Border Security and the Southwest Border: Background, Legislation, and Issues
CRS Report for Congress
Border Security and the Southwest Border:
Background, Legislation, and Issues
September 28, 2005
Lisa M. Seghetti, Coordinator,
Jennifer Lake, Blas Nunez-Neto, and Alison Siskin
Domestic Social Policy Division
K. Larry Storrs
Foreign Affairs, Defense and Trade Division
Nathan Brooks and Stephen Vina
American Law Division
Congressional Research Service ˜ The Library of Congress
Border Security and the Southwest Border:
Background, Legislation, and Issues
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.
In troduction ......................................................1
Differences Between the Southwest and Northern Borders..................2
Context of Overall United States-Mexico Relations.......................3
Importance of Mexico and the Bilateral Relationship..................3
Mechanisms for Mexico-U.S. Interactions..........................4
Bilateral/Trilateral Migration and Border Security Agreements..........4
Bilateral Migration Talks....................................4
Bilateral Partnership for Prosperity............................6
Bilateral Border Partnership (“Smart Border”) Agreement..........6
Trilateral Security and Prosperity Partnership of North America.....7
Monitoring the Border..............................................8
Monitoring the Border At Ports of Entry................................8
Border Partnership (“Smart Border”) Agreement................10
Secure Electronic Network for Travelers’ Rapid Inspection........11
Border Partnership (“Smart Border”) Agreement................13
Cargo Inspection Technology...............................14
Customs-Trade Partnership Against Terrorism (C-TPAT).........15
Customs Mutual Assistance Agreements (CMAA)...............16
Selected Inspections Issues.....................................17
Laser Visas (Mexican Border Crossing Cards)..................18
Biometric Verification System (BVS).........................19
One Face at the Border.....................................20
Monitoring the Border Between Ports of Entry..........................20
Air and Marine Operations.....................................21
Rationalization of Air and Marine Assets, Border Patrol and AMO..21
U.S. Border Patrol (USBP).....................................22
Evolution of Border Patrol Strategy...........................22
New National Border Patrol Strategy.........................25
Other Than Mexican Apprehensions..........................28
Selected Issues Between Ports of Entry............................29
Border Patrol Checkpoints..................................29
Border Safety Initiative....................................36
Civilian Patrol Groups.....................................37
Illegal Migration and Indian Country..........................38
Arizona Border Control (ABC) Initiative......................42
DHS Anti-Smuggling/Trafficking Strategy.....................45
Department of Justice Efforts...................................46
Organized Crime Drug Enforcement Task Force (OCDETF).......46
Southwest Border Prosecution Initiative (SWBPI)...............47
High Intensity Drug Trafficking Area (HIDTA).................47
Detention and Removal........................................48
Selected ICE Issues...............................................50
Customs Patrol Agents (Shadow Wolves)......................51
State and Local Law Enforcement................................51
Detention Bed Space..........................................53
Selected Crosscutting Issues........................................54
Systems Integration and Interoperability...........................54
Technology and Staffing .......................................55
Port of Entry Infrastructure.....................................56
Overall Effectiveness of Current Policies..........................59
Appendix A: Legislation Affecting the Southwest Border..............62
The Violent Crime Control and Law Enforcement Act of 1994.....62
The Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA)..................................62
Automated Entry and Exit Data System (US-VISIT).............63
The USA PATRIOT Act...................................63
The Enhanced Border Security and Visa Entry Reform Act of 2002.64th
The Intelligence Reform and Terrorism Prevention Act of 2004....64th
The REAL ID Act of 2005 (P.L. 109-13)......................64
List of Figures
Figure 1. Busiest Land POE FY2002 - FY2004.........................10
Figure 2. Top Five Busiest Land Ports of Entry, 2001through 2003.........12
Figure 3. SW Border Apprehensions by Fiscal Year.....................27
Figure 4. SW Border Apprehensions, by Sector and Fiscal Year............28
Figure 6. Migrant Mortality Rate per Apprehensions.....................35
Figure 7. Deportable Alien Located by ICE’s Southwest Field Offices,
FY2000 to FY2003...........................................49
Figure 8. Number of Aliens Expelled by ICE’s Southwest Field Offices,
FY2001 to FY2003...........................................50
Border Security and the Southwest Border:
Background, Legislation, and Issues
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
1 This report will not discuss or track legislation that has been introduced in the 109th
Congress. Appendix A of the report, however, does discuss legislation in the current and
past Congresses that have been enacted.
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.
Differences Between the Southwest and
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
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.
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.
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 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
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 t
[http://www.usembassy.gov/Mexico/reade_info.html] and NAFTA [at 10] on USTR website
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.
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
Am eri ca. 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
[http://ustr.gov/ Trade_Agreements/Regional/NAFTA/NAFTA_at_10/Section_Index.ht ml ] .
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.usembassy-mexico.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, by K. Larry Storrs. Information on closely related
cooperation on counter-narcotics matters may be found in CRS Report RL32699, Mexico’s
Counter-Narcotics Efforts under Fox, December 2000 to October 2004; and CRS Reportth
RL32724, Mexico-U.S. Relations: Issues for the 109 Congress, by K. Larry Storrs.
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 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
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
[ ht t p: / / www.st at e.gov/ r / pa/ pr s / ps/ 2001/ 3733.ht m] .
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 Andorra Bruno. 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.
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 $60014
million in financing and insurance to U.S. businesses in Mexico.
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.
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
[ ht t p: / / www.st at e.gov/ secr et ar y/ r m/ 37998.ht m] .
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].
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
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
Am eri ca. 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 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
16 See the Joint Press Conference, the Joint Statement and the Fact Sheet on the initiative
on the White House website available at
[ ht t p: / / www.whi t e house.gov/ news/ r el eases/ 2005/ 03/ 20050323-5.ht ml ] .
17 For more information on the initiative and the Report to Leaders, see the SPP website
[ h t t p : / / www.spp.gov] .
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
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 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
18 For additional information on agencies responsible for border security, see CRS Report
RS21899, Border Security: Key Agencies and their Missions, by Blas Nuñez-Neto.
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 Ruth Ellen
Wasem, Coordinator, Jennifer Lake, Lisa Seghetti, James Monke, and Stephen Viña.
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,
23 See the Immigration Act of 1891.
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.
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.
24 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 and Transportation Security: The Complexity of the Challenge, by
Jennifer E. Lake, William H. Robinson, and Lisa M. Seghetti; CRS Report RL32840,
Border and Transportation Security: Selected Programs and Polices, by Lisa M. Seghetti,
Jennifer E. Lake, and William H. Robinson; and CRS Report RL32841 Border and
Transportation Security: Possible New Directions and Policy Options, by William H.
Robinson, Jennifer E. Lake, and Lisa M. Seghetti.
26 This section does not discuss the inspections activities performed by agriculture
inspections. See see CRS Report RL32399, Border Security: Inspections Practices,
Policies, and Issues, by Ruth Ellen Wasem, et al.
27 There are six land POE in California; six in Arizona; two in New Mexico; and 11 in
Figure 1. Busiest Land POE FY2002 - FY2004
23,256,830 25,899,9102 5,000,0 00
14,676,720 15,271,680 14,383,9502 0,000,0 00
10,904,050 10,110,870 9,897,4221 5,000,0 00
9,989,346 9,918,826 9,644,049
8,655,147 9,290,561 10,218,260
San Ysidro, CACalexico, CAHidalgo, TX
Paso Del Norte, TXNiagara Falls, NYNogales, 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;
!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 22-point 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.
29 See [http://www.whitehouse.gov/infocus/usmxborder/22points.html].
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 program35
is a unilateral initiative. 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 systems36
that comprise the US-VISIT program. Subsequent to the 9/11 Commission’s
recommendation, Congress mandated the integration of all databases and data
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,”
34 SENTRI is at the following southwest POE: Otay Mesa, CA; San Ysidro, CA; and El
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/].
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
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
Figure 2. Top Five Busiest Land Ports of Entry, 2001through 2003
1 , 4 0 3, 91 4 1, 441, 653 1, 354, 2291,600,000
697 , 1521,000,000
7 08, 446 731, 291
659 , 614800, 000
660, 583 705 , 199600, 000
3 68, 395 39 0, 28 2 406, 064400, 000
256, 715 2 76, 390 261, 140200, 000
Laredo, TXOtay Mesa/San Ysidro, CAEl Paso, TX
Hidalgo, TXCalexico East, CA
37 §7208(e) of P.L. 108-447.
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/
39 The latest data available on border crossings from the Bureau of Transportation is 2003.
Source: CRS analysis of Bureau of Transportation Statistics, Border Crossing: US-Mexico Crossing
Data, Tables 1, 5, and 6. Accessed at
[ h t t p : www. b t s . g o v / p r o g r a ms / i n t e r n a t i o n a l / b o r d e r _ c r o s s i n g _ e n t r y _ d a t a / u s _ me x i c o / p d f / e n t i r e . p d f ] .
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.
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
!electronic exchange of information: continue to develop and
implement joint mechanisms for the rapid exchange of customs
!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 the41
U.S.-Mexico Border Partnership. 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
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,
[ ht t p: / / www.st at e.gov/ p/ wha/ r l s/ f s / 8909.ht m] .
41 U.S. DHS, “U.S.-Mexico Border Partnership Joint Statement on Progress Achieved,”
Committee. These groups were working primarily on the following specific goods-
!harmonizing and extending the hours of service, in coordination
with the trade communities, at the POE located at the border with
!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);
!exchanging core data on every transaction occurring through the
common border in an electronic environment;
!testing and implementing cutting-edge technology such as electronic
!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)
43 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
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.
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, as45
membership in C-TPAT reduces a company’s overall risk score in the ATS. 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
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.
contents of the container, and/or physically examining the cargo.
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,
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 at47
the border.” 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 FAST-Commercial Driver card; and be destined for a C-TPAT approved
importer. In addition, manufacturers, importers, and carriers enrolled in the U.S.-
Mexico FAST program are responsible for ensuring that all U.S.-bound loaded49
containers or trailers are secured with high security mechanical seals.
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,50
CA. Each of these six FAST ports has a dedicated FAST lane. 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
of U.S.-Mexico bilateral trade is being cleared through FAST lanes.52
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,”
[ ht t p: / / www.cbp.gov/ xp/ cgov/ i mpor t / c omme r c i a l _enf or c ement / c t pat / f ast / us_me xi co/ ] .
49 See, CBP, U.S./Mexico C-TPAT/FAST Seal Requirements, [http://www.cbp.gov/xp/cgov/
import/commercial_enforcement/ctpat/fast/ u s _ me x ico/mexico_manuf/manuf_seal_requir
50 CBP, “Homeland Security Secretary Ridge Visits New FAST Lane at Calexico,”
[http://www. cbp.gov/xp/cgov/newsroom/press_re leases/departmental_press_releases/011
51 As of Sept. 8, 2005, CBP’s website still has these POE listed as “operational by summer
52 DHS and the Mexican Department of the Interior, “The U.S.-Mexico Border Partnership:
Progress Report 2002-2004,” Jan. 17, 2005, , pp. 3, 12, [http://www.dhs.gov/interweb/
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 by53
domestic and foreign courts as a legal basis for cooperation. 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.
U.S.-VISIT.54 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)55
that would track the arrival and departure of every alien. The objective for an
automated entry and exit data system was, in part, to develop a mechanism that56
would be able to track nonimmigrants 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
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
53 CBP, “Customs Mutual Assistance Agreements by Country,” at [http://www.cbp.gov/xp/
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 Stephen R. Viña.
55 Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
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.
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 their61
Canadian counterparts. Mexican nationals applying for admission to the United
States as visitors are required to obtain a visa or hold a Mexican border crossing card,62
now referred to as the Laser Visa. Canadian nationals, on the other hand, are
waived from the documentary requirements.63 These waivers, 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
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?t heme =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
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.
will need documentation to enter the United States beginning in 2008.
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
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 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
65 For additional information on nonimmigrant admission to the United States, see CRS
Report RL31381, U.S. Immigration Policy on Temporary Admissions, by Ruth Ellen
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
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.
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
!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 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
70 The inspections function of the Animal and Plant Health Inspection Service (APHIS)
71 For additional information on the border patrol, see CRS Report RL32562, Border
Security: The Role of the U.S. Border Patrol, by Blas Nuñez-Neto.
72 See the 1924 Immigration Act (4. Stat. 153) and a subsequent appropriations act (43 Stat.
placed with the border patrol as an entity that monitors the border between the ports
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 South75
America has a maritime component. 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.
73 Customs and Border Protection, “Air and Marine Operations,” at [http://www.cbp.gov/xp/
74 Customs and Border Protection, “AMO Overview,” at [http://www.cbp.gov/xp/cgov/
75 Briefing materials supplied by AMO, during briefing attended by CRS Mar. 5, 2004, p.
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 National77
Strategic Plan (NSP), 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 patrol78
sectors with the highest levels of illegal migration activity.
!Phase I: San Diego, CA and El Paso, TX sectors
!Phase II: Tucson, AZ, Del Rio, TX, Laredo, TX and McAllen, TX
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,
!Phase III: El Centro, CA, Yuma, AZ and Marfa, TX sectors
!Phase IV: The northern border, gulf coast and coastal waterways
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 a82
tactical advantage over illegal border crossers and smugglers.
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
79 U.S. Customs and Border Protection, Performance and Annual Report: Fiscal Year 2003,
80 U.S. Congress, Senate Committee on Appropriations, Departments of Commerce, Justice,
and State, The Judiciary, and Related Agencies Appropriations Bill, 1996, report tothst
accompany H.R. 2076, 104 Cong., 1 sess., S.Rept. 104-139; 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 Endingth
September 30, 1996, and for Other Purposes, report to accompany H.R. 2076, 104 Cong.,st
81 U.S. Department of Justice, INS, Immigration Enforcement Estimates for Fiscal Year
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 Immigrationthst
and Claims, Combating Illegal Immigration: Progress Report, 105 Cong., 1 sess., Apr.
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
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 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
84 Federal Reserve Bank of Dallas, “Falling Crime and Rising Border Enforcement: Is There
a Connection?” Southwest Economy, May/June 2003.
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.
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:
!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
!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 cross-border
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.
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.
90 DHS, CBP, “National Border Patrol Strategy,” Mar. 2005, p. 13.
91 Ibid., p. 5.
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 people93
attempting to enter through that sector. 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
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 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.
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 US Border Patrol, by Blas Nuñez-Neto, pp. 7-8.
Figure 3. SW Border Apprehensions by Fiscal Year
1,653 ,7 8 9
1,50 7 ,02 0 1,5 25 ,43 0
1,2 12 ,88 6 1,2 71 ,39 0 1,547 ,50 9 1,244 ,56 9 1,146 ,4 8 4
1,149 ,5 7 4 1,3 76 ,56 8
979 ,1 01 905 ,0 65
1993 1995 1997 1999 20 01 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
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 4 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 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
El Centro CAYuma AZMarfa TXLaredo TX0
San Diego CATucson AZEl Paso TXDel Rio TXMcAllen TX
199 2 19 9 3 199 4 199 5 199 6
199 7 19 9 8 199 9 200 0 200 1
200 2 20 0 3 200 4
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 Apprehensions.94 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 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
94 For additional information on OTMs, see CRS Report RL33097, Border Security:
Apprehensions of “Other Than Mexican” Aliens, by Blas Nuñez-Neto.
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
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 Checkpoints.97 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
95 U.S. Congress, Senate Select Committee on Intelligence, National Security Threats to the
United States, 109th Cong. 1st 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
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 Our Perimeter: “Border
Searches” under the Fourth Amendment, by Stephen R. Viña.
99 INA, §287(a)(1) & (3).
of the border.100 The Supreme Court has recognized that the 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.102
According to the DHS Appropriations Act for 2005, 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 the103
DHS Appropriations Act for 2004 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 allows105
smugglers of any kind to further their entry into the United States unabated.” 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
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.
101 United States v. Martinez-Fuerte, 428 U.S. 543, 556 (1976).
102 P.L. 108-334.
103 P.L. 108-90, Title II.
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.
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.
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 Illegal108
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). 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 before109
an immigration judge. 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
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.
107 9/11 Report, p. 384.
108 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.
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
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 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
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
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.
113 69 Federal Register 48877, 48878.
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
[ ht t p: / / www.ci s.or g/ ar t i c l e s/ 2004/ ms koped081804.ht ml ] .
116 See Migration News, USCIS, ICE, CBP, available at [http://migration.ucdavis.edu/mn/
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,
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 Barriers.119 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
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 does122
degrade the environment in those regions. 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
Aug. 18, 2004 available at [http://www.sfgate.com/cgi-bin/article.cgi?f=/chronicle/a/
118 Ibid., (citing reports by the United Nations, the Government Accountablity Office, and
the American Bar Association).
119 For additional information, see CRS Report RS22026, Border Security: Fences Along
the U.S. International Border, by Blas Nuñez-Neto and Stephen R. Viña.
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.
122 See Defenders of Wildlife at [http://www.ems.org/nws/2005/02/08/conservation_gro].
123 For example, see [http://moorewatch.com/index.php/weblog/comments/the_real_id_act/].
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 5 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.
Figure 5. Migrant Deaths Along the Southwest Border, by Fiscal
198 6 198 8 199 0 19 9 2 199 4 199 6 199 8 20 0 0 20 0 2 200 4
19 8 5 198 7 198 9 19 9 1 19 9 3 199 5 199 7 199 9 20 0 1 200 3
US Border Patrol
Center for Immigration Research
Source: CRS analysis of CBP and CIR data.
124 Juan A. Lozano, “Migrant Toll Hits 19 in Texas Case; 2nd Truck Found,” The Associated
Press, May 17, 2003.
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
19 97 19 98 19 99 20 00 20 01 20 0 2 20 03 20 0 4
Source: CRS presentation of USBP data.
The border patrol has drawn criticism from human rights activists who claim
that the agency’s migrant death count understates the number of fatalities. Some
contend that the Border patrol undercounts fatalities by excluding skeletal remains,
victims in car accidents, and corpses discovered by other agencies or local law
enforcement officers.125 Others point to inconsistencies in how the agency counts
migrant deaths, with some sectors counting smugglers and guides who perish, but
others excluding them, even though official USBP policy is to include all deaths in
the 43 counties within a 100 miles of the US-Mexico border.126 Border patrol
officials counter that local law enforcement agencies often do not inform the border
patrol when they encounter dead migrants, and that deaths that occur outside the 100
mile belt or on the Mexican side of the border are outside their operational
125 For example, see [http://www.stopgatekeeper.org/English/bonner-040604.htm].
126 For example, see [http://www.uh.edu/cir/Deaths_during_migration.pdf].
127 Andrea Almond, “How Best to Count Border Deaths?” The Associated Press, Nov. 7,
Border Safety Initiative. Regardless of the debate over numbers, the USBP
has taken several steps to address the problem of migrant deaths in recent years,
including the Border Safety Initiative (BSI). In June 1998, the USBP launched BSI
in part to address concerns about the increasing number of migrant deaths along the
border. The BSI is a collaborative campaign with the Mexican government that
focuses on decreasing the life-threatening dangers involved in crossing the border.
As part of the BSI, the USBP produces television, radio, and print advertisements
warning would-be migrants about the dangers involved in crossing the border.
Additionally, the USBP maintains some water stations and rescue beacons in the
desert and has increased border patrol agents in the areas that have been greatly128
impacted. As part of the collaboration with Mexico, the USBP has trained over
1,320 Mexican firefighters and law enforcement personnel in sophisticated search
and rescue techniques and cooperates with the Mexican government to disrupt
Border Patrol Search, Trauma, and Rescue (BORSTAR) teams form an
important part of the BSI. These specialized rescue teams are composed of agents
who volunteer to undergo a rigorous training regimen that includes physical fitness,
emergency medical skills, technical rescue, navigation, communication, swift-water
rescue, and air operation rescues. BORSTAR’s primary mission is to respond to all
incidents involving distressed people along the border. While the individuals rescued
are typically illegal aliens, BORSTAR teams have also rescued American citizens
who reside along the border as well as border patrol agents. In the almost three years
the initiative has been operational, border patrol agents have rescued 3,977 people
along the southwest border. There are currently nine BORSTAR teams comprised
of 141 specially trained border patrol agents.
Civilian Humanitarian Groups. Believing that the border patrol’s response
to the issue of migrant deaths along the border is inadequate, some humanitarian
organizations, such as Humane Borders, Samaritan Patrol, and the Border Action
Network, have begun providing services to unauthorized migrants in order to
decrease the dangers associated with the border crossing. These services include
maintaining water stations in the desert and providing medical supplies to aliens.
Humane Borders, for example, maintains 50 water stations throughout the Arizona
desert, while a sister organization maintains 133 water stations in California’s
Imperial Valley.130 Additionally, a network of faith-based organizations recently
instituted the “No More Deaths” campaign. This campaign works toward reducing
fatalities along the border by maintaining two 24-hour camps, called “Arks of the
Covenant,” in southern Arizona where unauthorized migrants can receive food,
water, and medical attention. According to the campaign’s spokesperson, the USBP
128 U.S. Department of State, “U.S. Campaign on Mexican border Aims to Prevent Migrant
Deaths,” press release, June 4, 2003.
129 U.S. DHS, CBP, “US Customs and Border Protection Announces Border Safety Initiative
Aimed at Preventing Migrant Deaths,” press release, May 6, 2004.
130 Ben Winograd, “Mercy in the Desert,” San Jose Mercury News, Aug. 21, 2004, p. M01.
and the U.S. Attorney’s Office have confirmed that providing humanitarian aid to
migrants is legal and that the camps they operate are within the law.131
These kinds of activities concern those who believe that the humanitarian aid,
no matter how well intentioned, assists unauthorized immigrants in their efforts to
subvert immigration laws and enter the country. Others believe that the number of
migrant deaths along the border is unacceptably high, and that these organizations are
saving lives through their humanitarian aid. Still others fear that if migrants believe
that water is readily available in the desert more will perish as they attempt to cross
without carrying adequate amounts of water.132
Civilian Patrol Groups. A related issue that has gained attention in the past
two years has involved civilian patrol groups attempting to assist the border patrol
in its enforcement efforts through a variety of means, reportedly including sometimes
apprehending unauthorized aliens along the border. One such group, American
Border Patrol, recently gained notoriety by launching an unmanned plane that uses
cameras and GPS technology to identify unauthorized aliens attempting to cross the
border.133 These groups have increasingly been targeted by human rights
organizations for the tactics they allegedly use, including threatening border crossers
with firearms and wearing uniforms similar to those worn by the border patrol. In the
summer of 2003, two such groups, Ranch Rescue and Citizen Border Patrol, curtailed
their activities on the Arizona border due to mounting publicity and concern about
their practices, including allegations that they were dressing like border patrol
agent s . 134
More recently, the Minuteman Project in Arizona drew national media attention
to the problem of unauthorized migration. The Minuteman Project drew hundreds
of volunteers from across the United States to monitor a stretch of the eastern
Arizona border with Mexico near Douglas, in the Tucson Sector. According to the
Minuteman organizers, the project succeeded in dramatically reducing the flow of
illegal immigration in Arizona. The USBP contests this claim, noting that while
apprehensions in eastern Arizona declined from 24,842 in April of 2004 to 11,128
in April of 2005, apprehensions in western Arizona increased from 18,052 in 2004
to 25,475 in 2005.135 USBP officials also stated that the volunteers were disrupting
their operations by unwittingly tripping sensors deployed along the border, forcing
agents to respond to false alarms. Others believe that the decrease in eastern Arizona
131 Arthur Rotstein, “Advocates: Desert Camps Have Saved Migrant Lives,” The Associated
Press, July 26, 2004.
132 For examples of these groups, see Ibarra, Ignacio, “‘No more deaths camp’ an oasis for
migrants,” Arizona Daily Star, Mar. 2, 2005, available at [http://www.azstarnet.com/sn/
133 Kevin Johnson, “Private Spy Plane Patrols Border,” USA Today, May 22, 2003, p. 3A.
134 “Outlawed Arizona Border Patrol to Cease Operations,” EFE News Service, June 16,
135 Gail Gibson, “For Minutemen, chance to patrol a porous border,” Baltimore Sun, May
is attributable to increased patrolling on the Mexican side of the border by Mexican
police and military authorities.136
There is some debate about the relative impact that these groups have on
securing the border. Some argue that these groups are vigilante organizations that
are taking the law into their own hands, and that their operations can conflict with
those of border patrol agents. Others counter by contending that these groups are
harmless and provide valuable assistance to the border patrol by identifying and
sometimes capturing unauthorized migrants. In congressional testimony, some
Border Patrol officials have discounted the overall impact of vigilantes along the
border.137 It is not clear if or to what extent the operations of these civilian patrolling
groups present an obstacle to the Border Patrol or a danger to unauthorized migrants.
Illegal Migration and Indian Country. Several Indian reservations are
located near the U.S.-Mexican border, and a few — including the Tohono O’odham
Reservation in Arizona and the Kickapoo Reservation in Texas — are directly
connected to the border. While federal authorities routinely patrol the border in these
areas, the Indian tribes’ quasi-sovereign status presents some unique challenges to138
those guarding the border.
The question of which law enforcement authorities — state, federal, or tribal —
have adjudicatory jurisdiction in Indian country is not easy to answer, as the answer
can change according to the civil/criminal nature of the offense, the seriousness of
the offense, the tribal status of those involved, and the state in which the offense is
committed. For example, the Supreme Court ruled in the landmark 1978 case,
Oliphant v. Suquamish Indian Tribe,139 that Indian tribes do not possess criminal
jurisdiction over non-Indians. As the Court put it, “By submitting to the overriding
sovereignty of the United States, the tribes ... necessarily give up their power to try
non-Indian citizens of the United States except in a manner acceptable to
136 Arthur Rotstein, “Border Patrol complains that volunteers are tripping sensors used to
detect illegal crossers,” The Associated Press, Apr. 5, 2005.
137 U.S. Congress, House Committee on the Judiciary, Subcommittee on Immigration,
Border Security, and Claims, Hearing on Illegal Immigrant Smuggling, 108th Cong., 1st sess.,
June 24, 2003.
138 The following four Indian reservations are contiguous with the Mexican border: (1) the
Tohono O’odham Nation (AZ); (2) the Cocopah Tribe (AZ); (3) the Kickapoo Traditional
Tribe (TX); and (4) the Quechan Tribe of the Fort Yuma Indian Reservation (CA/AZ).
There are also two tribes that are very close but not actually on the border: the Campo Band
of Diegueno Mission Indian tribe in California and the Ysleta Del Sur Pueblo tribe in Texas.
139 435 U.S. 191 (1978).
140 Ibid., at 210. Various bills have been introduced in Congress to overturn Oliphant, but
none have been enacted into law. See, e.g., S. 578, §14 (108th Cong.).
As a result of Oliphant, several federal statutes,141 and other Supreme Court
cases reigning in tribal civil jurisdiction,142 tribal adjudicatory jurisdiction is very
limited, in many instances forced to yield to the power of state and federal
authorities.143 Oliphant in particular has led some to question the authority of tribal
police to arrest and detain non-Indians.144 For practical purposes in the border patrol
context, however, tribal law enforcement authorities are not as constrained as they
may be in other areas. One reason for this is that, as part of their limited sovereignty,
tribes possess the authority to expel non-members from Reservations for violations
of tribal trespassing restrictions.145 In addition, while tribal courts may lack the
power to try non-Indians, tribal police possess the power to detain suspected
offenders for pick-up by state or federal authorities,146 and tribal authorities on
reservations on or near the U.S.-Mexico border routinely detain undocumented aliens
(UDAs) with that purpose in mind.147
Still, because they possess only limited authority, many tribal law enforcement
groups also lack the resources, funding, and training of state and federal officials.148
In addition, many reservations — particularly those in the southwest — are in remote
locations far from the nearest police or border patrol station. One method that has
been used sparingly to get around these difficulties is the cross-commission of tribal
officials by state or federal authorities, so that these officials may arrest non-Indian
criminal suspects under state or federal law.149
141 The Major Crimes Act, for example, ensures federal jurisdiction over fourteen crimes
(including murder and burglary) when Indians are charged with committing those crimes.
18 U.S.C. §1153. In addition, the Indian Civil Rights Act limits the jurisdiction of tribal
courts to sentences not exceeding one year’s imprisonment and/or a $5,000 fine. 25 U.S.C.
142 See, e.g., Strate v. A-1 Contractors, 520 U.S. 438 (1997); Nevada v. Hicks, 533 U.S. 353
143 Usually, federal authorities will have jurisdiction, although a handful of states possess
criminal jurisdiction over offenses committed by Indians in Indian country under Public Law
280 (18 U.S.C. 1162). In the Southwest, the only state that possesses full Public Law 280
criminal jurisdiction in Indian country is California.
144 See, e.g., United States v. Medearis, 236 F.Supp.2d 977, 982 (D.S.D. 2002).
145 See, e.g., United States v. Becerra-Garcia, 397 F.3d 1167 (9th Cir. 2005).
146 See, e.g., Duro v. Reina, 495 U.S. 676, 697 (1990).
147 See, e.g., statement of Vivian Juan-Saunders, chairperson, Tohono-O’odham Nation of
Arizona, in U.S. Congress, Senate Indian Affairs Committee, Tribal Governmentthst
Amendments to the Homeland Security Act of 2002, hearings, 108 Cong., 1 sess., S.Hrg.
108-312 (2003), pp. 38-39 [hereinafter “Hearing”]. (“In 1999, our officers assisted the
border patrol with 100 apprehensions per month and in 2002, our tribal police officers
recorded 6,000 undocumented immigrants detained pending U.S. border patrol pick-up.”)
148 See, e.g., Quiet Crisis: Federal Funding and Unmet Needs in Indian Country, by the U.S.
Commission on Civil Rights (2003), at [http://www.usccr.gov/pubs/na0703/na0204.pdf].
149 See Hearing, at 23 (statement of Thomas B. Heffelfinger, U.S. Attorney, State of
Minnesota, on Behalf of the Department of Justice) (“Unfortunately, [cross-commissions]
Similarly, in at least one instance — on the Tohono O’odham Reservation in
southern Arizona — federal authorities have created a special unit made up entirely
of American Indians to assist in patrolling the U.S.-Mexican border. The
Reservation is home to a special unit of CBP Customs Patrol Officers, commonly
known as the “Shadow Wolves.” These officers — numbering between 20-23
individuals — are all American Indians that patrol the 76 miles of international
border that bisects the Tohono O’odham Reservation. Formed in 1972, the Shadow
Wolves’ original mission centered around drug interdiction but, in the years since the
The Tohono O’odham Reservation presents particularly thorny problems for
border patrol authorities, in that, not only is it the second-largest Indian reservation
in the country, but it also extends across the border into Mexico. As a result, some
Tohono O’odham members are U.S. citizens, while others have Mexican citizenship.
Until relatively recently, members were allowed to cross the border (within the
Reservation) with ease, regardless of their nationality.151 In the mid-1980s, however,
the federal government erected a fence along the border to stem the tide of drug
smugglers that were taking advantage of the Reservation’s location, and border-
crossing by members continues to be a difficult issue for authorities patrolling the
border on the Reservation.152
Impact of Illegal Migration on Federal Protected Land.153 Five federal
agencies oversee federally protected land that either sits on the border or is adjacent
to the border.154 Because the areas are remote and isolated from more populated
are not made in many jurisdictions due to various factors such as local political issues or
concerns over civil liability”).
150 See generally, Mark Wheeler, Shadow Wolves, Smithsonian Magazine, Jan. 2003, at 40.
151 This is still the case for the Kickapoo in Texas and across the border in Mexico. In 1983,
Congress passed legislation granting them the right to cross the border freely. See P.L. 97-
152 See Courtney E. Ozer, Make it Right: The Case for Granting Tohono O’odham Nation
Member U.S. Citizenship, 16 Geo. Immigr. L.J. 705 (2002). In the 108th Cong., Rep.
Grijalva introduced a bill that would have granted U.S. citizenship to all enrolled membersth
of the Tohono O’odham Nation. See H.R. 731 (108 Cong.).
153 Information in this section was taken from the U.S. Department of the Interior Report to
Congress, Report to the House of Representatives Committee on Appropriations on Impacts
Caused by Undocumented Aliens Crossing Federal Lands in Southeast Arizona, Apr. 29,
154 The five agencies and their missions include (1) the Bureau of Land Management
oversees approximately 2.4 million acres in Arizona that are within 62 miles of the border;
(2) the National Park Service (Department of the Interior) oversees five monuments or
historic sites that are either adjacent to or within 62 miles of the border; (3) the U.S. Fish
and Wildlife Service oversees six wildlife refuges that are either adjacent to or within 62
miles of the border; (4) the U.S. Forest Service (Department of Agriculture) oversees a
national forest that shares 60 miles of its border with Mexico and has a significant portion
of its land within miles of the border; and (5) the Bureau of Indian Affairs (Department of
areas and are in close proximity to the international border, they have become a
popular route for illegal migration and smuggling operations. Of concern is the
volume of illegal migrants who cross federal land and contribute to the
environmental damage of the land and place themselves at risk. In addition to the
migrants who cross the land, of equal concern is the border patrol’s use of the land
to conduct its operations. While a vast portion of the land in question is located in
southeast Arizona and represents only 8% of the entire U.S.-Mexico border,155 the
impact to the land caused by the migrants is significant.
In an effort to address these concerns, the USBP entered into a Memorandum
of Understanding (MOU) on March 20, 2001 with the Natural Resources
Conservation Service and the Environmental Protection Agency. The purpose of the
MOU is threefold:
!provide general procedures for the border patrol’s use of public land
to conduct its routine operations of search and rescue, training, and
apprehensions of undocumented aliens, while protecting the public’s
right to use public land;
!develop and implement a plan to mitigate environmental degradation
caused by undocumented aliens crossing federal lands in Arizona
and New Mexico;
!provide and encourage opportunities for all parties to operate more
effectively and achieve their missions.156
In addition to the MOU, a plan was implemented by the Department of the Interior
to mitigate the environmental and other impacts caused by the migrants. Despite
these initiatives, a report by the Government Accountability Office (GAO) concluded
that coordination between federal agencies appears to be insufficient.157
The Bureau of Immigration and Custom Enforcement’s (ICE) is the
investigative arm of DHS. ICE is charged with immigration and customs-related
investigations in the interior of the country, which includes enforcing policy
initiatives aimed at apprehending and deporting foreign nationals who are not
authorized to be in the United States as well as interdicting illegal substances and
the Interior), which assists in the management of tribal land, has four tribes that are within
60 miles of the border. U.S. Department of the Interior, Report to the House of
Representatives Committee on Appropriations on Impacts Caused by Undocumented Aliens
Crossing Federal Lands in Southeast Arizona, Apr. 29, 2002, p. C-1.
156 Ibid, p. C-2.
157 See GAO Report GAO-04-490, Border Security: Agencies Need to Better Coordinate
Their Strategies and Operation on Federal Land, June 2004.
contraband that was brought into the United States from another country. The
activities of ICE are an extension of the activities that are conducted at and between
ports of entry. ICE has 22 field offices that are located throughout the country, with
seven located in the southwest.
In addition to the immigration and customs-related investigative activities, ICE
also contains the former INS detention and removal program, the Federal Air
Marshal Service and the Federal Protective Service. This section discusses selected
ICE investigative activities, including its initiative to thwart terrorist activities and
other illegal acts. Other investigative activities such as countering human and drug
smuggling are also discussed as well as ICE’s detention and removal function.
ICE investigates various immigration, customs and criminal-related matters.
ICE’s immigration-related investigations include investigating aliens who violate the
INA and other related laws. Prior to September 11, 2001, the main categories of
crimes that were investigated by immigration and customs investigators included the
following suspected activities:
!activities that could threaten national security;
!fraudulent activities (i.e., possessing or manufacturing fraudulent
!smuggling of aliens and illegal substances;
!work-site violations, most frequently involving aliens who work
without permission and employers who knowingly hire illegal
!money laundering and other suspected financial crimes; and
While the terrorist attacks prompted DHS to reassign many investigators to work on
terrorism-related investigations, the traditional investigative categories continue to
be a focus of ICE.
Arizona Border Control (ABC) Initiative. The ABC Initiative, unveiled
on March 16, 2004, is a DHS initiative involving local, state, and federal law
enforcement officials in Arizona aimed at detecting and deterring terrorist activity
and smuggling operations. Several agencies coordinate efforts and resources as part
of the ABC, including ICE, CBP, and the Transportation Security Administration, as
well as the Department of the Interior, the Tohono O’Odham Nation, the U.S.
Attorney’s Office, and other law enforcement agencies. In order to execute the
mission, 200 additional permanent border patrol agents and 60 special operations
agents trained for search and rescue operations were assigned to the Tucson sector
over the summer of 2004, raising the number of agents assigned there to over 2,000.158
Additionally, two Unmanned Aerial Vehicles (UAV) and four additional
158 For an expanded discussion of UAVs and border security, please refer to CRS Report
helicopters were deployed to the Arizona border.159 While ABC is an administrative
initiative, Congress has expressed strong support for the initiative through the
According to ICE, in the first six months of the ABC, apprehension of
unauthorized aliens increased 56% from apprehensions during the same period of the
previous year. From March 16, 2004 to September 7, 2004, 351,700 unauthorized
aliens were apprehended compared to 225,108 unauthorized aliens during the same
period in 2003.161 ABC agents uncovered 225 drop houses162 both on the border and
in the cities of Phoenix and Tucson, and initiated investigations which led to the
prosecution of 1,431 felony and 2,955 misdemeanor cases, an increase of 47 and
agents confiscated over 388,000 pounds of marijuana, a 105% increase over FY2003,
and 5,242 pounds of cocaine. The data show that the ABC initiative has yielded
results on the enforcement side, with increases in the number of aliens apprehended
and drugs confiscated, as well as felony and misdemeanor prosecutions initiated.
However, despite the deployment of 60 additional BORSTAR agents to the region
migrant deaths increased by 7% in FY2004 from 132 in FY2003 to 141.
Human Smuggling. Most alien smuggling into the United States reportedly
occurs along the U.S.-Mexico border. Mexico is a staging area for aliens from
Mexico and other parts of the world to attempt to illegally enter the United States.163
According to DHS, alien smuggling of persons into the United States constitutes a
significant risk to national security and public safety.164 In addition, smuggling
RS21698, Homeland Security: Unmanned Aerial Vehicles and Border Surveillance, by
159 U.S. Immigrations and Customs Enforcement, Fact Sheet: Arizona Border Control
160 U.S. Congress, House Committee on Appropriations, Department of Homeland Security
Appropriations Bill, 2005, report to accompany H.R. 4567, 108th Cong., 2nd sess., H.Rept.
161 DHS, “Border Security: At Six Months, Arizona Border Patrol Initiative Marks
Success,” Inside ICE vol 1, no. 12, Sept. 27, 2004, at [http://www.ice.gov/graphics/news/
162 Drop houses are apartments or houses on the American side of the border used by alien
smugglers to temporarily hold unauthorized aliens while they await transportation from the
border region into the interior of the United States.
163 Testimony of Michael W. Cutler, Fellow, Center for Immigration Studies, in U.S.
Congress, House Committee on the Judiciary, Subcommittee on Immigration, Border
Security, and Claims, Pushing the Border Out on Alien Smuggling: New Tools andthnd
Intelligence Initiatives, hearings, 108 Cong., 2 sess., May 18, 2004. (Hereafter cited as
Cutler, Pushing the Border Out on Alien Smuggling.)
164 Testimony of John P. Torres, Deputy Assistant Director, Smuggling and Public Safety,
U.S. Immigration and Customs Enforcement, U.S. DHS, in U.S. Congress, House
Committee on the Judiciary, Subcommittee on Immigration, Border Security, and Claims,
pipelines which are used by unauthorized aliens and criminals seeking to enter the
United States could also be used by terrorists.165 It is estimated that the international
alien smuggling and sex trafficking trade generates $9.5 billion for criminal
organizations worldwide, and the profits are used to finance additional criminal
enterprises, such as the trafficking of drugs, weapons, other contraband or even
terrorist acts.166 Nonetheless, it is not known how many people are smuggled into the
United States in a year.
As the border patrol makes it more difficult for smugglers to cross at one point
along the border, the smugglers move their operations elsewhere. The success of
Operation Gatekeeper in San Diego and Operation Hold the Line in El Paso, have
been cited as one of the causes for the increase in smuggling in the Arizona corridor.
In addition, smuggling organizations are attracted to the Arizona corridor due to the
following: (1) the terrain is challenging for law enforcement; (2) the area is a major
transportation hub with a highly developed highway system and an international
airport for getting into the interior quickly and easily; (3) the corridor has an
extensive staging area comprised of homes, hotels and apartments; and (4) the area
has a robust financial services infrastructure.167
Often alien smuggling can lead to collateral crimes including kidnaping,
homicide, assault, rape, robbery, auto theft, high speed flight, identity theft, and the
manufacturing and distribution of fraudulent documents. For example, smugglers
may hold an alien hostage to extort a ransom from the alien’s family.168 In addition,
smugglers often establish “safe houses” (also called “drop houses”) where aliens are
kept until they can be moved into the interior of the United States. The often squalid
conditions of these “safe houses” endanger the lives of the aliens and creates health
and safety issues for people living in the community.169 Also, some have noted an
increase in motor vehicle casualties due to the unsafe condition of vehicles used by
smugglers. (Often smugglers rig the vehicles to hide as many aliens as possible,
often making the vehicle unsafe to operate.)170 Furthermore, a proportion of border
Pushing the Border Out on Alien Smuggling: New Tools and Intelligence Initiatives,thnd
hearings, 108 Cong., 2 sess., May 18, 2004. (Hereafter cited as Torres, Pushing the
Border Out on Alien Smuggling.)
167 Interview with Patricia A. Schmidt, Action Associate Special Agent in Charge, Phoenix,
Arizona office of the Bureau of Immigration and Customs Enforcement, Aug. 2, 2004.
168 Statement of Representative Linda T. Sanchez, in U.S. Congress, House Committee on
the Judiciary, Subcommittee on Immigration, Border Security, and Claims, Pushing theth
Border Out on Alien Smuggling: New Tools and Intelligence Initiatives, hearings, 108nd
Cong., 2 sess., May 18, 2004.
169 Cutler, Pushing the Border Out on Alien Smuggling.
170 Personal Communication with Kevin Burns, Chief Financial Officer of the University
Medical Center in Tucson, Arizona, Aug. 3, 2004.
deaths is tied to smuggling, as some smugglers mislead their charges about how far
it is to the United States, and how much water is needed to make the journey.171
Drug/Contraband Smuggling. For several decades, the federal government
and Congress have created and legislated initiatives as well as dedicated resources
to tackle the illicit drug trade. The illicit drug trade is a billion-dollar business that
often involves the perpetration of violent crimes. Although not a new concern, the
potential for terrorists to exploit the illicit drug market as a means to facilitate their
cause has received heightened attention since the 2001 terrorist attacks. Because
Mexico is a major corridor for the transport of illicit drugs to the United States,172
several initiatives are specific to the southwest border region, as discussed below.
DHS’ anti-drug trafficking efforts are directed at and along the border in
addition to efforts that are carried out in the interior by ICE agents. According to
DHS, more than 56,321 drug seizures were made at and between POEs in FY2004,
which totaled to over two million pounds of illicit drugs estimated to be worth over173
two billion dollars. While the majority of seizures take place at POEs, larger
quantities of illicit drugs are seized by the border patrol between POEs as well as by
ICE agents in the interior. At the southwest border, 15,526 drug seizures were made
at and between POEs in FY2004, which totaled to over 1.9 million pounds of illicit174
DHS Anti-Smuggling/Trafficking Strategy. For many years, the former
INS (and now ICE) has worked to identify and dismantle large scale transnational
smuggling organizations and have done so in collaboration with other law
enforcement agencies, both foreign and domestic. ICE places a significant emphasis
on targeting alien smuggling organizations that pose a threat to national security,
recognizing the possibility that terrorists could align themselves with alien smuggling
networks to obtain undetected entry into the United States.175
ICE Storm. To counter some of the crime related to alien smuggling, DHS
created Operation ICE Storm, a multi-agency initiative led by ICE’s Office of
Investigations which aims to dismantle the finances of violent smuggling
organizations responsible for transporting illegal aliens into the United States along
171 Personal Communication with Sister Elizabeth Ohmann, Secretary, Humane Borders,
Aug. 3, 2004.
172 The initiatives discussed in this section are not a comprehensive list of all possible
initiatives that may be directed at stemming illicit drugs at the southwest border.
173 See [http://www.cbp.gov/xp/cgov/newsroom/press_releases/archives/
175 Testimony of Interim Associate Special Agent in Charge, Bureau of Immigration and
Customs Enforcement Thomas Homan, in U.S. Congress, House Judiciary Committee,
Subcommittee on Immigration, Border Security, and Claims, The Deadly Consequences ofthst
Illegal Alien Smuggling hearings, 108 Cong., 1 sess., June 24, 2003. (Hereafter referred
to as Homan, Deadly Consequences.)
the southwest border.176 Specifically, ICE Storm seeks to eliminate violent crime in
Phoenix, Arizona caused by organizations, which smuggle unauthorized migrants
across the U.S.-Mexico border. Reportedly, 50 agents from ICE have been assigned
to Phoenix as part of ICE Storm.177 During the first quarter of ICE Storm the
Phoenix Police Department reported 30 fewer homicides than the previous quarter.178
As of March 3, 2004, ICE Storm had resulted in more than 1,526 criminal and
administrative arrests. In addition, as of May 18, 2004 ICE Storm had resulted in
the prosecution of more than 190 defendants for human smuggling, kidnaping,
money-laundering, and weapons and drug violations, the seizure of over 100
weapons and over $5.2 million. ICE Storm became a component of the ABC on
March 16, 2004.179
Department of Justice Efforts
The Department of Justice (DOJ) has a presence in the southwest, particularly
due to the long-standing problem of drug trafficking across the border. Several task
forces led by DOJ agencies that are aimed at stemming the flow of illegal substances
across the border are discussed below.
Organized Crime Drug Enforcement Task Force (OCDETF).180 The
OCDETF program was created during President Reagan’s Administration in 1982
to pursue major drug trafficking organizations. The OCDETF is a collaborative
effort among several DOJ agencies,181 the Internal Revenue Service, ICE and the U.S.
Coast Guard. OCDETF also utilizes the support of state and local law enforcement
According to the President’s 2006 budget proposal, the OCDETF program faces
several internal challenges. For example, due to the composition of OCDETF
(several agencies within and outside of DOJ comprise OCDETF), “each member
agency has mandated its own priorities for carrying out its part of the fight against
illegal drugs.”182 As a result, OCDETF lacks a single mission. Another concern that
is somewhat related to the aforementioned issue is the need for a consolidated
budget. Agencies within DOJ as well as DHS’ ICE and the Department of the
176 See [http://www.ice.gov/graphics/enforce/ops/ICEStorm.htm].
177 Gabriela Rico, “Feds to Unleash ICE Storm on Migrant Smugglers,” The Tucson Citizen,
Nov. 11, 2003, p. 1A.
178 Personal Communication with Patricia A. Schmidt, Action Associate Special Agent in
Charge, Phoenix, Arizona office of the Bureau of Immigration and Customs Enforcement,
Aug. 2, 2004.
179 See [http://www.ice.gov/graphics/enforce/ops/ICEStorm.htm].
180 For additional information on OCDETF, see [http://www.whitehousedrugpolicy.gov/
publications/policy/ 06budget/j ustice.pdf].
181 DEA, FBI, the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the U.S.
182 U.S. DOJ 2006 Budget Justifications, vol. II, Interagency Crime and Drug Enforcement
Budget Estimates to Congress, p. 7.
Treasury’s Internal Revenue Service all receive appropriations for OCDETF-related
activities. The Administration contends that a consolidated budget is “critical to
OCDETF’s ability to effectively manage the program, to ensure proper use of
OCDETF resources and to monitor performance.”183 In FY2004 and FY2005,
Congress consolidated all of OCDETF’s appropriations into a single appropriation.
The congressional committee that has jurisdiction over OCDETF expressed concern
with respect to funding DHS and the Department of the Treasury OCDETF-related
activities.184 Both of these issues raise questions about management and control of
OCDETF funds and resources as well as the identification and coordination of
program priorities.185 This issue will probably continue to be a target of
Southwest Border Prosecution Initiative (SWBPI). The SWBPI funds
local prosecution offices in the four southwest border states for the prosecution of
selected drug cases. The program also funds the pre-trial detention costs for selected
cases. SWBPI supports the enforcement of both federal and state laws through
coordination in enforcing and prosecuting foreign nationals and citizens involved in
border criminal enterprises.
A similar program, the Southwest Border Initiative (SWBI),186 was initiated in187
1994 and is a cooperative effort among several divisions and agencies within DOJ
and DHS. SWBI specifically targets Mexican trafficking organizations that operate
along the southwest border.
High Intensity Drug Trafficking Area (HIDTA).188 The HIDTA program
was established by the Anti-Drug Abuse Act of 1988.189 The Office of National Drug
Control Policy (ONDCP) designates areas within the United States that are known
to have problems with drug trafficking. The HIDTA program develops partnerships
among federal, state and local law enforcement agencies and coordinates drug control
efforts among the partnering agencies. The HIDTA program provides federal
resources to the identified areas to assist with eliminating drug trafficking. There are
184 House Committee on Appropriations Subcommittee on Commerce, Justice, State,
Judiciary and Related Agencies Department of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Bill, FY2005, H.Rept. 108-576.
186 For additional information on the SWBI, see [http://www.whitehousedrugpolicy.gov/
enforce/swborder.html] and [http://www.whitehousedrugpolicy.gov/publications/policy/
187 U.S. Attorneys, DOJ Criminal Division, the Federal Bureau of Investigation, and the
Drug Enforcement Agency.
188 For additional information on HIDTA, see [http://www.whitehousedrugpolicy.gov/
publications/policy/hidta04/overview.html] and [http://www.whitehousedrugpolicy.gov/
publications/policy/ 06budget/j ustice.pdf].
189 See P.L. 100-690. The program was reauthorized in the Office of National Drug Control
Policy’s reauthorization act (P.L. 105-277).
HIDTA sites in southern California, Arizona, New Mexico, and west and south
Texas, collectively referred to as the Southwest Border HIDTA.
The HIDTA program was faced with similar challenges to those of the
OCDETF. The President’s FY2006 budget, however, proposes to move HIDTA to
DOJ (from the ONDCP), in an effort to better enable law enforcement to target the
Detention and Removal
ICE’s responsibilities under the detention and removal activity include
overseeing the custody of aliens who are detained and facilitating their release or
deportation. The INA requires the detention of several classes of aliens, including
those who are inadmissible or deportable on criminal, terrorist, or national security
grounds; those who have arrived in the United States without proper documents and
have requested asylum (pending a determination of their asylum claims); and those
who have final orders of deportation.190 ICE measures its successes in terms of how
many aliens are located and removed. Following is an analysis of ICE’s activities of
locating and removing aliens.
While the border patrol apprehends more deportable aliens than ICE
investigations, ICE apprehends a sizeable number of aliens. ICE has a combined
total of 5,500 interior investigators, compared to over 9,500 Border Patrol agents.
ICE’s investigators are stationed throughout the United States, compared to border
patrol agents who are located at the border with the majority at the southwest border.
In FY2000, ICE located a total of 138,291 aliens, of which 57,131 (or 41%) were
located in southwest jurisdictions (see Figure 7).191 By FY2003, the number of
aliens that were located by ICE decreased slightly, by 1%. Throughout the years
examined (FY2001 to FY2003), ICE units in the southwest led all ICE units in
locating deportable aliens.
190 §212, §235 and §237 of INA.
191 These southwest jurisdictions include Dallas, TX; El Paso, TX; Houston, TX; Los
Angeles, CA; San Diego, CA; and Tucson, AZ. Although a sizeable number of aliens are
located by ICE’s San Francisco unit, it was not included due to its lack of proximity to the
Figure 7. Deportable Alien Located by ICE’s Southwest Field
Offices, FY2000 to FY2003
13, 94 6
17, 74 340, 000
17, 425 7,1 12 7,76830, 000
25, 442 19,504 15,754 14, 37 120, 000
12, 57 7 12, 51 810, 000
2000 2001 2002 2003
Ar izona C a lif orn ia Texas
Source: CRS analysis of ICE data.
In FY2004, ICE removed a total of 160,284 aliens, of which 84,433 (or 53%)
were criminal aliens and 75,851 (or 47%) were non-criminal aliens. Of the total
number of aliens ICE removed in FY2003, 72% were removed by one of its units in
the southwest (see Figure 8). As is the case with the border patrol’s apprehension
numbers, the majority of foreign nationals who are removed by ICE are Mexican
nationals. For FY2001 to FY2003, over 90% of aliens removed were from
Mex i co. 192
In FY2001, ICE expelled over one million aliens, of which 91% were removed
by one of ICE’s southwest units (see Figure 8).193 In FY2002, the number of aliens
expelled by ICE dropped by nearly 50% as a result of greater targeting on terrorism
issues. In FY2003, however, the number of aliens expelled by ICE increased by 52%
from FY2002. Throughout the years examined, ICE units in the southwest led all
others with aliens removals.
192 For FY2001, 96% of aliens removed were from Mexico; for FY2002 the percentage was
94%; and in FY2003 91%. U.S. DOJ Immigration and Naturalization Service, 2001, 2002
and 2003 Statistical Yearbook of the Immigration and Naturalization Service.
193 These units are located in Los Angeles and San Diego, CA; Phoenix, AZ; and El Paso,
Houston and San Antonio TX.
Figure 8. Number of Aliens Expelled by ICE’s Southwest Field
Offices, FY2001 to FY2003
646, 7781,00 0,000
435 , 39 6400, 000
189, 733 91, 517200, 000
Southwest ICE offices
Non-Southwest ICE Offices
Source: CRS presentation of INS data.194
Selected ICE Issues
Some of the major issues facing ICE stem from the growing number of illegal
aliens present in the United States. While the issues discussed below are not
specifically unique to the southwest border region, the southwest border receives a
great deal of attention due to the sheer number of illegal migrants that cross it every
day and because some of the border communities in the southwest have a large
percentage of foreign nationals. Because of this distinction, issues facing ICE (as
well as CBP) are usually focused in the southwest.
Since 1996, Congress has authorized and appropriated funding to increase the
number of immigration investigators; and due to the 9/11 terrorist attacks, Congress
has specifically authorized increases in the number of ICE investigators. Despite
congressional action directed at increasing the number of interior investigators,195
since the merger of the former INS’ interior enforcement activities with those of the
194 For FY2001, 96% of aliens removed were from Mexico; for FY2002 the percentage was
94%; and in FY2003 91%. U.S. DOJ Immigration and Naturalization Service, 2001, 2002
and 2003 Statistical Yearbook of the Immigration and Naturalization Service.
195 See for example, §5203 of P.L. 108-458.
U.S. Customs Service, the number of interior investigators has remained
approximately the same.196
Customs Patrol Agents (Shadow Wolves). As discussed previously, in
1972, the U.S. Customs Service created a specialized investigative unit to patrol the
portion of the international border that runs through the Tohono O’odham Indian
Reservation. The Customs Patrol Agents (Shadow Wolves) unit is comprised solely
of Native Americans who are registered with an official Indian tribe. The primary
mission of the unit was to investigate drug smuggling operations on the reservation
and interdict illegal substances. In 2003, however, DHS merged the Shadow Wolves
with the border patrol and changed their mission (they were previously a part of ICE).
The group is now primarily responsible for interdicting illegal migrants who cross
the border on the reservation.
During a three-year period (2002-2004), the Shadow Wolves seized an average
of 75,443 pounds of marijuana.197 Since the merger of the Shadow Wolves with the
border patrol, the only investigative presence on the reservation is ICE. ICE
currently has one field office located in Sells, Arizona, which is on the reservation.
Previously, there was an additional ICE field office within close proximity to the
reservation located in Ajo, Arizona; that office has since been closed. Of concern is
the potential for terrorists to exploit the porous southwest border. The portions of the
border that are on the reservation pose a security risk, as evident in the amount of
drug trafficking taking place on the reservation. Congress faces the question of
whether there are sufficient resources on the reservation to combat drug trafficking.
The House has already considered this issue in the Department of Homeland Security
Authorization Act for FY2006 (H.R. 1817), passed on May 18, 2005. An
amendment to H.R. 1817 was adopted by the House during the floor debate of the
bill. In essence, the amendment would transfer the Shadow Wolves back to ICE.
State and Local Law Enforcement198
Increasingly, the enforcement of U.S. immigration law is being played out in the
interior of the country. Nowhere is this more evident than at the southwest border,
particularly in Arizona. While the border patrol’s primary responsibility is to prevent
illegal people and things from crossing the border between ports of entry, its
authority is limited with respect to its geographical boundaries. Moreover, DHS has
a limited number of interior investigators who are charged with enforcing
immigration, customs and other federal law within the interior of the country,
196 Prior to the creation of DHS, the former INS had approximately 2,000 interior
investigators and the U.S. Customs Service had approximately 3,500 interior investigators.
197 For calendar year 2002, the Shadow Wolves seized 93,321 lbs. of marijuana; 120,440 lbs.
in 2003 and 52,569 lbs.
198 For additional information, see CRS Report RL32270, Enforcing Immigration Law: The
Role of State and Local Law Enforcement, by Lisa M. Seghetti, Stephen R. Viña and Karma
compared to over 600,000 state and local law enforcement officers.199 In an effort
to carry out the country’s anti-terrorism mission and strengthen the interior
enforcement of immigration law, DHS has entered into agreements (Memoranda of
Understanding) with several localities that include the deputizing of local law
enforcement officers to assist the federal government with enforcing certain aspects
of immigration law.200 The policy, however, faces a divided reception.
Memoranda of Understanding. As mentioned above, IIRIRA amended the
INA by authorizing the Attorney General to enter into written agreements with states
or political subdivisions of a state so that qualified officers could perform specified
immigration-related duties. This authority was given new urgency following the
terrorist attacks in September 2001. In 2002, the Attorney General proposed an
initiative to enter into such agreements in an effort to carry out the country’s
antiterrorism mission. Under the agreement, state and local law enforcement officers
could be deputized to assist the federal government with enforcing certain aspects of
immigration law.201 To date, Florida, Alabama, and the Los Angeles County
Sheriff’s Department have entered into such an agreement. Moreover, some
jurisdictions located in the southwest are either considering utilizing their law
enforcement officers in a similar manner or are in discussions with federal authorities
to enter into such an agreement.
Proponents of these agreements argue that the initiative assists DHS to enforce202
the immigration law deeper into the interior of the United States. They contend
that state and local law enforcement agencies bring additional resources to assist the
federal government with enforcing immigration law. Also, they assert that the
initiative would make it easier to arrest more potential terrorists and foreign-born203
criminals, thus providing an elevated level of security for the nation.
Opponents, on the other hand, argue that these agreements undermine the
relationship between local law enforcement agencies and the communities they204
serve. For example, potential witnesses and victims of crime who are immigrants
199 According to DHS Congressional Affairs Office, as of Feb. 25, 2005, there are 5,500 ICE
200 U.S. Department of Justice, Attorney General Prepared Remarks on the National
Security Entry-Exit Registration System, June 6, 2002.
201 U.S. Department of Justice, Attorney General Prepared Remarks on the National
Security Entry-Exit Registration System, June 6, 2002.
202 See the Clear Law Enforcement for Criminal Alien Removal Act of 2003 (CLEAR; H.R.
the 108 Cong.
203 Statement of U.S. Immigration and Customs Enforcement, in U.S. Congress, Senate
Committee on the Judiciary Subcommittee on Immigration, Border Security and Citizenship,
Hearing on U.S. Immigration and Customs Enforcement Coordination with State and Local
Law Enforcement, Apr. 22, 2004.
204 Statement of Human Rights Watch, in U.S. Congress, Senate Committee on the Judiciary
Subcommittee on Immigration, Border Security and Citizenship, Hearing on U.S.
and may be illegally present in the United States may be reluctant to come forward
to report crimes in fear of immigration action that might be taken against them by
DHS. They contend that the initiative could result in the reduction of local law
enforcement resources as well as the inconsistent application of immigration law
The issue of using state and local law enforcement to enforce immigration law
remains a controversial subject. Legislation has already been introduced in the 109th
Congress that would define the proper role of state and local law enforcement
officials in enforcing immigration law.206
Detention Bed Space207
The Immigration and Nationality Act gives the Secretary of Homeland Security
the authority to issue a warrant to arrest and detain any alien in the United States
while awaiting a determination of whether the alien should be removed from the
country. While the majority of aliens that are detained by DHS have committed a
crime, have served their criminal sentence and are detained while undergoing their
deportation proceedings, other aliens are detained due to attempting to fraudulently
enter the United States or attempting to enter the country without proper
documentation. The sheer number of aliens that are detained or who are eligible to
be detained has posed a problem for DHS officials.
The apparent shortage of bed space, which results in many illegal migrants
being released into the interior of the country, has increasingly concerned lawmakers.
In FY2003, there were 231,500 aliens detained, of which nearly 50% were criminal
aliens.208 The majority of aliens detained tend to be Mexican nationals, which
accounted for 52% of the detention population in FY2003.209
While officials at DHS have asserted that they lack detention space, they have
also asserted that those aliens who should be detained are, in fact, detained. Critics,
on the other hand, contend that the increase in the number of classes of aliens subject
to mandatory detention has impacted the availability of detention space for lower
priority detainees. There are reportedly 300,000 noncitizens in the United States who
have been ordered deported and have not left the country. Some argue that these
Immigration and Customs Enforcement Coordination with State and Local Law
Enforcement, Apr. 22, 2004.
206 See for example, the Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act
of 2005, H.R. 3137 and the Homeland Security Enhancement Act of 2005, S. 1362.
207 For additional information, see CRS Report RL32369, Immigration-Related Detention:
Current Legislative Issues, by Alison Siskin.
208 DHS, Office of Immigration Statistics, 2003 Yearbook of Immigration Statistics, Sept.
300,000 people would have left the country if they had been detained once they were
ordered deported. A study done by DOJ’s Inspector General found that almost 94%
of those detained with final orders of removal were deported while only 11% of those
not detained who were issued final orders of removals actually left the country.210
Concerns have been raised that the decisions on which aliens to release and when to
release them may be based on the amount of detention space, not on the merits of
individual cases, and that the amount of space may vary by area of the country
leading to inequities and disparate policies in different geographic areas.211
Selected Crosscutting Issues
While each of the areas above have presented specific policy issues, there are
other issues that transcend subject area and apply to the entirety of border security on
the southwest border.
Systems Integration and Interoperability
The Enhanced Border Security and Visa Entry Reform Act of 2002212 mandated
the integration of immigration databases. In addition to integrating data systems that
contain federal law enforcement and intelligence information relevant to making
decisions on visa admissibility and the removal of aliens, the act also mandated that
immigration databases be integrated with other relevant data systems.
CBP officials use several data systems and databases that assist them with
identifying aliens who are potentially inadmissible under the INA or otherwise may
pose a threat to the country. CBP officials also utilize several data systems and
databases with respect to identifying high-risk commercial goods that warrant further
inspection or review. ICE officials also query several different data systems and
databases in the course of their duties. Of concern are the numerous data systems and
databases that are not integrated or not readily accessible. Recently enacted
legislation called for the integration of most of these databases and data systems;213
and the 9/11 Commission also called for similar integration.214 Several questions are
raised when assessing the integration of various data systems and databases:
210 Office of the Inspector General, Department of Justice, The Immigration and
Naturalization Service’s Removal of Aliens Issued Final Orders, Report I-2003-004, Feb.
211 The decision does not usually apply to aliens who are under mandatory detention. A high
priority detainee may be released to make space for a mandatory detainee. Nonetheless,
DHS does have explicit procedures for choosing between two mandatory detainees if there
is not enough bed space. Pearson, INS Detention Guidelines, p. 1116.
212 P.L. 107-173.
213 See for example, P.L. 107-56; P.L. 107-173; and P.L. 108-4.
214 See P.L. 107-56, P.L. 107-173 and P.L. 108-458.
!What are the potential difficulties with integrating the various data
systems and databases and how can these difficulties be reduced?
!Who should have access to the integrated data system and what is
the appropriate level of access?
!How will the privacy of information contained in the integrated data
system be safeguarded?
Technology and Staffing
Much of the area along the southwest border lacks direct surveillance by border
patrol personnel. Recognizing the vulnerabilities posed on the southwest border,
starting in 1994, Congress authorized several increases in the number of border patrol
agents as well as appropriated funding to enhance technology deployed at the
border.215 Since the terrorist attacks, both the border patrol and inspectors saw a
boost in their resources. Despite the concentration of funding and resources at the
border, critics contend that more should be done. For example, concerns about the
lack of personnel at the border were expressed in a January 2003 Government
Accountability Office (GAO) report. GAO noted that the former INS would need
additional staffing and resources in order to gain control of the southwest border.216
According to the border patrol, a needs assessment was conducted and it was
determined that 22,000 border patrol agents were needed to secure the border, which
would increase the border patrol twofold.217
Regarding the staffing of the customs functions of CBP, in 1998 the former
Customs Service commissioned PricewaterhouseCoopers to develop a resource
allocation model (RAM) to determine the most effective deployment of its inspectors
and canine enforcement officers at more than 300 international ports of entry. The
RAM report concluded that in order to meet its multifaceted mission in FY2002,
Customs staffing needed to be increased by 14,776 positions over the FY1998 base
(19,428), to bring the total Customs staffing to 34,204 positions. The largest increase
would be in the inspector (6,481), special agent (2,041) and canine enforcement
officer (650) positions.218 While GAO testified in April 2000 that it found some
weaknesses (data reliability issues) with the RAM study,219 it remains the most
comprehensive staffing analysis to date. Since the inspections function of the U.S.
Customs Service was merged with the immigration inspections function from the
215 In addition to Congressional action, the border patrol rolled out its “Prevention Through
Deterrence” strategy in 1994, which included significantly increasing technology and the
number of border patrol agents along the border in targeted areas, as discussed above.
216 U.S. General Accounting Office, Management Challenges and Program Risks:
Department of Justice, (Washington: Jan. 2003), GAO-03-105, p. 14.
217 Aug. 16,2005 CRS site visit at the Yuma Border Patrol Sector.
218 Customs Service, U.S. Custom Service Optimal Staffing Levels, 9 pp. and appendixes A-
219 U.S. General Accounting Office, Testimony before the House Committee on Government
Reform Subcommittee on Government Management, Information and Technology, U.S.
Customs Service: Observations on Selected Operations and Program Issues, T-
GGD/AIMD-00-1550 (Washington, Apr. 20, 2000), p. 6.
former INS, it is not known what the appropriate staffing level should be for the
various missions under CBP.
As Congress continues to exercise its oversight role, the issue of staffing and
resources may continue to be of interest. An option includes requiring that a study
be conducted to examine the proper staffing level and amount and type of resources
necessary to secure the border.
Port of Entry Infrastructure
The adequacy of infrastructure at ports of entry has been a long-standing
concern. The Data Management Improvement Act (DMIA) Task Force examined
infrastructure at land ports of entry in 2002 and 2003 as a part of its report to
Congress on the entry and exit data system. The DMIA Task Force asserted in its
report that “resources to expand and improve the infrastructure to support growth in
workload and staffing have not kept pace, creating infrastructure weaknesses.”220
In 2003, the DMIA Task Force reported the following with respect to the federal
inspections area at land ports of entry:
!64 ports have less than 25% of required space;
!40 ports have between 25 and 50% of required space; and
!13 ports have between 50 and 75% of the space required.221
Improving the infrastructure at land ports of entry, however, may prove to be
challenging. For example, the majority of facilities at the nation’s land border have
limited space. In most cases, the federal government cannot immediately expand
existing facilities due to the adjacent land being owned by other entities. In addition
to the spatial limitations, the federal government faces environmental challenges
when it seeks to expand port infrastructure. According to the DMIA Task Force, “the
U.S. Environmental Protection Agency environmental impact and review processes
can make build-out lengthy, expensive, and burdensome.”222 Other issues such as
insufficient roadways and lack of coordination among the various agencies that have
a stake in the process also hamper efforts to expand port infrastructure. Finally, as
resources become more scarce, CBP officials in charge of infrastructure projects at
the northern and southwest border may find themselves competing for resources.
Past Congresses exercised an oversight role by requiring studies on port
infrastructure.223 The 109th Congress may choose to follow-up on these studies.
220 Data Management Improvement Act (DMIA) Task Force, Second Annual Report to
Congress, Dec. 2003, p. 33.
221 Ibid., p. 32.
222 Ibid., pp. 33-34.
223 One such study on port infrastructure was completed in 2000. The Treasury
Appropriations Act, FY2000 (P.L. 106-58) directed the U.S. Customs Service to assess the
current condition and infrastructure needs for U.S. ports of entry on the northern and
southwest borders. See U.S. Customs Service, Ports of Entry Infrastructure Assessment
The repatriation of some Mexican nationals has been a long-standing practice,
dating back to the former INS. In the first part of the 20th century, there was an active
campaign to repatriate Mexican nationals who illegally entered the United States.
Typically, U.S. immigration officials would turn back qualified Mexican nationals
to the Mexican side of the border.224 More recently, however, DHS has piloted two
different types of repatriation programs, both aimed at making it more difficult for
the illegal alien to return to the United States. (See discussion below.)
Lateral Repatriation. In an attempt to discourage unauthorized migrants
from attempting to re-cross the border when they are returned to Mexico, in
September 2003 the border patrol instituted a pilot program that airlifted aliens from
the Arizona border to Texas. The border patrol originally had attempted to reach an
agreement with Mexico to repatriate aliens to the interior of the country, but when
the Mexican government declined to participate, the agency instead began to
involuntarily repatriate aliens laterally from Arizona to Texas. The Texas border
poses a challenge for would-be border crossers due to the Rio Grande river and the
number of border patrol agents stationed along it. The border patrol chartered two
airplanes in Tucson for the pilot program, with an overall cost of $1.3 million.225 The
lateral repatriation program ran for 24 days in September of 2003 and repatriated
over 6,200 unauthorized migrants apprehended in Arizona to four cities along the
Texas border: El Paso, Del Rio, Laredo, and McAllen.226 According to CBP, the
pilot program led to an 18% decline in apprehensions in the Tucson sector and led
to only one migrant death during the period, compared with 10 migrant deaths during
the same period in 2002.227 Proponents of the program point to the reduction in
apprehensions and the low incidence of migrant deaths in Arizona during its
operation as proof that the lateral repatriation program is an effective way to
discourage unauthorized aliens from immediately attempting to re-enter the country
while simultaneously saving lives. The Mexican government objected to the
program, claiming that the cities on the Mexican side of the border in Texas were not
equipped to handle the influx of returnees.228 Additionally, some U.S. lawmakers
held that the program wasted taxpayer dollars because it did not solve the problem
Study, June 2000.
224 Mexican nationals and nationals from other countries who are being processed for formal
removal do not qualify for repatriation. Additionally, unaccompanied alien children and
nationals who are subject to prosecution (i.e., criminal aliens) are also not eligible for
225 Richard Boudreaux, “Repatriation Effort Earns Border Patrol Few Fans,” The Los
Angeles Times, Sept. 29, 2003, p. A1.
226 Sergio Bustos, “US Deportation Policy Irks Texas Lawmakers, Mexican Government,”
Gannet News Service, Oct. 2, 2003.
227 Jerry Seper, “Aliens Pilot Program Reduces Deaths at Borders with Mexico,” The
Washington Times, Oct. 8, 2003, p. A6.
228 “Mexico-US: Lateral Repatriation Scheme Ends,” Latin American Weekly Report, Oct.
of unauthorized migration but instead shifted Arizona’s problem to Texas.229
Reportedly, CBP is no longer conducting lateral repatriations.
Interior Repatriation. In 1996, Congress authorized the INS to create an
interior repatriation program to return apprehended unauthorized Mexican aliens to
the interior of their country.230 Eight years later, on June 9, 2004, the White House
announced it had reached agreement with the Mexican government to begin
implementing the interior repatriation program. This agreement grew out of the
previously mentioned lateral repatriation program, which was unpopular in Mexico
and featured the involuntary repatriation of Mexicans apprehended along the Arizona
border to the Texas border. The interior repatriation program is a departure from the
current practice of returning aliens to the Mexican side of the border, and is aimed
at reducing the number of aliens who immediately try to cross back into the United
States. Due to constitutional constraints in Mexico, the apprehended aliens’ return231
to the interior must be voluntary and the willingness of their participation will be
certified by Mexican consular officers.232 During the pilot phase of the program,
which ran through September 2004, 14,058 aliens were repatriated at a cost of
approximately $15.4 million. It remains to be seen whether this program will reduce
the recidivism rate of the illegal aliens returned to Mexico. DHS has requested $39
million to fund this program in FY2006 within the ICE appropriation.233
ICE’s Role in Repatriation. As discussed above, the border patrol has the
authority to repatriate certain Mexican nationals. In its classic form, repatriation was
usually done by the border patrol by simply turning the Mexican national back to the
Mexican side of the border. With the implementation of both the lateral and interior
repatriation programs, resources were drawn from ICE. Unlike CBP, ICE has the
resources to detain illegal aliens until they can be repatriated to Mexico. Moreover,
because ICE already has a removal program in place, it also has the resources to
transport illegal aliens to their home countries.
Recent concerns have emerged over the apparent organizational issues in at least
one of DHS’ agencies. In recent months, ICE has been faced with a budget shortfall
229 Sergio Bustos, “Controversial Repatriation Program Could be Back Next Year” Gannet
News Service, Nov. 17, 2003.
230 See §437 of P.L. 104-132.
231 There is an exception to the volunteer return of the migrant to the interior of Mexico if
the border patrol can demonstrate that the migrant is at risk if he/she attempts to illegally
enter the country (i.e., risk of ill health or death that is based on the condition of the migrant
upon the current apprehension).
232 U.S. DHS, CBP, Office of the Press Secretary, “Department of Homeland Security to
Begin Pilot Program for Voluntary Interior Repatriation of Mexican Nationals,” press
release, June 29, 2004.
233 For more information on DHS appropriations, please refer to CRS Report RL32863,
Homeland Security Department: FY2006 Appropriations, coordinated by Jennifer Lake and
and reports of low morale and persisting conflicts over territory.234 Similar issues
that are now facing ICE were evident in at least one of the legacy agencies that was
transferred to ICE. The former INS was heavily criticized for not fully enforcing the
immigration law, having poor management practices, and lacking accountability,
among other things.235
In addition to the organizational concerns, questions continue to be raised with
respect to the activities of CBP and ICE. While a clear distinction can be made
regarding the border functions of CBP and the interior functions of ICE, both
functions represent a continuum of activities that are interrelated. Certainly questions
have been raised pertaining to the feasibility of combining these two functions.
Several proposals to restructure ICE and CBP have been advanced and include
creating a new agency that would contain the immigration enforcement functions;236
and consolidating ICE and CBP into one bureau.237 Critics of the status quo contend
that by consolidating CBP and ICE, coordination and sharing of efforts between the
two bureaus would be better facilitated. Moreover, the ease of obtaining information
from the counterpart bureau would be strengthened.238
These organizational concerns impact the southwest border. For example, CBP
and ICE are dependent upon each other to carry out the various initiatives that are
unique to the southwest border (e.g., the ABC initiative and the interior and lateral
repatriation programs). As Congress considers the challenges facing ICE and CBP
and whether another reorganization is necessary, it is faced with the issue of whether
a reorganization would improve some of the bureau’s inherited longstanding
systemic issues, or whether it would mean further unsettling of agencies that are still
struggling to obtain stability.
Overall Effectiveness of Current Policies
In the past, concerns pertaining to the southwest border centered on the flow of
illegal drugs and contraband being smuggled into the country. While illegal
migration has always been an issue at the southwest border, concerns heightened
after the September 2001 terrorist attacks due to the potential of terrorists exploiting
the border. The concern regarding the possibility of terrorists exploiting the
234 Testimony of Randy Callahan before the House Committee on Homeland Security
Subcommittee on Management, Integration, and Oversight, CBP and ICE: Does the Current
Organizational Structure Best Serve U.S. Homeland Security Interests, Mar. 9, 2005.
235 For additional information, see CRS Report RL31388, Immigration and Naturalization
Service: Restructuring Proposals in the 107th Congress, by Lisa M. Seghetti.
236 Testimony of TJ Bonner before the House Committee on the Judiciary Subcommittee on
Immigration, Border Security and Claims, Oversight Hearing on the “New ‘Dual Missions’
of the Immigration Enforcement Agencies, May 5, 2005.
237 Testimony of Michael Cutler before the House Committee on the Judiciary
Subcommittee on Immigration, Border Security and Claims, Oversight Hearing on the “New
‘Dual Missions’ of the Immigration Enforcement Agencies, May 5, 2005.
southwest border is noteworthy. However, the data suggest that the vast majority of
illegal migrants apprehended at the southwest border are Mexican nationals who are
either seeking employment in the United States or reunification with their families.
Congress and the nation have begun a debate on whether current immigration
policy is effective in stemming the flow of illegal migration to the United States.
Several themes emerge in the discussion. Some believe that the best way to address
the flow of illegal migration at the southwest border is to change immigration policy
to allow more illegal aliens present in the United States to attain legal status.239
Proponents of this view contend that the majority of illegal aliens who enter the
country do so to work.240 For several years, legislation has been introduced that
would provide a legal alternative for prospective foreign workers.241 Supporters
argue that such an alternative would help reduce unauthorized migration. Moreover,
some employers are eager to have low-cost labor. Critics, however, contend that
such a program would likely exacerbate the problem of illegal migration and point
to the growth in unauthorized migration following the Immigration Reform and
Control Act of 1986 that legalized illegal aliens and reformed the guest worker
Regardless of where one stands on the issue, there appears to be a consensus that
immigration interior enforcement, including worksite enforcement, should be an
integral part of the policy. Prior to the 2001 terrorist attacks, immigration interior
enforcement received under 30% of the former-INS resources.243 Since the terrorist
attacks, ICE’s resources have increased, partly due to the counterterrorism emphasis
and the consolidation of other agencies such as the U.S. Customs Service.
Another critical piece to stemming the flow of illegal migration to the United
States is the Mexican economy, especially in the “sending regions” of the country.
Several studies have shown that the majority of the illegal migrants from Mexico
come from several economically deprived regions of the country.244 While the
United States has entered into partnerships with Mexico to strengthen their economic
growth (see above discussion on U.S.-Mexico Relations), many believe that more
needs to be done to stabilize these communities. While the discussion in this section
and throughout the report has focused on the problems at the southwest border, it is
important to note that the same types of issues do not exist at the northern border,
primarily due to Canada and the United States not having the same “push-pull”
factors because of the economies being somewhat equivalent.
239 Testimony of Margaret D. Stock before the Senate Judiciary Committee Subcommittee
on Immigration, Border Security and Citizenship, The Need for Comprehensive Immigration
Reform: Strengthening Our National Security, May 17, 2005.
241 For additional information on guest worker programs, see CRS Report RL32044,
Immigration: Policy Considerations Related to Guest Worker Programs, by Andorra
242 P.L. 99-603.
243 See FY2002 INS Budget Justifications.
244 See for example [http://www.cirsinc.org/pub/mixtec.html].
In conclusion, as the number of illegal aliens that are present in the United
States continues to grow, attention will likely continue to be directed at the border
and the enforcement of immigration laws within the interior of the country. DHS has
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.
Appendix A: Legislation Affecting the
Since 1993, Congress has passed legislation that authorized and appropriated
funding to increase border personnel at and along the southwest border. Congress
has also passed legislation that was aimed at strengthening resources and technology
at the southwest border. Following is a discussion of legislation that has been
enacted into law since 1993.245
The Violent Crime Control and Law Enforcement Act of 1994. Title
XIII, §13006 of the Violent Crime Control and Law Enforcement Act of 1994 (P.L.
103-322) authorized appropriations for FY1995-FY1998 to increase the resources for
the then-Immigration and Naturalization Service’s (INS) border patrol, inspections
and deportation programs with respect to apprehending illegal aliens. The act also
authorized appropriations to increase the number of border patrol agents up to1,000
The Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA). Congress began addressing the need for greater border securityth
in the 104 Congress when it passed the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA).246 IIRIRA’s border security provisions were
concentrated at the southwest border and increased border enforcement by
authorizing the hiring of 1,000 new border patrol agents each year for FY1997
through FY2001. The act called for the deployment of additional border patrol
agents to areas that were in proportion to the level of illegal crossings. The act also
authorized an increase in border patrol support personnel by 300 a year for FY1997
IIRIRA sought to facilitate legitimate travel to the United States by addressing
the long delays at the ports of entry by authorizing the hiring of inspectors to a level
adequate to assure full staffing during peak crossing hours for FY1997 and FY1998.
The act also authorized the Attorney General to establish six inspection projects
wherein a fee could be charged. Under the act, the projects could be dedicated
commuter lanes at ports of entry that would facilitate the speedy passage of frequent
245 Included in the legislation history are bills that have been enacted that address border
enforcement issues. Not included are the annual Commerce, Justice, State, the Judiciary and
Related Agencies Appropriations Acts (CJS Appropriations Act) and the annual DHS
Appropriations Acts. Both Acts authorize appropriations for inspections, border patrol, and
interior enforcement activities, among other things.
246 Division C of the Omnibus Consolidated Appropriations Act for FY1997; P.L 104-208.
In an effort to stem illegal immigration, IIRIRA authorized the expansion of
border barriers and authorized the Attorney General to acquire and use any federal
equipment that was available for transfer in order to detect, interdict and reduce
illegal immigration into the United States. It also authorized appropriations to
expand the Automated Biometric Fingerprint Identification System (commonly
referred to as IDENT) nationwide to include the fingerprints of illegal or criminal
aliens who were apprehended.
IIRIRA also had a provision that for the first time required biometrics in one
type of travel document. The act required the Secretary of State to issue border
crossing cards that have a biometric identifier that is machine readable. The act
required that the biometric identifier must match the biometric characteristic of the
card holder in order for the alien to enter the United States.
Automated Entry and Exit Data System (US-VISIT). Section 110 of
IIRIRA required the Attorney General to develop an automated data system to record
the entry and exit of every alien arriving in and departing from the United States by
September 30, 1998. Many expressed concern about the potential for such a system
to cause long delays at ports of entry. Consequently, Congress amended §110 of
IIRIRA in the FY1999 Omnibus Consolidated Appropriations Act (P.L. 105-277) by
extending the deadline for the implementation of an automated entry and exit data
system and by prohibiting significant disruption of trade, tourism, or other legitimate
cross-border traffic once the data system was in place. In June 2000, Congress
further amended §110 in the INS Data Management and Improvement Act of 2000
(P.L. 106-215) by delaying the immediate implementation of the automated entry and
exit data system at all ports of entry and requiring the development of a data system
that uses available data to record alien arrivals and departures, without establishing
additional documentary requirements. Following the September 11, 2001 terrorist
attacks, however, Congress requested that resources be directed to the immediate
development and implementation of an automated entry and exit control system at
all ports of entry, as discussed below.
In direct response to the September 11 attacks, Congress passed several pieces
of legislation that impacted border security, including border security at the
The USA PATRIOT Act. The Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001 (USA PATRIOT Act; P.L. 107-56) called for the immediate implementation
of the integrated entry and exit data system and that it be interoperable with other law
enforcement data systems. The act required the Attorney General and the Secretary
of State to develop and certify a technology standard that can be used to verify the
identity of persons seeking a visa to enter the United States. Both of these mandates
(implementation of an integrated entry and exit data system and the requirement that
travel documents contain a biometric identifier) have direct implications for most
foreign nationals seeking entry to the United States at a southwest land port of entry.
The Enhanced Border Security and Visa Entry Reform Act of 2002.
The Enhanced Border Security and Visa Entry Reform Act of 2002 (P.L. 107-173)
further required the Attorney General (now the Secretary of Homeland Security) to
implement an integrated entry and exit data system. The act required biometric data
readers and scanners at all ports of entry and extended the deadline for border
crossing identification cards (Laser Visas) to contain a biometric identifier that
matches the biometric characteristic of the card holder.247 The act also authorized an
increase in the number of immigration inspectors and support staff by 200 per group
for each fiscal year from FY2002 through FY2006.
The Intelligence Reform and Terrorism Prevention Act of 2004.248
In an effort to implement selected 9/11 Commission recommendations, Congress
passed the Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458).
The act calls for the Secretary of DHS to develop a plan to accelerate the full
implementation of an automated biometric entry and exit data system and submit a
report to Congress on the plan by July 17, 2005. The act requires the integration of
the entry and exit data system with other databases and data systems. It also requires
the Secretary of DHS 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. With respect to
resources, the act authorizes 2,000 additional border patrol agents each year, FY2006249
The REAL ID Act of 2005 (P.L. 109-13). The REAL ID Act of 2005 (P.L.
related issues at the southwest border. In addition to its more general immigration-250
related border security provisions, the act contains two provisions that are specific
to the southwest border. Title III of the act directs the Under Secretary of Homeland
Security for Border and Transportation Security to conduct a study on “the
technology, equipment, and personnel needed to address security vulnerabilities ...
247 The Sept. 30, 2002 deadline has been met.
248 In July 2004, the National Commission on Terrorist Attacks Upon the United States (9/11
Commission) published its report. Some of the 9/11 Commission’s findings have direct
implications for the southwest border. For example, the 9/11 Commission called for the
expeditious implementation of the US-VISIT program and its consolidation with the various
border screening systems, including frequent traveler programs such as the Secure
Electronic Network for Travelers’ Rapid Inspections (SENTRI). See
249 The act requires that 20% of the Border patrol agents go to the northern border.
250 For a discussion on the immigration-related border security provisions in the act, see CRS
Report RL32754, Immigration: Analysis of the Major Provisions of H.R. 418, the REAL ID
Act of 2005, by Michael John Garcia, Margaret Mikyung Lee, Todd Tatelman and Larry M.
for each CBP field office that has responsibility for U.S. borders with Canada and
Mexico.”251 Another provision would permit the Secretary of Homeland Security to
waive “all laws as necessary” to expedite the construction of barriers and roads along
the border.252 The impetus for this provision is the construction of a fence in the San
Diego Sector of the southwest border that has been delayed due to legal issues that
have been advanced by the State of California.253
251 §301 of the act.
252 §102 of the act.
253 For additional information, see CRS Report RS22026, Border Security: Fences Along
the U.S. International Border, by Blas Nuñez-Neto and Stephen R. Viña.