# Border Security and the Southwest Border: Background, Legislation, and Issues > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3ARL33106 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** September 28, 2005 - **Citation:** RL33106 ## Text 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. Congressional Research Service 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 Congressional Research Service 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 Congressional Research Service Border Security and the Southwest Border: Background, Legislation, and Issues Contacts Author Contact Information ...................................................................................................... 58 Acknowledgments .................................................................................................................... 58 Congressional Research Service 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. Congressional Research Service 1 Border Security and the Southwest Border: Background, Legislation, and Issues 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. Congressional Research Service 2 Border Security and the Southwest Border: Background, Legislation, and Issues 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. Congressional Research Service 3 Border Security and the Southwest Border: Background, Legislation, and Issues 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. Congressional Research Service 4 Border Security and the Southwest Border: Background, Legislation, and Issues 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. Congressional Research Service 5 Border Security and the Southwest Border: Background, Legislation, and Issues 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. Congressional Research Service 6 Border Security and the Southwest Border: Background, Legislation, and Issues 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. Congressional Research Service 7 Border Security and the Southwest Border: Background, Legislation, and Issues 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. Congressional Research Service 8 Border Security and the Southwest Border: Background, Legislation, and Issues 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 Congressional Research Service 9 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. Congressional Research Service 10 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. Congressional Research Service 11 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. Congressional Research Service 12 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 Congressional Research Service 13 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. Congressional Research Service 14 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. Congressional Research Service 15 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...) Congressional Research Service 16 Border Security and the Southwest Border: Background, Legislation, and Issues 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. Congressional Research Service 17 Border Security and the Southwest Border: Background, Legislation, and Issues 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 Congressional Research Service 18 Border Security and the Southwest Border: Background, Legislation, and Issues 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. Congressional Research Service 19 Border Security and the Southwest Border: Background, Legislation, and Issues 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. Congressional Research Service 20 Border Security and the Southwest Border: Background, Legislation, and Issues 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. Congressional Research Service 21 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. Congressional Research Service 22 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 Congressional Research Service 23 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 Congressional Research Service 24 Border Security and the Southwest Border: Background, Legislation, and Issues 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). Congressional Research Service 25 Border Security and the Southwest Border: Background, Legislation, and Issues 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. Congressional Research Service 26 Border Security and the Southwest Border: Background, Legislation, and Issues 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. Congressional Research Service 27 Border Security and the Southwest Border: Background, Legislation, and Issues 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 Congressional Research Service 28 Border Security and the Southwest Border: Background, Legislation, and Issues 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. Congressional Research Service 29 Border Security and the Southwest Border: Background, Legislation, and Issues 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 Congressional Research Service 30 Border Security and the Southwest Border: Background, Legislation, and Issues 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. Congressional Research Service 31 Border Security and the Southwest Border: Background, Legislation, and Issues 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 bor [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3ARL33106. Public record. Not legal advice.