Border Deterrence Is Not Only Not a Biden Strategy — It’s Apparently Now Illegal

CBP compliance office issues report on mounted Border Patrol agents at Del Rio

By Andrew R. Arthur on July 12, 2022

On July 8, CBP’s Office of Professional Responsibility (OPR) — charged with “ensuring compliance with all CBP-wide programs and policies” — released its report on the actions of horse-mounted Border Patrol agents during the instability that ensued at Del Rio, Texas, on September 19. While it faults a few of those actions, read in toto, the report is a stunning indictment of the Biden administration — and an admission that under Biden, it is now illegal for Border Patrol agents to deter illegal entrants.

OPR’s “Del Rio” Investigation. In mid-September, DHS was caught unprepared when some 15,000 to 30,000 migrants (the actual figure has been lost in the confusion, but is pegged at 15,000 by OPR) — mostly Haitian nationals — crossed the Rio Grande near the town of Del Rio, Texas, and camped out under the port of entry (POE) at the international bridge there, waiting to be processed and released into the United States.

At the time I asserted, “’Del Rio’ is now shorthand for a border in chaos,” but in retrospect, “chaos” really doesn’t do justice to the tumult that subsequently unfolded there.

Border Patrol lacked the manpower to provide order or to process the migrants in a timely manner, to move them elsewhere, or to provide adequate sanitation facilities or supplies for them while they waited. Consequently, the migrants erected their own makeshift shelters, and groups moved back and forth across the border, bringing water and food to the camp.

“Carnival-type tickets” (as my colleague Todd Bensman aptly described them, a description that OPR roughly adopted) were handed out to new arrivals there to facilitate their processing, though the proceedings were hardly festive. Local Border Patrol pleas for more resources in the area (going back to June) had gone unheeded, and so the scene at the river devolved quickly into a humanitarian disaster.

Of course, OPR didn’t focus on why the most powerful government in the history of mankind ran “Del Rio” with the efficiency and hygiene standards of a riparian Woodstock. Instead, it homed in on a 30-minute period just after noon on September 19, when amid the chaos, mounted Border Patrol agents confronted migrants near a boat ramp on the banks of the Rio Grande to the east of the Del Rio POE.

OPR claims it “self-initiated” the investigation the next day (which I will take at face value). The incident, however, quickly gained international attention and notoriety. Still pictures showed the agents swinging their reins as they guided their mounts and reaching out to seize entering migrants. Those pictures prompted Democratic members of Congress to deride the agents’ actions as “[c]ruel, inhumane, and a violation of domestic and international law” and “a stain on our country”.

Vice President Kamala Harris offered her own take on the incident, sharing that she was “deeply troubled” and opining that “human beings should never be treated that way.”

President Biden weighed in, too, calling those pictures “outrageous” and making the following vow on September 24:

I promise you, those people will pay. There will be an investigation, underway now, and there will be consequences. There will be consequences. ... It's an embarrassment, but beyond an embarrassment, it is dangerous. It’s wrong, it sends the wrong message around the world, it sends the wrong message at home. It's simply not who we are.

“Sends the wrong message around the world” sounded like an angry throw-away line at the time (I had to defend the United States’ actions on Swiss television and at the European Union during a transatlantic visit). This report reveals it was really a policy statement.

Thirty Minutes on the Rio Grande. The OPR report reveals that the chief of the Border Patrol on September 18 directed the component’s local leadership in Del Rio to deploy mounted agents from the Carrizo Springs Station Horse Patrol Unit (HPU) in nearby Carrizo Springs, Texas, to join agents from the Del Rio HPU in the area.

They arrived the next day and were told “to help where needed”. At around 12:30 PM, Texas state troopers who were assigned to prevent trespassers at Star Ranch contacted Del Rio HPU agents for help dispersing a group of 150 to 200 migrants who had congregated at the nearby boat ramp. Del Rio HPU broadcast that request, and Carrizo Springs HPU agents “responded to the boat ramp within minutes”.

DHS’s plan — such as it was — was to direct all migrants to the area near the POE, approximately one-third of a mile west of the boat ramp. The troopers had already blocked a weir dam about a quarter mile west of the POE (a popular crossing spot) a week before due to safety concerns, and thus the area under the POE and directly to the east were the sole transit spots across the river into Del Rio.

Troopers and agents from the Carrizo Springs HPU were able to push the crowd down to the POE for the next 10 to 15 minutes, but, according to OPR, “[d]uring the next phase of the effort which [sic] lasted about 15 minutes”, HPU agents “rode their horses to the base of the boat ramp at the river’s edge and actively attempted to prevent migrants from exiting the river on the U.S. side”. (Emphasis added.)

Keep that highlighted clause in mind. A confrontation between agents and migrants then ensued, as “at least two” HPU agents “used their horses to forcibly block migrants from exiting the river and chased migrants who had successfully exited the river including grabbing one by the shirt and spinning him around”.

One of the agents told OPR that “he was aware several of the migrants” had the tickets Border Patrol had issued to migrants waiting at the POE — which was a big deal to OPR. More troubling, however, the report states that one of the agents “used profanity while yelling at a migrant and then pursued him along the river’s edge forcing his horse to narrowly maneuver around a small child”.

While all this was going on, one of the agents “repeatedly sought guidance from” the Border Patrol incident command post, after which the agent “was eventually told to allow all the migrants to enter”. At that point, the agents stood down and “allowed the migrants to pass”.

Blocking Migrants from Entering Illegally Was Not “An Operational Objective”. I am not going to try to excuse the use of profanity or the maneuvering around the child in this situation, but the whole scene was plainly heated, emotional, and tense.

One major point in that report with which I will take issue, however, is the fact that OPR blamed Border Patrol agents for attempting to stop migrants from entering (or in the case of those with tickets, reentering) the United States illegally.

OPR stated that in reaching its findings, it “carefully reviewed whether any migrants were forced to return to Mexico during this incident”, which it described as “a significant factor”.

Why was that a “significant factor”? Because, according to OPR, of what it describes as “the legal framework applicable to the border at this location and the due process rights of migrants who arrive in the United States and present themselves to an immigration officer”, which prompted the office to go into exacting historical detail “to clearly illustrate the exact position of the U.S.-Mexico border”:

In accordance with Article V of the Treaty of Guadalupe Hidalgo of 1848, the international border between Mexico and the United States is the deepest channel of the Rio Grande River, meaning that individuals who have reached the shore on the U.S. side are already well within the United States.

To be honest, I knew that the Southwest border ran through the Rio Grande, but I little knew or much cared about the Treaty of Guadalupe Hidalgo of 1848, except that it ended the Mexican-American War and settled the border there.

As OPR explains next, under section 235(a) of the Immigration and Nationality Act (INA), aliens present in the United States who haven’t been admitted (like illegal migrants) or who arrive in this country are treated as “applicants for admission”, and are thus subject to inspection by an immigration officer.

The report runs 551 pages, but here’s the key passage from OPR’s perspective:

During this incident, instead of processing migrants for admission or directing them to an area where thousands of individuals already awaited, multiple mounted [Border Patrol agents] used force, or threats of force, to coerce or compel individuals to return to Mexico. For this reason, OPR presented the case to the United States Attorney’s Office for the Western District of Texas which [sic] eventually declined prosecutorial interest.

One reading of that passage should be sufficient, but if not, read it again. Border Patrol agents were attempting to prevent migrants from successfully proceeding — illegally — into the United States, and OPR (unsuccessfully) referred the agents for criminal prosecution for doing so.

I doubt that the U.S. Attorney’s Office knew or cared much about the Treaty of Guadalupe Hidalgo of 1848, either, because OPR’s theory of the case — in my opinion and likely that of the U.S. Attorney’s Office — leaves much to be desired.

Section 235 of the INA, and the Secure Fence Act of 2006. Explaining why I look askance at this logic could fill a law review article, but here are the basics.

First, OPR’s theory ignores both common sense and practice. Yes, under the Treaty of Guadalupe Hidalgo of 1848, the border runs roughly through the middle of the Rio Grande, and yes, under section 235 of the INA, any alien who crosses into the United States is supposed to be referred for inspection by an immigration officer for admission or removal.

Note that there is a public park directly across from the boat ramp on the Mexican side, referenced by OPR in its report. I have never been to the park, but I have seen it every time I have been down by the POE. Mexican families picnic there, people fish there, and others — mostly children — swim in the river.

Perhaps mothers in Ciudad Acuña — the Mexican town across the Rio Grande from Del Rio — lull their infants to sleep by detailing the international boundary lines established in the Treaty of Guadalupe Hidalgo of 1848, or perhaps it is a subject taught in kindergarten there. If so, many have failed to learn the lesson, because it is common to see people fishing and children swimming in the middle of the river, on the U.S. side of the watery border (which is not otherwise marked).

Under OPR’s logic, all those Mexican nationals who crossed the line are “applicants for admission” under section 235 of the INA, and as such are subject to apprehension, detention, and inspection. Thus, a Border Patrol agent would not simply be allowed to wave them off from the shore (the badge and gun may convert that wave into implicit force), but rather would be required to invite them in.

Or imagine a green card holder or B-2 tourist was cruising on a motorboat on Amistad Reservoir, five miles up from the boat ramp. In attempting to avoid a hazard, that alien veers into Mexican waters (set by the Treaty of Guadalupe Hidalgo of 1848) and then corrects course to the U.S. side. Technically, that alien has “entered illegally”, but no agent is going to treat the boater as an applicant for admission.

Next, there are the legal issues, which follow on the heels of the practical. The presence of Border Patrol boats on the Rio Grande are an implicit show of force to prevent foreign nationals from crossing the river, or from coming ashore here. Under OPR’s theory, all should be prosecuted if they are on this side of the line.

Next, consider section 2 of the Secure Fence Act of 2006 (signed 158 years after the Treaty of Guadalupe Hidalgo of 1848). Congress there ordered the secretary of Homeland Security to gain “operational control” of the Southwest border, defined as “the prevention of all unlawful entries into the United States, including entries by terrorists, [and] other unlawful aliens”.

That is exactly what the agents in question were doing — preventing the unlawful entry of unlawful aliens into the United States. Even in the extremely unlikely event that the U.S. Attorney’s Office took the case, section 2 of the Secure Fence Act would have provided a solid defense.

Speaking of the Secure Fence Act, it also mandates construction of physical barriers on the Southwest border. Consistent with the Treaty of Guadalupe Hidalgo of 1848, those barriers are built on the U.S. side, often some distance from the border (land or water).

Those barriers are meant to be an impediment to the onward travel of illegal migrants who have already entered the United States. Under OPR’s theory, that’s a violation of section 235 of the INA in much the same way as the agent on the horse is. The U.S. Attorney’s Office would be plenty busy if OPR ran the place.

Under Biden, Deterring Illegal Entrants is No Longer U.S. Policy. If OPR’s theory has any logic at all, it is merely superficial and facile, as the foregoing examples show. Congress didn’t mean for section 235 of the INA to be an onramp that every foreign national in the world who can make it to northern Mexico can use to be ushered into the United States. It is a procedure implemented to protect the United States from illegal migrants. Agents have prosecutorial discretion not to enforce it.

That said, OPR’s theory is now Biden administration policy, regardless of whether it makes any sense (or is consistent with the Secure Fence Act), or not. That fact was implicitly clarified by DHS Secretary Alejandro Mayorkas on the May 1 edition of Fox News Sunday.

Host Bret Baier asked Mayorkas whether it is “the objective of the Biden administration to reduce, sharply reduce the total number of illegal immigrants coming across the southern border? Is that the objective?”

Mayorkas’s response was breathtaking, but largely overlooked: “It is the objective of the Biden administration to make sure that we have safe, orderly, and legal pathways for individuals to be able to access our legal system.” In other words, “No.”

Put plainly, Mayorkas’ statement reveals that deterring illegal entrants (which the agents on the horses were trying to do) is not — and likely never has been — the border policy of the Biden administration. As I have explained elsewhere, however, that is a marked departure (read: “sea change”), from every previous administration in history.

The Biden Administration Should Have Announced Its Policy Shift — but Didn’t. Aside from Mayorkas’ response, the Biden administration has not explained or even announced this policy change in a memo, rule, or anywhere else I know of, but it almost certainly contravenes section 2 of the Secure Fence Act. That is likely why Mayorkas gets so defensive and curt when congressmen ask whether he is complying with that provision — because he almost definitely isn’t.

Under the Administrative Procedure Act (APA) and Supreme Court precedent, such a major shift in policy should have been subject to notice-and-comment rulemaking and judged under the APA’s “arbitrary and capricious” standard, at which point its inconsistency with the Secure Fence Act and the INA as a whole would have been laid bare.

Texas is suing the administration over its failure to continue the Migrant Protection Protocols (MPP), a limited Trump-era program that allowed Border Patrol agents to return illegal entrants to Mexico to await their removal proceedings. Can you imagine the litigation that would follow from a rule that Border Patrol agents, CBP, DHS, the entire United States government cannot deter illegal entrants at all?

Given the tacit nature of this major policy shift, I have no idea whether the HPU agents on the banks of the Rio Grande at a boat ramp in Del Rio, Texas, at 12:30 PM on September 19, 2021, were even aware of it. The whole scene appeared to be a miasma.

If any good has come from the OPR report on the actions of horse-mounted Border Patrol agents during a half-hour period in the midst of the humanitarian disaster at Del Rio, it is that deterring illegal entrants is no longer a policy of the Biden administration. The president should clarify this fact before someone gets hurt — or some unwitting agent is convicted.