ICE's Mission Melt 2: It Won't Say Yes to Congressional Support

By Janice Kephart on August 5, 2010

On July 22, 2010, I was one of five witnesses testifying before the House Homeland Security Subcommittee on Border, Maritime and Global Counterterrorism at a hearing on "Enhancing DHS' Efforts to Disrupt Alien Smuggling Across Our Borders." I was invited to inform members of the committee about the reality of alien smuggling (and blatant drug cartel smuggling) on the Arizona border, especially over federal lands where there is little to no Border Patrol presence, by showing a short clip from "Hidden Cameras on the Arizona Border 2," now in its third week and exceeding 300,000 youtube views. (See my written testimony here.)

The chairman of the full committee, Bennie Thompson (D-MS) and the chairman of the subcommittee, Henry Cuellar (D-TX), along with the subcommittee's ranking member, Candice Miller (R-MI) were all in attendance, along with others.

The witnesses were as follows:

James A. Dinkins
Executive Associate Director
Homeland Security Investigations
U.S. Immigration and Customs Enforcement
Department of Homeland Security

Michael J. Fisher
Chief of the Border Patrol
U.S. Customs and Border Protection
Department of Homeland Security

Terry Goddard
Attorney General
State of Arizona

Richard M. Stana
Homeland Security and Justice Issues
U.S. Government Accountability Office

Janice Kephart
Director of National Security Policy
Center for Immigration Studies

The hearing was based on a new Government Accountability Office report authored by Rich Stana and commissioned in part by chairman Thompson, "Alien Smuggling: DHS Needs to Better Leverage Investigative Resources and Measure Program Performance along the Southwest Border." The report extensively criticizes ICE's inability to set priorities and performance measures for its investigations. The study concludes that ICE should use additional financial investigative and seizure techniques to combat alien smuggling. Also central to the hearing were Secretary Napolitano's recent announcement that DHS would reassign another 100 ICE personnel and 300 more Border Patrol agents and CBP officers to Arizona, as well as the decision to deploy 500-plus National Guard (with an unstated purpose) to Arizona as well.

What was most enlightening about the hearing, from my perspective as a witness, was how capable and well-versed Arizona's Attorney General Goddard was in discussing his state's proactive attempts to curtail alien and drug smuggling through finance and seizure legal mechanisms, in contrast to ICE simply discussing phone calls from illegal immigrants that begin investigations. Kudos to Mr. Goddard also for dealing with a wide swath of questioning, some of it, to put it bluntly, quite disrespectful. I came away with the notion that Arizona itself is dealing with its crises as well as can be expected – even if Gov. Jan Brewer and Attorney General Goddard are of two different political parties and running against each other in the upcoming election.

I also came away with immense clarity that the Border Patrol does not intend to be more assertive in seeking access to the Arizona federal lands that have become a violent gateway for drug cartels, thieves, bandits, alien smugglers, and human traffickers. In fact, new Border Patrol Chief Mike Fisher was given the standard five minutes to encapsulate Border Patrol efforts to curtail alien smuggling on the southwest border, and yielded back a minute and a half. I have never seen any witness, let alone a government witness, yield back time. However, according to Chief Fisher's testimony, apprehensions are down and that, essentially, was all we needed to know. No questions were asked about areas the Border Patrol has not been patrolling, and if those numbers – or unknown numbers – are considered when making a blanket statement inferring that there is less illegal immigration crossing the southwest border.

Yet perhaps the most disconcerting testimony was from John Dinkins, ICE's new head of Investigations, who seemed unwilling and uncomfortable to answer directly and with precision solicitations by Thompson and Cuellar for answers regarding funding and personnel ICE has traditionally pleaded for under every administration. ICE continually notes with chagrin that Border Patrol numbers have tripled since 9/11, while ICE personnel number only around 7,000, up from just over 5,000 on 9/11. While the Border Patrol has the daunting task of preventing illegal entry within 100 miles of every border, ICE has the interior of the entire United States to cover. The numbers, as both Thompson and Cuellar agreed, just don't wash.

The result was that both Thompson and Cuellar used their five minutes of questioning to ask, in different ways, how they could help ICE. Neither time did Dinkins take them up on their offer, but ducked and weaved in the way Washingtonians do when there is a preference not to answer, but out of propriety, cannot refuse to answer either.

As chair of the subcommittee holding the hearing, Cuellar took the first line of questioning. He wanted to know about the ratios of Border Patrol agents to ICE agents on the southwest border, especially with the new numbers that Department of Homeland Security Secretary Napolitano had announced the prior week. Cuellar and Thompson were both concerned that while reinforcements were welcome, ICE's scant resources in general meant that reassigning ICE agents to the southwest necessarily were depleting already short-staffed ICE offices elsewhere. In addition, Cuellar argued, immigration enforcement requires, to a certain degree (although not for expedited removal within 100 miles of the border), that Border Patrol be able to refer immigration investigations to ICE. If the Border Patrol is increased beyond what ICE can handle, then enforcement opportunities are lost time and again.

Below are the two exchanges, taken directly from the committee's transcript (not otherwise publicly available). Note specifically that Dinkins downplays the very poor ratio of ICE agents to Border Patrol agents (about 15 to 1, he says) in Arizona, noting that if you extend that ratio nationwide (I could do this math sitting in my seat as a witness), the overall ratio is not so bad (about 6 to 1). Note again that when Thompson, frustrated, tells Dinkins he's trying to help him, Dinkins does not reply with authority or information to help Thompson help his agency.

Thank you, Ms. Kephart, very much for your testimony.

I want to thank all the witnesses for their time for being here with us. I remind each member that he or she will have five minutes to question the witnesses.

I now recognize myself for questions.

One of the things I was just talking to the chairman here – and this is, I guess, question for Mr. Dinkins -- usually when Congress passes something for border security, there's two things that happened. They talk about fencing, and they talk about adding more Border Patrol. And again, with all due respect, I'm a big supporter of the men and women in -- in green, but let's assume that, Mr. Dinkins, we consider this analogy.

If you have a problem in the community, you have a policeman on the corner, which is I'm trying to equate that to Border Patrol. And if the policeman catches somebody, they in turn will work with an investigator so the investigator can build a case and then prosecute that person. Same thing, at least in my opinion, same analogy -- Border Patrol, who always catches somebody, but you got to build the cases against that individual.

One of the things we've been doing in the past is we've been adding more Border Patrol, more Border Patrol. We're going to add another 1,200 if the supplemental bill passes, which I'm -- I'm in agreement. But we got to have a ratio. If we add Border Patrol, what should be the ratio of ICE? Because you got to have the investigators.

And if you want to take, as some of the witnesses said, take the fight to them, let's say, even to Mexico, and go after those organizations, and I believe ICE talking to Secretary Morton the other day, I think out of all of the places ICE is in the world, I think the biggest area is in Mexico, a small number, in my opinion – I think we need to have a lot more – but nevertheless, what should be the ratio, if we use that analogy about policeman on the beat, the investigator so he can build the cases.

What should be the ratio, in your opinion, for Border Patrol and ICE? Because we've been at it since 2004. We have gone from 10,000 Border Patrol to 20,000. But ICE has pretty much stayed over. Given Arizona, for example, was your ratio there, if you know that answer, and then the general ratio we ought to have?

Yes, there is. I think it's important to remember, you know, while CBP and ICE were created as two independent agencies, we really were created to be dependent upon one another for our successes. And then that analogy you use is very accurate. We are responsible for responding to the ports of entry, to cross-border criminal activity, and actually taking, hopefully, those seizures...

Excuse me, because we got only five minutes.

I'm sorry.


Ratio. That's a very good – yes, right now, I believe, and this is round figures, we have approximately – if we're in Arizona, for example, we have a ratio of, I would say, maybe 5,000 armed Border Patrol officers to a ratio of maybe 350. And I can get you the exact number. It's about 350 ICE special agents.

And there does need to be a ratio. If you look at the ratio across-the-board for ICE and CBP, it can be a little bit deceptive, because we have ICE special agents throughout the country in places where there may not be Border Patrol, so the ratio for – for an ICE special agent, and this is from my own review and experience over the last 20 years, is probably something similar to one to six versus maybe the one to 15 that we have between CBP and ICE in the Arizona southern border area.

. . .

Thank you very much. Chief Fisher, good to see you in Washington. You – you were a gracious host when I was out there a few weeks ago. How many new agents would you be receiving either in the appropriation or the surge for the Tucson sector?

There'll be approximately 300 CBP officers who will be part of that surge, which includes CBP officers and Border Patrol agents.

Mr. Dinkins, how many new investigators would you get based on the – the new CBP numbers?

Sir, it fluctuates, but I believe there's right now we have 130 that's going to the entire southwest border. I don't have that broken down by sector right with me, but I can get . . .

So is your testimony that you have enough investigators to do your job?

Sir, we could always use more investigators. As our partners grow, there's more work to be done, and we could always use more investigators.

Well, are you – are you in line to receive more investigators with this new announcement announced by the secretary?

Yes, we are. We are in line to – to receive additional special agents.


Investigators, yes, sir.

You are.

Yes, we are.

Well, then somewhere we have a disconnect, because some people are saying that's not the case.

And I want you to go back and review it and make sure, because one of the criticisms I heard along the border is that in effect if we get more CBP individuals and not enough investigators for ICE, then the load for ICE almost becomes unbearable in terms of being able to do your work.

And I'm trying to pursue a line of questioning to get you what you need. I know you have to defend your – your department. They do a wonderful job. But if in fact we are surging one area to the detriment of another, then we're not getting the best effort for the problem we all want to solve.

I agree with you 100 percent, sir.

Perhaps what is most disturbing about this testimony is that the letter reporting the "Vote of No Confidence" by ICE officials and agents in June 2010, which was the topic of my first blog in this series, seems to suggest that ICE is being rendered impotent to ask for the resources by its own leadership. The letter outlines a specific disconnect between the severe strain on ICE resources and the refusal of ICE Director Morton to ask for more as follows:

Senior ICE leadership dedicates more time to campaigning for immigration reforms aimed at large scale amnesty legislation, than advising the American public and Federal lawmakers on the severity of the illegal immigration problem, and the need for more manpower and resources within ICE ERO to address it. ICE ERO is currently overwhelmed by the massive criminal alien problem in the United States resulting in the large scale release of criminals back into local communities.

The next bullet in the "no confidence" letter directly addresses the issue of seeking congressional appropriations:

ICE senior leadership is aware that the system is broken, yet refuses to alert Congress to the severity of the situation and request additional resources to provide better enforcement and support of local agencies.

Case in point: senior leadership of ICE in testimony before the House Homeland Security Committee on July 22, 2010, in answers to direct questions from the chairman of the full committee and the chairman of the border subcommittee, neither alerted Congress to the severity of the situation nor requested additional resources to provide better enforcement or support local agencies' enforcement.

ICE can't do better without congressional authorization and appropriation, and that, it seems, is the point.

This is the second in a series relating the erosion of immigration law enforcement by the Obama Administration.