Fostering vibrant, safe, and stable border communities

Throughout the Southwest border region, there are urban and rural communities with a long history of diversity, economic vibrancy, cooperation, and deep roots in the area. Border communities, like communities throughout the country, are entitled to human rights, due process, and policies that recognize their dignity, humanity, and the constitutional protections that this nation values. Unfortunately, policymakers have far too often thrown border communities under the bus by pursuing policies in the name of security that, in reality undermine both safety and human rights.

These injustices, which go against equality, fairness, and law and order, are frustrating to communities but not inevitable. We can and should make commonsense policy changes to uphold human rights, due process, and safety in all of our communities. ICE agents, Border Patrol agents, police officers, and other law enforcement officers working in the border region should receive regular training in human rights, including civil rights, ethics, and community relations.

The pending Supreme Court case of Hernandez v. Mesa is a clear example of what can go wrong when border agents believe that they are above the law. According to the complaint, on a summer day in 2010, fifteen-year-old Sergio Hernandez and some friends were playing on a ramp on the Mexican side of the border between Mexico and the United States. He and his friends were chased by some border agents and fled. Agent Mesa drew his firearm at the unarmed Hernandez and shot him in his head. While only 60 feet separated the two, Hernandez was technically shot in the Mexican territory. The circumstances of the death were initially denied by Custom and Border Protection (CBP). However, cell phone video footage clearly demonstrated that the police had acted aggressively. This case has sparked outrage concerning accountability at the border and Custom and Border Protection Service’s secrecy and abusive practices. Law enforcement agencies should be held accountable for such human rights violations and create a work culture where such conduct is clearly impermissible.

Recent reviews and investigations of the CBP shows that there is a lack of accountability which fosters corruption and also creates an atmosphere of impunity surrounding the use—and abuse—of power, including the use of deadly force. CBP’s practices amount to extensive civil and human rights abuses. There are also legal issues at stake, specifically due process issues. The zero-tolerance program followed by the CBP has created a mass assembly-line justice system where individuals are apprehended, handed over to U.S. Marshals, placed in county jails to await trial at a federal courthouse, sentenced in a matter of hours or days, sent to a Federal Bureau of Prisons facility to serve their sentence, and then handed over to ICE for removal proceedings. Lack of oversight and unenforceable custody standards have contributed to cruel, degrading and other ill-treatment of individuals detained and held in the custody of CBP personnel. Further reports looking into the CBP’s culture of abuse show denial of food and water; overcrowding in holding rooms that may also be unreasonably hot or cold; denial of medical care for acute or chronic conditions; verbal abuse ranging from profanity to racial slurs and sexual harassment; physical abuse that borders on torture with individuals forced to remain in prone positions for extended periods of time; psychological abuse often paired with threats or intimidation to coerce individuals into signing legal documents they do not understand; confiscation of personal belongings prior to repatriation, including critical identity documents and currency; and excessive use of force, including deadly force, through beatings, Tasers or firearms.

Department of Justice should:

• End Operation Streamline and de-prioritize prosecuting illegal entry and illegal re-entry. Operation Streamline is a program that requires the federal criminal prosecution and imprisonment of all people crossing the border unlawfully. Under Streamline, instead of being processed for deportation, apprehended migrants are detained for 1 to 14 days before appearing in court. Counsel is frequently not provided until courtroom appearances and judges combine the initial appearance, arraignment, plea, and sentencing into one mass hearing for the 70-80 defendants processed daily;
• Enforce 90- and 180-day custody review processes and oppose any expansion of mandatory detention. These custody review processes take place when an individual has been given final order of removal, deportation, or exclusion, but remains in detention 90 days after the final order has been given. ICE reviews the individual’s custody status to decide whether to release the individual or continue to detain him/her to try to remove him/her from the US. If the individual remains in custody after this at the 180 mark, the review process happens again;
• Prosecute and punish CBP agents for acts of deadly force, excessive force, and other crimes. CBP officers violate the organization’s use of force policy and at times use deadly force as a result of frustration rather than necessity and there are many examples of abuse of power especially with the culture of impunity and violence that surrounds the CBP;
• Educate the defense bar on these distinctions to ensure that the immigration consequences of seemingly minor criminal law charges are fully considered. Since the 2010 Padilla ruling by the Supreme Court, criminal defense attorneys must advise noncitizen clients about the potential immigration consequences of accepting a guilty plea. Failure to do so, the Court held, constitutes a violation of the Sixth Amendment guarantee of effective counsel.

Customs and Border Patrol should:

• Implement nationwide data collection and public reporting of all Border Patrol roving patrol and checkpoint activities including stops, referrals to secondary inspection, and searches aggregated by demographics to include perceived and actual race, ethnicity, and immigration status;
• Reduce the zone of CBP operations from 100 to 25 miles from the border for boarding vehicles, and from 25 to 10 miles for entering private property. CBP should conduct sector-by-sector analysis as required by existing regulations to determine whether a shorter distance would be reasonable;
• Exclude urban and sensitive areas, and all other areas not within three miles of the border from drone and additional invasive surveillance;
• Equip all CBP officers and agents who interact with the public with body-worn cameras paired with privacy protections;
• Scale back military-type training tactics, and equipment of CBP officers and agents;
• Provide annual training for CBP agents on Fourth Amendment protections against illegal searches and seizures, Fourteenth Amendment prohibitions on racial profiling, and on stereotyping and implicit bias;
• Enhance de-escalation training and improve language skill training for new officers and agents;
• Disband and prosecute border paramilitary vigilante organizations;
• Implement public and enforceable short-term custody standards to ensure that DHS’ short-term holding facilities meet basic humanitarian standards. There are serious violations at CBP short-term holding facilities specifically that they are neither safe nor sanitary;
• Provide additional training to CBP officers and agents about their obligation to protect and provide due process to potential victims of crimes, trafficking, and domestic violence, or people in need of asylum.

Department of Homeland Security should:

• Clarify that immigration laws are enforced solely by federal immigration officials;
• Create a transparent, uniform DHS process for receiving, processing, and investigating all complaints in multiple languages, to align with best practices and joint recommendations submitted recently by NGOs;
• Inform complainants of the status of their complaint and the outcome of the investigation in a timely manner;
• Prohibit DHS personnel, including CBP agents, from using race, ethnicity, and other protected characteristics as a factor in routine investigatory stops, detentions, and searches except where a reliable, current suspect description or affirmatively required statutory determination like asylum eligibility exists;
• Move away from wasteful spending projects like drones or Operation Stonegarden, which is a federal grant program that funds state, local, and tribal law enforcement agencies to enhance their capabilities to jointly secure U.S. borders and territories, and fences;
• Deploy 1,000 rescue beacons, transmission towers with an emergency button that sends out a distress signal to CBP when activated, with water drums, radio call buttons, and 911 cell relay in the desert, including throughout Arizona, the Lower Rio Grande Valley, Imperial County in California, and the New Mexico Bootheel region, to save migrants and others who fall into distress because of heat and other circumstances;
• Extend federal aid programs aimed at preventing migrant deaths to include areas in the South Texas interior that have CBP checkpoints, but are ineligible for funding under current rules;
• End the use of dangerous repatriations, such as the Alien Transfer Exit Program and night deportations. Before the Alien Transfer Exit Program, immigrants were deported across the border from where they were caught, a practice that allowed them to easily reconnect with smugglers who would try to bring them across again, but under the transfer program immigrants that are caught in California are flown to Texas border cities to cross the border back and those caught in Texas are flown west to cross the border. Night deportations are when migrants are deported after dark. The timing of deportations has important implications for the security and protection of migrants;
• Ensure individuals are returned their personal belongings (cash, IDs, phones, etc.) prior to repatriation;
• Create a right to counsel in all stages of immigration enforcement actions and proceedings and permit phone and in-person access by attorneys and child advocates;
• Provide access to independent human rights and nongovernmental organization monitoring and include permit interviewing of immigrants who are detained in CPB custody;
• Mandate an independent and thorough investigation for all allegations of excessive and deadly force;
• Place CBP under increased oversight by an independent DHS Border Oversight Task Force comprised of border stakeholders, in addition to the DHS’s Office of Inspector General and the Office of Civil Rights and Civil Liberties. Any Border Oversight Task Force should have subpoena power so that it can hold accountable agents who abuse their power and have accurate accounting for taxpayer resources;
• The DHS Secretary should be required to report to Congress on the use of force, including compliance with its own policies, incidents causing serious injury or death, and review and disciplinary measures.