E. Allegations that aliens were not processed and therefore not counted in apprehension totals
One of Bonner's main contentions - repeated in numerous newspaper articles and in his testimony before the two subcommittees - was that "busloads" of apprehended aliens were returned to Mexico without being processed. He claimed that this was done to reduce the recorded number of apprehensions.
Witnesses alleged that aliens were returned without processing in two ways. One way is known colloquially as a "local VR." This means instead of being processed and voluntarily returned through a port of entry, an alien is apprehended and then forced back into Mexico near where he or she crossed between the ports of entry.71 The other situation is where an alien is apprehended and transported to a port of entry, usually via a station, but is not properly processed.
Proper processing requires I-826 and I-827 forms to be completed and submitted to a desk officer. At a minimum, these forms should contain the alien's name, the time and location of apprehension, and the apprehending agent's "star" or identification number. The alien will have also signed these forms noting that he has been informed of his rights and that he wishes to be voluntarily returned to Mexico. Because non-Mexican aliens cannot receive a voluntary return to Mexico, additional forms must be completed for these aliens so that they can be returned to their own country. Agents inform us that processing someone who is not a Mexican national can take several hours.
Each apprehended adult alien is also supposed to be processed in IDENT. Processing in IDENT requires an agent to take a computerized photograph of each person apprehended and to record in the computer the fingerprints from the person's two index fingers. Additional information regarding the person's name, address, and other identifying information is also entered into the system. The system then compares the new fingerprints with those stored in the database to determine whether this individual has been previously apprehended or has a criminal record. If the person has a criminal record, he must be formally deported instead of voluntarily returned.72 The Border Patrol has also set a threshold for how many voluntary returns an individual is allowed before being formally deported and subject to prosecution.73 If the computer indicates an alien has a criminal record or has been apprehended the prescribed number of times, substantial additional paperwork must be completed.74 The person is then held for a removal hearing before a judge. Those aliens being VR'd are completely processed once they have been entered into IDENT, and can then be returned to Mexico.
Although we obtained substantial evidence that on occasion aliens were not processed at all or at least not properly processed, witnesses disagreed as to how often this occurred and why. Bonner claimed this happened because supervisors wanted to keep apprehension figures low. Others claimed that it was done far too rarely to have any impact on apprehension figures, that it was done long before Gatekeeper as well as during Gatekeeper, and that it was not generally done at the behest of a supervisor.
1. Allegations that agents conducted local VRs
The OIG heard isolated reports of agents conducting "local VRs" at each of the line stations. Most of these claims originated at Imperial Beach, where nine employees testified that they knew of such an incident. The primary witness regarding local VRs was No. 1922. He testified at the Congressional hearing that he had personally "seen supervisors order agents to send illegal aliens back to Mexico through the same hole in the fence from which they crossed into the United States."
In his OIG interviews, this agent admitted that he had not actually observed this conduct but rather had heard about two such incidents. In the first incident, a drunk came over the fence, an agent attempted to apprehend him, and a fight ensued.75 The apprehending agent then called a supervisor who allegedly told the agent to push the alien back across the fence. In his first interview No. 1922 said this was done to avoid completing paperwork that is required when an alien is injured.76 In his second interview he said the supervisor told the apprehending agent that drunks cannot be taken into custody because their alien age cannot be determined. No. 1922 then conceded that he was merely told that the alien was "taken south." He did not know if the alien was actually sent back to Mexico over the fence.
The second incident mentioned by No. 1922 involved another drunk, who came over the fence and began harassing an agent posted on the south levee at Imperial Beach. This individual was placed in a Border Patrol vehicle and then vomited. The agents decided to "just get rid of the guy." No. 1922 said that he heard this individual was then "VR'd immediately" through the fence.
The agent who made the apprehension in the first incident no longer works for the Border Patrol.77 The OIG interviewed the supervisor who was allegedly involved in the incident. He testified that he was not that agent's supervisor, had had no contact with him, and did not recall any incident in which that agent fought with a drunk alien. He did recall that that agent was "always in trouble," and was reprimanded twice for releasing "OTMs" (other than Mexicans) without processing them.78
The supervisor further explained that Border Patrol management has told agents "a thousand times" not to bring drunks into the station. He said the "unwritten policy" is that if alienage cannot be established for a drunk individual, the individual is not to be taken into custody. As a supervisor he has encountered drunk individuals a "handful" of times, and his focus on these occasions has been to avoid "an incident." If a drunk is encountered on the north levee, for example, the individual is taken to the south levee, which runs parallel to the border fence and is in the United States and dropped off. The individual is then free to go wherever he chooses, including Mexico. This action is taken to protect the individual's personal safety and to prevent the individual from disrupting line operations. If a drunk is belligerent, this supervisor instructs agents not to interfere with him and to leave the area.
Merely removing a drunk to the south levee is consistent with No. 1922's testimony that he heard that an individual was "moved south." Whether or not this particular supervisor was involved in the incident, there is nothing in No. 1922's testimony that demonstrates that the individual in this incident was actually forced into Mexico over the fence.
The agent allegedly involved in the second incident (No. 1870) denied being aware of any instances when apprehended aliens were returned to Mexico without being processed. He also denied that he had ever been told by a supervisor to return a drunk alien "through the fence" or at a port of entry without processing the alien. He said further that he would not apprehend a person who appeared intoxicated because he could not determine alienage. He said, "You can tell rookies all you want not to apprehend drunks, but they learn the hard way." He said he knows that any claim of alienage obtained from a drunk person would not stand up in court so you "try to convince the person to go back south."
The supervisor in the second incident was the same person No. 1922 had identified as being involved in the first incident. As noted above, the supervisor denied ever ordering an agent to send someone back through the fence. He also denied that he was No. 1870's supervisor and did not recall any incident involving a drunk and this agent.
Another witness from Imperial Beach recalled an incident in which an agent bragged about having apprehended some OTMs and then sending them over the fence into Mexico without processing them. He said that the agent - who is now deceased - was disciplined for this incident.
Four supervisors at Imperial Beach testified that they were aware of instances in which an agent sent aliens back over the fence unprocessed. Two of these incidents were prior to Operation Gatekeeper. One incident involved a supervisory agent. In each of the five cases mentioned the responsible agent was disciplined for this action. Two other supervisors testified that although they had no knowledge of specific instances of local VRs, they were sure they had occurred, particularly in the case of OTMs. They were equally certain, however, that no supervisor had ordered an agent to send apprehended aliens over the fence instead of processing them and returning them through a port of entry. Both said that if a supervisor gave such an order, he would be fired.
One agent who was detailed to Imperial Beach from another station in the Sector testified about an incident in which he and another agent apprehended four aliens near the border fence. A supervisor appeared and said, "No sense bringing them back to the station, just VR them here." The agent claimed that he responded that he could not do that. He said the supervisor replied, "Go ahead and do it. We do it all the time here." The agent said he looked at the other agents around him and they all kept quiet so he released the aliens. The agent could not recall the identity of the supervisor but he did identify the agent he was working with. A Union official confirmed to us that the agent had reported the incident to him.
We interviewed the agent he was working with that night. He denied any knowledge of any instances during Gatekeeper when aliens were apprehended but not processed. He said such conduct had occurred prior to Gatekeeper but not since. He also said he did not know any supervisor who would have told an agent to release aliens. Unfortunately, without a date or the identity of the supervisor, we could not resolve this conflict in the testimony.79
We also interviewed one agent who admitted sending aliens over the fence but said he did this only when the person was too drunk to sign the forms. He said this had not occurred recently.
Based on all of the testimony from Imperial Beach witnesses, we conclude that on isolated occasions, both before and after Gatekeeper, some unprocessed aliens were in fact returned to Mexico via a "local VR." We also conclude that except for the one possible instance related by the agent on detail to Imperial Beach - which we could not confirm - when management learned of such incidents the responsible employees were appropriately disciplined.
We also found isolated instances of local VRs at Chula Vista. A line agent from Chula Vista testified that prior to Operation Gatekeeper aliens were sometimes taken to a hole in the fence and "gotten rid of." He emphasized that this was before Gatekeeper when "things were wilder." He said he was unaware of any such incidents since Gatekeeper.
One first-line supervisor at Chula Vista testified that he once observed two agents pushing two drunk aliens through the fence. He said he admonished them and they responded that they do this "all the time." He said he contacted "Grupo Beta" (a Mexican law enforcement agency responsible for patrolling the south side of the border fence) and asked them for assistance. He said he made the two agents write memoranda on the incident but did not discipline them. He stated he now realizes that he should have "written them up" (placed a written reprimand in their personnel files).
Another supervisor from Chula Vista stated he had been told by a line agent that agents had pushed people through the fence but he was personally unaware of any such instances. His source for this information was interviewed. The source said he had no information regarding people being sent through the fence, but did tell us about aliens not being properly processed at the station. Another line agent told us he had heard "old-timers" talk about aliens being shoved through a hole in the fence prior to Operation Gatekeeper.
One supervisor conceded that intoxicated aliens were sometimes "pushed south" without being processed. Others, including line agents, contended, however, that although drunks and other belligerent aliens were immediately returned through the port of entry, I-826 and I-827 forms were always completed. They said that these individuals are not simply pushed through the fence.
Clearly, since Gatekeeper, intoxicated individuals have occasionally been pushed through the fence. Based on the small number of witnesses who claim to have knowledge of such conduct however, it appears that it has been quite rare.
Although one Union official from another station said he had heard about an incident at Chula Vista at which agents were ordered to "kick" 150 to 200 aliens "back through the fence," the official could not recall who told him this and provided no details. He began his discussion of this incident by referring to it as "a story" that might be "a fable."
We do not believe that the incident discussed by the Union official actually occurred. First, a large number of agents would be involved in apprehending and detaining 150 to 200 aliens. Second, it would be impossible to move that many people to the fence and get them back over the fence without attracting a lot of attention from both sides of the fence. Third, an incident this egregious would have been the subject of agent conversation. For all of these reasons, if such an event had occurred, many people would have either seen it or heard about it. Yet no one at Chula Vista mentioned that anything even comparable to such an event had occurred. We did, however, hear claims that groups of aliens of that size were taken to the port of entry from Chula Vista without being properly processed. We believe that this "story" likely relates to a failure to process aliens properly, rather than to a local VR.80
Local VRs at other stations occurred even less frequently. At El Cajon we were told about two incidents where agents were discovered to have engaged in local VRs. Both cases involved OTMs. In one case the agent initially processed the aliens as Mexicans but Mexico would not accept them, claiming that they were not Mexican. The agent then took them to a point away from the port of entry and released them into Mexico. In both instances the agents involved were disciplined. No one else at El Cajon was aware of any circumstances where an alien was returned to Mexico except at a port of entry.
At Brown Field several witnesses reported an incident where an agent caught two OTMs but then released them. Although one witness thought the agent had VR'd these individuals without processing them, the paperwork from the incident indicates he just released them within the United States. The incident was discovered when agents from another station reapprehended these two individuals a short time later. The agent was disciplined. Several supervisors at Brown Field indicated that if they discovered anyone returning aliens to anyplace other than a port of entry, the agent would be disciplined.
At Campo only one agent claimed to have heard about a local VR. The agent did not, however, recall any details. Thus, we do not know when this occurred, who was involved, or if any action was taken against the responsible agent.
We conclude first that local VRs have occurred both before and since Gatekeeper. This indicates that local VRs are not a result of Gatekeeper nor related to Gatekeeper. Except for the one unconfirmed incident at Imperial Beach, all of the incidents involved intoxicated aliens or OTMs. Although this does not excuse the behavior, it indicates that it occurred because of the nature of the alien, not because it was a post-Gatekeeper apprehension. Second, the evidence is clear that such instances are at most infrequent and probably rare. Out of more than 300 witnesses we interviewed, fewer than 30 claimed to have heard rumors of such conduct or to be aware of an actual instance. And many of these witnesses spoke only about incidents prior to Gatekeeper. There was no evidence that the frequency of such incidents increased post-Gatekeeper. Indeed, there are likely to be fewer incidents during Gatekeeper because there is substantially closer supervision of agents since Gatekeeper began. Significantly, there is no evidence that these incidences had any impact on the reported apprehensions for any shift, let alone apprehension statistics for a station or the Sector. Third, in all but the unconfirmed Imperial Beach incident and the incident involving the two drunks where the agents were "admonished," the agent responsible for the improper return was formally disciplined. This demonstrates that such conduct was not tolerated or condoned by management.
Although we find that such conduct was not related to Gatekeeper and did not affect the reported results, such conduct is clearly unacceptable. The Sector and the stations must convey this message to all agents. As part of this effort, the Sector should formulate and communicate to all agents a clear and consistent written policy for how agents should handle intoxicated or belligerent individuals. Finally, any Border Patrol employee who returns aliens to Mexico other than through a port of entry should be disciplined.
2. Allegations of improper processing at the stations
We heard allegations that large numbers of aliens were not properly processed. Some witnesses mentioned occasions when aliens were taken directly from the field to the port of entry. Others complained about incidents in which hundreds of aliens were transported from stations to the port of entry without processing.
Chula Vista was the station most often cited for having unprocessed aliens being returned to Mexico. Twenty witnesses testified that they either knew of instances at Chula Vista in which unprocessed aliens were returned to Mexico or had heard rumors to this effect.
These witnesses said that improper processing most often occurred after heavy rains, when the station was "overrun" with apprehended aliens. Because the roads accessing the border at Chula Vista are frequently impassable in a heavy rain, in such weather agents are deployed in positions distant from the border. Because it is difficult for agents to deter alien traffic when they are away from the border, many aliens attempt entry through Chula Vista on rainy nights. Early in Gatekeeper, when traffic levels were still quite high, the station would have upwards of 1,000 apprehensions in a single rainy day.
Nine witnesses claimed that they observed or heard that when Chula Vista had large numbers of apprehended aliens not all of them were properly processed. Six mentioned that they had heard about or seen the return of several busloads (or as many as 200 aliens) who were not processed. The witnesses said aliens were brought into the station, placed in the "unprocessed" cell, and then transferred to the "processed" cell without ever being processed. Most of these witnesses could not provide a date for these instances other than to say in "September or October 1995," "February 1996," "March 1996," or merely "during heavy rains."
One witness who was detailed to Chula Vista from Texas in the spring of 1996 testified about an incident in which a supervisor told him not to worry about processing aliens because they were "just pushing them through." The witness said he told the supervisor - whose name he could not recall - that all the aliens should be processed, but the supervisor just "rolled his eyes." The witness said he saw approximately 200 aliens exit transport units, walk directly through the station, and then enter buses for transportation to the port of entry.
He did recall the identity of another agent who was present, however, who was also on detail from Texas. This second agent recalled being asked to assist with processing at Chula Vista one rainy night, and recalled that the other Texas detailee was present. He testified, however, that he did not recall that aliens were brought to the station and immediately transported to the port of entry. To his knowledge, all of the aliens that night were properly processed. Another witness, however, recalled hearing about a rainy night when 200 to 300 aliens were put on a bus and taken to the border without processing. He said he was told that the agents on detail from Texas were "amazed." He also said that the next day at muster a supervisor told agents that they could not engage in such conduct.
Several other witnesses suggested to us, however, that the aliens were in fact processed on I-826 forms, but were simply not processed in IDENT. One supervisor said that when the station is overwhelmed with aliens, the FOS has discretion not to IDENT the aliens but simply return them to the port of entry after completion of the I-826/I-827 forms.
The explanation that I-826/I-827 forms were completed for these aliens, but that IDENT processing was not, seems plausible. I-826/I-827 forms can be completed in less than a minute. IDENT processing consumes at least several minutes. And early in Gatekeeper it took even longer to use IDENT, because the system would not clear the screen from one alien until the computerized fingerprint check had been completed. This meant that no new person could be processed on a machine until the previous check was completed. This delay could be as much as six minutes per alien. With only three machines at Chula Vista, it would take at least an additional three-and-a-half hours to process 100 aliens on IDENT. When aliens were pouring into the station, these three machines could not keep up with the demand. Although the system was subsequently changed so that a new person could be processed while the agent was waiting for the results from previous individuals, the process still took several minutes. Thus, even with the improved system, it could take three hours or longer to process 200 aliens through IDENT. On rainy nights additional aliens were being transported to the station hourly, so it was impossible to catch up with the IDENT processing. Processing this same group of aliens on only hard copy forms, however, could be completed in less than an hour.
Due to pressures from alien rights activists, agents were told that no alien could be kept in custody more than three or four hours. Accordingly, there was pressure to process and transport aliens to the port of entry as quickly as possible. There was also a policy that whichever shift apprehended the aliens also had to complete their processing. On rainy nights agents processed aliens long after their shift was over. Because agents from the previous shift were using all of the available machines, the next shift of agents could not begin processing aliens apprehended during their shift until their shift was half over. Thus, there was a large incentive for agents to bypass IDENT when the station was very busy.
If aliens were not entered in IDENT but were processed on paper forms, this is significant. Reported apprehensions are based on a count of I-826s, not IDENT. Accordingly, if an alien was processed on paper forms, he would have been reported in the station's apprehension totals, whether or not the alien had been entered in IDENT.
The theory that aliens not processed in IDENT had nonetheless been processed on paper forms could not be confirmed for the historical incidents reported to us, because no one could provide specific dates on which alleged processing lapses had occurred. During our investigation, however, we received an allegation that a large number of unprocessed aliens had been dispatched from Chula Vista on February 11, 1997. A witness said he had heard that the Chula Vista station had returned two busloads and a vanload of unprocessed aliens to the port of entry on that date. The OIG immediately ordered the I-826 and I-827 forms from Chula Vista and the station daily report for February 11. The OIG also obtained ADR records reflecting the number of persons transported from Chula Vista that day. These records consist of individual reports from Detention Enforcement Officers (DEOs)81 showing how many persons were picked up at each station during the officer's shift.82 The OIG also obtained from Sector Intelligence the Sector Morning Report listing apprehensions for each station for that day. Finally, the OIG downloaded the IDENT records for Chula Vista for February 11, 1997.
Chula Vista reported 727 apprehensions for February 11, 1997. The Sector Morning Report indicates that 727 aliens were apprehended at Chula Vista that day. We counted 728 I-826 and I-827 forms from Chula Vista for February 11, 1997. IDENT, however, shows that only 565 persons were entered into the system at Chula Vista on February 11, indicating that 163 apprehended persons - approximately three busloads - were not processed through IDENT. Because the allegation that unprocessed aliens were returned to Mexico on February 11 was identical to the previous claim for unspecified dates, it is likely that the conduct on February 11 was similar to the previously complained of conduct. Thus, the finding that the failure to process aliens on February 11 was limited to a failure to use IDENT, supports a finding that the previous incidents reported to us involving hundreds of unprocessed aliens probably only involved a failure to process on IDENT, not a complete failure to process or to report these apprehensions.
The OIG then reviewed the ADR records for February 11. These records reflect that 928 persons were transported from the Chula Vista Station during the 24-hour period beginning at 11 p.m. on February 10 (the beginning of the midnight shift) and ending at 11 p.m. on February 11. Because the logs only record the number of persons on the bus and not the identity of the persons transported, it was impossible to determine how many of these individuals had been apprehended and reported during the swing shift on February 10 but not transported until February 11. Unfortunately, ADR was unable to locate the logs for February 10 so we could not determine how many persons were transported during the swing shift and how many were held over until the next shift. Based on the IDENT records, however, it is evident that the last two hours of the swing shift on February 10 were significantly busier for processing than the earlier hours. The records also indicate that in the first three hours of the midnight shift over 300 aliens were transported from Chula Vista. Because of the timing and the usual delay in bringing in and processing new apprehensions from the midnight shift, it is likely that many, if not all, of these individuals were from the swing shift.
Although the OIG did not have the previous day's logs, the OIG did obtain from ADR its daily totals for persons transported from Chula Vista for every day in February 1997. We also know that if a large number of unprocessed aliens is transported on any given day, the discrepancy between the number of reported apprehensions and the number of aliens transported from the station will carry through day after day and be apparent even in weekly or monthly records.83 Anomalies due to lags in transporting persons apprehended late in the swing shift, however, tend to disappear over time. The OIG then compared reported apprehensions and transport records for the seven days starting with February 11 and for the entire month of February. In both instances the number of transported aliens was slightly lower than the number of reported apprehensions. This demonstrates that the difference between reported apprehensions and transported aliens on February 11 was almost certainly due to shift anomalies rather than the transportation of wholly unprocessed aliens.
To test our theory, we compared reported apprehensions with IDENT and transport records for February 27 and 28, two rainy days in which Chula Vista's apprehensions soared. On February 27, Chula Vista reported 528 apprehensions; more than 330 of these apprehensions took place during the swing shift after it began to rain and the agents retreated from the border. This late influx of apprehensions would have delayed processing and transportation in a fashion similar to that experienced on February 10 and 11. Indeed, IDENT shows only 421 apprehensions at Chula Vista on February 27 and only 254 during the swing shift. ADR reported transporting 432 persons from Chula Vista the entire day and only 156 during the swing shift. Thus there was a large backlog of persons to be transported when the midnight shift for February 28 began. The backlog only worsened, however, as the midnight shift reported over 600 apprehensions and the Station reported 1,087 apprehensions for the entire day. During the midnight shift only 256 of these apprehensions were entered into IDENT. While ADR reported transporting 1,282 persons on February 28, at least 174 of this number had been apprehended and counted on February 27 but not transported until the next day.84
This evidence is consistent with our assumption that the higher transport figures on February 11 were due to transport delays, not fraud. Due to the heavy demands on the Chula Vista station on February 11, it is possible that some unprocessed aliens may have been returned to Mexico. The evidence indicates, however, that busloads of completely unprocessed aliens were not returned to Mexico.
Several other factors suggest that processing omissions were limited to IDENT. First, if several hundred unprocessed aliens were returned in a single night, more of the 72 witnesses we interviewed at Chula Vista would have been aware of it. Even witnesses who provided information about other alleged fraud claimed to have no knowledge of such incidents. If busloads of unprocessed aliens had actually been VR'd, we surely would have received more than one second-hand allegation concerning this misconduct.
Second, during the time it is alleged that large groups of aliens were not processed, the station had moved to mandatory field processing which meant the I-826 and I-827 forms were filled out before the aliens were transported anywhere. Unless large numbers of agents failed to comply with that rule, it would be impossible for large groups of wholly unprocessed aliens to move through the system. While numerous witnesses said they believed that a few unprocessed individuals slipped through the system on occasion, these witnesses did not believe large groups did so.
Finally, during the first six months of 1996 Chula Vista entered into IDENT only 76 percent of its reported apprehensions, a figure substantially lower than Imperial Beach and Brown Field. Because Chula Vista was uniquely hampered during rainy weather, this difference could be due to the failure to IDENT-process all detainees on rainy nights.
Although we do not believe that large groups of completely unprocessed aliens passed through Chula Vista, without specific dates to research we cannot be absolutely certain. Therefore, several other points are worth noting. First, except for the witness from the other sector (whose account was rebutted by a witness he identified as also being present), no witness suggested that processing omissions were induced by a supervisor. Indeed, the witnesses testified that the supervisors were unaware of it. They said agents mixed unprocessed aliens with processed aliens because they did not want to wait for their unprocessed detainees to be processed. If such action was taken sua sponte by individual agents rather than at the direction of supervisors, this conduct was not part of a management effort to mislead the public about the success of Gatekeeper. Second, although several busloads of unprocessed aliens on any given night is a large number, there is no evidence that such omissions would have had a measurable impact on reported apprehensions. We heard of only four or five occasions in a two-year period when large groups of aliens were not processed. Even assuming that as many as 300 unprocessed aliens were not counted on each of these nights, this would amount to 1,200 to 1,500 aliens over a two-year period. During those same two years, Chula Vista reported over 250,000 apprehensions. Failing to report 1,500 aliens over that time would not result in a statistically significant decrease in apprehensions. It would have had even less impact on the Sector's reports, which involved more than 500,000 apprehensions per year.
In addition to the reports concerning large groups of unprocessed aliens, we received a number of less significant claims involving Chula Vista. One agent claimed that he saw a supervisor in early 1995 move a group of 15 aliens from the unprocessed cell to the processed cell without processing them. The agent noted that field processing was not in effect at that time, so that this conduct would have affected the station's reported apprehensions. The supervisor denied ever moving a group of unprocessed aliens to the processed cell. He did say, however, that on rainy nights when the station was overwhelmed, he had moved aliens who had been processed on I-826 and I-827 forms to the processed cell without processing them on IDENT. He claimed that this approach was within his discretion if conditions warranted it. Because he readily admitted moving aliens who had not been processed in IDENT but adamantly denied ever moving completely unprocessed aliens, we believe it is possible that the agent making this claim did not actually know whether forms had been completed for these particular aliens. Although it was not station practice to process aliens in the field at the time, this particular group may have been processed prior to arriving at the station. It was not so large a group that there would have been any real advantage to not processing them. Because the witness could not give us a specific date for this event we could not resolve it definitively.
One DEO testified that on one rainy night at Chula Vista, possibly in March 1996, a supervisory Border Patrol agent told him to take a group of aliens directly to the port of entry (POE) to be VR'd without processing. He said he later returned and picked up another group of 20 in the same area. He said the Border Patrol agent received permission over the radio to have the group taken directly to the POE because there was no room at the station to process them. The officer said he told his supervisor that he VR'd some unprocessed aliens. He said the supervisor did not "make a big deal of it" but commented that it was not right.
Because the witness was a DEO from ADR, an agent would have no reason to show him any of the processing paperwork. The paperwork, if any, would have been taken to the station for counting. The DEO did not inquire whether any processing was completed. Accordingly, we again do not know whether agents had already prepared the I-826/I-827 forms in the field as required. Clearly, however, the aliens were not processed in IDENT.
The OIG also received several claims of more isolated instances of alleged failures to process. Most of these involved "problem" cases such as OTMs, aliens needing medical attention who were turned over to the Cruz Roja (Mexican Red Cross), pregnant aliens who were seeking to give birth in the United States,85 or intoxicated persons. Most witnesses testified, however, that I-826 and I-827 forms are prepared in such cases but the alien is taken directly to the POE and not processed in IDENT. A Union official testified that he had observed aliens being VR'd who had not been processed on even I-826/I-827 forms. He said he knew that I-826/I-827 forms had not been completed because he compared the paperwork to the number of aliens present. He said that this conduct did not happen frequently, but was "a practice." He declined to provide any estimate of how often it occurred, and added that there was no pattern to this practice. These claims were too general to permit further investigation into their validity.
Although there is little or no evidence that the failure to process aliens at Chula Vista had any measurable impact on the reports of its performance, failing to process aliens, even if only in IDENT, is not acceptable. Accurate records of apprehensions are important for manpower deployment decisions - both within the station and across the Sector - and for determining the impact of various alternative strategies. Although apprehensions are an imperfect measure of activity along the border, they remain an important one. Each Sector employee is responsible for ensuring that official records of these statistics are as accurate as possible. The Border Patrol must take action to ensure that all of its employees understand that the failure to process and count any alien is inappropriate.
Furthermore, although IDENT is not used to calculate apprehension figures, it is a critical tool for the Border Patrol. It identifies which aliens are criminals or repeat offenders, and is useful in identifying smugglers. It can also reveal whether aliens have altered their crossing patterns as a result of changes in Border Patrol deployment. It can only be effective, however, if accurate and complete records are made of everyone apprehended.
Although one supervisor suggested that supervisors had the authority to bypass IDENT when large groups were apprehended, that should not be the case. The fact that Chula Vista had large numbers of apprehensions whenever it rained was not a surprise to anyone. Management should have devised alternative plans for rainy nights to handle the increase in volume. Apprehended aliens could have been taken to alternative sites for processing; rules about which shift had to process the apprehended individuals could have been waived; and additional agents could have been assigned to process aliens. Alternatives that maintain the integrity of the reporting system should be used rather than the most expedient option. In addition, weatherproofing the border road system at Chula Vista should be a high priority so that the deterrent posture can be maintained regardless of weather.
Failure to process allegations concerning other stations were less significant. We reviewed several such complaints concerning Imperial Beach, including the Union's second-hand claim that unprocessed aliens at Imperial Beach are placed on detention buses and taken to the Andrade, California, POE. While one Union official claimed that "a number" of agents had told him that this was occurring "quite regularly," he could not provide us with any information supporting this claim.
No. 1922 testified during the Congressional hearing that agents commonly are "encouraged and ordered to send illegal aliens back to Mexico without completing any paperwork. I have witnessed this occur with well over 1,000 illegal aliens."
In his first OIG interview No. 1922 repeated that it was "common" for apprehended aliens not to be processed and therefore not counted as apprehensions at Imperial Beach. He said that supervisors have told agents to put as many as 300 unprocessed aliens on a bus to Mexico. In his second interview, this agent said that "common" went "a little too far." He then said that such conduct "had happened" but was not "happening now." After further questioning, this agent conceded that he had knowledge of only one such incident, which had occurred prior to Gatekeeper. Characterizing what had happened as "a necessity, not a violation," the agent explained that a computer failure had occurred, a huge number of apprehensions had taken place at the end of a shift, the agents wanted to go home, and it was necessary to "get rid of [the aliens]" as soon as possible. He said such conduct no longer occurs because cameras at the station now monitor alien processing.86
One supervisor from Imperial Beach also recalled one occasion prior to Gatekeeper in which an agent led 300 aliens from the unprocessed cell to the processed cell. The agent involved is no longer with the Border Patrol.87 No other witness described a similar incident.
No. 1922 also claimed that when agents were in the field at the end of their shifts, supervisors would instruct agents to return to the station, implying that agents should "get rid of" any aliens in custody. The PAIC at Imperial Beach testified that he believed that agents on occasion have returned unprocessed aliens to Mexico because they were too "lazy" to process them properly. He was certain, however, that supervisors had never ordered agents to VR busloads of unprocessed aliens.
Several agents at Imperial Beach indicated that problem cases such as pregnant women, aliens with infants or with medical or mental problems, and intoxicated aliens, may be returned immediately to Mexico without processing. One agent testified that both before and after Gatekeeper - on isolated occasions at the end of a shift - some unprocessed aliens were placed directly in the processed cell. He said he had no knowledge that any supervisors were aware of this action.
Seven other employees at Imperial Beach had heard rumors that unprocessed aliens had been VR'd, but they had no first-hand knowledge of or details concerning such cases.
At Brown Field one agent testified that in February 1996 he worked in the Barracks Five processing center and observed "30 or 40" unprocessed aliens being returned to Mexico. He could not recall which supervisors or other agents were on duty when this occurred. Because Brown Field personnel have been completing intake forms in the field since the spring of 1995, it is likely that this was only a failure to process in IDENT.
Another agent recalled an occasion in the summer of 1996 when approximately 30 aliens were brought to Brown Field for processing. He said the paperwork had not been completed on this group but the supervisor ordered him to move the aliens through the unit without processing them. He said the aliens were placed on a bus and transported to the POE. The supervisor denied this account, saying he had never told a Border Patrol agent not to process an alien. He said he would reprimand anyone he discovered VRing an unprocessed alien. He also indicated that when he discovered that an agent at Brown Field at the behest of a supervisor had released two OTMs without processing them, he had the agent prepare a memorandum about the event. The supervisor who ordered the two individuals released was disciplined for this conduct.
The only other claims of unprocessed aliens at Brown Field were reports from three agents that they had heard rumors that unprocessed aliens at Brown Field had been VR'd. Two of these agents were not from Brown Field, and none had any further information.
Another line agent at Brown Field said VRing unprocessed aliens was not a policy at Brown Field, and he was unaware of any such occurrences since Gatekeeper. Several supervisors testified that they had never heard of unprocessed aliens being returned to Mexico and declared that they would discipline anyone who engaged in this practice.
One DEO told us of an incident at the I-94 checkpoint in El Cajon when an agent delivered 20 aliens to be VR'd. The agent put these aliens on the detention bus with other aliens ready to be VR'd. The detention officer said he doubted that these aliens had been processed because he had heard radio traffic indicating that the agent was transporting the aliens directly from the field. He told a supervisory Border Patrol agent that these aliens had not been processed and therefore could not be taken to the POE. He said the supervisor was surprised that unprocessed aliens had been placed on the bus and immediately ordered the aliens off the bus to be processed. He could not identify the line agent who brought the aliens to the bus or the supervisor who ordered them removed. This was the only incident of unprocessed aliens we heard about at El Cajon.
At Campo, unprocessed alien allegations came primarily from DEOs who claimed that unprocessed aliens had been placed on their buses. One DEO said he went to the I-8 checkpoint and was waiting for additional aliens to transport when he observed two aliens taken into a trailer that contained the IDENT machine. They were inside for no more than 30 seconds before being brought out to the detention bus. He said he did not believe they could have been "properly" processed in that time. He said he thought they had "merely" been photographed and fingerprinted.
Without a specific date we cannot determine what actually occurred in the trailer. We do know, however, that many times the IDENT system at the I-8 checkpoint was not operating. The system there relied on a satellite link to connect to the central server that ran the comparisons against the stored fingerprints. This system was often not functioning. For example, when we toured the I-8 checkpoint in September 1996, the system was not operating. We were told that it had been inoperable for nearly three weeks. In addition to satellite problems, the computer equipment is very fragile and needs a clean, cool environment to operate properly. The trailers at the East County checkpoints - which were dirty, dusty, and not temperature-controlled - were poor environments for such equipment. In addition to these problems, on one occasion computer cables were severed in an apparent act of sabotage.
One agent at Campo testified that the only case he knew of concerning the return of unprocessed aliens to Mexico involved a trainee who was asked to transport some aliens to the Tecate POE. He was supposed to IDENT them there before returning them to Mexico but failed to do so. Although the trainee was chastised, no discipline was imposed because the same aliens reentered the United States a short time later, were reapprehended, and properly processed.
Another Campo supervisor conceded that all aliens were not processed in IDENT but was adamant that all aliens were processed on paper and properly recorded in the station's apprehension statistics. He admitted that as many as 20 percent of apprehended aliens may not be processed through IDENT.88
CPA Johnny Williams told us he once received an allegation that unprocessed aliens were being returned to Mexico through the Tecate POE - the POE for aliens apprehended in Campo and El Cajon. DCPA Harold Beasley, Sr., investigated this claim and determined that it was not true. Williams denied any knowledge that aliens were returned to Mexico without being processed. Williams further testified, however, that he gave permission through ACPA William Pink (who was responsible for overseeing the IDENT program) for the stations to be less than 100 percent compliant in using IDENT when they were overwhelmed with aliens or the IDENT computers were malfunctioning.
With respect to stations other than Chula Vista, we find that incidents involving a failure to process aliens are rare. Moreover, the evidence did not support the charge that supervisors had ordered hundreds of unprocessed aliens to be returned to Mexico. Although the processing system was not without flaws - particularly when IDENT was introduced to the stations - there is no evidence that these problems were intentionally created or intended to prevent an accurate recording of apprehensions in the San Diego Sector.
71 This is distinguishable from another practice called "TBS" or turned back south. When an alien is TBS'd he is not actually apprehended. He is chased south towards Mexico and on his own volition crosses the border back into Mexico to avoid apprehension. For a discussion of the use of this tactic see, infra, at 130.
72 If a person is formally deported and then re-apprehended in the United States he is guilty of a felony of reentry after deportation. See Title 8, United States Code, Section 1326.
73 This figure has changed over time. At the beginning of Gatekeeper, when the stations were still very busy, the figure was set at ten. Last year - because apprehensions had fallen dramatically - the threshold figure was lowered to three. Before IDENT, because apprehended aliens often gave fictitious names, there was virtually no means for accurately determining the identity of apprehended aliens. Thus an individual could repeatedly attempt illegal entry with virtual impunity. With the advent of IDENT, after a certain number of unsuccessful attempts, any additional attempt carries the risk of a lengthy prison term. Lowering the threshold to three attempts dramatically increases the potential cost of repeated entry attempts. This is particularly important for the smugglers. In the past, because of the difficulty of proving that a person was a smuggler, the smugglers could be apprehended repeatedly and suffer no consequences except a bus ride back to Mexico. After IDENT, a smuggler faces a multi-year prison term without the government having to prove that he is a smuggler.
74 Because the amount of paperwork required to deport an individual is substantially greater than for a simple VR, many agents did not want to discover that they were processing a criminal alien or a "10P" hit (a person who had been apprehended for the tenth time). This was particularly true at the end of the shift when the agents wanted to go home. We heard numerous stories of agents who had aliens place fingers other than the index fingers on the IDENT scanner to avoid the possibility of the computer recognizing the alien. Because such actions do not alter figures regarding the possible success of Gatekeeper, there was no evidence that this conduct was directed by supervisors, and because this conduct was not part of the Union's allegations of fraud, we do not address this issue in this report. Our findings, however, have been shared with INS management. Furthermore, OIG's Inspections Division has recently conducted an in-depth review of the IDENT system and prepared a report of its findings. See U.S. Department of Justice Office of the Inspector General, Review of the Immigration and Naturalization Service's Automated Biometric Identification System (IDENT), Report No. 1-98-10, March 1998.
75 No. 1922 claimed that in this altercation the agent "ended up kicking the crap out of the guy."
76 No. 1922 went on to say that the paperwork involved in such situations is "bullshit:" "The alien started it. You know, the agent got assaulted. . . Why can't we kick the crap out of him?"
77 He was terminated for releasing non-Mexican aliens after apprehending them.
78 Any apprehended alien who is not Mexican is classified as an "OTM." Agents prefer not to apprehend OTMs because they cannot be immediately VR'd to Mexico. Agents must fill out a great deal of paperwork concerning such individuals, who require additional processing before they can be sent back to their country of origin. Because the paperwork can take several hours to complete, agents prefer to avoid apprehending OTMs, particularly near the end of their shift. One supervisor told us that agents previously used a code over the radio to advise other agents to avoid certain aliens because they were OTMs.
79 Notably, however, the agent making this complaint made another complaint relating to supervisors altering agents' paperwork during Gatekeeper that the OIG San Diego Field Office thoroughly investigated and found totally unsubstantiated.
80 For a discussion of allegations that hundreds of improperly processed aliens at Chula Vista were returned through the port of entry see, infra, at 67.
81 DEOs are not Border Patrol agents and are not assigned to particular stations. Thus it is unlikely that they would be aware of any efforts by a station to undercount apprehensions. They also have no apparent motive to make their records correlate with a station's apprehension records.
82 These were not the computerized manifests generated by IDENT that were used for the ATMS (Automated Transit Management System) process. ATMS was an effort to create a systematic transport system based on regular schedules and information contained in IDENT. Those records, however, were notoriously inaccurate due to significant flaws in the process. Because these automated records were not used to measure or report on Gatekeeper results nor part of the Union's allegations of fraud we do not address the problems with this system in this report. We have, however, discussed some of these problems with Border Patrol and INS management.
83 The numerical discrepancy caused by transporting unprocessed aliens can only disappear if on subsequent days the station transports an equal or greater number of apprehended aliens in its own vehicles instead of using ADR - so ADR would have no record of them - or ADR transports processed aliens but does not record them. We received no claims and found no evidence that either event took place on any subsequent days in February 1997.
84 Because some of the persons transported during the swing shift on February 27 had been apprehended during the day shift, the number of holdovers from the swing shift was actually higher. In the absence of transport records identifying who was transported at any given time it is impossible to determine exactly how much higher this figure was.
85 Under current law any child born in the United States, even if the mother is here illegally, is entitled to United States citizenship.
86 Cameras were installed as a result of complaints from alien rights activists that aliens were being mistreated. The cameras document cell conditions and treatment of the persons in custody.
87 There was no evidence that this agent was disciplined for this conduct.
88 The actual figures at Campo at that time were approximately 50 percent.