The GOP's Border Bill Would Be a Disaster

Vox

By Dara Lind

January 26, 2015

The GOP's border bill would be a disaster 

Congress has been pushing to pass bill that turns border security into a matter of zero tolerance: by 2020, every single person entering the US from Mexico illegally must be apprehended. Every. Single. One.

If even a single unauthorized immigrant gets across the border without being caught, DHS will get hit with penalties — getting everything from overtime pay to government aircraft access taken away from them.

You're probably going to be hearing more about this idea in the coming months, as both the legislative battle between Congress and the president over immigration reform and the 2016 presidential election heat up. The border bill was scheduled for a House vote the week of January 26, though it's been pulled from the schedule. The Senate has introduced a similar bill, and might try to pass it soon — maybe even making it a condition of Department of Homeland Security funding. And the Republican primary candidates who've talked about the border at all seem to see guaranteeing 100 percent security as an obvious first step. (One candidate, doctor Ben Carson, said that the next president should promise to "seal the border" within his first year in office.)

Border patrol agent on ATV

But the zero-tolerance standard is plainly unrealistic, according to experts. Marc Rosenblum of the Migration Policy Institute, who worked for the Congressional Research Service on measuring border security, says that "no serious student of the border" could possibly believe that the GOP's standard is a good idea.

Think of this bill, Rosenblum suggests, as the border-security equivalent of No Child Left Behind. Border agents have a limited amount of time to meet a "testing" goal: in this case, zero people cross the border illegally and get away. (By the same token, NCLB required schools to reach 100 percent proficiency in math and reading by 2013 — though most of them didn't.) They're given some resources to help meet that goal, but that doesn't change the fact that the goal itself holds agents accountable for factors that might not be in their control. And if they don't meet the goal, they're punished — which creates incentives to juke the stats. As Rosenblum says, "Whenever you have high-stakes testing, there's an incentive for teachers to cook the books."

That hasn't stopped immigration hardliners from attacking the bill themselves — because their definition of "border security" isn't limited to who's apprehended at the border. So to understand the fight, you need to understand how the government actually measures border security — and what a zero-tolerance mandate would actually do.

Why it's so hard to measure border security

Since 2011, the Department of Homeland Security has been measuring border security by the number of immigrants apprehended crossing the border without papers. The problem is that the number of immigrants who are trying to cross into the United States is changing all the time, and knowing how many are caught doesn't tell you how many get through.

Border security is really about a ratio: out of all people crossing into the US without papers, how many of them are getting caught? But by definition, Border Patrol can't be expected to know exactly how many people they didn't catch.

Currently, they're estimating the number of "got aways" via direct observation. The border is stacked with surveillance cameras; as Marshall Fitz of the Center for American Progress puts it, "we have an eye on the border basically 24/7." Beyond that, agents can make educated guesses based on cuts in fencing or signs, footprints, or litter.

The zero-tolerance standard: "operational control"

The GOP bill gives DHS the resources to set up better metrics to estimate how many people are crossing (as well as how many guns and drugs), and to come up with different strategies for ports of entry and for maritime borders. But those metrics are in the service of a goal that nobody thinks DHS can actually meet: preventing or apprehending every single illegal entry.

This standard is called "operational control." Congress actually mandated "operational control" of the border almost a decade ago, in 2006 — but DHS, knowing that it wasn't realistic to prevent every single entry, quietly tweaked the definition of "operational control" to something it could actually achieve.

This time around, Congress is preventing DHS from being able to define its own border-security standards. The new bill makes it very clear that "operational control" means that every single immigrant crossing the border without papers must be apprehended or turned back. And if DHS can't prove that they have "operational control" of high-traffic areas of the border within two years — or of the entire border within five years — the penalties start kicking in.

Why this won't work

No one disagrees that the government should be trying to apprehend everyone who crosses the border without papers — after all, the government can't tell who's smuggling drugs or weapons unless it stops them. But the government has been trying to do that for the last 20 years, and it hasn't worked yet.

As the government built up security where immigrants were most likely to cross, immigrants started going where border agents weren't — even though that meant an often lethal journey through rough desert. Where the government built fencing, immigrants cut holes. Where the government used drones, smugglers dug tunnels. The government simply can't prevent every single eventuality — and spending energy trying to do so, to get every single unauthorized immigrant, is energy that won't be spent on more dedicated law-enforcement efforts against criminal groups.

Even the author of this bill in the House, Homeland Security Committee chair Michael McCaul, has acknowledged that 100 percent prevention is a worthwhile goal but not a realistic one. A bill he proposed in 2013, after several hearings about border-security metrics, would have required that 90 percent of all border crossers get apprehended or turned back. But in 2015, his reservations have suddenly disappeared.

This is an impossible bind for 2020

So the question isn't whether the federal government will be able to meet its goal. It won't. The question is what happens when it doesn't.

There's going to be pressure to cook the books. The GOP bill prohibits DHS officials from doing anything to tamper with the metrics. But border patrol agents are still the ones responsible for estimating how many people, in total, are crossing the border — which is going to determine whether DHS can say everyone's being caught. There's going to be enormous pressure from the top down at DHS not to overestimate the total number of border crossers, since that would mean that more were going uncaptured.

Just as high-stakes testing led to outright cheating in schools from Washington, DC to Atlanta, it's possible that border patrol stations could tip into outright manipulation — seeing cut signs, for example, but simply deciding not to record those as evidence of a "got away."

Furthermore, the GOP bill defines "operational control" as zero tolerance, but it doesn't actually specify what metric should be used for that — that part's up to DHS. In theory, DHS could straight-up assert that it had "operational control" even if a few people were getting by unapprehended. (The bill would appoint a commission of experts to check the government's math, but since it's going to be hard to find experts who believe Congress' definition of "control" is achievable, it's possible the commission could side with DHS.) And it would be up to Congress to decide how to respond.

Congress can crack down at any time — or it can let the government off cleanly. The Obama administration has actually softened the consequences of No Child Left Behind's testing mandate, by giving waivers to states that weren't on the way to 100 percent proficiency. The federal government can't do that in this border bill. The only escape route would be for Congress to pass another law repealing or postponing the "operational control" mandate — or quietly letting DHS know that if it decided to claim it had "operational control" even if it wasn't catching literally every immigrant, Congress would let it slide.

This gives Congress an extraordinary amount of power — and a massive bargaining chip.

What if it's a Republican administration? This isn't just a policy problem. It's a political problem. The convenient thing about leaving "border security" undefined is that it lets immigration hawks attack the Obama administration over failing to "secure the border" — even though, by the available metrics, fewer immigrants are getting into the country than were under George W. Bush. Setting a standard for "border security" that can't be met makes it easy to attack whoever's in power for not doing it. But what if that's a Republican — who, having been elected in 2016, would be running for reelection in 2020 when the hammer comes down?

So what would a better way be to measure border security? Border experts have one set of answers. But they're not the only ones opposing the bill — many immigration hardliners, as well as border agents themselves, have come out against it for not doing enough to get rid of immigrants once they've arrived.

Can people cross the border without papers to seek asylum legally? It's not always illegal to enter the US without papers — as long as the immigrant goes straight to a border agent to apply for asylum. That isn't a distinction that most people understand. Plenty of politicians said that the Central American migrant crisis of 2014 showed that the border wasn't secure — but most of those immigrants sought out border agents and turned themselves in.

Under the new GOP bill, those immigrants wouldn't be a threat to "operational control" at all. And for that reason, some border agents themselves are attacking it. They think that the border can't be secure as long as people can enter the country without papers and ultimately be allowed to stay. So they want to make it harder for people to seek and get asylum.

What about unauthorized immigrants living in the US? Other immigration hardliners, like Sen. Jeff Sessions (new head of the Senate's immigration subcommittee), are wary of any law that isn't focused on deporting unauthorized immigrants who are currently in the US, or undoing President Obama's executive actions to protect them. The GOP's border bill is called the "Secure the Border First" Act — Sessions and others are worried that what comes after the "first" could be legalization of unauthorized immigrants.

How do you distinguish between a high-risk and low-risk immigrant? Border experts, meanwhile, agree that the most important thing in border security is flexibility: the ability to focus on the most serious threats to national security and safety. That might mean needing to put a little less effort into catching every single border crosser, but it also means having better information about exactly who's crossing and why.

Shouldn't the government get more credit for people who decide not to try to cross at all? It's obviously much better for the government if people don't even try to cross illegally. In fact, most of the US government's policy over the past year, in response to the migrant crisis of last summer, was to focus on keeping people from making the journey. But none of the metrics that have been developed yet give the government credit for deterrence. In other words, border security is measured by how many people think they can get across, and are wrong.

For more information, go to:  www.beverlyhillsimmigrationlaw.com