The state of Texas, just north of the United States-Mexico border, shares a 1,200 mile border with the neighboring country of Mexico. For years, numerous people who are not citizens of the United States have tried and often succeeded in entering the United States illegally through this vast border. Some of the people who enter through the border illegally are trying to relocate to the United States of America in an attempt to find what they hope to be a better life. Others are exploiting the border in the hopes of profiting from committing crimes such as drug trafficking and distribution and human smuggling. The proximity of the countries of the Mexico and the United States makes the border between the two countries seen like an accessible route into the United States. But this entry is not without risk. The Backgrounder, and publication by The Heritage Foundation points out that the area just south of the United States-Mexico border is extremely dangerous terrain with drug gangs and other criminal enterprises operating in these areas. “Over the past 10 years, traversing the U.S. Mexico border illegally has become increasingly dangerous. In 2009 alone, the U.S. Customs and Border Protection found 417 bodies along the U.S. southern border” (Walser, 2011). A number of these bodies can be credited to violent Mexican drug cartels operating within miles of the United States border. Furthermore, ruthless human traffickers often exploit those passing through the border area adding to the body count.
The United States of America has a vested interest in securing and protecting this border as much as possible. Furthermore, the United States has an interest in preventing illegal immigration from Mexico. Therefore, the United States has established the U.S. Customs and Border Patrol Agency whose function is to secure and protect the border. One of the major concerns of the U.S. Customs and Border Protection Agency and the Border Patrol is to prevent the illegal operations of Mexican cartels from entering into and affect the United States. In fact, Mexican cartels that operate near the border have been linked to drug smuggling and human trafficking, both major crimes with significant amount of violence and danger involved.
In order to better police the United States-Mexico border, the U.S. border patrol has established a number of policies and initiatives in recent years. One such initiative is Operation Drawbridge. One of the functions of Operation Drawbridge is to help identify spots of Mexican cartel activity so that the border patrol and other agencies can react to it before it poses a significant threat to those residing within the boundaries of the United States. Operation Drawbridge also allows the border patrol to more easily spot acts of illegal immigration of any sort crossing the border in violation of U.S. law.
In addition to their function in protecting a securing the border, the agents of the border patrol and the U.S. Customs and Boarder Protection Agency at large have a certain amount of leeway or discretion in the carrying out of their duties; the discretion extended to this agency is akin to that of prosecutorial discretion with respect to those whom they detain. Throughout this paper, I will discuss the important function of the United States Border Patrol, one of their recent policies for crime control, and the discretion that the agency has in carrying out its actions.
U.S. Customs and Border Protection: Border Patrol
As early as 1904 Mounted Guards stationed out of El Paso, Texas patrolled the United States – Mexico border to prevent illegal border crossings. At that time, the main concern of the border patrol was to inhibit illegal Chinese immigration into the United States. In 1915, Congress gave approval for a group of Mounted Inspectors who patrolled the border on horseback, in cars, and in boats. Military troops along with Texas Rangers also help to patrol the U.S. border. However, there was very little coordination in the patrolling of the border and a significant amount of revenue expenditure was not put into adequate protection of the border.
When the Immigrations Acts of 1921 and 1924 were passed, border patrol finally began to receive adequate governmental attention from the United States government. The passage of the Labor Appropriations Act of 1924 by the United States congress officially established the U.S. Border Patrol (U.S. Customs and Border Protection). To ensure that border patrol received adequate focus, a significant number of officers were recruited to fulfill the law enforcement organization’s duties. These agents were provided a badge and a revolver in order to patrol the border and were paid $1,680 a year for their work as border agents. One of their main duties at that time was to prevent the influx of illegal liquor into the United States.
Another concern of the border patrol in the years following this was the number of illegal immigrants residing in the United States, areas of Southern California especially had significant numbers of illegal Mexican immigrants. To remedy this situation, repatriation efforts, or efforts to return these illegal immigrants to Mexico, were stated. Sponsored by both Mexico and the United States, these efforts proved to be extremely expensive and were soon phased out.
In the 1980s and 1990s there was a substantial increase in the number of illegal immigrants crossing the border from Mexico into the United States. At this time the border patrol began institution policies and operations to try to stop this increased influx of illegal immigrants. Some of these operations include: Operation Hold the Line and Operation Gatekeeper (See Alden). Following the 1990s, the terrorist attacks of 2001, again renewed the focus on border patrol to ensure homeland security (See Andreas).
Today, the primary focus of the border patrol is to stop the influx of illegal immigration as well as prevent the activity of crime syndicates from entering the United States through the United States –Mexico border. The border patrol’s function of preventing criminal organizations operating near the border from entering into the United States is a very important law enforcement function that serves to protect the national as a whole and the citizens of border states especially. These criminal organizations engage in activities such as drug trafficking and human smuggling, utilizing a significant amount of violence in their quest to accomplish their criminal goals. The border patrol helps to keep their drugs from entering the United States and increasing crime as well as protect the citizens of the state of Texas and beyond from being harmed by these illegal actions.
In addition to these functions, the border patrol serves a semi-judicial role in making determinations on who to detain and who to let go. As stated in “Secret Report: Catch and Release for Low-Priority Illegals Proposed,” an article appearing in the Washington Times in June of 2012, “U.S. Customs and Border Protection, the agency charged with guarding the U.S. border, has written a secret draft policy that would let its agents catch and release low-priority illegal immigrants rather than bring them in for processing and prosecution. The policy which has not been signed off on would be the latest move by the Obama administration to set new priorities for the nation’s immigration services and would bring CBP in line with other Homeland Security Department agencies that already use such prosecutorial discretion” (Dinan, 2012). The article “The Role of Prosecutorial Discretion in Immigration Law,” suggests that the majority of the duties the border patrol carries out in deciding which groups to target, which activities to watch out for , and who to arrest fall into the category of prosecutorial discretion. In addition, many agencies similar to the border patrol already engage in the use of ‘prosecutorial discretion’ in carrying out their duties. In recent years, there have been moves to extend this same type of discretion to the border patrol when carrying out its functions. Furthermore, a memorandum from the Secretary of Homeland Security to the Acting Commissioner of the U.S. Customs and Border Protection agency dated June 15, 2012 details the exercise of prosecutorial discretion with respect to individuals who came to the United States as Children (See Napolitano). In this memo, the Secretary of Homeland Security details how the border patrol agency should carry out their prosecutorial discretion function. Therefore, the border patrol serves not only as a law enforcement agency, but more recently it has been extended the power to use prosecutorial discretion.
Border Patrol and Crime in Texas and Beyond
The U.S. Border Patrol is a large law enforcement organization that employs over 21,000 sworn federal agents. These agents serve to protect the safety of communities in the United States near the border as well as prevent the illegal entrance of immigrants and others many of whom many be trying to enter the United States for the purposes of engaging in illegal activity. The job of a border patrol agent does not come without risks. “Agents have reported more than 6,000 assaults since 2007, Fisher said, and three agents have been killed in that time. Since 2010, he [Border Patrol Chief Michael Fisher] said, agents have been assaulted with rocks1,713 times, and agents responded with deadly force 43 times, killing 10 people” (Bennett, 2014). Therefore, the border patrol is on the front lines of the battle to secure the border. This gives them an extended amount of knowledge as to the risks that people trying to cross the border illegally pose.
The fact that Texas is a border state has a significant impact on crime in that state, especially in the lower sections of the state. And it is not minor crime that is the concern when speaking of the United States – Mexico border. In a 2011 USA Today article, a Texas Congressman states, “Of course there is spillover violence along the border.It is not secure and it has never been more violent and dangerous than it is today. Anyone who lives down there will tell you that” (Beiser, 2011). The article entitled “U.S. Border Cites Prove Havens From Mexico’s Drug Violence,” goes on to state that these fears are somewhat inflated, but a significant amount of the credit can be given to large amount of security and border patrol efforts in keeping the drug violence associated with the United States-Mexico border out of these cities as much as possible.
One recent program implemented by the U.S. Border Patrol is Operation Drawbridge. “Operation Drawbridge provides that [surveillance] capability using low cost, commercially off the shelf technology that has been adapted to meet law enforcement needs and the needs of our close partners which include the Texas Border Sheriffs, U.S. Border Patrol, and Texas land owners” (Operation Drawbridge). Operation Drawbridge employs the use of wild-life cameras with motion detection that have been modified to suit the needs of the border patrol. Operation Drawbridge utilizes hundreds of cameras placed along the border to detect illegal border crossing activity. There are several organizations involved in the implementation and running of Operation Drawbridge. “The cameras involved in operation Drawbridge are monitored 24 hours a day, seven days a week, by the Texas Border Security operations Center, U.S. Border Patrol, DPS Communications, Texas Fusion Center, and Sheriffs’ Offices” (Texas department of Public Safety). And Operation Drawbridge has been credited with making an impact on crime entering the state of Texas through the U.S. – Mexico border. “Since January 2012, Operation Drawbridge and its partnership with the U.S. Border Patrol and the border Sheriffs have made a strategic and sustained impact on Cartel narcotic and human smuggling. As of the end of January 2014, the Drawbridge Project has been successful in detecting more than 56,310 criminal exploitations of the Texas/Mexico Border, and has directly resulted in the apprehension of more than 24,620 individuals and more than 52 tons of narcotics” (Operation Drawbridge). In fact, due to its success, in 2013, Operation Drawbridge received additional funding from the Texas Department of Agriculture.
Operation Drawbridge, however, is not the only new policy with respect to the border patrol, the discretion of when to act and against whom to enforce policies is also a newly within the border patrols’ functions. Operation Drawbridge, by allowing substantial observation could only serve to make the discretionary function of the border patrol easier.
Use of Prosecutorial Discretion by the Border Patrol
Throughout their observations, the border patrol has the power to determine when to act and who to take action upon. In fact, the power to regulate immigration is a power clearly understood to be given to Congress. Congress has the power to create or ratify agencies and give them a vast amount of discretion in carrying out their functions. The Congressional Research Service Report entitled “prosecutorial Discretion in Immigration,” points out that that agencies appointed by Congress has some of the same prosecutorial discretional powers in the immigration context as those granted to the executive branch in other contexts. “An agency decision to initiate an enforcement action in the administrative context shares to some extent the characteristics of the decision of a prosecutor in the executive branch to initiate a prosecution in a criminal context” (Manual, 2013). In fact, the article “The Discretion that Matters: federal Immigration Enforcement, State and Local arrests, and the Civil-Criminal Line”, the author argues that in the context of immigration, it is the discretion of the border agent to arrest that is the discretion that matters (See Motomura, 2011). As previously mentioned, the border patrol also has the power to decide which groups to target for arrest as well as what particular acts to take monitor. The recent extension of prosecutorial powers to the border patrol allows them to take into account the human factor with those who the observe crossing the border or illegal immigrants residing in the United States whom they encounter. Furthermore, it allows the agency to save resources that would be expended going after non-violent illegal immigrants so that these resources can be expended ensuring violent criminals and drug traffickers do not cross the border.
Recent Developments in Border Patrol Policy
However, with the extension of the border patrol’s powers, there is some scaling back of their powers as well. A March 2014 article appearing in the Los Angeles Times, “Border Patrol Restricts Agents’ Use of Force,” states, “The U.S. Border Patrol has restricted border agents’ authority to shoot at moving vehicles or at people throwing rocks, changing a controversial policy that has contributed to at least 19 deaths since 2013” (Bennett, 2014). According to the new policy stated in a memo from Border Patrol Chief Michael Fisher, the border patrol agents are no longer allowed to step in front of moving vehicles with the intent of opening fire on the driver. In addition, the patrol officers are no longer able to shot at vehicles that are fleeing from the border agents. Furthermore, border patrol agents have been instructed to attempt to safely move out of the way of harm when confronting a person throwing rocks or other objects in lieu of shooting at the person or persons unless the rocker thrower poses a threat of imminent harm of serious injury or death (See Bennett, 2014). This move by the Border Patrol Chief is in response to complaints that border agents have employed the use of deadly force at times when the use of such force was not necessary to protect the lives of the border agents or members of the public (See Bennett, 2014). This the border patrol does no longer has seemingly unfettered discretion on when to use such force as is necessary to take human lives.
The United States Border Patrol serves an important function of protecting our nation’s borders. To help the agency carry out its actions recent policy implementations such as Operation Drawbridge have been implemented allowing the agency to have ‘eyes’ across the border. This has enabled the agency to operate more efficiently in combatting crime originating from the border. Furthermore, a move to extend prosecutorial discretionary powers like other agencies of a similar nature in several instances to the border patrol has also be initiated by the Department of Homeland Security. This will allow the border patrol to operate more efficiently by concentrating on the people crossing the border who pose threats as opposed treating every border crossing violation in a similar manner.
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