With the Senate considering numerous border security amendments as it debates S.744, there are growing questions over what constitutes an effective measure of border security. Many Senators refuse to give support to the bill, known as the Gang of Eight amnesty legislation, until there is more certainty that the bill will actually secure the border.
Currently, S.744 requires DHS to submit a border security plan within 6 months that includes a goal “for achieving and maintaining effective control” along the U.S.-Mexico border. (p.864) The bill defines effective control as: (1) “persistent surveillance” and (2) an “effectiveness rate of 90 percent.” (p.855) It is this latter component, the effectiveness rate, that is the flashpoint in the debate.
Under the bill, the effectiveness rate is calculated by: (1) adding the number of apprehensions at the border and the number of illegal aliens who turn back to evade being caught (called turn-backs); and (2) dividing this number by the total number of illegal entries. While this language reflects current practice of the Border Patrol, the GAO points out that the total number of illegal entries only includes those illegal aliens the Border Patrol actually knows crossed into the U.S.—i.e. apprehensions, turn-backs, and aliens the Border Patrol fails to apprehend whom agents either see or leave evidence of crossing into U.S. territory (“got-aways”). The total number of illegal entries, however, excludes aliens who illegally enter the U.S. who are able to completely evade the Border Patrol—i.e. unknown illegal entries. (GAO-13-25, p.4 FN 8) Thus, from the start, the effectiveness rate is an unreliable border security metric because it excludes unknowns.
The effectiveness rate is also an imprecise metric because calculating the total number of “known” illegal entries is extremely difficult. The Border Patrol calculates the number of known illegal entries using various techniques, some more reliable than others. In December 2012, the GAO reported that to determine the number of turn-backs and got-aways, the Border Patrol relies on a different mix of cameras, “sign cutting,” credible sources, and visual observation. Sign cutting, essentially the art of tracking aliens through the terrain, accounts for the large majority of determining the number of turn-backs and got-aways.
Border Patrol statistics for Fiscal Year 2011 demonstrate the problem. In that year, 61 percent of estimated illegal crossings on the Southern border resulted in apprehension, 23 percent were turned back to Mexico and 16 percent got away. Of those who got away, 83 percent (70,980 of 85,467) were counted by sign-cutting, with nearly all the rest from cameras and actual sightings. (Associated Press, Apr. 22, 2013; see also GAO-13-25, p. 84, Apprendix IX) Thus, if the Border Patrol were to change the way it calculates the effectiveness rate to exclude the illegal crossings determined by sign-cutting – as some members have suggested – the agency would much more quickly reach a 90 percent effectiveness rate, but that calculation would not provide an accurate picture of what it is really happening on the border.
But even assuming data from sign-cutting is included in the calculation, Border Patrol officials say that differences in how sectors define, collect, and report data preclude comparing the results across Border Patrol sectors. (GAO-13-25, p.29) For example, until recently, each Border Patrol sector decided how it would collect and report turn-back and got-away data. As a result, the process of collecting and reporting data varied across sectors based on agent experience and judgment, resources, and terrain. (Id.) In terms of defining turn-back data, Border Patrol officials said that a turn-back was to be recorded only if agents perceived it to be an “intended entry”—that is, the alien intended to stay in the United States, but Border Patrol activities caused the individual to return to Mexico. (Id. at 29-30) According to Border Patrol officials, it can be difficult to tell if an illegal crossing should be recorded as a turn-back, and sectors have different procedures for reporting and classifying incidents. (Id. at 30)
Other factors, such as terrain and weather, also impact the reliability and consistency of turn-back and got-away data. (Id.) For example, the numbers may be understated in areas with rugged mountains and steep canyons that can hinder detection of illegal entries. In other cases, the numbers may be overstated—for example, in cases where the same turn back identified by a camera is also identified by sign-cutting. “Double counting may also occur when agents in one zone record as a got away an individual who is apprehended and then reported as an apprehension in another zone.” (Id.) As a result, Border Patrol officials told the GAO that while they consider turn-back and got-away data sufficiently reliable to assess each sector’s progress toward border security and to help determine where to deploy resources, they do not consider the data sufficiently reliable to compare—or externally report—results across sectors. (Id.)
The Border Patrol issued guidance in September 2012 to provide a more consistent, standardized approach for the collection and reporting of turn-back and got-away data. (Id.) This guidance is less than a year old, with FY 2013 data still unavailable. Nevertheless, Congress is considering using these metrics, incorporated into the 90 percent effectiveness rate found in S.744, to demonstrate the level of border security.
But, even if a 90 percent effectiveness rate were a reliable indication of border security, S.744 does not actually require that DHS reach a 90 percent effectiveness rate. S.744 requires DHS to submit a border security plan “for achieving and maintaining” a 90 percent effectiveness rate at the U.S.-Mexico border, but there is no requirement that DHS actually achieve this goal. (p.864, 854-855) Under the bill, if DHS certifies that it has not met that goal (a determination made solely pursuant to its own discretion), a commission is created and charged with making recommendations to DHS on how to achieve a 90 percent effectiveness rate. (p. 859, 862) However these recommendations are not binding. In fact, DHS is not required to adopt any of the Commission’s recommendations, and the bill requires the Commission to dissolve within 30 days of submitting them to DHS. (p.864)
Nor does S.744 require DHS to achieve the 90 percent effectiveness rate before granting green cards to RPI aliens. S.744 only requires DHS to certify that the border security plan is “substantially deployed and substantially operational” before allowing it to adjust the status of RPI aliens to legal permanent residents. (p.856-857) Thus, the goal of a 90 percent effectiveness rate is nothing more than a goal, one that will neither accurately depict whether the border is secure or one that must be met.