BORDER PATROL

Actions Needed to 

Improve Oversight of 

Post-Apprehension 

Consequences

Report to the Chairman

Committee on Homeland Security

House of Representatives

January 2017

GAO-17-66

United States Government Accountability Office
United States Government Accountability

Highlights of GAO-17-66, a report to the 

Chairman, Committee on Homeland Security,

House of Representatives

, 

January 2017

BORDER PATROL

Actions Needed to Improve Oversight of PostApprehension Consequences

What GAO Found

The U.S. Border Patrol (Border Patrol), an office within the Department of 

Homeland Security’s (DHS) U.S. Customs and Border Protection, uses an 

annual recidivism rate to measure performance of the Consequence Delivery 

System (CDS)—a process that identifies consequences as Most Effective and 

Efficient to deter illegal cross border activity in each sector—however, 

methodological weaknesses limit the rate’s usefulness for assessing CDS 

effectiveness. GAO found that Border Patrol’s methodology does not account for 

an alien’s apprehension history beyond one fiscal year and neither accounts for 

nor excludes apprehended aliens for whom there is no record of removal after 

apprehension and who may have remained in the United States without an 

opportunity to recidivate. GAO’s analysis of recidivism for fiscal year 2015 

considering these factors showed a 29 percent recidivism rate, compared to 

Border Patrol’s 14 percent recidivism rate. Border Patrol could more accurately 

assess recidivism and CDS effectiveness by strengthening its recidivism rate 

methodology, such as by using an alien’s apprehension history beyond one 

fiscal year and excluding aliens for whom there is no record of removal from the 

United States. 

Agent application of consequences Border Patrol identified in CDS guidance as 

the Most Effective and Efficient has declined from 28 percent in fiscal year 2013 

to 18 percent in fiscal year 2015 across the southwest border. In addition, Border 

Patrol has not assessed reasons for the relatively low application of

consequences determined to be the Most Effective and Efficient consequence in 

each sector; but some agency officials stated that challenges include agents’

hesitation to apply consequences that require referral to federal partners facing 

capacity constraints, such as Department of Justice immigration courts.

Assessing why agents do not apply the Most Effective and Efficient consequence 

could inform Border Patrol of actions needed to increase application of Most 

Effective and Efficient consequences to reduce recidivism. Border Patrol

established some mechanisms to facilitate monitoring field implementation of 

CDS, but lacked controls to ensure effective performance management. For 

example, six of nine field locations missed performance targets for application of

the Most Effective and Efficient consequences in fiscal year 2015 as shown in 

the figure below. Ensuring consistent oversight of performance management 

would provide greater assurance that Border Patrol is most effectively using CDS 

to address cross-border illegal activity.

Target and Actual Use of the Most Effective and Efficient Consequence Across Border Patrol 

Southwest Field Locations, Fiscal Year 2015

View GAO-17-66. For more information, 

contact Rebecca Gambler at (202) 512-8777 

or gamblerr@gao.gov.

Why GAO Did This Study

To address smuggling along the U.S. 

southwest border, the U.S. Border 

Patrol developed CDS—a process to 

classify each apprehended alien into 

criminal or noncriminal categories and 

apply consequences, such as federal 

prosecution. Each Border Patrol sector 

ranks up to eight consequences from 

Most to Least Effective and Efficient to 

reduce recidivism. GAO was asked to 

review and assess Border Patrol’s 

implementation of CDS across the 

southwest border. This report 

examines the extent to which Border 

Patrol (1) has a methodology for 

calculating recidivism that allows it to 

assess CDS program effectiveness, (2) 

applied consequences it determined to 

be most effective and efficient in each 

southwest border sector and (3) 

established guidance and controls to 

monitor field implementation of CDS.

GAO analyzed Border Patrol’s 

recidivism rate methodology; 

apprehension data and CDS 

application along the southwest border 

for fiscal years 2013 through 2015, the 

most recently available data; and 

DHS’s U.S. Immigration and Customs 

Enforcement data on alien removals. 

GAO also interviewed Border Patrol 

personnel and reviewed CDS 

guidance.

What GAO Recommends

GAO is making six recommendations 

to strengthen the methodology for 

measuring recidivism, assess reasons 

agents do not apply CDS guides’ Most 

Effective and Efficient consequence, 

and ensure performance management 

oversight. DHS concurred with all but 

one recommendation, which relates to

strengthening its recidivism 

methodology, citing other means to 

measure CDS performance. GAO 

believes the recommendation remains 

valid, as discussed in the report.
Page i GAO-17-66 CBP's Consequence Delivery System

Letter 1

Background 6

Border Patrol Methodology for Calculating Recidivism Makes It 

Difficult to Assess Effectiveness of the Consequence Delivery 

System 13

Border Patrol Agents Did Not Generally Apply the Consequence 

Identified in CDS guides as the Most Effective and Efficient in 

Each Southwest Border Sector 18

Border Patrol Could Enhance Guidance for CDS Cost Estimation 

and Strengthen Controls for Monitoring Performance and Data 

Integrity 23

Conclusions 33

Recommendations for Executive Action 33

Agency Comments and Our Evaluation 34

Appendix I Border Patrol and ICE Data Supporting Border Patrol’s Recidivism 

Rate Methodology and Alternative Methods 38

Appendix II Most Effective and Efficient Consequences Identified in Southwest 

Border Patrol Sectors’ CDS Guides, Fiscal Years 2013 through 2015 43

Appendix III Comments from the Department of Homeland Security 47

Appendix IV GAO Contact and Staff Acknowledgments 53

Tables

Table 1: Border Patrol Sector Cost Estimates for Reinstatement of 

Removal Order of a Non-Criminal Alien, Fiscal Year 2015 25

Table 2: Variances in Border Patrol Classification of Different 

Types of Criminal Aliens Across Southwest Border 

Apprehensions, Fiscal Years 2013-2015 31

Contents
Page ii GAO-17-66 CBP's Consequence Delivery System

Table 3: Number of Border Patrol Apprehensions, Recidivism 

Rate Alternatives, and Percentage of Aliens for whom 

U.S. Immigration and Customs Enforcement (ICE) Did Not 

Have a Record of Removal from the United States by 

Southwest Border Sector, Fiscal Year 2015 41

Table 4: Border Patrol Southwest Border Apprehensions, 

Recidivism Rates and Percentage of Aliens for whom U.S. 

Immigration and Customs Enforcement (ICE) Did Not 

Have a Record of Removal from the United States by 

Alien Classification, Fiscal Year 2015 42

Table 5: Types of Consequences Identified as Most Effective and 

Efficient in Consequence Delivery System (CDS) Guides 

for Southwest Border Patrol Sectors, Fiscal Years 2013 

through 2015 44

Table 6: Consequences Identified as Most Effective and Efficient 

in Consequence Delivery System (CDS) Guides for 

Southwest Border Patrol Sectors, Fiscal Years 2013 

through 2015 44

Figures

Figure 1: Alien Classifications in Border Patrol’s Consequence 

Delivery System 7

Figure 2: Consequences in Border Patrol’s Consequence Delivery 

System (CDS) as of Fiscal Year 2015 8

Figure 3: Example of a Consequence Delivery System (CDS) 

Guide, Fiscal Year 2015 9

Figure 4: Southwest Border Patrol Sectors 10

Figure 5: Federal Agency Roles in Administering Consequences 

in the Consequence Delivery System 12

Figure 6: Border Patrol’s Annual Southwest Border Recidivism 

Rate Calculation 13

Figure 7: Fiscal Year 2015 Southwest Border Recidivism Rates 

Calculated by Border Patrol and Accounting for Additional 

Factors 16

Figure 8: Percentage of Border Patrol Apprehensions for the 

Southwest Border by Agency Ranking of Consequence 

Applied 19

Figure 9: Border Patrol Agent Application of Most Effective and 

Efficient Consequence for Criminal and Noncriminal Alien 

Apprehensions by Sector, Fiscal Year 2015 20
Page iii GAO-17-66 CBP's Consequence Delivery System

Figure 10: Border Patrol Sector Performance Targets and 

Application of the Consequence Delivery System’s Most 

Effective and Efficient Consequence in Fiscal Year 2015. 29

Figure 11: Border Patrol’s Fiscal Year (FY) Southwest Border 

Recidivism Rate Calculation and Alternative Methods 39

Figure 12: Most Effective and Efficient Consequence for U.S. 

Border Patrol Non-Criminal Apprehensions for Southwest 

Border Sectors, Fiscal Years 2013 through 2015 45

Figure 13: Most Effective and Efficient Consequences for U.S. 

Border Patrol Criminal Alien Apprehensions for 

Southwest Border Sectors, Fiscal Years 2013 through 

2015 46

Abbreviations

ATEP Alien Transfer Exit Program

BOP Bureau of Prisons

CBP Customs and Border Protection

CDS Consequence Delivery System

CDS PMO Consequence Delivery System Project Management Office

DHS Department of Homeland Security

DOJ Department of Justice

EOIR Executive Office for Immigration Review

ICE Immigration and Customs Enforcement 

OASSIS Operation against Smugglers Initiative on Safety and 

 Security

USAO United States Attorney’s Office

USMS United States Marshals Service

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Page 1 GAO-17-66 CBP's Consequence Delivery System

441 G St. N.W.

Washington, DC 20548

January 12, 2017

The Honorable Michael T. McCaul

Chairman

Committee on Homeland Security

House of Representatives

Dear Mr. Chairman:

Transnational criminal organizations represent a significant cross-border 

threat to homeland security, controlling most smuggling of drugs and 

guns, as well as an increasing percentage of human smuggling, 

according to the 2012-2016 U.S. Border Patrol (Border Patrol) Strategic 

Plan. To help break the smuggling cycle between U.S. ports of entry on 

the southwest border, Border Patrol, within the Department of Homeland 

Security’s (DHS) U.S. Customs and Border Protection (CBP), developed 

the Consequence Delivery System (CDS) in 2011 that Border Patrol now 

uses across all U.S. borders.

1 CDS is a process by which Border Patrol 

agents are to classify each alien apprehended illegally crossing the 

border and then apply one or more post-apprehension consequences 

determined to be most effective and efficient to discourage alien 

recidivism, that is, further apprehensions for illegal cross-border activity.2

Border Patrol agents classify alien apprehensions into one of seven types 

of criminal or noncriminal categories. The eight post-apprehension 

consequences range in severity from criminal prosecution in federal court 

to allowing an alien to voluntarily return to his or her home country.

Border Patrol established a CDS Program Management Office (CDS 

PMO) at headquarters to develop CDS guidance and provide analytical 

support for field implementation and oversight of the CDS program across 

 1

Ports of entry are facilities that provide for the controlled entry into or departure from the 

United States. Specifically, a port of entry is any officially designated location (seaport, 

airport, or land border location) where CBP officers or employees are assigned to clear 

passengers, merchandise and other items; collect duties; and enforce customs laws; and 

where CBP officers inspect persons seeking to enter or depart, or applying for admission 

into, the United States pursuant to U.S. immigration law.

2

Under U.S. immigration law, an “alien” is any person that is not a U.S. citizen or national. 

See 8 U.S.C. § 1101(a)(3). According to the National Institute of Justice, recidivism refers 

to a person’s relapse into criminal behavior, often after the person receives sanctions or 

undergoes intervention for a previous crime.

Letter
Page 2 GAO-17-66 CBP's Consequence Delivery System

all border locations, including the nine southwest Border Patrol sectors.3

Such support includes working with sector personnel to develop a CDS 

guide each fiscal year that is unique to each sector which ranks each of 

the available consequences from most effective and efficient to least 

effective and efficient for each of the seven alien categories.

4 As 

circumstances permit, Border Patrol agents are to apply consequences to 

each alien according to the relative rankings in each sector’s CDS guide, 

and Border Patrol assesses CDS program effectiveness using various 

performance indicators that include the rate of recidivism for aliens 

illegally crossing the border between the ports of entry on the southwest 

border. DHS also uses the CDS program recidivism rate for the 

southwest border as one performance measure, among others, to report 

on the status of U.S. border security.

You asked us to review and assess Border Patrol’s implementation of 

CDS across the southwest border. This report addresses the following 

three questions:

(1) To what extent does Border Patrol’s methodology for calculating 

recidivism allow the agency to assess CDS program 

effectiveness?

(2) To what extent have Border Patrol agents applied the 

consequences identified in CDS guides as most effective and 

efficient in each southwest border sector?

(3) To what extent has Border Patrol established guidance and 

controls to monitor field implementation of CDS?

 3

CBP has divided geographic responsibility for the southwest border, which covers the 

U.S.-Mexican border along four states—California, Arizona, New Mexico and Texas—

among nine Border Patrol sectors, each of which has a headquarters with management 

personnel. These sectors are San Diego and El Centro in California; Yuma, which covers 

parts of California and Arizona; Tucson in Arizona; El Paso in New Mexico and a part of 

Texas; and Big Bend, Del Rio, Laredo and Rio Grande Valley in Texas. These sectors are 

further divided geographically into varying numbers of stations, with agents assigned to 

patrol defined geographic areas. In September 2012, Border Patrol also implemented 

CDS in its Northern and Coastal border sectors.

4

Specifically, for each of the seven alien types, consequences are ranked as Most 

Effective and Efficient, Highly Effective and Efficient, Effective and Efficient, Less Effective 

and Efficient, Least Effective and Efficient, or Not Applicable.
Page 3 GAO-17-66 CBP's Consequence Delivery System

To answer these questions, we reviewed Border Patrol’s implementation 

of CDS from fiscal years 2013 through 2015 across all nine Border Patrol 

sectors along the southwest border. We reviewed policies and 

procedures related to CDS, such as Border Patrol procedures for 

developing a CDS guide. We obtained and analyzed data from Border 

Patrol on apprehensions and the use of CDS along the southwest border 

from fiscal year 2013 through fiscal year 2015.5 We also examined the 

outcomes of Border Patrol apprehensions of aliens in fiscal years 2014 

and 2015, including obtaining and analyzing U.S. Immigration and 

Customs Enforcement (ICE) data on enforcement actions and case status 

for these aliens. We assessed the reliability of these data by reviewing 

system documentation, interviewing knowledgeable officials about system 

controls and conducting electronic testing, and we determined that the 

data were sufficiently reliable for the purposes of this report.

Further, we interviewed Border Patrol managers and agents from all nine 

southwest border sectors to obtain their views on CDS. Additionally, we 

visited three of Border Patrol’s southwest border sectors—the San Diego, 

Tucson, and Rio Grande Valley sectors—to observe how agents in these 

sectors applied CDS in their operations. We selected these sectors to 

visit because they had the highest number of apprehensions in fiscal 

years 2014 and 2015 as well as the most consequences listed in their 

CDS guides for those fiscal years. We also interviewed officials at Border 

Patrol headquarters, including staff from CDS PMO, about CDS guidance 

and implementation throughout the southwest border and reviewed 

program documentation. We reviewed our prior reports on Border Patrol,6

and reports by the Congressional Research Service7 and the DHS 

Inspector General.8 We compared the results of our analyses against 

 5

Fiscal years 2013 through 2015 represented the first and most recent years of complete 

apprehension data since the implementation of CDS, when Border Patrol provided us 

apprehension data in March 2016 for this report.

6

GAO, Border Patrol: Key Elements of New Strategic Plan Not Yet in Place to Inform 

Border Security Status and Resource Needs, GAO-13-25 (Washington, D.C.: Dec. 10, 

2012); Border Security: Opportunities Exist to Strengthen Collaborative Mechanisms along 

the Southwest Border, GAO-14-494 (Washington, D.C.: June 27, 2014); and Alien 

Smuggling: DHS Needs to Better Leverage Investigative Resources and Measure 

Program Performance along the Southwest Border, GAO-10-328 (Washington, D.C.: May 

24, 2010).

7

Congressional Research Service, Border Security Metrics Between Ports of Entry, 

R44386 (Washington, D.C.: February 2016).

8

Department of Homeland Security Office of Inspector General, Streamline: Measuring Its 

Effect on Illegal Border Crossing, OIG-15-95 (Washington, D.C.: May 2015).
Page 4 GAO-17-66 CBP's Consequence Delivery System

Standards for Internal Control in the Federal Government,

9 best practices 

identified in our Cost Estimating and Assessment Guide,10 and Border 

Patrol’s policies and procedures for CDS.

To address our first question regarding the extent to which Border Patrol’s 

methodology for calculating recidivism allows the agency to assess CDS 

program effectiveness, we reviewed Border Patrol’s methodology for 

measuring recidivism included in DHS’s strategic plan and annual 

performance reports. We analyzed Border Patrol’s data on apprehensions 

to calculate recidivism for the entire southwest border using Border 

Patrol’s methodology.11 To provide context on how the recidivism rate 

may be affected by different methodologies, we also used alternative 

methodologies to calculate recidivism rates using an alien’s apprehension 

history over an expanded timeframe and accounted for the ICE reported 

case status of an alien after apprehension.12 Specifically, we calculated 

recidivism rates using aliens’ apprehension history from fiscal years 2013 

through 2015 and accounted for the ICE reported removal status from 

fiscal years 2014 through 2015. We compared the results of our analysis 

to Border Patrol’s reported recidivism rate, and assessed the extent to 

which Border Patrol’s methodology for calculating recidivism allows 

Border Patrol management to perform monitoring activities that are 

consistent with Standards for Internal Control in the Federal 

Government.

13 We also interviewed officials from DHS’ Performance, 

Analysis and Evaluation division, which oversees the management of the 

 9

GAO, Standards for Internal Control in the Federal Government, GAO/AIMD-00-21.3.1

(Washington, D.C.: Nov. 10, 1999). 

10GAO Cost Estimating and Assessment Guide: Best Practices for Developing and 

Managing Capital Program Costs (Supersedes GAO-07-1134SP), GAO-09-3SP 

(Washington, D.C.: Mar. 2, 2009). The methodology outlined in this guide is a compilation 

of best practices that federal cost-estimating organizations and industry use to develop 

and maintain reliable cost estimates throughout the life of a government program. This 

guide states that cost estimates used to make decisions or allocate resources should be 

well documented, comprehensive, accurate, and credible. We used this guide to assess 

the accuracy and credibility of Border Patrol’s cost estimates for CDS consequences 

because Border Patrol uses these cost estimates to inform decision-making about the 

CDS program. 

11The Border Patrol apprehension data are retained in the “E3” module of ENFORCE 

Integrated Database (EID).

12Appendix 1 provides detailed information on the alternative methods we used to 

calculate the recidivism rate. ICE data on case status of apprehended aliens are retained 

in ICE’s EID.

13GAO/AIMD-00-21.3.1.
Page 5 GAO-17-66 CBP's Consequence Delivery System

department’s performance measures, including assessing high priority 

areas such as the effectiveness of DHS’s efforts to secure the U.S. 

border.

To address our second question on the extent to which Border Patrol 

agents applied the consequences identified in CDS guides as Most 

Effective and Efficient in each southwest border sector, we compared the 

Most Effective and Efficient consequence Border Patrol identified in each 

sector’s CDS guide to consequences Border Patrol agents recorded

applying to each alien in Border Patrol’s apprehension database (the term 

Most Effective and Efficient consequence will be used throughout this 

report to denote Border Patrol’s highest-ranked consequence within each 

CDS guide). Specifically, we made this comparison for Border Patrol 

apprehensions in fiscal years 2013 through 2015 to obtain results for the 

southwest border overall as well as across each of the nine Border Patrol 

sectors and seven alien classifications. We discussed any challenges 

Border Patrol agents may face in applying the Most Effective and Efficient 

consequence identified in CDS guides, with sectors’ management and 

staff. We also interviewed officials from federal partners that are involved 

with implementing certain CDS consequences. These partners include 

ICE, which detains aliens, litigates charges of removability in immigration 

court proceedings and removes aliens from the United States; and the 

Department of Justice (DOJ), which adjudicates administrative removal 

proceedings or prosecutes criminal offenses in federal court. Within DOJ, 

we spoke with officials from the U.S. Marshals Service (USMS), which 

provides pretrial detention services for criminal prosecutions, and the 

United States Attorney’s (USAO) in the Southern District of Texas, the 

District of Arizona, and the Southern District of California. These offices 

conduct criminal prosecutions within their respective districts along the 

southwest border.14

To address our third question on the extent to which Border Patrol has 

established guidance and controls to monitor field implementation of 

CDS, we reviewed CDS PMO’s guidance to sectors on implementing 

CDS, including existing guidance on estimating costs to implement 

various consequences and policies and procedures for monitoring 

performance and data integrity. Specifically, we analyzed CDS PMO’s 

 14These three federal judicial districts—the Southern District of Texas, the District of 

Arizona, and the Southern District of California correspond geographically to the three 

sectors we visited and receive cases from the Rio Grande Valley, Tucson and San Diego 

Border Patrol sectors, respectively. 
Page 6 GAO-17-66 CBP's Consequence Delivery System

controls over field development and use of CDS cost estimates for fiscal 

years 2013 through 2015 by reviewing and assessing cost estimates 

developed by eight sectors15 implementing this guidance to determine the 

accuracy, consistency, and completeness of these estimates and 

compared our findings to best practices identified in our Cost Estimating 

and Assessment Guide.16 We compared CDS performance results for

each sector to their respective performance targets in fiscal year 2015. 

We also analyzed Border Patrol’s internal controls established to ensure 

alien classifications in the apprehension database are accurate and 

consistent and compared our findings to Border Patrol guidance on data 

integrity and Standards for Internal Control in the Federal Government.

17

We conducted this performance audit from October 2015 to January 2017 

in accordance with generally accepted government auditing standards. 

Those standards require that we plan and perform the audit to obtain 

sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our audit objectives. We believe that 

the evidence obtained provides a reasonable basis for our findings and 

conclusions based on our audit objectives.

Border Patrol is to apply consequences under CDS to all apprehended 

aliens, which numbered over 1.1 million along the southwest border from 

fiscal year 2013 through 2015.18 Border Patrol agents implement CDS by 

classifying apprehended aliens into one of seven noncriminal or criminal 

categories and then applying one or more of eight different consequences 

 15 Border Patrol did not provide us cost estimates for the Yuma sector.

16GAO-09-3SP.

17GAO/AIMD-00-21.3.1.

18DHS reports that consequences for approximately two percent of Border Patrol 

apprehensions on the southwest border are not tracked in CDS or included in CDS 

performance metrics, including the recidivism rate. Individuals with respect to which CDS 

consequences are not tracked include juvenile aliens under age 14 or those older than 79, 

and certain other categories of aliens for whom Border Patrol generally does not take 

fingerprints (or other biometric identifiers), or issue a Fingerprint Identification Number. 

See 8 C.F.R. § 235.1(f)(1)(iv).

Background
Page 7 GAO-17-66 CBP's Consequence Delivery System

categorized as criminal, administrative or programmatic.19 Border Patrol 

guidance states that Border Patrol agents must apply at least one 

administrative consequence to every apprehended alien but may apply 

more than one consequence, including using a mix of administrative, 

criminal and programmatic consequences to a single apprehended 

alien.20 Figure 1 provides an overview of CDS alien classifications and 

Figure 2 provides an overview of possible consequences under CDS.

Figure 1: Alien Classifications in Border Patrol’s Consequence Delivery System

a

Apprehensions of this alien by other federal, state or local agencies are not counted.

 19Border Patrol uses an administrative consequence for every apprehension.

Administrative consequences are those that do not involve criminal prosecution nor are 

part of a special program or initiative. See 8 U.S.C. §§ 1225(a)(4) (withdrawal of 

application for admission, i.e., voluntary return), (b) (expedited removal); 1229 & 1229a 

(initiation and conduct of formal removal proceedings); 1231(a)(5) (reinstatement of 

removal). Criminal consequences involve criminal prosecution in the federal district or 

magistrate court system, or in cooperation with the Government of Mexico. See, e.g., 8 

U.S.C. §§ 1321-1330 (general penalty provisions under U.S. immigration law including 

penalties for illegal entry or reentry); 18 U.S.C. §§ 1541-47 (criminal penalties for 

immigration-related fraud). Programmatic consequences are associated with agency 

programs or initiatives, such as efforts to disrupt the cycle of smuggling.

20In fiscal year 2013, another consequence—Quick Court—was also available in the 

Tucson sector. Quick Court was a process in which an immigration judge held immigration 

hearings on site at the Tucson sector Processing Center. However, Quick Court does not 

appear in later years’ CDS guides for any of the nine southwest sectors.
Page 8 GAO-17-66 CBP's Consequence Delivery System

Figure 2: Consequences in Border Patrol’s Consequence Delivery System (CDS) as of Fiscal Year 2015

a

An arriving or other designated alien deemed inadmissible under sections 212(a)(6)(C), or (a)(7) of 

the Immigration and Nationality Act (INA), as amended, is subject to an expedited removal order if (1) 

the alien did not indicate either an intention to apply for asylum or a fear of persecution, or (2) the 

alien was referred for a credible fear interview with an asylum officer but the asylum officer found the 

alien does not have a credible fear of persecution (the alien may request that an immigration judge 

review the asylum officer’s negative determination). See 8 U.S.C. § 1225(b); 8 C.F.R. § 208.30.

b

A prior removal order is reinstated and enforced for an alien who has illegally reentered after being 

removed or departing voluntarily, if he or she (1) did not express a fear of returning to the country of 

removal; or (2) the alien was referred for a reasonable fear interview with an asylum officer but the 

asylum officer found that the alien does not have a reasonable fear of persecution or torture (the alien 

may request that an immigration judge review the asylum officer’s negative determination). See 8 

U.S.C. § 1231(a)(5); 8 C.F.R. §§ 208.31, 241.8.

c

According to Border Patrol, Streamline was renamed the Criminal Consequence Initiative in fiscal 

year 2016.

To assist Border Patrol agents in selecting the most appropriate 

consequence, Border Patrol rank orders these consequences from Most 

Effective and Efficient to Least Effective and Efficient for each alien 
Page 9 GAO-17-66 CBP's Consequence Delivery System

classification and presents this information in a CDS guide. Figure 3 

provides an example of one sector’s CDS guide for fiscal year 2015.21

Figure 3: Example of a Consequence Delivery System (CDS) Guide, Fiscal Year 2015

Note: OASSIS does not appear in this sector’s fiscal year 2015 CDS guide, because the sector 

determined OASISS was not applicable to any alien types.

According to CDS guidance, Border Patrol agents are encouraged to 

reference their sectors’ CDS guide to select the Most Effective and 

Efficient consequence based upon the alien’s classification. According to 

CDS PMO officials, agents can use discretion in selecting the 

consequence or consequences they apply to an alien based upon the 

circumstances of the subject’s apprehension, federal partner agencies’

capacity to provide support, and the prioritization of a consequence in that 

sector.

CDS PMO is responsible for providing guidance, training, analytical and 

other support to sectors for implementation of the CDS guide. See figure 

4 for a map of Border Patrol’s southwest border sectors’ boundaries.

 21CDS guides are updated on an annual and sector-specific basis. Some sectors’ CDS 

guides do not list all consequences under CDS if the consequences are not available in 

that location.
Page 10 GAO-17-66 CBP's Consequence Delivery System

Figure 4: Southwest Border Patrol Sectors

CDS PMO facilitates the annual development of a CDS guide for each 

sector. To develop each sector’s CDS guide, CDS PMO annually surveys 

sector management and uses the results of these surveys to inform the 

ranking of consequences. CDS PMO also requires each sector to 

convene at least 15 field staff (such as Border Patrol agents) to assess 15 

factors related to the efficiency and effectiveness of each consequence 

for each alien classification. These factors include performance-related 

factors, such as the extent to which a consequence reduces recidivism; 

cost-related factors, such as Border Patrol’s cost to administer the 

consequence; and schedule-related factors, such as the amount of time it 

takes Border Patrol to apply a single consequence. To facilitate the 

annual process, CDS PMO program staff present previous year’s data to 

field staff related to 12 factors—such as the sectors’ estimated cost and 

recidivism rate for each consequence—and direct field staff to use their 

professional judgement for the remaining 3 factors (the extent a 

consequence requires the assistance of strategic partners, is perceived 

as severe by apprehended aliens, and has a deterring effect on other 

aliens who consider crossing the border illegally). In addition to soliciting 
Page 11 GAO-17-66 CBP's Consequence Delivery System

sector staff preferences, sector management complete a survey in which 

they are to prioritize factors regardless of the alien classification. After 

analyzing these results from sector staff and management, CDS PMO 

staff create a sector-specific guide that reflects the consequences’

ranking from Most Effective and Efficient (for the highest ranked 

consequence), to Highly Effective and Efficient, Effective and Efficient, 

Less Effective and Efficient, and Least Effective and Efficient (for the 

lowest ranked consequence).

Most consequences available under CDS require the cooperation and 

resources of other federal agencies to detain, prosecute, litigate, and 

adjudicate removability of, or remove persons apprehended by Border 

Patrol, (see figure 5). DHS’s ICE oversees detention facilities for persons 

awaiting administrative adjudication of their removability from the United 

States and eligibility for any requested relief or protection from removal by 

DOJ’s Executive Office for Immigration Review (EOIR), and for persons 

awaiting ICE removal from the United States to their home country 

pursuant to a final order of removal.22 Additionally, DOJ’s USMS oversees 

detention for persons awaiting prosecution for criminal immigration and 

other offenses by DOJ’s USAO. Those convicted of a criminal 

immigration offense and sentenced to a term of imprisonment are 

incarcerated by DOJ’s Bureau of Prisons.

 22 The Immigration and Nationality Act, as amended, provides DHS with broad discretion 

(subject to certain legal standards) to detain, or release aliens on bond, conditional parole 

or terms of supervision, depending on the circumstances and statutory basis for detention. 

The law requires DHS to detain particular categories of aliens such as those deemed 

inadmissible for certain criminal convictions or terrorist activity. See 8 U.S.C. §§ 1225, 

1226, 1226a, 1231.
Page 12 GAO-17-66 CBP's Consequence Delivery System

Figure 5: Federal Agency Roles in Administering Consequences in the Consequence Delivery System

a

These actions are also applied in conjunction with the Alien Transfer Exit Program. For the Operation 

Against Smugglers Initiative on Safety and Security, Border Patrol sectors’ prosecution and 

international liaison unit coordinates with officials from the Government of Mexico to coordinate 

transfer.

b

Removal proceedings conclude with the respondent being found not removable or obtaining relief or 

protection from removal in the United States.

c

Removal proceedings conclude with the respondent ordered removed, but removal order has not 

become administratively final, or a final order of removal has not yet been effectuated by 

ICE/Enforcement and Removal Operations.

d

Criminal Prosecution includes both Streamline and Standard Prosecution.
Page 13 GAO-17-66 CBP's Consequence Delivery System

Border Patrol uses an annual recidivism rate for the southwest border, 

along with other performance indicators, to monitor the effectiveness of 

CDS; however, weaknesses in the methodology used to calculate this 

rate limit its usefulness in assessing CDS.23 Border Patrol calculates its 

recidivism rate on an annual basis by dividing the total number of aliens 

apprehended multiple times within the fiscal year over the total number of 

aliens apprehended in that same fiscal year, as shown in figure 6. Border 

Patrol uses this rate among other performance indicators to assess the 

effectiveness of CDS, and DHS also reports the rate in its Annual 

Performance Report as one of six performance measures to assess 

efforts securing U.S. air, land and sea borders.

Figure 6: Border Patrol’s Annual Southwest Border Recidivism Rate Calculation

In addition to using the recidivism rate to monitor performance of each 

Border Patrol sector, Border Patrol uses the recidivism rate to determine 

the effectiveness of CDS consequences and incorporates the recidivism 

rate into risk assessments it uses to make resource allocation decisions.24

However, two limitations in the rate’s methodology hinder its usefulness in 

providing a complete picture of CDS effectiveness. These two limitations 

include (1) not accounting for an alien’s apprehension history beyond one 

fiscal year, and (2) not excluding apprehended aliens for whom ICE has 

no record of removal and who may remain in the United States.

Alien apprehension history over multiple fiscal years. Border Patrol’s 

methodology for calculating recidivism—the percent of aliens 

apprehended multiple times along the southwest border within a fiscal 

year—limits its ability to assess CDS effectiveness because this 

 23In addition to the recidivism rate, Border Patrol tracks the average number of 

apprehensions per recidivist and the use of Most Effective and Efficient consequence and 

the use of Least Effective and Efficient consequence as performance metrics for CDS.

24Border Patrol’s risk assessment methodology, State of the Border Risk Methodology, 

estimates the magnitude of risk through the use of intelligence information, a detailed 

awareness of threats at the border, and a standardized measure of risk. Border Patrol risk 

assessment methodology, which became operational in fiscal year 2014, monitors certain 

metrics at the sector level (including the recidivism rate, among others) and employs the 

results of the risk assessment to make day-to-day decisions with regard to how it uses its 

resources. 

Border Patrol 

Methodology for 

Calculating 

Recidivism Makes It 

Difficult to Assess 

Effectiveness of the 

Consequence 

Delivery System
Page 14 GAO-17-66 CBP's Consequence Delivery System

calculation does not account for an alien’s apprehension history over 

multiple years. We and the DHS Office of Inspector General have 

identified limitations with this methodology. In a 2015 report, the DHS 

Office of Inspector General found that Border Patrol’s recidivism rate 

methodology did not fully measure performance results because its 

recidivism rate did not reflect an alien’s re-apprehension over multiple 

years.25 Specifically, the Office of Inspector General found the 

methodology did not properly account for persons apprehended near the 

end of a fiscal year who may re-cross the border a short time later in the 

new fiscal year, and recommended DHS develop and implement 

performance measures that track alien recidivism and re-apprehension 

rates over multiple fiscal years. DHS concurred with this recommendation 

and stated that it would address it as part of its broader State of the 

Border Risk Methodology— a strategy to identify high-risk areas along the 

border and to use this information to support decisions regarding the 

deployment of Border Patrol resources. However, in May 2016, CBP 

officials told us that the State of the Border Risk Methodology 

incorporates the same recidivism rate methodology discussed in the DHS 

Inspector General’s finding and is not intended to measure or report on 

performance of border security efforts overall. As of September 2016, the 

DHS Office of Inspector General’s recommendation to track recidivism 

over multiple fiscal years remained open.

Further, our analysis measuring recidivism on the southwest border using 

multiple years of Border Patrol apprehension data showed a higher 

recidivism rate than Border Patrol’s reported rate using one fiscal year of 

apprehension data. Specifically, using apprehension data we obtained 

from fiscal years 2013 through 2015, we found that 25 percent of aliens 

apprehended in fiscal year 2015 were recidivists over this time period, 

nearly double the Border Patrol-reported rate of 14 percent for fiscal year 

2015. Additionally, while DHS reported in its Annual Performance Report 

for 2017 that the recidivism rate for the southwest border had decreased 

each year since the implementation of CDS in 2011, our analysis showed 

that the recidivism rate using apprehensions across multiple years had 

 25Department of Homeland Security Office of Inspector General, Streamline: Measuring 

Its Effect on Illegal Border Crossing, OIG-15-95 (Washington, D.C.: May 2015)
Page 15 GAO-17-66 CBP's Consequence Delivery System

increased from 21 percent in fiscal year 2014 to 25 percent in fiscal year 

2015.26

Apprehended aliens for whom there is no ICE record of removal 

from the United States. Another reason Border Patrol’s methodology for 

calculating recidivism limits its ability to assess CDS effectiveness is 

because Border Patrol’s calculation neither accounts for nor excludes 

apprehended aliens who may remain in the United States. According to 

ICE, aliens apprehended by Border Patrol may remain in the United 

States after their apprehension if they obtain immigration status or 

protection, or are awaiting the conclusion of immigration court 

proceedings or criminal trial, or are serving prison sentences, among 

other reasons.

27 Our analysis of Border Patrol and ICE data showed that 

Border Patrol included tens of thousands of aliens in the total number of 

aliens apprehended when calculating the recidivism rate for fiscal years 

2014 and 2015, for whom ICE did not have a record of removal after 

apprehension and who may have remained in the United States without 

an opportunity to recidivate. Specifically, our analysis of ICE enforcement 

and removal data showed that about 38 percent of the aliens Border 

Patrol apprehended along the southwest border in fiscal years 2014 and 

2015 may have remained in the United States as of May 2016. This 

percentage includes 133,594 of 334,427 aliens apprehended by Border 

Patrol in fiscal year 2014 and 88,693 of 256,223 aliens apprehended by 

Border Patrol in fiscal year 2015.

Our analysis measuring recidivism excluding aliens who ICE data show 

were not removed and may remain in the United States showed a higher 

 26Appendix I provides the number of alien apprehensions subject to CDS, recidivism rates 

as calculated by Border Patrol, and a recidivism rate calculated using multiple years of 

data for each of the nine Border Patrol southwest border sectors as well as each of the 

alien classifications for fiscal year 2015. Our analysis measuring recidivism using multiple 

years of Border Patrol apprehension data potentially undercounts recidivism because we 

reviewed alien apprehensions from fiscal year 2013 through 2015 rather than an alien’s 

full apprehension history. Therefore, we could not analyze the extent to which aliens 

apprehended during fiscal years 2013 through 2015 were previously apprehended in fiscal 

year 2012 or earlier.

27Apprehended aliens with no record of removal may remain in the United States because 

they do not meet DHS’s removal priorities, and could affirmatively apply for immigration 

benefits within the jurisdiction of the U.S. Citizenship and Immigration Services; or, if 

sought to be removed by DHS, may seek and ultimately obtain lawful immigration status 

or protection in immigration court, or be found not removable, or removable and not 

eligible for any requested relief or protection from removal. Apprehended aliens with no 

record of removal may also have departed the United States on their own accord.
Page 16 GAO-17-66 CBP's Consequence Delivery System

recidivism rate than Border Patrol’s reported rate using all apprehended 

aliens regardless of removal status. Specifically, using apprehension data 

from fiscal year 2015 and excluding aliens Border Patrol apprehended but 

for whom ICE data show had not been removed from the United States, 

we calculated a recidivism rate of 18 percent compared to the DHS 

reported recidivism rate of 14 percent.

Further, our analysis measuring recidivism using both an alien’s 

apprehension history over multiple years and excluding aliens who may 

remain in the United States showed an even higher recidivism rate than 

Border Patrol’s reported recidivism rate or either method alone. 

Specifically, our analysis using a three year apprehension history—from 

fiscal year 2013 through 2015—and excluding aliens who may remain in 

the United States showed a recidivism rate of 29 percent for fiscal year 

2015, compared to a 14 percent recidivism rate reported by Border Patrol 

as shown in figure 7.

Figure 7: Fiscal Year 2015 Southwest Border Recidivism Rates Calculated by 

Border Patrol and Accounting for Additional Factors

CDS PMO officials stated that they include only one fiscal year of data in 

their recidivism rate calculation so that the agency can compare results 

and progress on an annual basis. However, analyzing apprehensions 

beyond one fiscal year to measure recidivism could provide Border Patrol 

with a more complete picture of CDS effectiveness and would not 

preclude Border Patrol from also comparing annual changes in the 

recidivism rate. While sector officials acknowledged that including 

apprehended aliens who may remain in the United States in the 

recidivism rate calculation is a limitation to assessing CDS effectiveness, 

Border Patrol headquarters officials stated that including aliens who may 
Page 17 GAO-17-66 CBP's Consequence Delivery System

remain in the United States serving prison sentences in the recidivism 

rate is appropriate because incarceration prevents recidivism. However, 

the extent to which a CDS consequence resulting in incarceration 

prevents recidivism for an alien would not be known until the alien is 

returned to his or her home country. Further, due to the lack of 

collaboration between Border Patrol and ICE, PMO and sector officials 

stated that they do not have access to ICE enforcement and removal data 

that would allow them to determine the number of aliens apprehended by 

Border Patrol who may remain in the United States, including those 

incarcerated. Standards for Internal Control in the Federal Government 

states that managers need operational data to determine whether they 

are meeting their goals.28 Further, these standards state that information 

should be shared within the organization to ensure managers and others 

can effectively meet agency goals. Limitations in the methodology for 

calculating the recidivism rate hinder Border Patrol’s ability to assess the 

effectiveness of CDS over time. Strengthening the recidivism rate 

methodology, such as by using an alien’s apprehension history beyond 

one fiscal year and working with ICE to obtain access to alien case status 

data on removals to consider exclusion of aliens who may remain in the 

United States after their apprehension, would give Border Patrol a more 

complete assessment of recidivism along the southwest border. This in 

turn, would allow Border Patrol leadership to more effectively evaluate the 

extent to which CDS is supporting its goal of securing the border to better 

inform the effectiveness of CDS implementation and border security 

efforts. Additionally, more complete information about recidivism would 

help ensure that Border Patrol’s risk assessments are accurate and that 

the decisions made based upon these risk assessments are sound.

 28GAO/AIMD-00-21.3.1. The update, GAO, Standards for Internal Control in the Federal 

Government, GAO-14-704G (Washington, D.C.: Sept. 10, 2014) effective beginning fiscal 

year 2016, further states that managers should use quality information on operational 

process to ensure the entity achieves its objectives and to assess the quality of 

performance over time.
Page 18 GAO-17-66 CBP's Consequence Delivery System

Our analysis of Border Patrol agents’ application of the Most Effective and 

Efficient consequences as defined in each southwest border sector’s 

CDS guide showed that agents applied the Most Effective and Efficient 

consequence for 18 percent of the approximately 300,000 apprehensions 

in fiscal year 2015, a decline over the previous two years.29 Specifically, 

our analysis comparing results from fiscal year 2013 through fiscal year 

2015 showed a decline in Border Patrol agents’ application of the Most 

Effective and Efficient consequence from 28 percent of apprehensions in 

fiscal year 2013 to 26 percent of apprehensions in fiscal year 2014 to 18 

percent of apprehensions in fiscal year 2015.30 Over this three year time 

period, our analysis further showed that Border Patrol agents increasingly 

applied consequences CDS guides had identified as Highly Effective and 

Efficient as well as Effective and Efficient, and had decreased the 

application of the Less or Least Effective and Efficient consequences. 

Among more than 300,000 apprehensions in fiscal year 2015, Border 

Patrol applied a consequence CDS guides identified as Most Effective 

and Efficient 18 percent of the time, either Highly Effective and Efficient or 

Effective and Efficient 75 percent of the time, and Less- or LeastEffective and Efficient 7 percent of the time. (See figure 8 for Border 

Patrol’s application of Most to Least Effective and Efficient consequences 

for fiscal years 2013 through 2015).

 29Border Patrol agents may apply multiple consequences for a single apprehension. To 

assess the frequency with which Border Patrol applied consequences in the CDS guides, 

we counted each apprehension based on the highest ranked consequence applied. For 

example, we included all apprehensions in which Border Patrol agents applied the Most 

Effective and Efficient consequence solely or in combination with other consequences as

Most Effective and Efficient and only counted apprehensions in which a Less or Least 

Effective and Efficient consequence was given as Less or Least Effective and Efficient if 

no higher-ranked consequence was applied.

30Appendix II provides the Most Effective and Efficient consequence for each sector and 

alien classification for fiscal years 2013 through 2015. 

Border Patrol Agents 

Did Not Generally 

Apply the 

Consequence 

Identified in CDS 

guides as the Most 

Effective and Efficient 

in Each Southwest 

Border Sector
Page 19 GAO-17-66 CBP's Consequence Delivery System

Figure 8: Percentage of Border Patrol Apprehensions for the Southwest Border by 

Agency Ranking of Consequence Applied

Note: Border Patrol agents may apply multiple consequences for a single apprehension. To assess 

the frequency with which Border Patrol applied consequences in the Consequence Delivery System 

guides, we counted each apprehension based on the highest ranked consequence applied.

Percentages do not add to 100 due to rounding.

Further our analysis showed that Border Patrol agents varied by up to 39 

percentage points in their application of the Most Effective and Efficient 

consequence across the nine southwest border sectors, and applied the 

Most Effective and Efficient consequence more often to aliens classified 

as criminals than noncriminals. Specifically, Border Patrol agents in the El 

Paso sector applied the Most Effective and Efficient consequence for 48 

percent of apprehensions in fiscal year 2015—the highest percentage 

across the nine sectors—while Border Patrol agents in the Rio Grande 

Valley sector applied the Most Effective and Efficient consequence for the 

lowest percentage of apprehended aliens in fiscal year 2015—9 percent. 

Across all types of alien classifications, Border Patrol agents applied the 

Most Effective and Efficient consequence for 23 percent of alien 

apprehensions classified as criminal in fiscal year 2015—including 
Page 20 GAO-17-66 CBP's Consequence Delivery System

targeted smugglers, suspected smugglers, and other criminals—

compared to 17 percent of alien apprehensions categorized as 

noncriminal—first, second, or third time apprehensions, persistent 

apprehensions, and family units—with variance across sectors, as shown 

in figure 9.

Figure 9: Border Patrol Agent Application of Most Effective and Efficient Consequence for Criminal and Noncriminal Alien 

Apprehensions by Sector, Fiscal Year 2015

Border Patrol has not assessed reasons agent application of the Most 

Effective and Efficient consequence in CDS guides is relatively low, but 

cited various challenges including agent concerns about whether the 

Most Effective and Efficient consequence has a greater impact on 

recidivism than other consequences. While Border patrol agents use 

discretion when applying consequences based on their sector’s CDS 

guide, Border Patrol officials in one sector told us that the CDS guide did 

not always reflect what they believe is the Most Effective and Efficient 

consequence and that while the Most Effective and Efficient consequence 

seemed appropriate for certain alien classifications, it did not seem 

appropriate for other classifications. Our analysis of Border Patrol 

apprehension data from fiscal year 2014 through fiscal year 2015 after 
Page 21 GAO-17-66 CBP's Consequence Delivery System

excluding aliens who ICE data show have not been removed and may 

remain in the United States, showed that while aliens classified as 

criminals were less likely to recidivate when Border Patrol agents applied 

the Most Effective and Efficient consequence, non-criminal aliens were 

more likely to recidivate when Border Patrol agents applied the Most 

Effective and Efficient consequence.31 Specifically, 22 percent of aliens 

classified as criminal who were given the Most Effective and Efficient 

consequence in fiscal year 2014 later recidivated in the time period fiscal 

year 2014 through 2015 compared to 27 percent of aliens classified as 

criminal and given other consequences. In contrast, 39 percent of aliens 

classified as non-criminal given the Most Effective and Efficient 

consequence in fiscal year 2014 later recidivated in the time period fiscal 

year 2014 through 2015 compared to 24 percent of aliens classified as 

non-criminal and given other consequences.

Another challenge includes a concern expressed by some Border Patrol 

sector officials that federal partners do not have the capacity to timely and 

fully implement consequences identified in CDS guides as Most Effective 

and Efficient, which may result in apprehended aliens remaining in the 

United States for an indeterminate amount of time. Specifically, some 

Border Patrol sector officials said agents may not apply the Most Effective 

and Efficient consequence listed in the CDS guide if it is Warrant or 

Notice to Appear, since it involves ICE detention and monitoring of an 

alien awaiting an immigration court date.32 Border Patrol officials in one 

sector in Southern California said that ICE may have to release 

noncriminal aliens from detention who were given a consequence of 

Warrant or Notice to Appear, prior to the conclusion of their removal 

proceedings, because it may take up to several years for the alien’s merit 

hearing to occur in immigration court; and that agents are concerned that 

aliens released from detention will not show up for their immigration 

proceedings. According to EOIR, as of September 30, 2015, the number 

of pending cases for immigration courts in Southern California ranged 

 31To determine the extent that using the Most Effective and Efficient consequence 

resulted in differing rates of recidivism as compared to other consequences, we reviewed 

the ranking of the consequences received on an alien’s first arrest and then determined if 

that alien later recidivated. To calculate recidivism, we used two years of apprehension 

data (fiscal years 2014 and 2015) and excluded aliens who may remain in the United 

States.

32Pending a decision on whether the alien is to be removed from the United States, 

detention may continue or the alien may be released on bond, or conditional parole; and 

detention is mandatory for certain categories of criminal aliens. See 8 U.S.C. § 1226.
Page 22 GAO-17-66 CBP's Consequence Delivery System

from 975 cases in one court location to more than 50,000 in another 

location, and DOJ data show that nationally, the number of initial 

immigration cases EOIR completed for detained aliens decreased 55 

percent from fiscal year 2011 to 2015.33 Our analysis of ICE case status 

data for fiscal years 2014 and 2015 showed that 94 percent (109,080) of 

the 116,409 aliens given a consequence of Warrant or Notice to Appear 

had an open case status and may remain in the United States, compared 

to 36 percent of aliens given other consequences.

Further, Border Patrol sector officials also told us that Border Patrol 

agents in some sectors may be hesitant to apply the Most Effective and 

Efficient consequence if it is a criminal prosecution and therefore requires 

support from DOJ and the federal courts. Specifically, officials from three 

southwest border sectors, two of which had a relatively high number of 

apprehensions in fiscal year 2015, told us that the USAO districts with 

which their sectors are aligned are limited in the number of criminal 

immigration cases that they will accept from Border Patrol sectors due to 

capacity and resource constraints of the USMS or the U.S. Courts. For 

example, criminal prosecution (both standard and streamline) was the 

Most Effective and Efficient consequence for five different alien 

classifications in the CDS guide for the Rio Grande Valley sector in fiscal 

year 2015. Rio Grande Valley sector officials said that while agents 

apprehended over 129,000 aliens in fiscal year 2015, the sector can only 

refer about 40 immigration-related cases each day to the corresponding 

USAO District (Southern District of Texas) for prosecution. Once this daily 

limit is reached, agents must apply an alternative consequence that is not 

the Most Effective and Efficient as defined by the CDS guide. Officials 

from the USAO Southern District of Texas stated that they limit the 

 33In a December 3, 2015 testimony before the House Subcommittee on Immigration and 

Border Security, Committee on the Judiciary, EOIR attributed the approximately 450,000 

pending cases in immigration courts at the end of fiscal year 2015 to an insufficient 

number of immigration judges, and stated that the agency was working to increase the 

number of judges from 250 to 374. EOIR’s fiscal year 2016 appropriations included funds 

for 55 new Immigration Judge Teams to be hired and on-boarded by November 2016. See 

Explanatory Statement accompanying Division B—Commerce, Justice, Science, and 

Related Agencies Appropriations Act, 2016 (Pub. L. No. 114-113, div. B, 129 Stat. 2242, 

2286-2333 (2015)), 161 Cong. Rec. H9693, H9738 (daily ed. Dec. 17, 2015); see also 

H.R. Rep. No. 114-130, at 33-34 (May 27, 2015); S. Rep. No. 114-66, at 57 (June 16, 

2015). In December 2015, EOIR’s Director indicated that the authorization of 55 new 

immigration judges for fiscal year 2016 would result in about 374 immigration judges 

nationwide if all such positions were filled. See Oversight of the Executive Office for 

Immigration Review: Hearing Before the Subcomm. on Immigration and Border Security of 

the H. Comm. on the Judiciary, 114th Cong. 15 (2015).
Page 23 GAO-17-66 CBP's Consequence Delivery System

number of cases they accept due to limitations in the capacity of the U.S. 

Courts to provide physical space to conduct trials.

Standards for Internal Control in the Federal Government states that 

managers should assess the risks facing an agency from both external 

and internal sources and decide how to manage the risk and what actions 

should be taken.34 In addition, management should have relevant and 

reliable operational data to determine whether they are meeting their 

goals for effective and efficient use of resources. While Border Patrol 

officials at CDS PMO and across sectors gather perspectives on 

consequences from agents during the annual development of the CDS 

guides, Border Patrol does not routinely nor comprehensively collect 

information from agents on why they did not apply the Most Effective and 

Efficient consequence. Without this information, Border Patrol may not be 

able to identify and assess the appropriate risk responses for addressing 

agent challenges to applying the Most Effective and Efficient 

consequence or determine any needed modifications to the development 

of the CDS guides across sectors. With such an assessment, Border 

Patrol could determine whether actions are needed to change agents’

application of CDS guides or modify development of the CDS guides to 

strengthen effectiveness in reducing recidivism.

 34 GAO/AIMD-00-21.3.1. The update to the Standards, GAO-14-704G, effective beginning 

fiscal year 2016, further states that managers should assess the risks facing an entity as it 

seeks to achieve its objectives and that this assessment should provide the basis for 

developing appropriate risk responses.

Border Patrol Could 

Enhance Guidance 

for CDS Cost 

Estimation and 

Strengthen Controls 

for Monitoring 

Performance and 

Data Integrity
Page 24 GAO-17-66 CBP's Consequence Delivery System

CDS PMO established guidance for sectors to implement CDS, including 

guidance on estimating the cost of applying CDS consequences. 

However this guidance does not ensure Border Patrol develops valid cost 

estimates for CDS consequences. On an annual basis, sector personnel 

are to estimate the unit cost of applying each available consequence to a 

single noncriminal, criminal, and family-unit alien within their sector.35

According to CDS guidance, each sector is to report:

• average annual salaries for sector personnel as well as estimates of 

personnel time spent processing an alien;

• sector costs for office supplies used to process an alien, such as 

folders and binders;

• sector costs associated with facilities used for detaining an alien such 

as rent and electricity;

• sector costs for the housing and care of a detained alien, such as 

bedding, meals, and toiletries; and

• sector costs for transporting an alien.

These costs are to be based on the sector’s previous year’s expenses. 

CDS PMO uses the cost estimates to provide data to sector personnel for 

4 of the 15 factors they are to evaluate as part of the annual development 

of the CDS guides. These factors include: (1) the cost per apprehension 

by alien type; (2) the cost of the consequence per border mile where it is 

available; (3) the cost per hour of Border Patrol processing time; and (4) 

the total personnel hours to complete the consequence. Sector personnel 

are encouraged to review these data when determining the ranking of 

CDS consequences from Most Effective and Efficient to Least Effective 

and Efficient.

However, our analysis of sector cost estimates identified errors, 

variations, and omissions in how sectors estimated costs, which limited 

the utility of the estimates in determining which consequences are Most 

Effective and Efficient. Since fiscal year 2013, CDS PMO has provided 

written guidance and workbooks to help sector staff estimate and 

 35To estimate these costs, Border Patrol employs a Rough Order of Magnitude cost 

estimating technique. According to our Cost Estimating and Assessment Guide, a rough 

order of magnitude is an analogous method of cost estimation which uses actual costs 

from similar programs or situations and makes adjustments to account for differences. 

Usually based on historical ratio information, a rough order of magnitude is typically 

developed to support what-if analyses and can be helpful for examining differences in 

high-level program alternatives to see which are the most feasible. See GAO-09-3SP.

Border Patrol Established 

CDS Guidance, but 

Guidance Does Not 

Ensure Valid Cost 

Estimation
Page 25 GAO-17-66 CBP's Consequence Delivery System

examine cost differences among each of the CDS consequences, but 

these workbooks include calculation errors on housing and care costs 

that result in incorrect costs. Specifically, the workbooks calculate annual 

housing and facility costs on a per hour basis, not a per alien basis, and 

thus do not properly account for the volume of aliens each sector 

apprehends in a given year. As a result, Border Patrol staff from the San 

Diego sector using the workbooks estimated a cost of about $2,366 per 

noncriminal alien receiving a consequence of reinstatement of a removal 

order for fiscal year 2015. However, once we accounted for the number of 

aliens apprehended in the San Diego sector—more than 25,000 aliens in 

fiscal year 2015—we calculated a cost estimate of $282. Additionally, the 

housing and care cost estimates do not account for personnel time 

involved in housing an alien. For example, San Diego sector officials 

estimated that a noncriminal alien is detained for 36 hours to process a 

reinstatement of removal order, but estimated using six hours of 

personnel time, rather than 42 hours which would account for both 

processing and detention time. Further, the guidance does not state 

which costs sectors should use in their cost estimates for consequences, 

resulting in variation among sectors. For example, five sectors included 

facility costs such as electricity, gas, and rent in their cost estimates for 

the consequence of reinstating a removal order, while three other sectors 

did not include any facility costs in their estimates for the same 

consequence. As a result, the reported cost for this consequence for a 

noncriminal alien ranged from $135 in Laredo sector to more than 

$80,000 in Rio Grande Valley sector, see Table 1.

Table 1: Border Patrol Sector Cost Estimates for Reinstatement of Removal Order of a Non-Criminal Alien, Fiscal Year 2015

Sector Laredo El Centro Big Bend Tucson Del Rio El Paso San Diego

Rio

Grande Valley

Total Estimated Cost ($): 135 186 597 880 1,780 2,263 2,366 80,189

Estimate Inclusive of 

Facility Costs: ✗ ✗ ✓ ✗ ✓ ✓ ✓ ✓

Legend: ✓ = yes, ✗ = no

Source: Border Patrol | GAO-17-66

Note: Yuma Sector did not provide cost estimates.

CDS PMO officials said that since each sector develops its own CDS 

guide, differences in how sectors calculate facility costs may not change 

the relative ranking of consequences as long as each sector is consistent 

in applying their cost methodology across all consequences. Sector 

officials also acknowledged that there might be additional errors in how 

housing and care costs are calculated but were unsure of how the errors
Page 26 GAO-17-66 CBP's Consequence Delivery System

would affect the annual development of the guides. However, we 

determined that a cost estimate of $282 instead of $2,366 for a 

reinstatement of removal for a noncriminal class alien in the San Diego 

sector would change the relative ranking of this consequence from the 

third to fifth most costly consequence, which could affect how Border 

Patrol agents rank this consequence during the annual development of 

the CDS guides. As another example, standard prosecution was originally 

estimated as the least costly consequence for a criminal class alien in the 

El Paso sector in fiscal year 2015. However, once we accounted for the 

more than 13,000 aliens apprehended in this sector in 2015, we found 

that the standard prosecution would be the most costly consequence 

compared to other available consequences.36

CDS program officials also stated that CDS guidance does not require 

sector staff to include estimates of CDS implementation costs to federal 

partners. As a result, consequences that Border Patrol considers Most 

Effective and Efficient may not reflect the optimal use of resources for the 

federal government overall. For example, by comparing Border Patrol 

apprehension data to ICE case data, we found that 64 percent of Border 

Patrol apprehensions required at least some involvement by ICE in fiscal 

years 2014 and 2015 to support consequences requiring administrative 

detention and removal of aliens from the United States. Additionally, 

USMS reported that more than half of all prisoners it received in fiscal 

year 2015 were from five federal districts along the southwest border 

(Southern California, Arizona, New Mexico, Southern Texas, and Western 

Texas) and, by 2017, projected an increase of more than 7,000 prisoners 

in those districts primarily for immigration-related offenses. According to 

CBP, some consequences, such as criminal prosecution, require 

involvement and resources of up to four federal agencies. CDS program 

officials said that CDS guidance does not require sectors to include 

federal partner costs because the CDS Program was designed around 

the Border Patrol’s resources. However cost data are readily available for 

some federal partners involved in implementing CDS consequences, 

such as ICE and USMS, which provide detention services prior to and, as 

appropriate, during the pendency of, administrative hearings or criminal 

trials, respectively. For example, ICE reported an estimated daily housing 

 36Our adjusted cost estimates account for alien apprehension volume which resulted in 

lower cost estimates. However, we were unable to estimate the cost of including 

personnel hours involved in detaining an alien because we did not have corresponding 

salaries. It is likely that including personnel hours involved in detaining an alien would 

result in a higher cost estimate.
Page 27 GAO-17-66 CBP's Consequence Delivery System

cost of $122 per day for each alien detained in fiscal year 2015, and we 

estimated an average daily cost of $76 for detention services provided by 

USMS in fiscal year 2015 along the southwest border.37 Including 

estimation of known costs, such as these, would increase Border Patrol’s 

cost estimates for consequences that require detention services—such as 

criminal prosecution or a Warrant or Notice to Appear—and therefore 

could affect the rankings Border Patrol agents assign these 

consequences if they were to consider the effectiveness and efficiency of 

consequences across the federal government.

Our Cost Estimating and Assessment Guide states cost estimations used 

to support decision-making must be logical, credible, and acceptable to a 

reasonable person and avoid subjective judgement on which costs to 

include.38 Additionally, the guidance states that if cost estimates are to 

support the comparative ranking of different alternatives, cost elements of 

alternatives should be estimated to make each alternative’s cost 

transparent in relation to the others. Border Patrol would have greater 

assurance that the consequences ranked as Most Effective and Efficient 

within the CDS guides accurately reflect cost efficiency by revising cost 

estimating guidance provided to sectors to more fully and reliably account 

for Border Patrol and partner resources, as appropriate and available.

Border Patrol established performance measures in fiscal year 2013 to 

assess each sector’s application of the Most and the Least Effective and 

Efficient consequences for alien apprehensions; however, the agency 

does not fully monitor progress against these measures. To assess a 

sector’s application of the Most Effective and Efficient consequence, 

Border Patrol calculates the percentage of apprehensions in which agents 

applied the Most Effective and Efficient consequence to aliens 

apprehended in that sector. Border Patrol conducts the same calculation 

 37In fiscal year 2015 the U.S. Marshals Service detained an average of 10,467 aliens per 

day in districts along the Southwest border (the Southern District of California, the District 

of Arizona, the District of New Mexico, the Southern District of Texas, and the Western 

District of Texas) to implement the CDS consequence of criminal prosecution. Based on 

an average cost of $76 per inmate per day for housing, medical and transportation costs, 

we estimate the U.S. Marshals Service spent more than $290 million on detainees held for 

immigration related offenses along the Southwest border in fiscal year 2015. Information 

on U.S. Marshals Service average cost per detainee per day taken from GAO, Prisoner 

Operations: United States Marshals Service Could Better Estimate Cost Savings and 

Monitor Efforts to Increase Efficiencies, GAO-16-472 (Washington, D.C.: May 23, 2016).

38GAO-09-3SP.

Border Patrol Sectors Set 

Some Performance 

Targets for CDS 

Implementation, but Did 

Not Fully Monitor or 

Communicate Results
Page 28 GAO-17-66 CBP's Consequence Delivery System

to determine a sector’s application of the Least Effective and Efficient 

consequence.39 According to CDS PMO officials, sector officials set their 

own performance targets for performance measures based on previous 

years’ trends related to the application of the Most and the Least Effective 

and Efficient consequences. According to Border Patrol documentation, 

sector officials can use these targets to increase their application of the 

Most Effective and Efficient consequence and to decrease their 

application of the Least Effective and Efficient consequence over time.

Our analysis of Border Patrol data on apprehensions and CDS 

consequences showed that six of nine sectors missed some of their 

established performance targets by a range of 1 percentage point to 37 

percentage points, as displayed in figure 10. Officials from three of the 

nine southwest sectors—Del Rio, El Centro and San Diego—reported 

that sector management did not monitor the extent that their agents were 

applying the consequences defined in CDS guides as Most or Least 

Effective and Efficient as of March 2016. CDS PMO officials said that 

while Border Patrol has a mechanism in place that sector management 

can use to monitor their progress in meeting performance targets, CDS 

PMO officials do not ensure sectors are monitoring performance or report 

sectors’ performance information to Border Patrol headquarters. CDS 

PMO officials said that they discontinued monitoring and reporting 

performance results in fiscal year 2016 because sectors have access to 

data which would allow sectors to monitor their own performance targets.

 39Although agents may apply multiple consequences to an alien during a single 

apprehension, Border Patrol counts any apprehension in which the Most Effective and 

Efficient consequence was applied toward its performance target, regardless of whether 

other consequences were also applied. Similarly, any apprehension in which the Least 

Effective and Efficient consequence was applied is counted regardless of whether a 

higher rated consequence was also applied during that apprehension. 
Page 29 GAO-17-66 CBP's Consequence Delivery System

Figure 10: Border Patrol Sector Performance Targets and Application of the 

Consequence Delivery System’s Most Effective and Efficient Consequence in Fiscal 

Year 2015.

Standards for Internal Control in the Federal Government states that 

management should monitor and assess the quality of performance over 

time. Additionally, these standards state that information is needed 

throughout an agency to achieve all its objectives.40 Without ensuring that 

Border Patrol and sector management monitor progress in meeting 

established performance targets and communicate CDS-related 

performance targets, Border Patrol does not have the information it needs 

to fully assess the extent to which CDS is achieving its goals of reduced 

recidivism and cost efficiency.

 40GAO/AIMD-00-21.3.1. The update to the Standards, GAO-14-704G, effective beginning 

fiscal year 2016, further states that information sharing and communication is vital to 

ensure an entity achieves its objectives.
Page 30 GAO-17-66 CBP's Consequence Delivery System

Border Patrol reports that agent classification of aliens into one of the 

three criminal or four noncriminal classifications pursuant to CDS 

guidance is critical to selecting the Most Effective and Efficient 

consequence to deter future illegal border crossings. However, Border 

Patrol does not have controls in place to fully ensure that aliens are 

classified in accordance with CDS guidance. Border Patrol guidance to 

sectors provides definitions and additional details to determine the 

classification of each apprehension. For example, the guidance states 

that a first-time apprehension classification may be used on an alien that 

has been apprehended by another agency. Further, Border Patrol has 

established CDS data integrity activities at headquarters and at each 

sector as a control to better ensure the accuracy of data entry by Border 

Patrol agents and make any necessary corrections. CDS PMO officials 

said that they check the integrity of apprehension data for certain aspects, 

such as CDS consequence applied, alien nationality, and gender, to 

ensure quality and accuracy. According to CDS PMO officials, data 

integrity checks are done on a weekly basis and CDS PMO receives a 

quarterly report of potential errors in the data. CDS PMO then requests 

sector staff make corrections to the data as needed.

However, our analysis of Border Patrol apprehension data for recidivists 

from fiscal year 2013 through 2015 showed that Border Patrol did not 

classify 49,128 of 434,866 (11 percent) of apprehensions in accordance 

with the agency’s guidance.41 Of these 49,128 apprehensions, 15,309 

apprehensions were for aliens previously apprehended and identified as a 

type of criminal alien (targeted smuggler, suspected smuggler, or criminal 

alien) and were subsequently classified either as a noncriminal alien or 

different type of criminal alien, as shown in table 2.42 For example, 7,929 

 41To determine if and to what extent Border Patrol classified aliens according to CDS 

guidance, we reviewed classification records for all aliens apprehended more than once 

from fiscal year 2013 to fiscal year 2015 and compared their classifications from each 

arrest for consistency with CDS guidance. Because we relied on a previous apprehension 

record to determine if Border Patrol had classified an alien according to its guidance, we 

could only test a subset of Border Patrol records—434,866 out of 1,123,727 total 

apprehensions for that time period. 

42According to Border Patrol guidance, Border Patrol classifies aliens based upon the 

circumstances of their apprehension and therefore, in some cases, aliens can be 

apprehended multiple times and receive a different classification on each arrest, 

consistent with CDS guidance. For example, an alien could be arrested and classified as a 

First Time Apprehension and then later arrested and classified as a Second-or-Third 

Apprehension. However, some aliens were not classified according to the guidance on 

multiple apprehensions. Our analysis shows that 15,309 apprehensions representing 

9,837 unique aliens were not classified according to CDS guidance.

Border Patrol Does Not 

Have Controls for Its 

Classification of Aliens 

Necessary to Apply the 

Most Effective and 

Efficient CDS 

Consequence
Page 31 GAO-17-66 CBP's Consequence Delivery System

aliens apprehended from fiscal year 2013 through 2015 were classified as 

a Criminal Alien (an alien with previous criminal convictions) and then 

were later re-apprehended and classified as a Persistent Apprehension (a 

noncriminal class alien arrested four or more times by Border Patrol). 

According to Border Patrol guidance, agents should classify an 

apprehension as a Criminal Alien apprehension if the apprehended alien 

has any prior criminal convictions whereas agents should only classify an 

alien as a Persistent Apprehension if another classification is not 

appropriate.

Table 2: Variances in Border Patrol Classification of Different Types of Criminal Aliens Across Southwest Border 

Apprehensions, Fiscal Years 2013-2015

Previous Apprehension 

Classification

Most Recent Apprehension 

Classification

Average Days

Between Apprehensions

Number of

Apprehensions 

Criminal Alien First Time Apprehension 170 151

Criminal Alien Persistent Apprehension 135 7,929

Criminal Alien Second-or-Third Apprehension 148 3,206

Suspected Smuggler First Time Apprehension 107 414

Targeted Smuggler Family Unit Apprehension 97 10

Targeted Smuggler First Time Apprehension 125 210

Targeted Smuggler Persistent Apprehension 135 1,528

Targeted Smuggler Criminal Alien 267 370

Targeted Smuggler Second-or-Third Apprehension 143 344

Targeted Smuggler Suspected Smuggler 167 1,147

Total Across All Criminal Apprehension Classifications 149 15,309

Source: GAO analysis of U.S. Border Patrol data | GAO-17-66

Note: An alien may have multiple apprehensions and thus may have more than one apprehension not 

classified according to the guidance. If an alien had more than one instance of any of the above 

combinations, we included only the first instance of that combination in our analysis, which had the 

shortest duration between classifications.

Further, our analysis showed that criminal aliens not classified in 

accordance with agency guidance were less likely to face prosecution 

and more likely to be voluntarily returned to their home country than 

criminal aliens overall. Specifically, of the approximate 15,000 

apprehensions of criminal aliens who were not classified according to 

CDS guidance between fiscal years 2013 and 2015, 8 percent were 

recommended for criminal prosecution (3,912 apprehensions) compared 

to 47 percent of all criminal aliens during that timeframe. Additionally, 24 

percent of criminal aliens who were not classified between fiscal years 

2013 and 2015 received the Least Effective and Efficient consequence of 

voluntary return to their home country (3,717 apprehensions) as defined 
Page 32 GAO-17-66 CBP's Consequence Delivery System

in the CDS guides compared to 9 percent of all criminal aliens classified 

during that timeframe.

CDS PMO officials provided several reasons why agents may not 

consistently classify a criminal alien to include issues related to guidance, 

implementation, and oversight. These officials said that agents received 

oral direction from headquarters to reclassify criminal aliens who cannot 

be given a consequence of federal prosecution, and that written data 

integrity guidance to sectors did not include activities for checking the 

accuracy of alien classifications. Further, officials said that agents may 

not always take the time to review previous CDS classifications, and may 

rely on other information sources that are incomplete and change over 

time, such as national or local lists of aliens identified for targeted 

enforcement.43 However, our review of individual alien CDS history 

sometimes shows significant variance that may compromise the

usefulness of the CDS program. For example, one alien apprehended 54 

times in the Rio Grande Valley sector between October 2012 and May 

2015 was classified as a First Time Apprehension 6 times, a Second or 

Third Time Apprehension 4 times, a Persistent Apprehension 22 times, a 

Suspected Smuggler 15 times and a Targeted Smuggler 7 times.

Standards for Internal Control in the Federal Government states that 

accurate and timely recording of events provide relevance and value to 

management when controlling operations and making decisions.44

Without correctly classifying alien apprehensions according to its 

guidance, Border Patrol does not have reasonable assurance that aliens 

receive the most appropriate consequences and that Border Patrol is 

most effectively using CDS to address and reduce the threat from 

smuggling and other criminal activity.

 43CDS PMO officials said that they create and maintain a national list of aliens targeted for 

enforcement which includes aliens apprehended six or more times within a single year. 

However, aliens are removed from the list at the end of the year and the list is not 

inclusive of all aliens targeted for enforcement. Sectors and stations may also maintain 

their own lists of aliens targeted for enforcement that may or may not be shared across 

stations and sectors.

44GAO/AIMD-00-21.3.1. The update to the Standards, GAO-14-704G, effective beginning 

fiscal year 2016 further states that management should obtain data reasonably free from 

error from reliable internal sources on a timely basis so that the data can be used to 

effectively monitor the program.
Page 33 GAO-17-66 CBP's Consequence Delivery System

Border Patrol’s implementation of CDS represents a key component of 

DHS’s efforts to secure the southwest land border from transnational 

smuggling organizations and other threats. Additional actions on the part 

of Border Patrol could strengthen implementation and oversight of the 

CDS program. Specifically, measuring recidivism using an alien’s 

apprehension history beyond one fiscal year and adjusting for aliens with 

no record of removal who may remain in the United States after 

apprehension would give Border Patrol a more complete assessment of 

CDS performance, which in turn would allow Border Patrol leadership to 

more effectively evaluate the extent to which CDS is supporting its goal of 

securing the southwest border. Additionally, collecting information on 

reasons agents do not apply the Most Effective and Efficient 

consequence identified in sectors’ CDS guides could provide important 

information about how to increase agents’ application of these 

consequences or allow Border Patrol to consider how factors such as 

federal partners’ capacity constraints may further inform a need to modify 

the development process for each sector’s CDS guide. Revising guidance 

to sectors for estimating costs to ensure these costs are accurately 

calculated across consequences and inclusive of partner agencies’ costs, 

where appropriate and available, would also help ensure that sector staff 

and leadership are using valid information in determining which 

consequences are Most Effective and Efficient during the annual 

development of the CDS guides. Finally, mechanisms to monitor, 

manage, and communicate results of sector performance, alien 

classification, and data integrity efforts would provide Border Patrol with 

greater assurance that CDS is functioning as intended.

To better inform on the effectiveness of CDS implementation and border 

security efforts, we recommend that the Chief of Border Patrol:

• strengthen the methodology for calculating recidivism such as by 

using an alien’s apprehension history beyond one fiscal year and 

excluding aliens for whom there is no record of removal and who may 

remain in the United States;

• collect information on reasons agents do not apply the CDS guides’

Most Effective and Efficient consequences to assess the extent that 

agents’ application of these consequences can be increased and 

modify development of CDS guides, as appropriate;

• revise CDS guidance to ensure consistent and accurate 

methodologies for estimating Border Patrol costs across 

consequences and to factor in, where appropriate and available, the 

Conclusions

Recommendations for 

Executive Action
Page 34 GAO-17-66 CBP's Consequence Delivery System

relative costs of any federal partner resources necessary to 

implement each consequence;

• ensure that sector management is monitoring progress in meeting 

their performance targets and communicating performance results to 

Border Patrol headquarters management; and

• provide consistent guidance for alien classification and take steps to 

ensure CDS PMO and sector management conduct data integrity 

activities necessary to strengthen control over the classification of 

aliens.

Additionally, we recommend the Secretary of Homeland Security direct 

the Assistant Secretary of ICE and Commissioner of CBP to collaborate 

on sharing immigration enforcement and removal data to help Border 

Patrol account for the removal status of apprehended aliens in its 

recidivism rate measure.

We provided a draft of this report to DHS and DOJ for their review and 

comment. DOJ indicated that it did not have any formal comments on the 

draft report in a December 13, 2016 email from the department’s Audit 

Liaison. DHS provided written comments, which are noted below and 

reproduced in full in appendix III, and technical comments, which we 

incorporated as appropriate. DHS concurred with five of the six 

recommendations in the report and described actions underway or 

planned to address them. DHS did not concur with one recommendation 

in the report.

With regard to the first recommendation, to strengthen its methodology for 

calculating recidivism such as by using an alien's apprehension history 

beyond one fiscal year and excluding aliens for whom there is no record 

of removal and who may remain in the United States, DHS did not 

concur. DHS noted that CDS uses annual recidivism rate calculations to 

measure annual change, which is not intended to be, or used, as a 

performance measure for CDS, and that Border Patrol annually 

reevaluates the CDS to ensure that the methodology for calculating 

recidivism provides the most effective and efficient post apprehension 

outcomes. DHS stated that external factors can affect the consequences 

available to each sector, which may change over time, and thus using the 

recidivism rate for multiple years would not benefit Border Patrol. 

Additionally, DHS noted that the support Border Patrol provides to its 

partners is not impacted by the aliens for whom there is no record of 

removal and who may remain in the United States. DHS stated that 

removing these individuals from the recidivism formula would not affect 

Agency Comments 

and Our Evaluation
Page 35 GAO-17-66 CBP's Consequence Delivery System

the consequence given to a specific alien. DHS requested that we 

consider this recommendation resolved and closed. 

We continue to believe that Border Patrol should strengthen its 

methodology for calculating recidivism, as DHS noted in its comments 

that the recidivism rate is used as a performance measure by Border 

Patrol and DHS. As noted in the report, strengthening the recidivism rate 

methodology, such as by using an alien’s apprehension history beyond 

one fiscal year, would not preclude its use for CDS as a measure of 

annual change, and would provide Border Patrol a more complete 

assessment of the rate of change in recidivism. Further, while Border 

Patrol stated that excluding individuals from the recidivism formula would 

not affect the consequence given to an alien, recidivism is one of the 

factors considered by sectors when developing its CDS guide each year, 

and more complete information would help ensure that Border Patrol’s 

risk assessments are accurate and that the decisions made based upon 

these risk assessments are sound. This in turn, would allow Border 

Patrol leadership to more effectively evaluate the extent to which CDS is 

supporting its goal of securing the border to better inform the 

effectiveness of CDS implementation and border security efforts. 

With regard to the second recommendation, to collect information on 

reasons agents do not apply the CDS guides' Most Effective and Efficient 

consequences to assess the extent that agents' application of these 

consequences can be increased and modify development and of CDS 

guides as appropriate, DHS concurred. DHS stated that each year CDS 

PMO will interview subject matter experts from each sector to discuss the 

situations where the Most Effective and Efficient consequence is not 

applied to include in the annual development of their CDS guide. DHS 

provided an estimated completion date of September 30, 2017. 

Dependent on the methodology used by the subject matter experts to 

collect such information needed to assess further actions to increase 

agent application of the Most Effective and Efficient consequence or 

modify CDS guides, these planned actions, if fully implemented, should 

address the intent of the recommendation.

With regard to the third recommendation, to revise CDS guidance to 

ensure consistent and accurate methodologies for estimating Border 

Patrol costs across consequences and to factor in, where appropriate and 

available, the relative costs of any federal partner resources necessary to 

implement each consequence, DHS concurred. DHS stated that CDS 

PMO will add sector apprehension data to the "Cost per Apprehension" 

factor, to account for the volume of apprehensions each year, and will 
Page 36 GAO-17-66 CBP's Consequence Delivery System

meet with sectors to assist with cost estimates prior to the development of 

their CDS guides. DHS provided an estimated completion date of July 31, 

2017. However, DHS further stated that relative costs of its federal 

partner's resources are irrelevant for CDS purposes as the program is 

Border Patrol specific, and an attempt to associate costs to resources 

spent by other federal agencies would not be prudent. We continue to 

encourage Border Patrol consideration of available federal partner costs 

incurred in supporting CDS consequences. As reflected in its agency 

comments, DHS states Border Patrol relies on federal partners in order to 

apply the Most Effective and Efficient consequences, that the application

of consequences requires a holistic approach, and that it cannot 

effectively and efficiently achieve its mission without the assistance of 

partnering agencies. As Border Patrol has moved away from applying the 

Border Patrol specific consequence of Voluntary Return to other 

consequences requiring support and costs incurred by federal partners, 

including these costs would provide greater assurance that the 

consequences Border Patrol ranked as Most Effective and Efficient within 

the CDS guides accurately reflect cost efficiency. Further, to the extent 

that Border Patrol accounts for available federal partner costs as 

appropriate, these planned actions, if fully implemented, should address 

the intent of the recommendation. 

With regard to the fourth recommendation, to ensure that sector 

management is monitoring progress in meeting their performance targets 

and communicating performance results to Border Patrol headquarters 

management, DHS concurred. DHS stated that CDS PMO will reinstitute 

quarterly sector performance progress reports that will include sectors’ 

classification, recidivism, average apprehension per recidivist, and 

displacement rates. DHS provided an estimated completion date of 

September 30, 2017. These planned actions, if fully implemented and 

communicated to Border Patrol headquarters management, should 

address the intent of the recommendation.

With regard to the fifth recommendation, to provide consistent guidance 

for alien classification and take steps to ensure CDS PMO and sector 

management conduct data integrity activities necessary to strengthen 

control over the classification of aliens, DHS concurred. DHS stated that 

CDS PMO will work with Border Patrol’s Enforcement Systems Division to 

implement a program or rule within Border Patrol's system of record that 

will allow the processing agent and supervisor to identify the alien's 

previous CDS classification and to ensure accuracy and compliance. 

DHS provided an estimated completion date of September 30, 2017. This 
Page 37 GAO-17-66 CBP's Consequence Delivery System

planned action, if fully implemented, should address the intent of the 

recommendation.

With regard to the sixth recommendation, that the Secretary direct the 

Assistant Secretary of ICE and Commissioner of CBP to collaborate on 

sharing immigration enforcement and removal data to help Border Patrol 

account for the removal status of apprehended aliens in its recidivism rate 

measure, DHS concurred. DHS stated that collecting and analyzing ICE 

removal and enforcement data would not be advantageous to Border 

Patrol for CDS purposes since CDS is specific to Border Patrol. However, 

DHS also stated that CDS PMO and ICE have discussed the availability 

of the removal and enforcement data and ICE has agreed to provide 

Border Patrol with these data, if needed. DHS requested that we consider 

this recommendation resolved and closed. While DHS’s planned actions 

are a positive step toward addressing our recommendation, DHS needs 

to provide documentation of completion of these actions for us to consider 

the recommendation closed as implemented. 

We are sending copies of this report to the appropriate congressional 

committees, the Secretary of Homeland Security, the Attorney General of 

the United States, and other interested parties. In addition, the report is 

available at no charge on the GAO website at http://www.gao.gov.

If you or your staff have any questions, please contact me at (202) 512-

8777 or gamblerr@gao.gov. Contact points for our Offices of 

Congressional Relations and Public Affairs may be found on the last page 

of this report. GAO staff who made significant contributions to this report 

are listed in appendix IV.

Sincerely yours, 

Rebecca Gambler

Director, Homeland Security and Justice
Appendix I: Border Patrol and ICE Data 

Supporting Border Patrol’s Recidivism Rate 

Methodology and Alternative Methods

Page 38 GAO-17-66 CBP's Consequence Delivery System

Border Patrol collects and analyzes data on the number and classification 

of apprehended aliens and the Border Patrol sector in which the alien was 

apprehended. In addition, ICE collects and maintains data on the case 

status of apprehended aliens, including if and when an alien was 

removed from the United States. We used these Border Patrol and ICE 

data to calculate recidivism using Border Patrol’s methodology and also 

using three alternative methods. Specifically, we calculated a recidivism 

rate using 1) Border Patrol’s method to consider aliens’ apprehension 

history within the fiscal year; 2) aliens’ apprehension history over three 

years (fiscal years 2013 through 2015); 3) Border Patrol’s method to 

consider aliens’ apprehensions history only within the fiscal year after 

excluding aliens who ICE data indicate have not been removed and may 

remain in the United States; and 4) aliens’ apprehension history over 

three years after excluding aliens who ICE data indicate have not been 

removed and may remain in the United States.1 Figure 11 provides an 

overview of Border Patrol’s recidivism rate calculation as well as the three 

alternative methods we used to determine the extent to which Border 

Patrol’s measure of recidivism assesses CDS effectiveness.

 1

Apprehended aliens with no record of removal may remain in the United States because 

they do not meet DHS’s removal priorities, and could affirmatively apply for immigration 

benefits within the jurisdiction of U.S. Citizenship and Immigration Services; or, if sought to 

be removed by DHS, may seek and ultimately obtain lawful immigration status or 

protection in immigration court, or be found not removable, or removable and not eligible 

for any requested relief or protection from removal. Apprehended aliens with no record of 

removal may also have departed the United States on their own accord.

Appendix I: Border Patrol and ICE Data 

Supporting Border Patrol’s Recidivism Rate 

Methodology and Alternative Methods
Appendix I: Border Patrol and ICE Data 

Supporting Border Patrol’s Recidivism Rate 

Methodology and Alternative Methods

Page 39 GAO-17-66 CBP's Consequence Delivery System

Figure 11: Border Patrol’s Fiscal Year (FY) Southwest Border Recidivism Rate 

Calculation and Alternative Methods

For each of the nine Border Patrol sectors along the southwest border 

and each of the seven alien classifications, tables 5 and 6 provide:

• the unique number of apprehended aliens,

• the recidivism rate based on Border Patrol’s methodology (aliens’

apprehension history within fiscal year 2015),

• the recidivism rate based on alien apprehension history over three 

years (fiscal years 2013 through 2015),

• the recidivism rate based on an aliens’ apprehension history over 

three years (fiscal years 2013 through 2015) and excluding aliens who 

ICE data show have not been removed and may remain in the United 

States, and
Appendix I: Border Patrol and ICE Data 

Supporting Border Patrol’s Recidivism Rate 

Methodology and Alternative Methods

Page 40 GAO-17-66 CBP's Consequence Delivery System

• the percentage of apprehended aliens who ICE data show have not 

been removed and may remain in the United States.2

Table 3 presents data on apprehensions, recidivism, and aliens who may 

remain in the United States by the sector of apprehension for fiscal year 

2015. As the table illustrates, sectors varied significantly in the volume of 

unique aliens apprehended for fiscal year 2015, ranging from a low of 

less than 5,000 unique aliens apprehended in the Big Bend sector to a 

high of more than 113,000 unique aliens apprehended in the Rio Grande 

Valley sector. Using Border Patrol’s methodology considering only 

recidivists within the fiscal year, the San Diego sector had the highest rate 

of recidivism at 26 percent in fiscal year 2015. Our alternative analysis of 

recidivism rates using alien apprehension history over three years (fiscal 

years 2013 through 2015), showed that the San Diego sector had the 

highest rate of recidivism at 45 percent. In fiscal year 2015, the Big Bend 

sector had the lowest rate of recidivism considering only recidivists within 

the fiscal year (2 percent) and also analyzing recidivism using alien 

apprehension history over the 3 years (13 percent). Our analysis of 

recidivism rates using alien apprehension history over 3 years after 

excluding aliens who may remain in the United States showed that the 

San Diego sector had the highest recidivism rate (45 percent) in fiscal 

year 2015 and the Del Rio sector had the lowest recidivism rate (14 

percent). The percentage of aliens apprehended by Border Patrol in fiscal 

year 2015 who ICE data show had not been removed and may remain in 

the United States as of May 2016 ranged from a high of 53 percent of 

apprehended aliens in the Yuma sector to a low of 22 percent of 

apprehended aliens in the Laredo sector.

 2

To avoid double-counting and to mirror Border Patrol’s methodology, we present the 

number of unique aliens apprehended within the given timeframe, not the total number of 

apprehensions. We also looked at the characteristics of the recidivist alien (such as sector 

of apprehension and alien classification) based upon his or her most recent apprehension.
Appendix I: Border Patrol and ICE Data 

Supporting Border Patrol’s Recidivism Rate 

Methodology and Alternative Methods

Page 41 GAO-17-66 CBP's Consequence Delivery System

Table 3: Number of Border Patrol Apprehensions, Recidivism Rate Alternatives, and Percentage of Aliens for whom U.S. 

Immigration and Customs Enforcement (ICE) Did Not Have a Record of Removal from the United States by Southwest Border 

Sector, Fiscal Year 2015 

Sector

Unique aliens 

apprehendeda Border Patrol’s recidivism rateb

Recidivism rate 

using alien 

apprehensions 

over 3 yearsc

Recidivism rate 

using alien 

apprehensions 

over 3 years 

excluding aliens 

who may remain in 

the United Statesd

Percentage of 

apprehended 

aliens who may 

remain in the 

United Statese

Big Bend 4,445 2 13 15 47

Del Rio 16,968 3 15 14 33

El Centro 9,217 23 37 37 26

El Paso 12,980 5 18 16 30

Laredo 32,175 8 23 21 22

Rio Grande Valley 113,468 11 22 31 44

San Diego 17,778 26 45 45 23

Tucson 54,075 12 33 30 25

Yuma 5,782 5 29 39 53

Source: GAO analysis of U.S. Border Patrol and U.S. Immigration and Customs Enforcement (ICE) data | GAO-17-66

a

To avoid double-counting and consistent with Border Patrol’s methodology, we present the unique 

number of aliens apprehended—the number of distinct individuals apprehended.

b

This recidivism rate only includes aliens’ apprehension history within fiscal year 2015.

c

This alternative recidivism rate includes alien apprehension history from fiscal years 2013 through 

2015.

d

This alternative recidivism rate includes aliens’ apprehension history from fiscal years 2013 through 

2015 after excluding aliens who had not been removed from the United States according to ICE data 

as of May 2016.

e

This percentage includes aliens apprehended in fiscal year 2015 who had not been removed from 

the United States according to ICE data as of May 2016.

Table 4 presents apprehension, recidivism and removal data by alien 

classification for an alien’s most recent apprehension in fiscal year 2015. 

As the table illustrates, aliens classified as first-time apprehensions 

represented the majority of unique apprehensions, accounting for more 

than 141,000 unique aliens apprehended in fiscal year 2015. In contrast, 

targeted smuggler apprehensions were the least common type of 

apprehension, with about 2,100 unique aliens classified as targeted 

smugglers. Recidivism rates by alien classification varied across 

methodologies. Aliens classified as Persistent Apprehensions had the 

highest rate of recidivism using Border Patrol’s methodology only 

considering recidivists within fiscal year 2015 (15 percent). However, 

aliens classified as Targeted Smugglers had the highest rate of recidivism 

considering aliens’ apprehension history over the 3 years (73 percent) 
Appendix I: Border Patrol and ICE Data 

Supporting Border Patrol’s Recidivism Rate 

Methodology and Alternative Methods

Page 42 GAO-17-66 CBP's Consequence Delivery System

ending fiscal year 2015. In contrast, aliens classified as First-Time 

Apprehensions had the lowest rate of recidivism considering only 

recidivists within the fiscal year (one percent) and using apprehension 

history over three years (two percent). Further, our analysis of recidivism 

rates after excluding aliens who may remain in the United States and 

considering aliens’ apprehension history over 3 years, showed that aliens 

classified as Targeted Smugglers had the highest rate of recidivism (66 

percent). The extent to which aliens apprehended in fiscal year 2015 may 

remain in the United States ranged from a high of 93 percent for aliens 

classified as a Family Unit Apprehension to a low of 11 percent for aliens 

classified as a Second-or-Third Time Apprehension.

Table 4: Border Patrol Southwest Border Apprehensions, Recidivism Rates and Percentage of Aliens for whom U.S. 

Immigration and Customs Enforcement (ICE) Did Not Have a Record of Removal from the United States by Alien 

Classification, Fiscal Year 2015

Classification

Unique aliens 

apprehendeda Border Patrol’s 

recidivism rateb

Recidivism rate 

using alien 

apprehensions 

over 3 yearsc

Recidivism rate using 

alien apprehensions 

over 3 years 

excluding aliens who 

may remain in the 

United Statesd

Percentage of 

apprehended 

aliens who may 

remain in the 

United Statese

First-Time 

Apprehension 141,897 1 2 1 42

Second- or Third- Time 

Apprehension 68,804 12 62 57 11

Persistent 

Apprehension 25,923 15 55 45 14

Family Unit 

Apprehension 21,083 1 7 27 93

Suspected Smuggler 

Apprehension 6,398 3 38 29 27

Targeted Smuggler 

Apprehension 2,156 11 73 66 34

Criminal Alien 

Apprehension 19,732 10 36 30 27

Source: GAO analysis of U.S. Border Patrol and ICE data | GAO-17-66

a

To avoid double-counting and consistent with Border Patrol’s methodology, we present the unique 

number of aliens apprehended—the number of distinct individuals apprehended.

b

This recidivism rate only includes aliens’ apprehension history within fiscal year 2015.

c

This alternative recidivism rate includes alien apprehension history from fiscal years 2013 through 

2015.

d

This alternative recidivism rate includes aliens’ apprehension history from fiscal years 2013 through 

2015 after excluding aliens who had not been removed from the United States according to ICE data 

as of May 2016.

e

This percentage includes aliens apprehended in fiscal year 2015 who had not been removed from 

the United States according to ICE data as of May 2016.
Appendix II: Most Effective and Efficient 

Consequences Identified in Southwest Border 

Patrol Sectors’ CDS Guides, Fiscal Years 2013 

through 2015

Page 43 GAO-17-66 CBP's Consequence Delivery System

Border Patrol agents implement CDS by classifying eligible apprehended 

aliens into one of seven noncriminal or criminal categories based on the 

circumstances of their apprehension and then applying one or more of 

eight different criminal, administrative and programmatic consequences. 

To assist Border Patrol agents in selecting the most appropriate 

consequence, Border Patrol rank orders these consequences from Most 

Effective and Efficient to Least Effective and Efficient for each alien 

classification and presents this information in an annual CDS guide for 

each Border Patrol sector. Table 5 provides an overview of the frequency 

with which each CDS consequence was identified in CDS guides as Most 

Effective and Efficient for all nine Southwest Border Patrol sectors across 

all alien classifications and fiscal years 2013 through 2015. To different 

extents depending on the sector and year, seven of eight consequences 

were identified as Most Effective and Efficient for one or more types of 

alien populations. The eighth consequence—Voluntary Return—was 

never identified as a Most Effective and Efficient consequence from fiscal 

year 2013 through fiscal year 2015 and was identified as the Least 

Effective and Efficient consequence across all sectors for all noncriminal 

classifications during fiscal years 2013 through 2015.

Among the three categories of consequences—Administrative, Criminal, 

and Programmatic—Administrative consequences were most frequently 

identified (60 percent) as Most Effective and Efficient in CDS guides, 

followed by criminal consequences (37 percent), and the programmatic 

consequence (3 percent). Among the eight consequences within these 

three categories, Warrant or Notice to Appear was most frequently 

identified as Most Effective and Efficient (36 percent) followed by 

Standard Prosecution (26 percent). Excluding Voluntary Return, the 

extent to which the remaining five consequences were identified as the 

Most Effective and Efficient ranged from 2 percent to 13 percent.

Appendix II: Most Effective and Efficient 

Consequences Identified in Southwest 

Border Patrol Sectors’ CDS Guides, Fiscal 

Years 2013 through 2015
Appendix II: Most Effective and Efficient 

Consequences Identified in Southwest Border 

Patrol Sectors’ CDS Guides, Fiscal Years 2013 

through 2015

Page 44 GAO-17-66 CBP's Consequence Delivery System

Table 5: Types of Consequences Identified as Most Effective and Efficient in Consequence Delivery System (CDS) Guides for 

Southwest Border Patrol Sectors, Fiscal Years 2013 through 2015

Consequence category Consequence Frequency Number Percentage

Administrative Warrant or Notice to Appear 68 36 

Expedited Removal 20 11 

Reinstate Removal Order 25 13 

Voluntary Return 0 0 

Subtotal for Administrative Consequences 113 60 

Criminal Streamline Prosecution 17 9 

Standard Prosecution 49 26 

Operation Against Smugglers Initiative on Safety and 

Security (OASISS)

4 2 

Subtotal for Criminal Consequences 70 37 

Programmatic Alien Transfer Exit Program (ATEP) 6 3 

Subtotal for Programmatic Consequences 6 3 

Source: GAO analysis of Border Patrol’s CDS Guides | GAO-17-66

Over these years, more sector CDS guides moved toward identifying 

Standard Prosecution as Most Effective and Efficient, and moved away

from the administrative consequence of Warrant or Notice to Appear, as 

shown in table 6.

Table 6: Consequences Identified as Most Effective and Efficient in Consequence Delivery System (CDS) Guides for 

Southwest Border Patrol Sectors, Fiscal Years 2013 through 2015

Consequence

Frequency number and (percentage)

2013 2014 2015

Warrant or Notice to Appear 29 (46) 22 (35) 17 (27)

Expedited Removal 9 (14) 4 (6) 7 (11)

Reinstate Removal Order 6 (10) 9 (14) 10 (16)

Voluntary Return 0 (0) 0 (0) 0 (0)

Streamline Prosecution 4 (6) 3 (5) 10 (16)

Standard Prosecution 10 (16) 22 (35) 17 (27)

Operation Against Smugglers Initiative on Safety 

and Security (OASISS)

3 (5) 0 (0) 1 (2)

Alien Transfer Exit Program (ATEP) 2 (3) 3 (5) 1 (2)

Source: GAO analysis of Border Patrol’s CDS Guides | GAO-17-66

Figures 12 and 13 show the Most Effective and Efficient consequences 

identified in each southwest Border Patrol sector’s CDS guide for fiscal 
Appendix II: Most Effective and Efficient 

Consequences Identified in Southwest Border 

Patrol Sectors’ CDS Guides, Fiscal Years 2013 

through 2015

Page 45 GAO-17-66 CBP's Consequence Delivery System

years 2013 through 2015 by types of noncriminal aliens and criminal 

aliens, respectively. For alien family apprehensions, CDS guides 

consistently identified only administrative consequences as Most Effective 

and Efficient, primarily Warrant or Notice to Appear.

Figure 12: Most Effective and Efficient Consequence for U.S. Border Patrol NonCriminal Apprehensions for Southwest Border Sectors, Fiscal Years 2013 through 

2015
Appendix II: Most Effective and Efficient 

Consequences Identified in Southwest Border 

Patrol Sectors’ CDS Guides, Fiscal Years 2013 

through 2015

Page 46 GAO-17-66 CBP's Consequence Delivery System

Figure 13: Most Effective and Efficient Consequences for U.S. Border Patrol 

Criminal Alien Apprehensions for Southwest Border Sectors, Fiscal Years 2013 

through 2015
Appendix III: Comments from the Department 

of Homeland Security

Page 47 GAO-17-66 CBP's Consequence Delivery System

Appendix III: Comments from the 

Department of Homeland Security
Appendix III: Comments from the Department 

of Homeland Security

Page 48 GAO-17-66 CBP's Consequence Delivery System
Appendix III: Comments from the Department 

of Homeland Security

Page 49 GAO-17-66 CBP's Consequence Delivery System
Appendix III: Comments from the Department 

of Homeland Security

Page 50 GAO-17-66 CBP's Consequence Delivery System
Appendix III: Comments from the Department 

of Homeland Security

Page 51 GAO-17-66 CBP's Consequence Delivery System
Appendix III: Comments from the Department 

of Homeland Security

Page 52 GAO-17-66 CBP's Consequence Delivery System
Appendix IV: GAO Contact and Staff 

Acknowledgments

Page 53 GAO-17-66 CBP's Consequence Delivery System

Rebecca Gambler at (202) 512-8777 or GamblerR@gao.gov

In addition to the contact named above, Lacinda C. Ayers (Assistant 

Director), Giselle Cubillos-Moraga, Kathleen Donovan, Cynthia Grant, 

Michele Fejfar, Eric Hauswirth, Susan Hsu, DuEwa Kamara, Jon Najmi, 

Christine San, and Mike Tropauer made key contributions to this report.

Appendix IV: GAO Contact and Staff 

Acknowledgments

GAO Contact

Staff 

Acknowledgements

(100366)
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