallocate border patrol
agents stationed in the interior to front line duty, and staff the interior offices with investigative
staff instead.80
As a result of the massive buildup in agents and resources precipitated by the NSP, about 90% of
border patrol agents are deployed along the southwest border. The majority of these agents are
concentrated in nine border corridors that encompass the major travel arteries in the region and
account for over 80% of the illegal migrant traffic (in terms of apprehensions).81 This deployment
reflects the border patrol’s goal of rerouting the illegal border traffic from traditional urban routes
to less populated and geographically harsher areas, providing border patrol agents with a tactical
advantage over illegal border crossers and smugglers.82
The former INS had claimed success in improving the quality of life in border communities along
the affected areas as a result of enforcement efforts.83 As the border patrol has increased its
enforcement practices along the border, some evidence exists that border related crimes have
diminished in border communities. The overall crime rate in communities bordering with Mexico
was 30% higher than the national average in 1990, but only 12% higher in 2000. The majority of
this improvement has come in San Diego and El Paso, which are the most populous communities
along the border. San Diego and El Paso aside, however, most border counties’ crime rates did not
decline as much as the national average between 1990 and 2000. This means that, relative to the
rest of the country, most border communities were actually more crime ridden in 2000 than in
1990.84 This reduction in the overall crime rate along the border is seen by some as tangible proof
that the “Prevention Through Deterrence” policy is achieving its goal of reducing illegal
immigration and the crime it engenders. Others point out that the policy has shifted illegal
immigration away from population centers in order to explain why crime rates fell relative to the
national average in San Diego and El Paso but increased in communities along the less populated
stretches of the border. It is unclear, however, whether illegal migration has declined along the
79
U.S. Customs and Border Protection, Performance and Annual Report: Fiscal Year 2003, p. 41.
U.S. Congress, Senate Committee on Appropriations, Departments of Commerce, Justice, and State, The Judiciary,
and Related Agencies Appropriations Bill, 1996, report to accompany H.R. 2076, 104th Cong., 1st sess., S.Rept. 104139; and U.S. Congress, House Committee on Appropriations, Making Appropriations for the Departments of
Commerce, Justice, and State, The Judiciary, and Related Agencies For the Fiscal Year Ending September 30, 1996,
and for Other Purposes, report to accompany H.R. 2076, 104th Cong., 1st sess., H.Rept. 104-378.
81
U.S. Department of Justice, INS, Immigration Enforcement Estimates for Fiscal Year 2003, pp. 78, 108.
82
U.S. Government Accountability Office, Border Security: Agencies Need to Better Coordinate Their Strategies and
Operations on Federal Lands, GAO-04-590, June 2004, pp. 10-11 and testimony of George Regan, Acting Associate
Commissioner, Enforcement, INS, in U.S. Congress, House Committee on the Judiciary, Subcommittee on
Immigration and Claims, Combating Illegal Immigration: Progress Report, 105th Cong., 1st sess., Apr. 23, 1997.
80
83
For example, INS has reported that several initiatives have been successful in decreasing the crime rate in the
communities that were impacted (see INS Fact Sheet, INS’ Southwest Border Strategy).
84
Federal Reserve Bank of Dallas, “Falling Crime and Rising Border Enforcement: Is There a Connection?” Southwest
Economy, May/June 2003.
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Border Security and the Southwest Border: Background, Legislation, and Issues
southwest border.85 The number of apprehensions typically increased in the areas that were
targeted by the border patrol and subsequently decreased as enforcement ramped up. Some
contend, however, that the increase in apprehension may simply be due to the concentration of
manpower in these areas and subsequent decreases in apprehension can be attributed to the
technological “hardening of the border” (e.g., the erection of fences, sensors and lighting). While
this may be the case, it is also possible that the policy is indeed working, and simply shifting the
illegal migration pattern to more severe terrain where more migrants may be getting through
despite the arduous nature of the trip, as discussed below.
According to the Administration, a consequence of the strategy has been a shift in illegal
immigration to more open areas.86 For example, efforts to secure the San Diego and Tucson areas
have led to increased illegal migration in the Western Arizona area, including the Tohono
O’odham Nation and several federal land areas, as discussed below. Moreover, a possible
unintended consequence of these initiatives is the danger posed by the shift of illegal migration
away from urban areas to open, more sparsely populated areas that could be dangerous for the
illegal immigrant.87 In some cases, illegal migrants have lost their lives or suffered injuries in an
attempt to avoid being caught by border patrol agents. According to some critics, these illegal
migrants cross rough terrain, exposing themselves to extreme weather, or swim through
dangerous waters (i.e., the Rio Grande River in Texas) in an attempt to gain entry into the United
States.88
As security efforts at official points of entry become more sophisticated and stringent, terrorists
and other criminals may attempt to illegally enter the country between points of entry. In order to
prevent and deter terrorist entry, the Border patrol, in conjunction with DHS’ Immigration and
Customs Enforcement’s (ICE’s) Anti-Smuggling Units and CBP’s Office of Intelligence, focuses
its intelligence and surveillance operations on known smuggling operations that have previously
trafficked aliens from significant interest countries. Additionally, the agencies develop joint
operations to target and disrupt these especially high-interest smuggling activities. 89 It is
important to note, however, that the increased emphasis on preventing terrorist entry into the
United States has not changed the scope of the USBP’s mission—preventing unauthorized aliens
from entering the country.
New National Border Patrol Strategy
In March of 2005, the USBP released a new National Border Patrol Strategy (NS). The new
national strategy has five main objectives:
85
U.S. Department of Justice, Office of Inspector General (OIG): INS’ Southwest Border Strategy: Resource and
Impact Issues Remain After Seven Years, GAO report GAO-01-842.
86
INS has contended that the shift of illegal immigration to open areas is part of the strategy. According to INS, the
movement of illegal immigration away from urban areas and into more open spaces provides an advantage for border
patrol agents in apprehending aliens. See INS’ Fact Sheet, INS’ Southwest Border Strategy.
87
For example, the San Diego Border Patrol Sector was one of the first sectors targeted by the strategy because it was a
popular crossing point for illegal immigrants. As a result of increase resources, studies have shown the shift of illegal
migration away from the San Diego area to the deserts of El Centro.
88
OIG, INS’ Southwest Border Strategy: Resource and Impact Issues Remain After Seven Years, pp. 16-21; 24-26 and
Orrenius, Pia M. Federal Reserve Bank of Dallas, The Border Economy, June 2001. p. 9.
89
DHS, CBP, “Fact Sheet: U.S. Customs and Border Protection—Protecting Our Southern Border Against the Terrorist
Threat,” Fact Sheet, Aug. 20, 2004.
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Border Security and the Southwest Border: Background, Legislation, and Issues
•
establish the substantial probability of apprehending terrorists and weapons of
mass destruction between POE;
•
deter illegal entries between POE through improved enforcement;
•
detect, apprehend, and deter smugglers of humans, drugs, and other contraband;
•
leverage “Smart Border” technology to multiply the enforcement effect of border
patrol agents; and
•
reduce crime in border communities, thereby improving the quality of life and
economic well-being of those areas.90
The USBP’s new NS also identifies different strategic focuses for each of the agency’s theaters of
operation. Regarding the Southwest border, the NS notes that while some observers categorize the
aliens apprehended as economic migrants, “an ever present threat exists from the potential for
terrorists to employ the same smuggling and transportation networks, infrastructure, drop houses,
and other support and then use these masses of illegal aliens as ‘cover’ for a successful crossborder penetration.”91 In order to combat this threat, the NS calls for the continuing expansion of
the Prevention Through Deterrence strategy through the deployment of sensoring technologies,
enhanced intelligence gathering, cooperation with other law enforcement agencies operating
along the border, and the deployment of more mobile personnel and improved air support.
Apprehension Rates
Apprehension statistics have long been used as a performance measure by the USBP. However,
the number of apprehensions may be a misleading statistic for several reasons, including the
data’s focus on events rather than people92 and the fact that there are no reliable estimates for how
many aliens successfully evade capture. This makes it difficult to establish a firm correlation
between the number of apprehensions in a given sector and the number of people attempting to
enter through that sector. 93 While caution should be taken when attempting to draw conclusions
about the efficacy of policy measures based solely on apprehensions statistics, they remain the
only way available at the moment to trace trends in illegal migration along the border. While
Mexican nationals make up the majority of apprehensions at the southwest border (94% in
FY2004), apprehensions of nationals from other countries have recently began to receive
Congressional attention.
Figure 3 shows that the total number of unauthorized aliens apprehended by the border patrol
along the southwest border increased steadily through the late 1990’s, reaching a peak of 1.65
million in FY2000. This increase in apprehensions occurred even as the number of personnel and
resources deployed along the border more than doubled over that period. The increase in
apprehensions may have been due to the increased presence of agents and resources along the
border, or it may have been due to an increase in the number of aliens attempting to enter the
90
DHS, CBP, “National Border Patrol Strategy,” Mar. 2005, p. 13.
Ibid., p. 5.
92
If the same person is apprehended multiple times attempting to enter the country in one year, each apprehension will
be counted separately by the USBP in generating their apprehension statistics. This means that apprehension statistics
may overstate the number of aliens apprehended each year.
93
For an expanded discussion of these problems, please refer to CRS Report RL32562, Border Security: The Role of
the U.S. Border Patrol, by (name redacted), pp. 7-8.
91
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Border Security and the Southwest Border: Background, Legislation, and Issues
United States in order to benefit from the rapidly growing economy during that period. Since
FY2000, however, apprehensions have been declining, reaching a low of 905,065 in FY2003.
This reduction could be attributed to a number of factors. For example, the decline could signify
that the “Prevention through Deterrence” strategy succeeded in placing enough agents and
resources directly on the border to effectively deter unauthorized migrants from entering the
country. However, the reduction also occurred during a period of economic decline and mounting
unemployment within the United States which may have contributed to the decrease in
apprehensions during that time by discouraging would-be economic migrants.
Figure 3. SW Border Apprehensions by Fiscal Year
2,000,000
1,653,789
1,507,020
1,212,886
1,525,430
1,547,509
1,271,390
1,244,569
1,146,484
1,376,568
1,149,574
938,678
1,000,000
979,101
905,065
0
1993
1995
1997
1999
2001
2003
1992
1994
1996
1998
2000
2002
2004
Source: CRS presentation of CBP data.
While Figure 3 shows that the level of apprehensions leveled off at around 900,000 in FY2002
and FY2003; apprehensions in FY2004 rose by almost 250,000. This is the first increase in
apprehensions since FY1999-FY2000. This increase may suggest that despite the increase in
manpower and resources along the southwest border, unauthorized migrants have not been
deterred from attempting to illegally enter the country. However, analyzing border patrol
apprehensions by sector complicates this analysis and sheds some light on the trends along the
border.
Figure 3 breaks down the southwest border apprehensions by sector. This analysis suggests that
the “Prevention Through Deterrence” strategy has accomplished its goal of rerouting
unauthorized migrant traffic from heavily populated areas to more remote areas. The data show
that in the late 1990s apprehensions decreased significantly along the California and Texas
sectors, instead pushing out into the harsh conditions of the Arizona desert along the Tucson
sector. Apprehensions in the Tucson sector rose in the last years of the 1990s, even as they
declined in the traditional hot-spots of San Diego, El Paso, and McAllen. Following their peak in
FY2000, apprehensions in the Tucson sector declined from FY2001 through FY2003. In FY2004,
however, apprehensions increased by over 140,000 in the Tucson sector and remain higher than
they were before the NSP was instituted. Apprehensions in the Yuma sector followed a similar
pattern; they also increased in FY2004 and remain above their pre-NSP levels. The data seem to
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suggest that the Prevention Through Deterrence strategy has succeeded in changing the focal
point of illegal migration from heavily populated areas such as the San Diego sector to more
remote and challenging areas such as the Tucson and Yuma sectors.
Figure 4. SW Border Apprehensions, by Sector and Fiscal Year
700,000
600,000
500,000
400,000
300,000
200,000
100,000
0
El Centro CA
Yuma AZ
Marfa TX
Laredo TX
San Diego CA
Tucson AZ
El Paso TX
Del Rio TX
McAllen TX
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
Source: CRS presentation of CBP data.
Figure 3 showed that overall apprehensions have increased by over 240,000, or 27%, from
FY2003 to FY2004. This could suggest that the deterrent effect of focusing resources directly
along the border has waned somewhat, or that as the U.S. economy began to emerge from a
sluggish period that more aliens than before are attempting to enter the country in order to benefit
from the increase in opportunities. However, this analysis is tempered by the observation that
76% (184,818) of the overall increase in apprehensions occurred in the Tucson and Yuma sectors
in Arizona. In 2004, these sectors participated in the Arizona Border Control (ABC) initiative
which significantly increased manpower and resources along the Arizona border. This could
suggest that the increase in apprehensions is attributable to the increase in enforcement in those
sectors during the same period. Interestingly, the only other sector to exhibit a significant increase
in apprehensions in FY2004 was the San Diego sector in California, which after seven years of
decreases from FY1995 to FY2002 experienced back-to-back increases in apprehensions in
FY2003 and FY2004. However, overall apprehensions in the San Diego sector remain far below
their pre-NSP levels.
Other Than Mexican Apprehensions94
In FY2004, the border patrol apprehended 1.1 million people. The majority (94%) of these
apprehensions were Mexican nationals. Because the vast majority of people apprehended each
94
For additional information on OTMs, see CRS Report RL33097, Border Security: Apprehensions of “Other Than
Mexican” Aliens, by (name redacted), (name redacted), and (name redacted).
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year by the border patrol are Mexican, the agency distinguishes between Mexicans and Other
Than Mexicans (OTM). The issue of non-Mexican nationals has received publicity recently due
to Congressional testimony by DHS former acting Secretary Admiral James Loy that Al-Qaeda
may be considering infiltrating the southwest border due to a belief that “illegal entry is more
advantageous than legal entry for operational security reasons.”95
Over the past three years, OTM apprehensions have more than doubled, from 37,316 in FY2002
to 75,389 in FY2004. Ninety eight percent of this increase came from five countries, in
descending order: Honduras, El Salvador, Brazil, Guatemala, Nicaragua, and the Dominican
Republic. The Peoples’ Republic of China showed the sixth largest increase over the three-year
span. Despite the recent concerns about terrorist infiltration, apprehensions from Middle Eastern
countries have actually declined 27% from FY2002 to FY2004, from 465 persons to 341.96
Selected Issues Between Ports of Entry
In recent years, the border patrol has received increased attention, primarily due to the growing
concern over the number of aliens who illegally gain entry into the United States between official
ports of entry. Consequently, several issues that are unique to the border patrol have gained
prominence.
Border Patrol Checkpoints97
In terms of securing the border, immigration checkpoints are viewed by the border patrol as the
third layer of defense and generally entail the stopping of vehicles passing through a particular
location, usually on a highway leading away from the border. 98 The purpose of an inland
immigration checkpoint is to verify the immigration and citizenship status of the persons in the
passing vehicles. The border patrol conducts three types of inland traffic-checking operations:
permanent checkpoints, temporary checkpoints, and roving patrols. These operations are
conducted pursuant to statutory authorizations empowering border patrol agents to interrogate
those believed to be aliens as to their right to be in the United States and to inspect vehicles for
aliens.99 Under current regulations, the authority to place a checkpoint may be exercised
anywhere within 100 air miles of the border.100 The Supreme Court has recognized that the
95
U.S. Congress, Senate Select Committee on Intelligence, National Security Threats to the United States, 109th Cong.
1 Sess., Feb. 16, 2005.
96
CRS presentation of data provided by CBP Congressional Affairs on Jan. 6, 2005.
97
For additional information on the border patrol’s checkpoints, see the Government Accountability Office Report to
Congressional Requesters GAO-05-435, Border Patrol: Available Data on Interior Checkpoints Suggest Differences in
Sector Performance, July 2005.
98
According to the USBP, the first two layers of defense at the border are line watch and patrol operations. Inland
immigration checkpoints, from a legal perspective, are generally different from “functional or border equivalent”
checkpoints, which normally fall under the “border search” exception to the Fourth Amendment’s warrant and probable
cause requirements (i.e, may allow an officer to conduct a limited search without any suspicion). For more information,
see CRS Report RL31826, Protecting the U.S. Perimeter: “Border Searches” Under the Fourth Amendment, by Yule
Kim.
99
INA, §287(a)(1) & (3).
st
100
8 C.F.R. §287.1(b). This section, however, mandates that the agents in charge of establishing the checkpoint
consider topography, density of population, inconvenience to travelers, and types of conveyances used, among other
factors. It also provides a limited exception to the 100-mile rule.
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maintenance of a traffic-checking program in the interior is permissible because the flow of
illegal aliens cannot effectively be controlled solely at the border.101
Border Patrol Checkpoints in the Tucson Sector
The Tucson Border Patrol Sector is the only sector that is prohibited from having permanently
operating checkpoints. Since 2003, Congress has limited the Tucson Border Patrol Sector’s ability
to erect permanent checkpoints through annual Appropriation Acts. According to the DHS
Appropriations Act for 2005,102 for example, CBP is required to relocate its tactical (fixed)
checkpoints in the Tucson sector at least once every 14 days in a manner that prevents people
subject to inspections from predicting the location of the checkpoint. Additionally, Congress
requires CBP to submit to Congress “a plan for expenditure that includes location, design, costs,
and benefits of each proposed Tucson sector permanent (i.e., fixed) checkpoint.” Language in the
DHS Appropriations Act for 2004103 prohibited appropriated funds to be used toward site
acquisition, design, or construction of any checkpoint in the Tucson sector and required the
border patrol to relocate its checkpoints in the Tucson sector at least once every seven days.104
CBP asserts that these congressional restrictions impaired their ability to control the border.
According to CBP, “closing and moving a checkpoint every seven days creates a national security
vulnerability that allows smugglers of any kind to further their entry into the United States
unabated.”105 The constant movement of these checkpoints may also make the placement of the
checkpoint within the categories discussed above (and thus, the suspicion level required for a stop
or search) difficult to determine. A possible issue for Congress is how to balance the need for
uncertainty in location (to keep illegal migrants from evading fixed points) against the
administrative necessities of having some permanence both for management and legal
requirements.
CBP measures success of its checkpoints by the number of arrests made as a result of the
measure. Similar to criticism that has been asserted with respect to the border patrol’s
apprehension rates, relying on the number of arrests made at these checkpoints as a reliable
method to measure success may be problematic. The high arrest numbers may simply be due to
the concentration of resources at these checkpoints. Moreover, there are no reliable estimates for
how many aliens successfully evade capture.106 This makes it difficult to establish a firm
correlation between the number of arrests at or near a checkpoint and the number of people
attempting to enter through that checkpoint.
101
United States v. Martinez-Fuerte, 428 U.S. 543, 556 (1976).
P.L. 108-334.
103
P.L. 108-90, Title II.
102
104
Similar language was placed in the 2003 Consolidated Appropriations Act, P.L. 108-7, Division B, Title I
(Department of Justice).
105
Office of Border Patrol PowerPoint Presentation, Traffic Checkpoint Operations, U.S. Customs and Border
Protection, Feb. 2004.
106
Although CBP contends that permanent checkpoints provide a platform to install infrastructure and technology that
greatly increase detection and interdiction capabilities....” See Office of Border Patrol PowerPoint Presentation, Traffic
Checkpoint Operations, U.S. Customs and Border Protection, Feb. 2004.
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Expedited Removal
The likelihood of terrorists entering the United States through its vast land borders, especially
with the help of human smuggling networks, was a concern of the 9/11 Commission and may
have grown now that aliens are facing much higher scrutiny at official ports of entry.107 To
address this concern, DHS announced in August of 2004 that border patrol officers would be
allowed to exercise “expedited removal” authority at locations between the ports of entry.
Expedited removal authority was originally established in §302 of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA). 108 It allows immigration officers to deny
admission and order an alien removed, without a hearing before an immigration judge, if the alien
arrives without proper documentation or by other fraudulent means. Aliens who indicate an
intention to apply for asylum or who assert a fear of persecution or torture if returned home,
however, are to be referred to an asylum officer and may a receive a hearing before an
immigration judge. 109 People removed from the United States under expedited removal are barred
from re-entry for a period of five years but can apply for a waiver.
Since 1997, expedited removal has traditionally only been used by immigration officers at air and
sea ports of entry. In its 1997 implementing regulations, the Department of Justice announced that
it would apply expedited removal proceedings only to “arriving aliens,” because it wished to gain
insight and experience by initially applying the new procedures on a more limited and controlled
basis, but it reserved the right to apply the procedures to additional classes of aliens within the
limits set by statute at any time. 110 The INA allows expedited removal proceedings to be applied
to two categories of aliens. First, §235(b)(1)(A)(i), requires that expedited removal proceedings
be applied to aliens “arriving in the United States.” “Arriving aliens” are defined in regulation (8
C.F.R. §1.1(q)) to mean “an applicant for admission coming or attempting to come into the
United States at a port of entry....” Section 235(b)(1)(A)(iii), permits the Secretary to apply (by
designation) expedited removal proceedings to aliens who arrive in, attempt to enter, or have
entered the United States without having been admitted or paroled following inspection by an
immigration officer at a port of entry, and who have not established to the satisfaction of the
immigration officer that they have been physically present in the United States continuously for
the two-year period immediately prior to the date of determination of inadmissibility. 111
The use of expedited removal was recently extended to the border patrol. DHS has elected to
assert and implement only that portion of the authority granted by the statute112 that bears close
temporal and spatial proximity to illegal entries at or near the border. Accordingly, the expanded
authority only applies to aliens encountered within fourteen days of entry without inspection and
within 100 air miles of any U.S. international border. Furthermore, DHS plans, as a matter of
107
9/11 Report, p. 384.
P.L. 104-208, Division C, §302, 110 Stat. 3009-546 (amending §235 of the INA).
109
INA 235(b)(1); 8 U.S.C. 1225(b)(1). Specially, expedited removal proceedings may be applied to aliens who violate
INA §§ 212(a)(b)(C) or 212(a)(7).
110
Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings;
Asylum Procedures, 62 Federal Register 10312, 10314-15 (Mar. 6, 1997) (codified as amended at 8 C.F.R. §235.3).
The Department of Justice also acknowledged applying the procedures to aliens already in the United States would
involve more complex determinations of fact and would be more difficult to manage.
111
Pursuant to INA §235(a)(1), an alien present in the United States who has not been admitted is deemed to be an
“applicant for admission.”
112
See §235(b)(1)(A)(iii) of the INA.
108
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prosecutorial discretion, to apply the new expedited removal authority only to (1) third-country
nations (i.e., aliens other than Canadians or Mexicans) and (2) to Mexican and Canadian nationals
with histories of criminal or immigration violations, such as smugglers or aliens who have made
numerous illegal entries. 113 Currently, non-Mexican nationals who are apprehended along the
southern border cannot be returned to Mexico, and instead, are either voluntarily returned to their
country of citizenship (via aircraft) or placed in formal removal proceedings. DHS claims that
because of a lack of resources, non-Mexican nationals are often released in the United States with
a notice to appear for removal proceedings.114 Many of these aliens subsequently fail to appear
for their removal proceedings and stay in the United States illegally.
Some view the limitations on the new expanded authority as making the procedures applicable
only to a “minute fraction of the illegal flow.”115 For example, of one million foreigners
apprehended in the first 10 months of FY2005, all but 57,000 were Mexican; 3,000 of these
other-than-Mexicans were from the Eastern hemisphere.116 Conversely, others are concerned
about the lack of adequate training, deficiencies in previous applications at ports of entry, and
minimal due process protections afforded. 117 Others are especially concerned for asylum seekers
under the new procedures, since their problems over the past seven years have been reportedly
well-documented. 118 Still, in spite of all these criticisms, DHS claims that expanding expedited
removal between the ports of entry will deter unlawful entry and provide DHS officers with a tool
to better secure and improve the security and safety of our nation’s land borders.
Physical Barriers119
As part of the “Prevention Through Deterrence” strategy, the USBP incorporated the construction
of physical barriers directly on the border into their NSP in the early 1990s. In 1990, the border
patrol chief in the San Diego sector began erecting physical barriers chiefly to deter drug
smuggling. The ensuing fence covered 14 miles of the border and was constructed of 10 foot high
welded steel.120 Congress expanded the existing fence by requiring the border patrol to construct a
triple-layered fence along the same fourteen miles of the US-Mexico border near San Diego.121
113
114
69 Federal Register 48877, 48878.
Ibid.
115
Mark Krikorian, Playing Games with Security: Taking Two Steps Back for Every Step Forward on Immigration,
Center for Immigration Studies, (Aug. 18, 2004) available at http://www.cis.org/articles/2004/mskoped081804.html.
116
See Migration News, USCIS, ICE, CBP, available at http://migration.ucdavis.edu/mn/
comments.php?id=3044_0_2_0.
117
See, e.g., Amanda Branson Gill, DHS Announces Expansion of Expedited Removal, Human Rights First, Aug. 10,
2004, available at http://www.humanrightsfirst.org/media/2004_alerts/0810a.htm; Tyche Hendricks, Expedited
deportations begin this week on Mexican border, Critics say program lacks protections for asylum seekers, SF
Gate.com, Aug. 18, 2004 available at http://www.sfgate.com/cgi-bin/article.cgi?f=/chronicle/a/ 2004/08/18/
MNGQO89QM81.DTL.
118
Ibid., (citing reports by the United Nations, the Government Accountability Office, and the American Bar
Association).
119
For additional information, see CRS Report RS22026, Border Security: The San Diego Fence, by (name redacted)
and (name redacted).
120
U.S. Government Accountability Office, Border Control—Revised Strategy is Showing Some Positive Results,
GAO/GGD-95-30, Jan. 31, 1995.
121
See P.L. 104-208, Div. C, §102.
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Today, the border patrol maintains 96.7 miles of border fencing along the southwest border. A
possible issue for Congress to consider concerns the potential tradeoff between preserving the
environment in border regions and the requirements of domestic security. On the one hand are
environmental activists who believe that the border fencing does not contribute significantly to
national security but does degrade the environment in those regions.122 On the other hand are
those who believe that the border fences have been an effective tool in discouraging aliens from
crossing the border in those areas, and that the environmental damage caused by their
construction is an unfortunate but necessary reality. 123
Migrant Deaths
An unintended consequence of the USBP’s “Prevention Through Deterrence” strategy has been
an increase in the number of accidental migrant deaths along the border. This is viewed as due to
the border patrol’s focus on pushing illegal migration away from population centers, which has
led unauthorized migrants to attempt to cross the border in remote desert regions. The issue of
migrant deaths along the border gained national prominence due to a succession of tragic events,
including the discovery of 19 dead migrant workers in an airless truck trailer in Texas in May,
2003.124
The border patrol began collecting data on migrant deaths in 1998. Prior to 1998, the best data
available was compiled by the University of Houston’s Center for Immigration Research (CIR)
from a census of local medical investigators’ and examiners’ offices in every county along the
US-Mexico border. Regardless of which entity collected the data, however, it may not be accurate
due to the large number of different federal, state, and local jurisdictions represented along the
border. Additionally, the border patrol’s data does not include information from the Mexican side
of the border, which probably means it undercounts the number of fatalities. Figure 4
incorporates CIR and USBP data. The CIR data show that migrant deaths decreased steadily from
a high of 344 in 1988 to a low of 171 in 1994. With the advent of the “Prevention Through
Deterrence” strategy in 1995, migrant deaths appear to have increased sharply. USBP data shows
a peak of 383 migrant deaths in FY2000. While migrant deaths decreased slightly to 340 in
FY2003, the 11% reduction in deaths over this period is significantly lower than the 44% decline
in apprehensions over the same period. This means that the overall mortality rate (or, the number
of deaths per attempted border crossing) seems to have increased despite the overall reduction in
deaths. This evidence seems to support the supposition that border crossings have become more
hazardous since the “Prevention through Deterrence” policy went into effect in 1995, resulting in
an increase in illegal migrant deaths along the southwest border.
122
See Defenders of Wildlife at http://www.ems.org/nws/2005/02/08/conservation_gro.
For example, see http://moorewatch.com/index.php/weblog/comments/the_real_id_act/.
124
Juan A. Lozano, “Migrant Toll Hits 19 in Texas Case; 2nd Truck Found,” The Associated Press, May 17, 2003.
123
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Figure 5. Migrant Deaths Along the Southwest Border, by Fiscal Year
400
350
300
250
200
150
100
50
0
1986 1988 1990 1992 1994 1996 1998 2000 2002 2004
1985 1987 1989 1991 1993 1995 1997 1999 2001 2003
US Border Patrol
Center for Immigration Research
Source: CRS analysis of CBP and CIR data.
Another way to visualize the increasing hazard for unauthorized migrants may be to analyze the
ratio between migrant deaths and border patrol apprehensions. This ratio shows how many
unauthorized immigrant fatalities there are for every apprehension made by a border patrol agent
along the Southwest border. Figure 6 shows that the mortality rate per apprehension more than
doubled in five years, from1.6 deaths per 10,000 apprehensions in FY1999 to 3.7 deaths per
10,000 apprehensions in FY2003. However, in FY2004 the ratio declined to 2.8 deaths per 10,000
apprehensions, marking the first decrease since FY1998-FY1999. The decline may be due to
special measures to mitigate deaths emanating from several sources. Nevertheless, it appears that
as the pattern of unauthorized migration has shifted away from population centers to remote
border regions that the migrant fatality rate has increased significantly from 1999.
Figure 6. Migrant Mortality Rate per Apprehensions
4
3
2
1
0
1997
1998
1999
2000
2001
2002
2003
2004
Source: CRS presentation of USBP data.
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The border patrol has drawn criticism from human rights activists who claim that the agency’s
migrant death count understates the number of fatalities. Some contend that the Border patrol
undercounts fatalities by excluding skeletal remains, victims in car accidents, and corpses
discovered by other agencies or local law enforcement officers.125 Others point to inconsistencies
in how the agency counts migrant deaths, with some sectors counting smugglers and guides who
perish, but others excluding them, even though official USBP policy is to include all deaths in the
43 counties within a 100 miles of the US-Mexico border.126 Border patrol officials counter that
local law enforcement agencies often do not inform the border patrol when they encounter dead
migrants, and that deaths that occur outside the 100 mile belt or on the Mexican side of the border
are outside their operational purview. 127
Border Safety Initiative
Regardless of the debate over numbers, the USBP has taken several steps to address the problem
of migrant deaths in recent years, including the Border Safety Initiative (BSI). In June 1998, the
USBP launched BSI in part to address concerns about the increasing number of migrant deaths
along the border. The BSI is a collaborative campaign with the Mexican government that focuses
on decreasing the life-threatening dangers involved in crossing the border. As part of the BSI, the
USBP produces television, radio, and print advertisements warning would-be migrants about the
dangers involved in crossing the border. Additionally, the USBP maintains some water stations
and rescue beacons in the desert and has increased border patrol agents in the areas that have been
greatly impacted.128 As part of the collaboration with Mexico, the USBP has trained over 1,320
Mexican firefighters and law enforcement personnel in sophisticated search and rescue
techniques and cooperates with the Mexican government to disrupt smuggling routes.129
Border Patrol Search, Trauma, and Rescue (BORSTAR) teams form an important part of the BSI.
These specialized rescue teams are composed of agents who volunteer to undergo a rigorous
training regimen that includes physical fitness, emergency medical skills, technical rescue,
navigation, communication, swift-water rescue, and air operation rescues. BORSTAR’s primary
mission is to respond to all incidents involving distressed people along the border. While the
individuals rescued are typically illegal aliens, BORSTAR teams have also rescued American
citizens who reside along the border as well as border patrol agents. In the almost three years the
initiative has been operational, border patrol agents have rescued 3,977 people along the
southwest border. There are currently nine BORSTAR teams comprised of 141 specially trained
border patrol agents.
Civilian Humanitarian Groups
Believing that the border patrol’s response to the issue of migrant deaths along the border is
inadequate, some humanitarian organizations, such as Humane Borders, Samaritan Patrol, and the
125
For example, see http://www.stopgatekeeper.org/English/bonner-040604.htm.
For example, see http://www.uh.edu/cir/Deaths_during_migration.pdf.
127
Andrea Almond, “How Best to Count Border Deaths?” The Associated Press, Nov. 7, 2004.
126
128
U.S. Department of State, “U.S. Campaign on Mexican border Aims to Prevent Migrant Deaths,” press release, June
4, 2003.
129
U.S. DHS, CBP, “US Customs and Border Protection Announces Border Safety Initiative Aimed at Preventing
Migrant Deaths,” press release, May 6, 2004.
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Border Action Network, have begun providing services to unauthorized migrants in order to
decrease the dangers associated with the border crossing. These services include maintaining
water stations in the desert and providing medical supplies to aliens. Humane Borders, for
example, maintains 50 water stations throughout the Arizona desert, while a sister organization
maintains 133 water stations in California’s Imperial Valley. 130 Additionally, a network of faithbased organizations recently instituted the “No More Deaths” campaign. This campaign works
toward reducing fatalities along the border by maintaining two 24-hour camps, called “Arks of
the Covenant,” in southern Arizona where unauthorized migrants can receive food, water, and
medical attention. According to the campaign’s spokesperson, the USBP and the U.S. Attorney’s
Office have confirmed that providing humanitarian aid to migrants is legal and that the camps
they operate are within the law. 131
These kinds of activities concern those who believe that the humanitarian aid, no matter how well
intentioned, assists unauthorized immigrants in their efforts to subvert immigration laws and enter
the country. Others believe that the number of migrant deaths along the border is unacceptably
high, and that these organizations are saving lives through their humanitarian aid. Still others fear
that if migrants believe that water is readily available in the desert more will perish as they
attempt to cross without carrying adequate amounts of water.132
Civilian Patrol Groups
A related issue that has gained attention in the past two years has involved civilian patrol groups
attempting to assist the border patrol in its enforcement efforts through a variety of means,
reportedly including sometimes apprehending unauthorized aliens along the border. One such
group, American Border Patrol, recently gained notoriety by launching an unmanned plane that
uses cameras and GPS technology to identify unauthorized aliens attempting to cross the
border. 133 These groups have increasingly been targeted by human rights organizations for the
tactics they allegedly use, including threatening border crossers with firearms and wearing
uniforms similar to those worn by the border patrol. In the summer of 2003, two such groups,
Ranch Rescue and Citizen Border Patrol, curtailed their activities on the Arizona border due to
mounting publicity and concern about their practices, including allegations that they were
dressing like border patrol agents.134
More recently, the Minuteman Project in Arizona drew national media attention to the problem of
unauthorized migration. The Minuteman Project drew hundreds of volunteers from across the
United States to monitor a stretch of the eastern Arizona border with Mexico near Douglas, in the
Tucson Sector. According to the Minuteman organizers, the project succeeded in dramatically
reducing the flow of illegal immigration in Arizona. The USBP contests this claim, noting that
while apprehensions in eastern Arizona declined from 24,842 in April of 2004 to 11,128 in April
of 2005, apprehensions in western Arizona increased from 18,052 in 2004 to 25,475 in 2005.135
130
Ben Winograd, “Mercy in the Desert,” San Jose Mercury News, Aug. 21, 2004, p. M01.
Arthur Rotstein, “Advocates: Desert Camps Have Saved Migrant Lives,” The Associated Press, July 26, 2004.
132
For examples of these groups, see Ibarra, Ignacio, “‘No more deaths camp’ an oasis for migrants,” Arizona Daily
Star, Mar. 2, 2005, available at http://www.azstarnet.com/sn/ faith/63746.php.
133
Kevin Johnson, “Private Spy Plane Patrols Border,” USA Today, May 22, 2003, p. 3A.
134
“Outlawed Arizona Border Patrol to Cease Operations,” EFE News Service, June 16, 2003.
135
Gail Gibson, “For Minutemen, chance to patrol a porous border,” Baltimore Sun, May 1, 2005, p. 1A.
131
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USBP officials also stated that the volunteers were disrupting their operations by unwittingly
tripping sensors deployed along the border, forcing agents to respond to false alarms. Others
believe that the decrease in eastern Arizona is attributable to increased patrolling on the Mexican
side of the border by Mexican police and military authorities.136
There is some debate about the relative impact that these groups have on securing the border.
Some argue that these groups are vigilante organizations that are taking the law into their own
hands, and that their operations can conflict with those of border patrol agents. Others counter by
contending that these groups are harmless and provide valuable assistance to the border patrol by
identifying and sometimes capturing unauthorized migrants. In congressional testimony, some
Border Patrol officials have discounted the overall impact of vigilantes along the border.137 It is
not clear if or to what extent the operations of these civilian patrolling groups present an obstacle
to the Border Patrol or a danger to unauthorized migrants.
Illegal Migration and Indian Country
Several Indian reservations are located near the U.S.-Mexican border, and a few—including the
Tohono O’odham Reservation in Arizona and the Kickapoo Reservation in Texas—are directly
connected to the border. While federal authorities routinely patrol the border in these areas, the
Indian tribes’ quasi-sovereign status presents some unique challenges to those guarding the
border. 138
The question of which law enforcement authorities—state, federal, or tribal—have adjudicatory
jurisdiction in Indian country is not easy to answer, as the answer can change according to the
civil/criminal nature of the offense, the seriousness of the offense, the tribal status of those
involved, and the state in which the offense is committed. For example, the Supreme Court ruled
in the landmark 1978 case, Oliphant v. Suquamish Indian Tribe,139 that Indian tribes do not
possess criminal jurisdiction over non-Indians. As the Court put it, “By submitting to the
overriding sovereignty of the United States, the tribes ... necessarily give up their power to try
non-Indian citizens of the United States except in a manner acceptable to Congress.”140
As a result of Oliphant, several federal statutes,141 and other Supreme Court cases reigning in
tribal civil jurisdiction,142 tribal adjudicatory jurisdiction is very limited, in many instances forced
136
Arthur Rotstein, “Border Patrol complains that volunteers are tripping sensors used to detect illegal crossers,” The
Associated Press, Apr. 5, 2005.
137
U.S. Congress, House Committee on the Judiciary, Subcommittee on Immigration, Border Security, and Claims,
Hearing on Illegal Immigrant Smuggling, 108th Cong., 1st sess., June 24, 2003.
138
The following four Indian reservations are contiguous with the Mexican border: (1) the Tohono O’odham Nation
(AZ); (2) the Cocopah Tribe (AZ); (3) the Kickapoo Traditional Tribe (TX); and (4) the Quechan Tribe of the Fort
Yuma Indian Reservation (CA/AZ). There are also two tribes that are very close but not actually on the border: the
Campo Band of Diegueno Mission Indian tribe in California and the Ysleta Del Sur Pueblo tribe in Texas.
139
435 U.S. 191 (1978).
140
Ibid., at 210. Various bills have been introduced in Congress to overturn Oliphant, but none have been enacted into
law. See, e.g., S. 578, §14 (108th Cong.).
141
The Major Crimes Act, for example, ensures federal jurisdiction over fourteen crimes (including murder and
burglary) when Indians are charged with committing those crimes. 18 U.S.C. §1153. In addition, the Indian Civil
Rights Act limits the jurisdiction of tribal courts to sentences not exceeding one year’s imprisonment and/or a $5,000
fine. 25 U.S.C. § 1302(7).
142
See, e.g., Strate v. A-1 Contractors, 520 U.S. 438 (1997); Nevada v. Hicks, 533 U.S. 353 (2001).
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to yield to the power of state and federal authorities. 143 Oliphant in particular has led some to
question the authority of tribal police to arrest and detain non-Indians. 144 For practical purposes in
the border patrol context, however, tribal law enforcement authorities are not as constrained as
they may be in other areas. One reason for this is that, as part of their limited sovereignty, tribes
possess the authority to expel non-members from Reservations for violations of tribal trespassing
restrictions.145 In addition, while tribal courts may lack the power to try non-Indians, tribal police
possess the power to detain suspected offenders for pick-up by state or federal authorities,146 and
tribal authorities on reservations on or near the U.S.-Mexico border routinely detain
undocumented aliens (UDAs) with that purpose in mind.147
Still, because they possess only limited authority, many tribal law enforcement groups also lack
the resources, funding, and training of state and federal officials. 148 In addition, many
reservations—particularly those in the southwest—are in remote locations far from the nearest
police or border patrol station. One method that has been used sparingly to get around these
difficulties is the cross-commission of tribal officials by state or federal authorities, so that these
officials may arrest non-Indian criminal suspects under state or federal law.149
Similarly, in at least one instance—on the Tohono O’odham Reservation in southern Arizona—
federal authorities have created a special unit made up entirely of American Indians to assist in
patrolling the U.S.-Mexican border. The Reservation is home to a special unit of CBP Customs
Patrol Officers, commonly known as the “Shadow Wolves.” These officers—numbering between
20-23 individuals—are all American Indians that patrol the 76 miles of international border that
bisects the Tohono O’odham Reservation. Formed in 1972, the Shadow Wolves’ original mission
centered around drug interdiction but, in the years since the 9/11 attacks, the group has focused
more on immigration issues.150
The Tohono O’odham Reservation presents particularly thorny problems for border patrol
authorities, in that, not only is it the second-largest Indian reservation in the country, but it also
extends across the border into Mexico. As a result, some Tohono O’odham members are U.S.
citizens, while others have Mexican citizenship. Until relatively recently, members were allowed
to cross the border (within the Reservation) with ease, regardless of their nationality.151 In the
143
Usually, federal authorities will have jurisdiction, although a handful of states possess criminal jurisdiction over
offenses committed by Indians in Indian country under Public Law 280 (18 U.S.C. 1162). In the Southwest, the only
state that possesses full Public Law 280 criminal jurisdiction in Indian country is California.
144
See, e.g., United States v. Medearis, 236 F.Supp.2d 977, 982 (D.S.D. 2002).
145
See, e.g., United States v. Becerra-Garcia, 397 F.3d 1167 (9th Cir. 2005).
146
See, e.g., Duro v. Reina, 495 U.S. 676, 697 (1990).
147
See, e.g., statement of Vivian Juan-Saunders, chairperson, Tohono-O’odham Nation of Arizona, in U.S. Congress,
Senate Indian Affairs Committee, Tribal Government Amendments to the Homeland Security Act of 2002, hearings,
108th Cong., 1st sess., S.Hrg. 108-312 (2003), pp. 38-39 [hereinafter “Hearing”]. (“In 1999, our officers assisted the
border patrol with 100 apprehensions per month and in 2002, our tribal police officers recorded 6,000 undocumented
immigrants detained pending U.S. border patrol pick-up.”)
148
See, e.g., Quiet Crisis: Federal Funding and Unmet Needs in Indian Country, by the U.S. Commission on Civil
Rights (2003), at http://www.usccr.gov/pubs/na0703/na0204.pdf.
149
See Hearing, at 23 (statement of Thomas B. Heffelfinger, U.S. Attorney, State of Minnesota, on Behalf of the
Department of Justice) (“Unfortunately, [cross-commissions] are not made in many jurisdictions due to various factors
such as local political issues or concerns over civil liability”).
150
See generally, Mark Wheeler, Shadow Wolves, Smithsonian Magazine, Jan. 2003, at 40.
151
This is still the case for the Kickapoo in Texas and across the border in Mexico. In 1983, Congress passed
legislation granting them the right to cross the border freely. See P.L. 97-429 (codified at 25 U.S.C. § 1300b-11).
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mid-1980s, however, the federal government erected a fence along the border to stem the tide of
drug smugglers that were taking advantage of the Reservation’s location, and border-crossing by
members continues to be a difficult issue for authorities patrolling the border on the
Reservation.152
Impact of Illegal Migration on Federal Protected Land153
Five federal agencies oversee federally protected land that either sits on the border or is adjacent
to the border.154 Because the areas are remote and isolated from more populated areas and are in
close proximity to the international border, they have become a popular route for illegal migration
and smuggling operations. Of concern is the volume of illegal migrants who cross federal land
and contribute to the environmental damage of the land and place themselves at risk. In addition
to the migrants who cross the land, of equal concern is the border patrol’s use of the land to
conduct its operations. While a vast portion of the land in question is located in southeast Arizona
and represents only 8% of the entire U.S.-Mexico border,155 the impact to the land caused by the
migrants is significant.
In an effort to address these concerns, the USBP entered into a Memorandum of Understanding
(MOU) on March 20, 2001 with the Natural Resources Conservation Service and the
Environmental Protection Agency. The purpose of the MOU is threefold:
•
provide general procedures for the border patrol’s use of public land to conduct
its routine operations of search and rescue, training, and apprehensions of
undocumented aliens, while protecting the public’s right to use public land;
•
develop and implement a plan to mitigate environmental degradation caused by
undocumented aliens crossing federal lands in Arizona and New Mexico;
•
provide and encourage opportunities for all parties to operate more effectively
and achieve their missions.156
In addition to the MOU, a plan was implemented by the Department of the Interior to mitigate the
environmental and other impacts caused by the migrants. Despite these initiatives, a report by the
152
See Courtney E. Ozer, Make it Right: The Case for Granting Tohono O’odham Nation Member U.S. Citizenship, 16
Geo. Immigr. L.J. 705 (2002). In the 108th Cong., Rep. Grijalva introduced a bill that would have granted U.S.
citizenship to all enrolled members of the Tohono O’odham Nation. See H.R. 731 (108th Cong.).
153
Information in this section was taken from the U.S. Department of the Interior Report to Congress, Report to the
House of Representatives Committee on Appropriations on Impacts Caused by Undocumented Aliens Crossing Federal
Lands in Southeast Arizona, Apr. 29, 2002.
154
The five agencies and their missions include (1) the Bureau of Land Management oversees approximately 2.4
million acres in Arizona that are within 62 miles of the border; (2) the National Park Service (Department of the
Interior) oversees five monuments or historic sites that are either adjacent to or within 62 miles of the border; (3) the
U.S. Fish and Wildlife Service oversees six wildlife refuges that are either adjacent to or within 62 miles of the border;
(4) the U.S. Forest Service (Department of Agriculture) oversees a national forest that shares 60 miles of its border with
Mexico and has a significant portion of its land within miles of the border; and (5) the Bureau of Indian Affairs
(Department of the Interior), which assists in the management of tribal land, has four tribes that are within 60 miles of
the border. U.S. Department of the Interior, Report to the House of Representatives Committee on Appropriations on
Impacts Caused by Undocumented Aliens Crossing Federal Lands in Southeast Arizona, Apr. 29, 2002, p. C-1.
155
Ibid.
156
Ibid, p. C-2.
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Government Accountability Office (GAO) concluded that coordination between federal agencies
appears to be insufficient. 157
Interior Enforcement
The Bureau of Immigration and Custom Enforcement’s (ICE) is the investigative arm of DHS.
ICE is charged with immigration and customs-related investigations in the interior of the country,
which includes enforcing policy initiatives aimed at apprehending and deporting foreign nationals
who are not authorized to be in the United States as well as interdicting illegal substances and
contraband that was brought into the United States from another country. The activities of ICE are
an extension of the activities that are conducted at and between ports of entry. ICE has 22 field
offices that are located throughout the country, with seven located in the southwest.
In addition to the immigration and customs-related investigative activities, ICE also contains the
former INS detention and removal program, the Federal Air Marshal Service and the Federal
Protective Service. This section discusses selected ICE investigative activities, including its
initiative to thwart terrorist activities and other illegal acts. Other investigative activities such as
countering human and drug smuggling are also discussed as well as ICE’s detention and removal
function.
ICE Investigations
ICE investigates various immigration, customs and criminal-related matters. ICE’s immigrationrelated investigations include investigating aliens who violate the INA and other related laws.
Prior to September 11, 2001, the main categories of crimes that were investigated by immigration
and customs investigators included the following suspected activities:
•
activities that could threaten national security;
•
criminal acts;
•
fraudulent activities (i.e., possessing or manufacturing fraudulent immigration
documents);
•
smuggling of aliens and illegal substances;
•
work-site violations, most frequently involving aliens who work without
permission and employers who knowingly hire illegal aliens;
•
money laundering and other suspected financial crimes; and
•
cyber crimes.
While the terrorist attacks prompted DHS to reassign many investigators to work on terrorismrelated investigations, the traditional investigative categories continue to be a focus of ICE.
157
See GAO Report GAO-04-490, Border Security: Agencies Need to Better Coordinate Their Strategies and
Operation on Federal Land, June 2004.
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Arizona Border Control (ABC) Initiative
The ABC Initiative, unveiled on March 16, 2004, is a DHS initiative involving local, state, and
federal law enforcement officials in Arizona aimed at detecting and deterring terrorist activity and
smuggling operations. Several agencies coordinate efforts and resources as part of the ABC,
including ICE, CBP, and the Transportation Security Administration, as well as the Department of
the Interior, the Tohono O’Odham Nation, the U.S. Attorney’s Office, and other law enforcement
agencies. In order to execute the mission, 200 additional permanent border patrol agents and 60
special operations agents trained for search and rescue operations were assigned to the Tucson
sector over the summer of 2004, raising the number of agents assigned there to over 2,000.
Additionally, two Unmanned Aerial Vehicles158 (UAV) and four additional helicopters were
deployed to the Arizona border.159 While ABC is an administrative initiative, Congress has
expressed strong support for the initiative through the appropriations process.160
According to ICE, in the first six months of the ABC, apprehension of unauthorized aliens
increased 56% from apprehensions during the same period of the previous year. From March 16,
2004 to September 7, 2004, 351,700 unauthorized aliens were apprehended compared to 225,108
unauthorized aliens during the same period in 2003.161 ABC agents uncovered 225 drop houses162
both on the border and in the cities of Phoenix and Tucson, and initiated investigations which led
to the prosecution of 1,431 felony and 2,955 misdemeanor cases, an increase of 47 and 144%
respectively over FY2003. Also as part of the ABC initiative, in FY2004, agents confiscated over
388,000 pounds of marijuana, a 105% increase over FY2003, and 5,242 pounds of cocaine. The
data show that the ABC initiative has yielded results on the enforcement side, with increases in
the number of aliens apprehended and drugs confiscated, as well as felony and misdemeanor
prosecutions initiated. However, despite the deployment of 60 additional BORSTAR agents to the
region migrant deaths increased by 7% in FY2004 from 132 in FY2003 to 141.
Human Smuggling
Most alien smuggling into the United States reportedly occurs along the U.S.-Mexico border.
Mexico is a staging area for aliens from Mexico and other parts of the world to attempt to
illegally enter the United States.163 According to DHS, alien smuggling of persons into the United
States constitutes a significant risk to national security and public safety.164 In addition,
158
For an expanded discussion of UAVs and border security, please refer to CRS Report RS21698, Homeland Security:
Unmanned Aerial Vehicles and Border Surveillance, by (name redacted) and (name redacted).
159
U.S. Immigrations and Customs Enforcement, Fact Sheet: Arizona Border Control Initiative, http://www.ice.gov/
graphics/news/factsheets/bordercontrolfs_031604.htm.
160
U.S. Congress, House Committee on Appropriations, Department of Homeland Security Appropriations Bill, 2005,
report to accompany H.R. 4567, 108th Cong., 2nd sess., H.Rept. 108-541, p. 19.
161
DHS, “Border Security: At Six Months, Arizona Border Patrol Initiative Marks Success,” Inside ICE vol 1, no. 12,
Sept. 27, 2004, at http://www.ice.gov/graphics/news/ insideice/articles/insideice_092704_web6.htm.
162
Drop houses are apartments or houses on the American side of the border used by alien smugglers to temporarily
hold unauthorized aliens while they await transportation from the border region into the interior of the United States.
163
Testimony of Michael W. Cutler, Fellow, Center for Immigration Studies, in U.S. Congress, House Committee on
the Judiciary, Subcommittee on Immigration, Border Security, and Claims, Pushing the Border Out on Alien
Smuggling: New Tools and Intelligence Initiatives, hearings, 108th Cong., 2nd sess., May 18, 2004. (Hereafter cited as
Cutler, Pushing the Border Out on Alien Smuggling.)
164
Testimony of John P. Torres, Deputy Assistant Director, Smuggling and Public Safety, U.S. Immigration and
Customs Enforcement, U.S. DHS, in U.S. Congress, House Committee on the Judiciary, Subcommittee on
(continued...)
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smuggling pipelines which are used by unauthorized aliens and criminals seeking to enter the
United States could also be used by terrorists.165 It is estimated that the international alien
smuggling and sex trafficking trade generates $9.5 billion for criminal organizations worldwide,
and the profits are used to finance additional criminal enterprises, such as the trafficking of drugs,
weapons, other contraband or even terrorist acts.166 Nonetheless, it is not known how many
people are smuggled into the United States in a year.
As the border patrol makes it more difficult for smugglers to cross at one point along the border,
the smugglers move their operations elsewhere. The success of Operation Gatekeeper in San
Diego and Operation Hold the Line in El Paso, have been cited as one of the causes for the
increase in smuggling in the Arizona corridor. In addition, smuggling organizations are attracted
to the Arizona corridor due to the following: (1) the terrain is challenging for law enforcement;
(2) the area is a major transportation hub with a highly developed highway system and an
international airport for getting into the interior quickly and easily; (3) the corridor has an
extensive staging area comprised of homes, hotels and apartments; and (4) the area has a robust
financial services infrastructure.167
Often alien smuggling can lead to collateral crimes including kidnaping, homicide, assault, rape,
robbery, auto theft, high speed flight, identity theft, and the manufacturing and distribution of
fraudulent documents. For example, smugglers may hold an alien hostage to extort a ransom from
the alien’s family. 168 In addition, smugglers often establish “safe houses” (also called “drop
houses”) where aliens are kept until they can be moved into the interior of the United States. The
often squalid conditions of these “safe houses” endanger the lives of the aliens and creates health
and safety issues for people living in the community.169 Also, some have noted an increase in
motor vehicle casualties due to the unsafe condition of vehicles used by smugglers. (Often
smugglers rig the vehicles to hide as many aliens as possible, often making the vehicle unsafe to
operate.)170 Furthermore, a proportion of border deaths is tied to smuggling, as some smugglers
mislead their charges about how far it is to the United States, and how much water is needed to
make the journey. 171
(...continued)
Immigration, Border Security, and Claims, Pushing the Border Out on Alien Smuggling: New Tools and Intelligence
Initiatives, hearings, 108th Cong., 2nd sess., May 18, 2004. (Hereafter cited as Torres, Pushing the Border Out on Alien
Smuggling.)
165
Ibid.
166
Ibid.
167
Interview with Patricia A. Schmidt, Action Associate Special Agent in Charge, Phoenix, Arizona office of the
Bureau of Immigration and Customs Enforcement, Aug. 2, 2004.
168
Statement of Representative Linda T. Sanchez, in U.S. Congress, House Committee on the Judiciary, Subcommittee
on Immigration, Border Security, and Claims, Pushing the Border Out on Alien Smuggling: New Tools and Intelligence
Initiatives, hearings, 108th Cong., 2nd sess., May 18, 2004.
169
Cutler, Pushing the Border Out on Alien Smuggling.
170
Personal Communication with Kevin Burns, Chief Financial Officer of the University Medical Center in Tucson,
Arizona, Aug. 3, 2004.
171
Personal Communication with Sister Elizabeth Ohmann, Secretary, Humane Borders, Aug. 3, 2004.
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Drug/Contraband Smuggling
For several decades, the federal government and Congress have created and legislated initiatives
as well as dedicated resources to tackle the illicit drug trade. The illicit drug trade is a billiondollar business that often involves the perpetration of violent crimes. Although not a new concern,
the potential for terrorists to exploit the illicit drug market as a means to facilitate their cause has
received heightened attention since the 2001 terrorist attacks. Because Mexico is a major corridor
for the transport of illicit drugs to the United States, several initiatives are specific to the
southwest border region, as discussed below. 172
DHS’ anti-drug trafficking efforts are directed at and along the border in addition to efforts that
are carried out in the interior by ICE agents. According to DHS, more than 56,321 drug seizures
were made at and between POEs in FY2004, which totaled to over two million pounds of illicit
drugs estimated to be worth over two billion dollars.173 While the majority of seizures take place
at POEs, larger quantities of illicit drugs are seized by the border patrol between POEs as well as
by ICE agents in the interior. At the southwest border, 15,526 drug seizures were made at and
between POEs in FY2004, which totaled to over 1.9 million pounds of illicit drugs.174
DHS Anti-Smuggling/Trafficking Strategy
For many years, the former INS (and now ICE) has worked to identify and dismantle large scale
transnational smuggling organizations and have done so in collaboration with other law
enforcement agencies, both foreign and domestic. ICE places a significant emphasis on targeting
alien smuggling organizations that pose a threat to national security, recognizing the possibility
that terrorists could align themselves with alien smuggling networks to obtain undetected entry
into the United States.175
ICE Storm
To counter some of the crime related to alien smuggling, DHS created Operation ICE Storm, a
multi-agency initiative led by ICE’s Office of Investigations which aims to dismantle the finances
of violent smuggling organizations responsible for transporting illegal aliens into the United
States along the southwest border.176 Specifically, ICE Storm seeks to eliminate violent crime in
Phoenix, Arizona caused by organizations, which smuggle unauthorized migrants across the U.S.Mexico border. Reportedly, 50 agents from ICE have been assigned to Phoenix as part of ICE
Storm. 177 During the first quarter of ICE Storm the Phoenix Police Department reported 30 fewer
172
The initiatives discussed in this section are not a comprehensive list of all possible initiatives that may be directed at
stemming illicit drugs at the southwest border.
173
See http://www.cbp.gov/xp/cgov/newsroom/press_releases/archives/2005_press_releases/0012005/
01112005_2.xml, accessed on Apr. 29, 2005.
174
Ibid.
175
Testimony of Interim Associate Special Agent in Charge, Bureau of Immigration and Customs Enforcement
Thomas Homan, in U.S. Congress, House Judiciary Committee, Subcommittee on Immigration, Border Security, and
Claims, The Deadly Consequences of Illegal Alien Smuggling hearings, 108th Cong., 1st sess., June 24, 2003. (Hereafter
referred to as Homan, Deadly Consequences.)
176
See http://www.ice.gov/graphics/enforce/ops/ICEStorm.htm.
177
Gabriela Rico, “Feds to Unleash ICE Storm on Migrant Smugglers,” The Tucson Citizen, Nov. 11, 2003, p. 1A.
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Border Security and the Southwest Border: Background, Legislation, and Issues
homicides than the previous quarter.178 As of March 3, 2004, ICE Storm had resulted in more than
1,526 criminal and administrative arrests. In addition, as of May 18, 2004 ICE Storm had resulted
in the prosecution of more than 190 defendants for human smuggling, kidnaping, moneylaundering, and weapons and drug violations, the seizure of over 100 weapons and over $5.2
million. ICE Storm became a component of the ABC on March 16, 2004.179
Department of Justice Efforts
The Department of Justice (DOJ) has a presence in the southwest, particularly due to the longstanding problem of drug trafficking across the border. Several task forces led by DOJ agencies
that are aimed at stemming the flow of illegal substances across the border are discussed below.
Organized Crime Drug Enforcement Task Force (OCDETF)180
The OCDETF program was created during President Reagan’s Administration in 1982 to pursue
major drug trafficking organizations. The OCDETF is a collaborative effort among several DOJ
agencies,181 the Internal Revenue Service, ICE and the U.S. Coast Guard. OCDETF also utilizes
the support of state and local law enforcement agencies.
According to the President’s 2006 budget proposal, the OCDETF program faces several internal
challenges. For example, due to the composition of OCDETF (several agencies within and
outside of DOJ comprise OCDETF), “each member agency has mandated its own priorities for
carrying out its part of the fight against illegal drugs.”182 As a result, OCDETF lacks a single
mission. Another concern that is somewhat related to the aforementioned issue is the need for a
consolidated budget. Agencies within DOJ as well as DHS’ ICE and the Department of the
Treasury’s Internal Revenue Service all receive appropriations for OCDETF-related activities.
The Administration contends that a consolidated budget is “critical to OCDETF’s ability to
effectively manage the program, to ensure proper use of OCDETF resources and to monitor
performance.”183 In FY2004 and FY2005, Congress consolidated all of OCDETF’s appropriations
into a single appropriation. The congressional committee that has jurisdiction over OCDETF
expressed concern with respect to funding DHS and the Department of the Treasury OCDETFrelated activities.184 Both of these issues raise questions about management and control of
OCDETF funds and resources as well as the identification and coordination of program
priorities. 185 This issue will probably continue to be a target of congressional oversight.
178
Personal Communication with Patricia A. Schmidt, Action Associate Special Agent in Charge, Phoenix, Arizona
office of the Bureau of Immigration and Customs Enforcement, Aug. 2, 2004.
179
See http://www.ice.gov/graphics/enforce/ops/ICEStorm.htm.
180
For additional information on OCDETF, see http://www.whitehousedrugpolicy.gov/publications/policy/06budget/
justice.pdf.
181
DEA, FBI, the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the U.S. Marshals Service.
182
U.S. DOJ 2006 Budget Justifications, vol. II, Interagency Crime and Drug Enforcement Budget Estimates to
Congress, p. 7.
183
Ibid.
184
House Committee on Appropriations Subcommittee on Commerce, Justice, State, Judiciary and Related Agencies
Department of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Bill, FY2005,
H.Rept. 108-576.
185
Ibid.
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Southwest Border Prosecution Initiative (SWBPI)
The SWBPI funds local prosecution offices in the four southwest border states for the prosecution
of selected drug cases. The program also funds the pre-trial detention costs for selected cases.
SWBPI supports the enforcement of both federal and state laws through coordination in enforcing
and prosecuting foreign nationals and citizens involved in border criminal enterprises.
A similar program, the Southwest Border Initiative (SWBI), 186 was initiated in 1994 and is a
cooperative effort among several divisions and agencies within DOJ187 and DHS. SWBI
specifically targets Mexican trafficking organizations that operate along the southwest border.
High Intensity Drug Trafficking Area (HIDTA)188
The HIDTA program was established by the Anti-Drug Abuse Act of 1988.189 The Office of
National Drug Control Policy (ONDCP) designates areas within the United States that are known
to have problems with drug trafficking. The HIDTA program develops partnerships among
federal, state and local law enforcement agencies and coordinates drug control efforts among the
partnering agencies. The HIDTA program provides federal resources to the identified areas to
assist with eliminating drug trafficking. There are HIDTA sites in southern California, Arizona,
New Mexico, and west and south Texas, collectively referred to as the Southwest Border HIDTA.
The HIDTA program was faced with similar challenges to those of the OCDETF. The President’s
FY2006 budget, however, proposes to move HIDTA to DOJ (from the ONDCP), in an effort to
better enable law enforcement to target the drug trade.
Detention and Removal
ICE’s responsibilities under the detention and removal activity include overseeing the custody of
aliens who are detained and facilitating their release or deportation. The INA requires the
detention of several classes of aliens, including those who are inadmissible or deportable on
criminal, terrorist, or national security grounds; those who have arrived in the United States
without proper documents and have requested asylum (pending a determination of their asylum
claims); and those who have final orders of deportation.190 ICE measures its successes in terms of
how many aliens are located and removed. Following is an analysis of ICE’s activities of locating
and removing aliens.
While the border patrol apprehends more deportable aliens than ICE investigations, ICE
apprehends a sizeable number of aliens. ICE has a combined total of 5,500 interior investigators,
compared to over 9,500 Border Patrol agents. ICE’s investigators are stationed throughout the
186
For additional information on the SWBI, see http://www.whitehousedrugpolicy.gov/enforce/swborder.html and
http://www.whitehousedrugpolicy.gov/publications/policy/06budget/justice.pdf.
187
U.S. Attorneys, DOJ Criminal Division, the Federal Bureau of Investigation, and the Drug Enforcement Agency.
188
For additional information on HIDTA, see http://www.whitehousedrugpolicy.gov/ publications/policy/hidta04/
overview.html and http://www.whitehousedrugpolicy.gov/publications/policy/06budget/justice.pdf.
189
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