Border

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.

Texas’ senior Republican Senator, John Cornyn, has quickly emerged as the key negotiator in the passage of the Gang of Eight’s amnesty bill.

Offering a 134-page amendment to address the bill’s lack of border security measures, the second-ranking Senate Republican has announced that if the Senate adopts his amendment, he will vote for the Gang of Eight’s amnesty legislation. (Washington Post, June 5, 2013; Politico, June 13, 2013)

However, while Cornyn’s amendment (called “RESULTS”) makes several improvements to the bill, it does not change the bill’s core amnesty-first, enforcement-later approach.  Under the amendment, DHS must still submit a border security plan within 6 months, at which time DHS may begin processing applications for “registered provisional immigrant” status (RPI status). However, the Cornyn Amendment sets forth a list of specific items that must be included in the plan, such as the current state of operational control and situational awareness, an assessment of threats, surveillance capabilities, and a fencing strategy — although no fencing is actually required and no specific money is specifically set aside to construct fencing. (p.14-15)

In addition, the Cornyn Amendment does not change the fact that Congress is actually debating amnesty legislation despite the fact that DHS has no official metrics for measuring border security.  The amendment merely requires DHS, 90 days after enactment, to “implement metrics to measure the effectiveness of security between ports of entry along the Southern border.”  It also requires DHS to “implement metrics to measure the effectiveness of security at Southern border ports of entry.” (p.21-25)

With the amnesty program already underway, the Cornyn amendment makes only a few changes to the triggers that must be met before DHS can issue green cards to RPI aliens. The most notable change is a requirement that DHS implement a biometric entry and exit program, but even there, the amendment only applies that requirement to air and sea ports of entry, but not land ports of entry.  Moreover, it does not require the implementation of a biometric exit program at land ports of entry any time in the future. (p.7-9)

But, despite the fact that the Cornyn amendment still does not place a single obstacle in the way of illegal aliens gaining amnesty plus work and travel authorization, some Gang of Eight Senators are opposing it, calling the amendment a “poison pill” aimed at taking down the bill. “It’s not possible for us to support [Cornyn's] amendment as it is presently written” said Sen. John McCain (R-AZ). “It’s a poison pill.” (Huffington Post, June 12, 2013) According to a Senate aide, Sen. Schumer (D-NY) told Sen. Cornyn on the senate floor, “You know full well that this a deal killer.” (NY Times, June 14, 2013) Sens. Schumer and McCain even went so far as to spread falsehoods in their Senate speeches about the costs and provisions of Sen. Cornyn’s amendment, which Cornyn quickly corrected. (See Brietbart.com, June 12, 2013)

Sen. Marco Rubio (R-FL) is going so far as to draft an alternative amendment. “A bunch of senators have been working on it,” he said on the Hugh Hewitt radio show Thursday. “A lot of Republicans want to be supportive of something but need to be able to go back home and tell people that they have taken serious steps to make sure this never happens again.” He also threatened the bill would not pass without the amendment. “It is going to have to be in there or this is not going to pass,” he said. (Roll Call, June 14, 2013)

Sens. McCain and Graham are also leading the charge for an alternative to the Cornyn amendment, though it is unclear whether these are the same efforts in which Sen. Rubio is engaged. Several GOP Senators are allegedly involved in the drafting, including Sens. Bob Corker (R-TN) and Sen. John Hoeven (R-ND).  (Politico, June 13, 2013) “Generally speaking, all of us are just trying to find that sweet spot that addresses the Democratic sensibilities and ours,” said Corker. (Id.) “There are a lot of healthy conversations happening.” (Id.) Sen. Hoeven also made a statement about the talks, saying, “We’re trying to road test ideas, get input and maybe come up with something that can be kind of a consensus-type approach.” (Id.)

Interestingly, Sen. Cornyn has already told his colleagues he’d be willing to make changes to the amendment. Though he claimed he would not concede on the “fundamental substance” of his proposal, the Senator has been unclear as to which provisions are on the table. “There are certain elements that are non-negotiable, specifically the mechanism by which we would guarantee the security measures in the bill would actually be implemented,” he said. (The Hill, June 14, 2013)

Minority Leader Mitch McConnell has already endorsed the Cornyn amendment. “Sen. Cornyn, I think, has got, in my view, the key amendment to put us in a position where we can actually look at the American people with a straight face and say we are going to secure the border,” McConnell told reporters. (Id.) “That’s going to be a very, very important amendment.” (Id.) In addition, several GOP Senators have signed-on as co-sponsors: Sens. Lamar Alexander (TN), John Barrasso (WY), Roy Blunt (MO), Richard Burr (NC), Saxby Chambliss (GA), Mike Crapo (ID), Orrin Hatch (UT), Johnny Isakson (GA), Mike Johanns (NE), Mark Kirk (IL), Rob Portman (OH), Pat Roberts (KS), and Roger Wicker (MS).