The U.S. House of Representatives has moved with haste to put together an immigration bill, which will potentially make its way to the floor this week giving the public very little time to understand the provisions or the impact. The nearly 300-page draft bill, "Border Security and Immigration Reform Act of 2018", which aspires “To amend the immigration laws and provide for border security, and for other purposes" is split into three parts: Division A: "Border Security"; Division B: "Immigration Reform"; and Division C: "Additional Matters".
Additional analysis on Ryan's massive amnesty provisions will follow; this analysis covers key sections of Division A, which covers border enforcement. Much of the border enforcement in the draft bill has been taken from language in prior bills.
Title I — Border Security
Much of the language of Title I derives from prior House and Senate bills, such as those previously introduced by Mike McCaul (R-Texas), chairman of the House Homeland Security Committee, and Sen. John Cornyn (R-Texas).1
Section 1101. Provides statutory definitions of a variety of terms, most of which are relatively self-evident. Two that have shown up repeatedly in several forms in prior bills are "operational control" of the border and "situational awareness". There is reason to be skeptical of such phrases. Absent the rigor of clearly measurable and objective metrics, such terms are inherently subjective and open to political manipulation — something we have seen before in several prior presidential administrations of both parties, all loudly proclaiming that the border is finally "under control" even as substantive evidence points to the contrary, and the population of illegal aliens in the country continues to grow.
Section 1111. (There are no sections 1102 through 1110.) Amends and updates that portion of the Immigration and Nationality Act that establishes authority to create a border fence.2 It does so by amending the language to refer to "physical barriers", and authorizes the "removal of obstacles to detection of illegal entrants) to design, test, construct, install, deploy, integrate, and operate physical barriers, tactical infrastructure, and technology in the vicinity of the United States border." Agent safety is one of the matters to be considered in design and construction of physical barriers. The bill directs that this be accomplished no later than September 30, 2023, and permits the Department of Homeland Security (DHS) secretary to determine when / whether circumstances such as terrain exist that obviate or preclude the use of a physical barrier.
The section directs the DHS secretary to consult with federal, state, local, and tribal governments, as well as affected private landowners, in planning for the barrier, and requires the secretary to notify Congress within 60 days of the results of these consultations — but concurrently, it also permits the secretary to waive the usual legal requirements such as environmental impact studies in order to achieve the mix of physical barriers and technology needed to meet the statutory deadline.
Section 1112. Mandates that the Air and Marine Operations (AMO) division of Customs and Border Protection (CBP) conduct a minimum of 95,000 flight hours yearly. What's more, these flights must prioritize direct support of "U.S. Border Patrol activities along the southern border of the United States and Joint Interagency Task Force South operations in the transit zone".3
This section also requires that AMO maintain unmanned aerial vehicles (UAVs, or "drones") 24 hours a day, five days per week. As has been observed before in relation to similar requirements in past bills, this is curious given the fact that the unmanned aerial vehicle program has been the subject of repeated critical audits by the DHS Inspector General.
Finally, the section amends the Homeland Security Act (HSA) of 2002 to provide that the U.S. Border Patrol (USBP) Chief will be the executive agent of the "small UAV" program to be administered at USBP sectors throughout the United States, while clarifying that nothing in the relevant subsection abbreviates existing Department of Transportation or Federal Aviation Administration authorities.
Section 1113. Directs the DHS secretary to deploy to each USBP sector on both northern and southern borders a variety of technical equipment to assist with operational control. Like the parallel provisions in prior House and Senate legislation, the section lays out in excruciating detail a micro-managed sector-by-sector enumeration of materiel and technical equipment to be provided to each and every northern and southern sector of the Border Patrol. A similar levy is made for the Caribbean-Atlantic transit zone monitored by JIATF.
One has to question the value and utility of such legislative micro-management. While no one believes that the sectors should be deprived of the tools needed to do their jobs — patrol work, especially on the southern border, is hard and dangerous — neither should legislators be in the business of the kind of in-the-weeds decision-making and disbursal found in these bills. Legislators have neither the time nor staff to provide the kind of serious oversight and consideration required to attend to the specific and varying needs of each sector.
The sector material acquisitions are so rigid that the DHS secretary is forbidden to alter them for tactical reasons for several years: "Beginning on September 30, 2022, or after the Secretary has deployed at least 25 percent of the capabilities required in each sector specified in subsection (a), whichever comes later, the Secretary may deviate from such capability deployments if the Secretary determines that such deviation is required to achieve situational awareness or operational control." This seems both unwise and unworkable, especially should one sector or another confront an unanticipated influx of humans or contraband that requires immediate reaction.
Should the secretary make a decision to shift acquisitions among USBP sectors, the bill requires notification to Congress within 90 days. Determinations by the DHS secretary to modify acquisitions in the transit zone are even more restrictive, requiring a consultation with Congress before they can be effected.
Section 1114. Requires that the USBP prioritize assignment of agents as close to land borders as possible.
Section 1115. Defines "major acquisition programs" (MAPs) in the context of border security. Such MAPs require special oversight and planning documentation. While this is, of course, necessary and desirable, what gives one pause is that it only kicks in when anticipated program costs are at least $300 million. One would think that this kind of planning, objectives measurement, and accountability life cycle should be a standard applied to projects and programs costing significantly less than a third of a billion dollars.
Section 1116. Authorizes the DHS secretary to request the assistance of the Defense secretary (SecDef) in deploying National Guard (NG) troops to the border under Title 10 of the U.S. Code. However, any deployment then occurs under Title 32 per a request from the SecDef to a state governor.4 The section then outlines with some specificity the types of functions NG troops might undertake. It also specifies that the SecDef may notify the DHS secretary that reimbursement will be required for such deployments. In truth, it is difficult to see how this provision is different than existing law and practice. It also does nothing to vitiate the possibility that some governors (as happened recently) will simply decline to permit state NG troops to participate, or levy unrealistic operational constraints upon them. The bill also requires the SecDef to provide annual reports to Congress consisting of the details of such deployments for each federal fiscal year (FFY).
Section 1117. Mirrors prior border security bill language in prohibiting other federal agencies from preventing Border Patrol agents from physical access to lands, such as national parks, forests, and the like. Unbelievably, other federal agencies such as the Interior Department have in the past refused to provide agents permission to patrol some their lands, arguing that they were too ecologically fragile, even though smugglers were routinely leading alien loads and trekking drugs through those same areas, trashing them as they went. In fact, use of such lands for illegal purposes was actually driven in part by the fact that they had become official "no go" zones placed off-limits by the U.S. government to itself. What better place to engage in drug or alien smuggling?
Unfortunately, the section then mitigates the right to patrol public lands by asserting that "This section shall ... have no force or effect on State lands or private lands; and ... not provide authority on or access to State lands or private lands." This language might easily be construed as actually diminishing existing legal authorities of agents who at present can enter state and private lands for purposes of patrolling within 25 miles of the border. The draft language appears to vitiate that long-standing and important prerogative by establishing what appears to be a blanket prohibition for state or private lands without preserving the existing 25-mile patrol rights.
Section 1118. Establishes a National Border Security Advisory Committee consisting of public and private representatives from each state to "advise, consult with, report to, and make recommendations to the Secretary on matters relating to border security matters." It is a requirement that each representative has "at least five years practical experience in border security operations; or lives and works in the United States within 80 miles from the southern border or the northern border."
Section 1119. Mandates the control or eradication of Carrizo cane and salt cedar along the Rio Grande River proximate to the border, to begin no later than September 30, 2023.
Section 1120. Requires development and submission to Congress of a southern border threat analysis within 180 days of enactment. The analysis is to focus on terrorist, criminal organization, and human smuggling/trafficking threats; consider methods to mitigate the risks posed by those threats; and discuss impediments posed by legal, regulatory, or operational gaps and loopholes. The analysis is also to cover equipment and personnel needs, and strategies for cooperation and coordination among federal, state, local and tribal partners.
The section concurrently requires submission of a USBP strategic plan in the same timeframe. Much of the language suggests overlap of the subject matters to be submitted between the strategic plan and the aforementioned threat analysis.
Section 1121. Provides technical amendments to the HSA regarding the role and responsibility of the Commissioner of CBP, as well as methodologies for assessing infrastructure and personnel needs of the Office of Field Operations, which staffs the ports of entries (POEs) of the U.S.
Section 1122. Requires the DHS secretary to ensure that to the maximum extent possible, all technological acquisitions are dedicated to front-line activities in support of officers and agents.
Section 1123. Amends the HSA to formally establish "Integrated Border Enforcement Teams" (IBETs) along the northern border. These teams would consist not only of U.S. federal, state, local, and tribal enforcement officers (including the Coast Guard in maritime border areas such as the Great Lakes), but also their foreign counterparts, for instance from the Royal Canadian Mounted Police. Among other things, their roles would be to strengthen security, facilitate collaboration, and execute coordinated activities in furtherance of border security".
Section 1124. Authorizes the DHS secretary to establish tunnel task forces in order to detect and remediate tunnels that breach the international border.
Section 1125. Directs the CBP commissioner, in consultation with the assistant secretary of Commerce for communications and information, to initiate an electromagnetic spectrum pilot program to detect interruptions to, jamming of, or illicit listening into electronic frequencies used by criminal organizations who pose a threat to border security.
Section 1126. Amends the HSA to establish a foreign migration financial assistance plan for foreign nations who can be helpful in halting the flow of illegal aliens toward our borders, but "only if such assistance would enhance the recipient government's capacity to address irregular migration flows that may affect the United States." The DHS secretary, in coordination with the secretary of State, is responsible for disbursing funds under the plan. There is a provision for clawbacks, politely termed "reimbursement of expenses" — presumably to be triggered if the foreign government proves itself uniquely ineffective or susceptible to corrupt diversion of the funding, but one wonders how realistic it is to expect that to happen. The provision authorizes $50 million from FFY 2019 through 2023, and sunsets on September 30, 2023.
Section 1127. Establishes a Biometric Identification Transnational Migration Alert Program (BITMAP), in which the DHS secretary, acting through Immigration and Customs Enforcement (ICE) will provide equipment and training to cooperative foreign governments to digitally capture biometric data of "individuals identified as national security, border security, or public safety threats who may attempt to enter the United States utilizing illicit pathways". Via electronic transmission, the government of a cooperating country will be permitted to compare that biometric data against appropriate U.S. national security, border security, public safety, immigration, and counterterrorism data. A memorandum of agreement is required between the United States and each foreign country, and 60 days before its entry into force, the DHS secretary is obligated to notify Congress of the impending implementation. Additional yearly reports to Congress are also mandated on the overall efficacy of the program.
BITMAP is an excellent concept, and the beauty of it is that both sides benefit: Once the data is transmitted, it will remain within the repositories of relevant U.S. government agencies for future reference, while at the same time the foreign government is receiving further input in the form of feedback about the individuals whose data is forwarded.
Section 1131. (There are no sections 1128 through 1130.) Provides a host of new positions for virtually every component of CBP from the Border Patrol (to max out at 26,370) to Field Operations inspectors (27,725), Air and Marine Operations, office of intelligence, internal affairs, mounted units, K-9 units, tunnel and search-and-rescue teams, ad infinitum. The target date for all of these on-board resources is September 30, 2023. On that date, the Government Accountability Office will conduct a review to determine whether these resources have been hired.
Section 1132. Establishes a multiplicity of retention bonuses and enticements to hire — including direct hire authority vested in the DHS secretary — USBP agents and CBP officers. It is virtually identical to language found in prior bills. There is a sunset date of September 30, 2023, for use of the bonuses and enticements.
The section permits the commissioner of CBP to offer a bonus of up to 50 percent of an officer or agent's basic pay (on top of the recipient's ordinary pay, of course) if, without the incentive, the covered CBP officer would "likely leave the Federal service ... or transfer to, or be hired into, a different position within the Department (other than another position in CBP)." (Emphasis added.)
What this means is that if, for instance, a Border Patrol agent were to be offered a job as an agent in Immigration and Customs Enforcement, then the Patrol could lure that agent to stay with the $10,000 bonus. Sounds simple enough, right? But what about the time, money, and effort that ICE is going to expend getting that potential new (and experienced) employee right up to the point of hiring, only to have the rug pulled out from under them? This sounds seems counterproductive to good governance.
Thinking cynically, there may even be some CBP officers or agents who might consider filing for such jobs solely for the purpose of ensuring that they get the bonus while having no real intention to transfer to other organizations within DHS — certainly it would be a temptation. While CBP's interest in hiring and retaining trained agents is understandable, schemes like this one serve no good purpose as drafted.
The section also mandates development of a detailed and comprehensive "education" plan for officials serving in CBP and USBP headquarters or field offices, who are involved in the recruitment, hiring, assessment, or selection of candidates (including locations in a rural or remote area), as well as the retention of current employees. The requirements are so specific and onerous that one wonders whether time spent "educating" such officials will detract from the time available to actually engage in hiring and retention duties.
Section 1133. Amends the Anti-Border Corruption Act of 20105 (having to do with mandatory polygraphs for all potential new hires in CBP), to provide for discretionary waivers of the requirement under certain circumstances, such as serving law enforcement officers who within 10 years successfully passed a polygraph exam, or who already possess a government clearance at a certain level, etc. This waiver authority expires four years after enactment. The section makes clear that no other background investigation requirements are authorized to be waived.
Section 1134. Establishes mandatory minimum training requirements for new CBP and USBP officers and agents, of no less than 21 weeks. Existing officers and agents must receive a minimum of eight hours refresher training annually. Mid- and senior-level managers are also required to receive mandatory training commensurate with their responsibilities no less than one year after being hired into such a position. The CBP commissioner is required within 180 days to report to Congress on implementation of the curricula for these requirements.
Section 1135. Provides grants to state, local, and tribal agencies under the umbrella Operation Stonegarden program administered by the Border Patrol.
Section 1141. Lays out the eligible agencies as those in "State[s] bordering Canada or Mexico ... [or a] State or territory with a maritime border; and [which are] involved in an active, ongoing, U.S. Customs and Border Protection operation coordinated through a [Border Patrol] sector office." Recipients can then use any money apportioned for such things as equipment, personnel, and overtime.
Shockingly, there is absolutely no language in this section limiting recipients of Stonegarden funds to those agencies that also fully cooperate with all DHS immigration enforcement entities, including through honoring detainers. In other words, sanctuary jurisdictions would be entitled to seek funding. Worse, each grant provided is for a 36-month period. It's beyond comprehension that this bill doesn't include language limiting grantees to agencies that cooperate in all immigration enforcement matters.
Title II — Emergency Port of Entry Personnel and Infrastructure Funding
Section 2101. Subject to consultation with other appropriate cabinet members, states and tribes, and property owners, the DHS secretary is authorized to direct the General Services Administration (GSA) to construct new northern or southern ports of entry (POEs). GSA and the secretary are directed to notify Congress, including the members of the affected delegation, within 15 days of any decision as to where a new POE may be located.
The section also authorizes and directs the GSA administration and the DHS secretary to modernize and expand high-volume southern border POEs by September 30, 2023.
Section 2102. Requires that each USBP or ICE agent, including mounted units, be provided with two-way radios (or other communication device) capable of secure interoperability between ports of entry and with other federal, state, local, or tribal law enforcement agencies.
Section 2103. Authorizes and directs completion of the Border Security Deployment Program and expands integrated surveillance and intrusion detection systems at land POEs.
Section 2104. Directs establishment/expansion of pilot license plate readers at land POEs, "using license plate readers for one to two cargo lanes at the top three high-volume land ports of entry or checkpoints to determine their effectiveness in reducing cross-border wait times for commercial traffic and tractor trailers."
Section 2105. Mandates a six-month pilot of a high-volume non-intrusive passenger vehicle inspection system at three high volume land ports contiguous to Mexico, to be done initially in "pre-primary" lanes (presumably to ensure the ability to halt a vehicle without impediment to traffic flow, should the need or articulable suspicions arise).
Section 2106. Establishes the mandate for a biometric exit data system, with a comprehensive plan to be submitted to Congress within 180 days. The plan must accomplish integration of biometric exit and entry data (to aid in detecting visa overstays) and meet a variety of other technical requirements built into the section.
The section is confusing, because even though the plan is not due for six months, concurrently a pilot program is to be implemented within six months of enactment, and last for six months, involving non-pedestrian outbound traffic "at not fewer than three land ports of entry with significant cross-border traffic, including at not fewer than two land ports of entry on the southern land border and at least one land port of entry on the northern land border". It is not entirely clear how a biometric exit system can be undertaken on "non-pedestrian" traffic since biometric clearly implies traits unique to humans, not vehicles.
Following the initial pilot, the section calls for incremental implementation across the span of POEs until full biometric exit capture is achieved.
While one hopes fervently that the country will at some point achieve exit controls to match our entry controls — this will in the end be critical in controlling visa violators who by most tallies account for nearly half the illegal alien population of the United States — it is not at all clear that this latest iteration of a reiterative Congressional mandate will be the one that finally results in success. In fact, it is doubtful in the extreme.
Section 2107. Articulates a "sense of the Congress" on the importance of cooperative endeavors in sanitary and phytosanitary inspections for exported goods, among and between U.S. government agencies.
Title III — Visa Security and Integrity, will be covered in a future blog.
Title IV — Transnational Criminal Organization Illicit Spotter Prevention and Elimination
Section 4102. Criminalizes illicit spotting by creating a new provision in the federal criminal code at 18 U.S.C. Section 1510. "Spotting" is the activity of watching and radioing back to confederates the locations and details of border agent activities for the purpose of violating U.S. immigration, customs, firearms exportation, money transfer, or drug laws. Those who violate the new provision would face jail terms of up to 10 years. This is would be a welcome new tool in the border enforcement arsenal.
Section 4103. Amends existing alien smuggling/harboring laws by providing enhanced penalties for those who, at the time they are engaged in this criminal activity, use or are in possession of firearms.6
The section also enhances penalties for damaging or destroying federal border barriers, and expands the definition to include various technological equipment such as sensors, cameras, etc.7 As before, one of the enhancements has to do with using or possessing a firearm while engaged in this criminal activity.
Title V — Border Security Funding
Section 5101. Authorizes, and directly appropriates, $23.4 billion funding for border barrier construction and infrastructure technology. The language is unusual in that, normally, an authorization isn't the same as an appropriation, which requires passage of a separate budget bill in Congress. However, without the appropriation, language authorizing and directing the barrier would simply be an unfunded mandate that the Executive branch would unlikely be able to fund from existing sources.
The reason for this unusual departure takes a moment to understand. Without a direct appropriation, actual construction of the border barrier — one of President Trump's "four pillars" for immigration reform, without which he has said he will not sign a bill —would have remained iffy, and relied on Congress following through with actual funding, something that might or might not have materialized, depending on how intransigent Democrats would choose to become in the House and Senate, once having an amnesty in their pocket.
Meanwhile though, that amnesty — supposedly the tradeoff for the barrier — could have been initiated immediately. How is this possible? Because U.S. Citizenship and Immigration Services (USCIS), the immigration benefits agency that would be responsible for administering the amnesty, is sitting on a massive pile of cash (over $1 billion) amassed from adjudications fees, a substantial portion of which could be used to kick-start the amnesty until fees received from applicants start rolling in.
Thus, this method of appropriating funds for the physical barrier was the only way to maintain equity in the trade-off. It is also apportioned on a yearly basis from date of enactment (presumably 2018 if passed and signed), through FFY 2026.
The money appropriated is further subdivided by this section of the bill: $16.625 billion for barrier, roads, lighting, etc., and $6.775 billion for technological infrastructure and upgrades. Congress further demands submission of a plan and timeline for expenditures under the entire border security appropriation, and limits discretion in any kind of movement of funds.
Note however that the biometric exit system is specifically mentioned as a part of the $6.775 billion portion of the fund, along with upgrading and construction of new POEs and Border Patrol sectors. What this undoubtedly means is that the exit system will be significantly underfunded from the start, and probably suffer even further from prioritization of the border barrier and improvements above all things. The near certain result will be that the biometric exit system will itself remain one of those "unfunded mandates" discussed earlier.
Section 5102. Contains a proviso specifying that if any funding from the account(s) established for border security are rescinded, diverted, or expended in methods inconsistent with Section 5101, then alien recipients of the amnesty provided for in other sections of the bill (described as "covered aliens") will be deemed ineligible to receive an immigrant visa, or adjust status to that of a lawful permanent resident. This proviso does not mean, however, that they would be deprived of the lawful status gained through amnesty. For all intents and purposes, they would simply remain in that status — free to live and work in the United States — in perpetuity.
Title IV provides our federal legislators an excellent opportunity to address a host of problems the nation confronts, where transnational gangs such as MS-13 and the Latin Kings and others are concerned. Inexplicably they have chosen not to do so. The provisions in this title, while important and beneficial, are focused so strictly on the areas immediately proximate to the border as to be fundamentally valueless where transnational crime in the interior of the United States is concerned.
In fact, this flaw is a microcosm of the failing of the entire bill where interior enforcement is concerned. In our view, it is a fatal flaw. Immigration control does not end at the border. When an alien evades Border Patrol agents, it should not become an "olly olly oxen free" proposition. Yet, for all of the thousands of CBP officers and agents authorized by the bill, for all of the multiplicity of cutting edge technological devices lavished on the Border Patrol by the bill, there is not one dime for Immigration and Customs Enforcement; there are no commensurate technological improvements; there are no enhanced new authorities; there are no new detention facilities; and there are no new human resources.
3 The Joint Interagency Task Force (JIATF) South is a part of the military's Southern Command, and operates out of Key West to patrol and protect the United States from external threats in the Caribbean and South Atlantic areas, including interdiction of narcotics, contraband, and migrant smuggling operations.