Border Patrol: Actions Needed to Improve Oversight of Post-Apprehension Consequences
Released: 2017-01-12T00:00:00

Letter

Background

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. 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 categorized as criminal, administrative or programmatic. 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. Figure 1 provides an overview of CDS alien classifications and Figure 2 provides an overview of possible consequences under CDS.

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 a CDS guide. Figure 3 provides an example of one sector’s CDS guide for fiscal year 2015.

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.

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 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. 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.

Border Patrol Methodology for Calculating Recidivism Makes It Difficult to Assess Effectiveness of the 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. 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.

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. 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 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. 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 increased from 21 percent in fiscal year 2014 to 25 percent in fiscal year 2015.

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. 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 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.

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 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. 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.

Border Patrol Agents Did Not Generally Apply the Consequence Identified in CDS guides as the Most Effective and Efficient in Each Southwest Border Sector

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. 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. 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 Least- Effective 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).

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 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.

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 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. 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. 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 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. 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 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. 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.

Border Patrol Could Enhance Guidance for CDS Cost Estimation and Strengthen Controls for Monitoring Performance and Data Integrity

Border Patrol Established CDS Guidance, but Guidance Does Not Ensure Valid Cost Estimation

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. 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 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.

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 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.

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 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. 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. 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 Sectors Set Some Performance Targets for CDS Implementation, but Did Not Fully Monitor or Communicate Results

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

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. 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.

Border Patrol Does Not Have Controls for Its Classification of Aliens Necessary to Apply the Most Effective and Efficient CDS Consequence

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. 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. For example, 7,929 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.

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 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. 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. 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.

Conclusions

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.

Recommendations for Executive Action

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 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.

Agency Comments and Our Evaluation

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 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 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 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.

Appendix I: Border Patrol and ICE Data Supporting Border Patrol’s Recidivism Rate Methodology and Alternative Methods

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. 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.

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 the percentage of apprehended aliens who ICE data show have not been removed and may remain in the United States.

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.

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) 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.

Appendix II: Most Effective and Efficient Consequences Identified in Southwest Border Patrol Sectors’ CDS Guides, Fiscal Years 2013 through 2015

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.

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.

Figures 12 and 13 show the Most Effective and Efficient consequences identified in each southwest Border Patrol sector’s CDS guide for fiscal 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.

Appendix III: Comments from the Department of Homeland Security

Appendix IV: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgements

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.