Fixing a Culture that Protects and Rewards Abuse at U.S. Border Agencies

By: Adam Isacson – WOLA

October 14, 2020.- Something is wrong with the institutional culture at the U.S. government’s border and migration enforcement agencies. It’s a problem that predates Donald Trump, though it has worsened since 2016. Remedying this cultural toxicity must be a priority for the next presidential administration. Regardless of who wins in November 2020, the task will be difficult, requiring reserves of political will that may be in short supply.

WOLA’s decades of work in Latin America have made us all too familiar with some notorious security-force units. El Salvador’s Atlacatl Battalion, Guatemala’s Kaibiles, Colombia’s 4th Brigade, or Venezuela’s FAES, among many others, committed massacres, rapes, tortures, paramilitarism, extrajudicial executions, and even genocide.

Though their contexts were different, these units shared some common traits. They focused on an internal enemy. They shared an ideological agenda with a ruling party or junta. They committed daily petty abuses in addition to their more spectacular crimes. They dehumanized both their victims and their own members. They operated with a solid guarantee of impunity for their actions.

WOLA has managed a security and migration program at the U.S.-Mexico border since 2011. This work has made us ever more worried about the trajectory of the United States’ own border forces: Customs and Border Protection (CBP) and its Border Patrol component. Within the U.S. interior, we are similarly concerned about Immigration and Customs Enforcement (ICE), though this commentary will focus mainly on the border. 

We need to speak up more about this trajectory because much of what we’re seeing in the U.S. border and migration forces reminds us of what we’ve seen in notorious units elsewhere. The politicization, resistance to oversight, and tolerance of abuse in U.S. border agencies’ institutional culture must end. 

CBP, Border Patrol, and ICE haven’t sunk to the level of the Latin American units: nothing on U.S. soil yet rivals El Salvador’s El Mozote massacre, Colombia’s “false positives” scandal, or the dirty wars of the 1970s. Nonetheless, these agencies are exhibiting some of the same “internal enemy” focus, politicization, wanton cruelty, dehumanization, assumption of impunity, and resistance to oversight that we’ve seen, with tragic results, in our work elsewhere in Latin America.

The culture’s troubled origins

Border Patrol, in particular, has followed an institutional development path custom-made for a bad outcome. Those who joined the Patrol in the first years after its 1924 founding included active Ku Klux Klan members. For its first several decades, the force remained small and neglected, operating out of the public eye and developing a reputation for a “cowboy” mentality marked by frequent abuses. It passed through the Departments of Labor, Justice, and Interior before becoming part of CBP within the new Department of Homeland Security (DHS) in 2003.

Border Patrol multiplied in size during the post-September 11 period, incorporating new recruits so fast that “no trainee left behind” was a common joke at the Academy. Today, there are about 20,000 agents, while CBP overall (over 60,000 employees) is the largest law enforcement agency in the federal government. This fast hiring created managerial problems that got exacerbated by a lack of Senate-confirmed CBP commissioners, a weak internal affairs capacity, and a defiant employees’ union that resists reform.

Most readers are aware of the results. Border Patrol and CBP personnel have been involved in lethal use-of-force incidents, including fatal shootings across the border into Mexico. Agents willingly separated thousands of children from parents without keeping records of family relationships. During peak migration periods, they kept kids crowded in Border Patrol stations under unclean, unsafe conditions that, once they were revealed, horrified much of the nation. Under the “Remain in Mexico” initiative, they enthusiastically sent tens of thousands of asylum-seeking families to await their hearings while homeless and vulnerable in high-crime Mexican border cities; hundreds were kidnapped or assaulted while their management hailed the effort as a “game-changer.” Nothing about the agency’s culture disincentivized this behavior: often, it was rewarded.

Another alarming year

While past abuses like “family separation” and “kids in cages” shocked much of the nation, evidence of a perverse institutional culture persists in the 2020 calendar year.

• In January, CBP and ICE agents assigned to serve as advisors in Guatemala ended up packing hundreds of Honduran migrants into rented, unmarked vans and shipping them back to Honduras, without even an opportunity to seek asylum. An October report by Senate Foreign Relations Committee Democratic staff found that DHS lied to the State Department, which was funding the CBP and ICE presence in Guatemala, about the bizarre operational role its agents were playing.
• In February, a Guatemalan woman reported that while she was in Border Patrol custody, agents ignored her requests for medical attention. As a result, she had to give birth with her pants on, while standing and clutching the side of a trash can in the Chula Vista, California Border Patrol station. She was sent to a nearby hospital, then returned to the Border Patrol station where she spent a night “without an adequate blanket for the baby.”
• Since March, Border Patrol agents and CBP officers summarily expelled more than 150,000 Mexican and Central American migrants back into Mexico, usually in about 90 minutes or less, with no real opportunity to request asylum if they were fleeing lethal threats. This has been done in the name of COVID-19 protections, but we now know—thanks to AP and Wall Street Journal investigators—that the Centers for Disease Control had recommended against closing the border, only to be overruled by Vice President Mike Pence. 
• That number includes 8,800 children apprehended while unaccompanied by an adult, then swiftly returned to their home countries while unaccompanied, between March and August. (September data are still pending.) Border agencies made zero effort to ensure these children’s safety upon expulsion or even track their whereabouts. Those to be flown back were warehoused in border-city hotels, guarded by an ICE contractor not certified for childcare, while awaiting their expulsion.
• In June the U.S. Government Accountability Office (GAO) determined that CBP had broken the law. A year earlier, Congress had appropriated money for the agency to improve its care of children and families in its custody, paying for items like blankets, food, and medicine. Instead, CBP spent much of the humanitarian appropriation on items like computer network upgrades, vaccines for CBP personnel, dog food, and dirt bikes.
• In June, elite Border Patrol agents were among DHS personnel sent to Portland, Oregon—against the wishes of the mayor and governor—to confront protesters following the killing of George Floyd. While some protesters were violent, the agents’ crowd control tactics—which included grabbing people off of sidewalks into unmarked vans—did nothing to de-escalate the situation, nor did they incorporate best practices for de-escalation. If anything, their aggressive tactics prolonged the confrontations.
• In July in El Paso, a Border Patrol agent ran over a 29-year-old Mexican man while pursuing him in his vehicle. Though injured, the migrant was deported within 48 hours. Border Patrol refuses to make public its vehicle pursuit policy.
• In July, Maria Cristina Vargas Espinosa, a 38-year-old mother from Guanajuato, Mexico, died after falling from the border wall west of El Paso. She was at least the second person to die of such a fall this year: a pregnant Guatemalan woman and her unborn baby died of a fall in Clint, Texas, in March. Neither Border Patrol nor other local authorities disclosed Ms. Vargas’s death or bothered to investigate it; her relatives in Mexico only learned of her fate from her smuggler. Asked by El Paso Matters how often such incidents happen, a Border Patrol agent said that “a large number of people…get major injuries.” His main concern, though, was that “those hospital bills are ridiculous.”
• In July in Arizona, dozens of rifle-bearing Border Patrol agents, accompanied by an armored vehicle and helicopters, raided a desert camp run on private land by No More Deaths, an organization that provides humanitarian aid in an area where thousands of migrants have died in this century of dehydration and exposure. Agents arrested migrants receiving medical attention, seized phones, photos, and records, and “trashed” No More Deaths’ camp.
• In July, the libertarian publication Reason revealed a 2012 internal affairs report indicating that a CBP instructor had told “a room full of supervisors” that “if Border Patrol agents feel threatened by a migrant, they should ‘beat that tonk like a piñata until candy comes out.’” This was yet another appearance of the word “tonk” or “tonc,” Border Patrol slang for an undocumented migrant. Former agents say that the word originates from the sound a human skull makes when clubbed with an agent’s heavy Maglite flashlight. When an agent uses a weapon, he or she must file a memo about the incident; no paperwork is required for flashlights.
• By August, only four Border Patrol agents, of unknown rank, had been fired for their involvement in a graphically offensive Facebook group. The group, “I’m 10-15,” whose members included 9,500 current and former agents, was revealed to exist a full year earlier. Twelve months after launching an investigation, “CBP has provided little new information about” the group “or its efforts to address toxic attitudes within the ranks,” reported ProPublica, the outlet that revealed the group’s existence.
• In August Tianna Spears, a Black U.S. diplomat who had been assigned to the U.S. consulate in Ciudad Juárez, published a lengthy account in Politico about the blatant racial profiling to which CBP officers subjected her whenever she crossed back into El Paso. “[O]fficers in primary inspection still made sarcastic comments, cruel jokes and belittling jabs implying I was not a U.S. diplomat, not a U.S. citizen and had stolen my own car.”
• In September Border Patrol used taxpayer money to produce a video depicting a fictionalized Spanish-speaking migrant whose first action after eluding agents is to kill a man in a dark alley. With evidence pointing to lower crime rates among undocumented migrants than among the general population, “The Gotaway” video reinforces racist stereotypes to which, we hope, most Border Patrol personnel do not actually subscribe.
• During the COVID-19 pandemic, local media in El Paso and Arizona have reported about CBP officers and Border Patrol agents going unmasked in their interactions with the public, from checkpoint encounters to the July raid on No More Deaths.
• CBP’s rapid border wall construction is doing permanent environmental damage: gouging at mountains, draining a fragile desert oasis to mix cement, and sealing animals’ migratory routes. Members of Indigenous communities have been arrested for carrying out civil disobedience against the construction in California and Arizona. But the building continues, with no meaningful engagement with affected communities.
• While ICE is not the focus of this analysis, any discussion of this year would be incomplete without recalling allegations of non-consensual surgeries performed on women at the Irwin County Detention Center in Georgia; the deportation of a woman alleging sexual abuse at the El Paso detention facility while investigations were ongoing; the storing of children and families in border-town hotel rooms under questionable supervision; a slipshod, hardline response to COVID-19 that has led to a cumulative total of 6,541 cases in detention, deportations of COVID-19-positive individuals to countries with weak public health systems; and a sharp increase this year in the use of pepper spray and other force against the agency’s detainees.

Beyond all of this are the everyday allegations of racial profiling, roughing up (called “tuning up”) of apprehended migrants, abusive language, maintenance of hieleras and other deliberately uncomfortable custody conditions, and a view that people exercising their legal right to seek asylum are, in President Trump’s words, “scammers” gaming the system.

Detoxifying the culture

WOLA does not believe that all Border Patrol agents and CBP officers are monsters. We have spoken to dozens over the years. The majority are dedicated public servants. Many are caring parents and leaders in their communities. We are more concerned with what is being done to them by an institutional culture whose trajectory is pointing in the direction of some of the more abusive security-force units we’ve seen in Latin America.

We don’t know how a typical agent feels, or internalizes the stress, when expelling a family pleading not to be returned to danger, or when leaving a scared child to the custody of contractors who showed themselves to be aggressive and profane in a Texas attorney’s video. We don’t know what it does to someone who decides to remain silent after seeing a co-worker bully or rough up a defenseless person in custody. The experience must be traumatic, at least at first. But as former Border Patrol agent Francisco Cantú told us in August, the institution’s culture “can reshape and reframe consciousness.” When messaging from political leaders and the institution’s own history reinforce the view of cruelty as a deterrent, the accumulated effect is dehumanizing.

Over the next year, WOLA is looking more deeply at ways the United States can change the culture of its border security agencies before things get worse. Interviews, discussions, and documentary research are ongoing, and our recommendations will grow more specific. For now, though, these principles appear certain to us.

The need for accountability

Persistent impunity and non-functioning mechanisms for complaint and redress are creating perverse incentives. A decreased probability of punishment for abusive behavior increases abusive behavior.

While most agents are decent people, they rarely speak up when one of their own acts abusively or indecently. Groups like the American Immigration Council, the ACLU Border Rights Center and the Border Network for Human Rights have documented the extreme difficulty of securing punishment or redress for abusive behavior. The challenges are acute:

• Complaint mechanisms at CBP’s Office of Civil Rights and Civil Liberties and Office of Professional Responsibility are slow and unresponsive.
• The DHS Office of Inspector General has become less productive and less inquisitive during the Trump administration, as a Washington Post investigation revealed in March.
• Whistleblower protections are weak. According to Jim Tomsheck, who served as CBP’s assistant commissioner for internal affairs (now “professional responsibility”) from 2006 to 2014, there is “a clear understanding on the part of the rank and file in the Border Patrol that if they should engage in whistleblower activities, or do anything to promote transparency, that they would be retaliated against in a way that would likely end their career.”
• In 2015, a CBP Integrity Advisory Panel found a shockingly low level of internal controls for an agency of CBP’s size. It noted that the agency was born in 2003 “with no internal affairs investigators. CBP has had to rebuild its internal affairs capability, but it is still far below what is needed.” The Panel’s recommendations to strengthen this capacity were only partially implemented.
• Transparency is declining, making oversight of already opaque agencies even more challenging. A little-noticed February Trump administration change redesignated CBP as a “security agency,” which limits document disclosures and allows secrecy over names and positions of agents and officers, making abuse harder to document. CBP is now seeking to have the National Archives destroy records of abuse complaints within as little as four years, even though the overwhelming majority of these complaints are unresolved. Meanwhile, members of Congress often complain about the slowness with which the agency is responding to their information requests.

Border Patrol suffers from many of the same accountability problems as, say, the Minneapolis Police Department, former agent Francisco Cantú pointed out. But people aren’t standing around with cellphone cameras in the middle of the desert to document what is happening. Worsening impunity portends a worsening of CBP’s and Border Patrol’s institutional cultures.

Politicization and leadership shortcomings

U.S. border agencies are being dangerously politicized, a phenomenon we’ve seen too often in Latin America’s security forces. 

A union (the National Border Patrol Council or NBPC) that claims to represent 90 percent of the force endorsed Donald Trump in the 2016 primaries, and today its Twitter feed frequently parrots or re-tweets Trump campaign materials. The union has aligned itself with an immigration policy agenda that is far more hardline than overall U.S. public opinion, and some of its messaging, including in its podcast, has been virulently opposed to the Black Lives Matter movement. The NBPC chafed under the modest reforms proposed during the Obama administration, like use of force standards and anti-corruption measures. We can expect the force’s politicization to bring an ugly cultural clash if Joe Biden wins the presidency in November.

Politicization has come with a public-facing posture of grievance. Much NBPC messaging, as well as CBP leadership’s statements at congressional hearings, on Fox News, and elsewhere, is angry, defensive, and aggrieved, even at a time when the administration in power is lavishing resources and praise on the agency. James Tomsheck told the New Yorker’s Jonathan Blitzer that the attitude at CBP regarding oversight was “us against the world.” Robert Bonner, who became the first head of CBP in 2003, told Politico that “defensiveness and insularity within the Border Patrol” goes back to its “inferiority complex” when the Patrol was a subordinate agency of the old Immigration and Naturalization Service. This is not a sign of an agency with a healthy organizational culture.

Additionally, agents are being compelled to fulfill roles for which they are not trained. The main mission of Border Patrol is to defend U.S. borders against threats like terrorism and organized crime, while curtailing unauthorized migration. Until the mid-2010s, “unauthorized migration” mainly meant single adults seeking to avoid apprehension.

By 2019, though, two out of three migrants were children or parents, most of them seeking to be apprehended and processed to seek asylum. Agents were dedicating much or most of their time to processing paperwork, caring for children and families in custody, and interacting with people who were victims of trauma. These are not tasks that the Border Patrol Academy prepared them for, nor are they tasks that require an armed, uniformed law enforcement officer’s time and skills. They are certainly not tasks for a civilian law enforcement agency that often, incorrectly, refers to itself as a “paramilitary” organization. The profile of a typical migrant has changed drastically, and neither the agency nor its top management have adjusted.

CBP needs consistent, authorized leadership. Since 2009, it has been led by a Senate-confirmed commissioner for only a bit more than five years, and it does not have one today. That is toxic for an agency that is less than 20 years old and has undergone rapid growth. It is even more toxic at a time of drastically changed demands and creeping politicization. Acting officials cannot institute reforms or compel needed changes. They end up presiding over bureaucratic inertia and dangerous cultural drift.

A broken institutional culture

Taking strong steps to fix the culture at CBP and Border Patrol (as well as at ICE) is necessary not only for border communities and those who fall victim to these agencies’ many excesses. It’s necessary for the well-being of the agents and officers themselves: the majority who want to do their job from an ethic of service. Identifying and promoting ways to do that will be a principal focus of WOLA’s border work over the next year.

Many suggest abolishing or de-funding these agencies. That option should not be ruled out, if their organizational cultural problems are too deeply embedded. However, abolishing CBP or Border Patrol won’t abolish most of the functions that they perform. Some of those functions, like processing and caring for asylum seekers and their children, clearly should be performed by other personnel. But the United States (or any country) will still need a force at its borders that is vigilant against security threats, that can detect and interdict unauthorized crossings, and that can register and inspect all authorized crossings. Some of that work will always be dangerous, and there will always be a law enforcement agency on the border carrying it out. But much of this work can be done quite differently than the disturbing examples above show it being done today.

WOLA looks forward to discussing how to go about this in our work over the next year. From our work documenting abusive units elsewhere in Latin America, though, we are certain of several principles. It will require ending these agencies’ orientation toward an internal enemy. It will mean de-politicization and decoupling from an ideological agenda. It will mean far greater accountability for abuses both spectacular and petty. It will mean a re-humanization of personnel and the populations they interact with. It will mean, in short, an organizational culture dramatically different than the one that prevails today.