Border Patrol:

Actions Needed to Improve Oversight of Post-Apprehension Consequences

GAO-17-66: Published: Jan 12, 2017. Publicly Released: Jan 12, 2017.

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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

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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.

For more information, contact Rebecca Gambler at (202) 512-8777 or gamblerr@gao.gov.

Recommendations for Executive Action

  1. Status: Open

    Comments: DHS did not concur with this recommendation. DHS noted that the U.S. Customs and Border Protection (CBP) Consequence Delivery System Program Management Office (CDS PMO) uses annual recidivism rate calculations to measure annual change, which is not intended to be, or used, as a performance measure for CDS. We continue to believe that DHS should strengthen its methodology for calculating recidivism. DHS noted in its comments on our report that the recidivism rate is used as a performance measure by U.S. Border Patrol and DHS. Additionally, strengthening the recidivism rate methodology 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. In January 2018, CDS-PMO officials stated that the office started reporting nationwide the recidivism rates for multiple years to U.S. Border Patrol sectors for situational awareness. However, the methodology for this reported recidivism rate does not exclude aliens for who there is no record of removal. In May 2020, CDS-PMO reported that it has not taken any further steps to implement this recommendation. To fully implement this recommendation, DHS needs to further strengthen its recidivism rate methodology by excluding aliens for whom there is no record of removal. Further, DHS needs to demonstrate that it is using this updated methodology on a recurring basis and for CDS performance measurement purposes.

    Recommendation: To better inform on the effectiveness of CDS implementation and border security efforts, the Chief of Border Patrol should 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.

    Agency Affected: Department of Homeland Security: United States Customs and Border Protection: Office of the Commissioner: U.S. Border Patrol

  2. Status: Closed - Implemented

    Comments: DHS concurred with this recommendation and stated that each year the Consequence Delivery System Program Management Office (CDS PMO) will interview subject matter experts from each U.S. Border Patrol 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. The CDS PMO first collected this information during the CDS guide annual development process for fiscal year 2018. In fiscal year 2019, U.S. Border Patrol collected the same information and issued a standard operating procedure governing annual reevaluation of CDS. The standard operating procedure requires that annual reevaluation participants are surveyed about why the most effective and efficient consequence is not always applied and that the survey results are shared with relevant staff. As a result, this recommendation is closed as implemented.

    Recommendation: To better inform on the effectiveness of CDS implementation and border security efforts, the Chief of Border Patrol should 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.

    Agency Affected: Department of Homeland Security: United States Customs and Border Protection: Office of the Commissioner: U.S. Border Patrol

  3. Status: Closed - Implemented

    Comments: DHS concurred with this recommendation. In March 2017, U.S. Border Patrol revised its Consequence Delivery System Program Management Office (CDS PMO) cost estimating guide to include more detailed direction. For example, the guide advises sectors on how to calculate the annual salary of each agent or non-agent by job series or rank, which should help ensure more consistent cost estimating methodologies. In regard to factoring relative costs of federal partner resources necessary to implement each consequence, in March 2019, CDS PMO provided GAO with the results of an assessment in which it determined that factoring such costs into its estimates is not appropriate. As a result, this recommendation is closed as implemented.

    Recommendation: To better inform on the effectiveness of CDS implementation and border security efforts, the Chief of Border Patrol should 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.

    Agency Affected: Department of Homeland Security: United States Customs and Border Protection: Office of the Commissioner: U.S. Border Patrol

  4. Status: Closed - Implemented

    Comments: DHS concurred with this recommendation. Starting in July 2017, the Consequence Delivery System Program Management Office (CDS PMO) began reporting quarterly progress reports to each sector which include performance data on classifying apprehensions, recidivism rates, average apprehensions per recidivist, and displacement rates. The progress report also includes information on CDS targets, by sector, related to the application of the most effective and efficient consequence and the application of the least effective and efficient consequence. According to CDS PMO officials, they brief U.S. Border Patrol headquarters leadership on CDS performance measures as requested. Additionally, in April 2018, CDS-PMO officials stated that the office will start providing the quarterly progress reports to U.S. Border Patrol headquarters program leadership on a routine basis. With this quarterly progress reporting, U.S. Border Patrol sectors and headquarters leadership will have the information they need to help assess the extent to which CDS is achieving its goals of reduced recidivism and cost efficiency. As a result, this recommendation is closed as implemented.

    Recommendation: To better inform on the effectiveness of CDS implementation and border security efforts, the Chief of Border Patrol should ensure that sector management is monitoring progress in meeting their performance targets and communicating performance results to Border Patrol headquarters management.

    Agency Affected: Department of Homeland Security: United States Customs and Border Protection: Office of the Commissioner: U.S. Border Patrol

  5. Status: Closed - Implemented

    Comments: Since September 2017, the Consequence Delivery System Program Management Office (CDS PMO) provides monthly data integrity reports to sectors to ensure that all apprehensions include an alien classification. Additionally, in December 2017, a modification was made to the apprehension information system used by Border Patrol agents and supervisors when processing apprehended individuals so that the system now displays the last classification assigned to that individual. With the monthly data integrity reporting, Border Patrol agents and supervisors will have greater assurance that each record has complete data. Also, the information system modification will provide processing agents and supervisors immediate information on the last classification to determine the next, appropriate apprehension classification and will assist in preserving data integrity. More correctly classifying alien apprehensions will, in turn, increase 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. As a result, this recommendation is closed as implemented.

    Recommendation: To better inform on the effectiveness of CDS implementation and border security efforts, the Chief of Border Patrol should provide consistent guidance for alien classification and take steps to ensure CDS Project Management Office and sector management conduct data integrity activities necessary to strengthen control over the classification of aliens.

    Agency Affected: Department of Homeland Security: United States Customs and Border Protection: Office of the Commissioner: U.S. Border Patrol

  6. Status: Open

    Comments: DHS concurred with the recommendation. In May 2017, U.S Immigration and Customs Enforcement's (ICE) Enforcement and Removal Operations directorate provided immigration enforcement and removal data on a one-time basis to U.S. Customs and Border Protection's U.S. Border Patrol. In March 2018, U.S. Border Patrol officials requested that ICE provide these data on a quarterly basis. As of July 2020, ICE stated that it had shared the data with U.S. Border Patrol on multiple occasions. To fully implement this recommendation, ICE and U.S. Border Patrol need to document and implement their plans to share the data on a recurring basis.

    Recommendation: The Secretary of Homeland Security should direct the Assistant Secretary of Immigration and Customs Enforcement and Commissioner of Customs and Border Protection 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 Affected: Department of Homeland Security

 

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