Border Patrol’s “Consequence Delivery System” Casts Doubt on President’s Immigration Priorities

By Geoffrey Boyce

On February 11, articles in the New York Times and the Washington Post focused attention on Operation Streamline, the federal program under which as many as 80 unauthorized border crossers may be charged, convicted and sentenced in a hearing lasting as little as half an hour. Those convicted under Streamline face sentences of up to 180 days for “illegal entry,” INA § 275, or 2 to 20 years for “illegal reentry,” INA § 276, depending on whether they have a previous “aggravated felony” conviction in the United States.

Readers of crImmigration.com are likely familiar with Operation Streamline, which is responsible for an alarming increase in criminal prosecutions for immigration-related offenses since its inception in 2005. According to Syracuse University’s Transactional Records Access Clearinghouse, Streamline-related prosecutions grew to 91,135 in FY 2013, constituting a significant plurality of all federal criminal cases. Because so many immigrants are from Latin America, one of Streamline’s effects on the criminal justice system is that fully 48% of those sentenced to federal prison are now Latino.

Yet despite billing Streamline as a “zero tolerance” program, the U.S. Border Patrol only referred about 22% of the 364,000 border crossers apprehended in 2012 for criminal prosecution of any kind – this despite the fact that Streamline is now active in all Border Patrol sectors in Arizona, New Mexico and Texas. As Border Patrol chief Mike Fisher explained in testimony to the U.S. House of Representatives:

“Criminal prosecutions are essential to border security operations; however the volume of border related illegal activity restricts the percentage of criminal cases that the Border Patrol is able to process within the criminal justice system.… [d]ue to limitations imposed by the labor, detention costs, and the expense of criminal prosecutions and administrative proceedings.”

If, despite its “streamlined” court procedure, only a fraction of migrants apprehended by the Border Patrol are able to be run through Operation Streamline, how, then, do the Border Patrol and Justice Department select and decide whom to prosecute?

Key to answering this question is what the Border Patrol calls the “Consequence Delivery System” (CDS). In its 2012-2016 National Strategic Plan the Border Patrol announced the CDS as the backbone of its transition from a “resource-based” to a “risk-based” approach to its enforcement mission. According to the agency:

“The CDS measures the consequences applied to persons illegally entering the country against defined alien classifications. CDS provides a process designed to uniquely evaluate each subject and apply the appropriate post-arrest consequences to that individual to break the smuggling cycle and end the subject’s desire to attempt further illegal entry. The CDS is a means of standardizing the decision-making process regarding the application of consequences and provides for the evaluation of outcome effectiveness.”

The litany of “consequences” that can be applied to an apprehended individual include:

• prosecution through Operation Streamline
• “fast track” prosecution for illegal reentry
• lateral repatriation – wherein individuals are separated from travel companions (including loved ones) and deported to ports of entry far from the site of apprehension
• internal repatriation (via flight to Mexico City)
• transfer to Mexican authorities for criminal prosecution (applied to alleged human smugglers)
• expedited removal
• formal reinstatement of removal.

Within CDS, the “consequence” that is applied to an individual is supposed to be determined by factors that would indicate their risk of “recidivism” (e.g., crossing again in the future), rather than solely – or even primarily – the severity of that individual’s actions, behavior, immigration or criminal history.

The Border Patrol has not made public its “standardized” methodology for calculating “risk” or applying consequences. However, in order to calibrate the CDS the Department of Homeland Security has reached out to social scientists to conduct research on migrant detainees. In summer 2012 the DHS Office of Immigration Statistics contracted with the University of Arizona’s “National Center for Border Security and Immigration” to interview a total of 1,016 recently apprehended individuals inside the Border Patrol’s Tucson Sector headquarters. A team of seven researchers worked in shifts, asking detainees a list of detailed biographical questions and calculating how their answers correlated to these same individuals’ stated intention to cross the border again in the next seven days or at any point in the future. In their published report, the researchers identify a number of factors that, they claim, correlate to a higher risk of recidivism. These include:

• Individuals who currently live in the U.S. or consider the U.S. home
• Those with relatives in the U.S.
• Those crossing to work, study, or unite with friends or family
• Those with more years of education
• Those with a greater number of previous attempts
• Those who have crossed successfully in the past.

In addition, the researchers identify several factors that supposedly make one less likely to cross again, namely:

• Individuals crossing to look for work only
• Those with only one previous crossing attempt
• Those whose crossing experience was particularly difficult or traumatic.

According to the Border Patrol, the shift to a “risk-based” approach should be credited with a long-term reduction in the number of unauthorized crossings and the recidivism rate of Border Patrol detainees. Yet there is reason to be skeptical of this claim. The long-term decline in apprehensions began as early as 2001, well before the advent of Operation Streamline or Consequence Delivery. Meanwhile, the most recent significant decline correlates to the 2008 economic crisis, rather than any change in Border Patrol policy.

Pointedly, the University of Arizona study itself found that knowledge or experience of prosecution or related enforcement “consequences” had little deterrent effect on migrant detainees. As the report states:

“During the interviews, subjects frequently made comments such as ‘I understand the consequences, but the need to go to the U.S. is greater’. Many subjects also commented that it is not the legal consequences of crossing that deter them, but rather the difficulty and danger of crossing the desert.”

Regardless of the efficacy of the Border Patrol’s various deterrent practices, it is worth considering, on a broader level, the implications the agency’s “Consequence Delivery” model.

There is no person who “deserves” to be processed through a program like Operation Streamline. Streamline funnels tens of thousands of individuals into U.S. prisons annually. Many of these individuals’ only offense is directly related to their immigration status, and due to associated bars to lawful re-entry their criminal convictions may render them inelligible for future immigration relief (as would have been the case under S.744, the 2013 Senate immigration bill). The program’s faults simultaneously extend well beyond its harmful impacts on individual border crossers, leading its many critics to call for the program to be ended.

In the meantime, based on what we know about the Border Patrol’s Consequence Delivery System, it is those most often highlighted by the President and Congressional advocates as priority candidates for immigration relief and reform – e.g., those with immediate family members in the U.S., those most assimilated into U.S. culture, and those with the highest educational profile – who are most likely being identified as having a higher “risk” of recidivism, and therefore singled out for Streamlined prosecution. Such an outcome should give us pause, and cause us to question whether the President is really sincere when he discusses his immigration priorities.

Geoffrey Boyce is a PhD candidate in the School of Geography and Development at the University of Arizona. He conducts research, writes and blogs on Homeland Security and immigration-related issues along the northern border and in the U.S. southwest. He can be reached at gboyce [at] email.arizona.edu.