Who Secures the U.S. Border?

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U.S. troops are being sent to the southwestern border, but they are limited by law in the ways they can supplement the work of Border Patrol agents.

November 6, 2018

John Moore/Getty
Backgrounder
Current political and economic issues succinctly explained.

Safeguarding the U.S. border, traditionally the responsibility of the Department of Homeland Security, has become a contentious issue as many Central American migrants seek asylum in the United States. The deployment of active-duty troops to the southern border reflects a growing militarization of the area, though their role is constrained by U.S. law.

Who is responsible for U.S. border security?

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Securing the borders primarily falls to U.S. Customs and Border Protection (CBP), a branch of the Department of Homeland Security. It is responsible for overseeing trade and travel in and out of the country, and its duties include preventing criminals, would-be terrorists, and contraband from entry. CBP’s work includes inspecting migrants and cargo at ports of entry, patrolling thousands of miles of border to the country’s north and south, and helping investigate criminal networks. Of CBP’s more than sixty thousand employees, about one third are Border Patrol agents, who exclusively work between ports of entry.

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The southwest border, stretching nearly two thousand miles from southern California to the tip of Texas, has long been the area of highest concern for Border Patrol agents. The number of apprehensions there has dropped significantly [PDF], from a high of 1.64 million in 2000 to about three hundred thousand in 2017, though there has been an uptick this year. While undocumented migration to the United States has significantly declined, a 2013 CFR report found that this is due only in part to increased enforcement.

When are National Guard forces deployed to the border?

U.S. military forces are rarely sent to secure the border. The National Guard, a reserve military force deployed for a wide range of missions at home and abroad, has been called on by U.S. presidents several times in recent years to assist border agents with unauthorized immigration and drug trafficking. National Guard soldiers typically operate in their home state and can be called to action by either a state governor or the president.

In April 2018, two thousand National Guard personnel were deployed along the southwest border as part of a joint operation with CBP known as Guardian Support. Their mission is to assist border agents with logistics, administrative duties, surveillance, and intelligence analysis, as well as to provide aerial and mechanical support. Roughly half of those soldiers are in Texas; the other half are serving in Arizona, California, and New Mexico.

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Why are active-duty troops there?

In October, the Pentagon announced it would send more than five thousand active-duty troops to “harden the southern border,” employing them for efforts such as laying razor wire. Critics have called the move a political stunt amid a midterm election cycle in which President Donald J. Trump has made immigration a core issue.

The 1878 Posse Comitatus Act limits the U.S. military’s role in enforcing domestic laws, meaning that interactions between these active-duty troops and migrants at the Mexican border will be restricted. They can neither detain and deport unauthorized immigrants nor conduct searches or seizures. Like the National Guard soldiers, these troops will largely provide indirect support, such as conducting aerial surveillance and repairing or reinforcing infrastructure.

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What are the rules of engagement?

Armed officials are generally constrained from using deadly force. Under CBP policy [PDF], agents are allowed to use force considered “objectively reasonable to affect an arrest,” taking into consideration whether a person poses a security threat or is resisting arrest; excessive force is prohibited. An agent may use deadly force only in a case of imminent danger of death or serious injury.

CBP personnel face hundreds of assaults each year, with the number spiking in 2017 to more than eight hundred. According to the agency, use of force by border officers or agents that involved firearms has declined by more than two-thirds from 2012, though dozens of people—both citizens and noncitizens—have been reported killed in confrontations with agents in recent years.

What is known about the caravan?

The caravan that has seized President Trump’s attention departed San Pedro Sula, Honduras’s second-largest city, on October 12 with a few hundred migrants, and it quickly grew to more than seven thousand as it crossed into Guatemala and later Mexico. Many smaller caravans have charted a similar course.

Border Patrol
Border Patrol agents apprehend migrants at the southwestern border. John Moore/Getty

Such caravans reflect broader patterns at the United States’ southern border. While the vast majority of migrants in previous years were Mexicans, an increasing number—about one in three—are now asylum seekers, predominantly from Central America’s Northern Triangle: Honduras, Guatemala, and El Salvador. Rather than seeking to evade border patrols, they are turning themselves in, to enter through legal channels. They say they are fleeing gang recruitment, protection rackets, abusive police, and inept criminal justice systems, as well as poverty.

Traveling in large numbers offers a degree of protection from predation on the road and frees migrants from contracting with smugglers. Some 3,200 members of this particular caravan have applied for asylum in Mexico, according to the Interior Ministry. But migrants frequently face harm in Mexico, and the country’s bureaucracy is already stretched beyond its capacity to process claims.

President Trump and members of his administration have warned of Central American gang members and would-be South Asian and Middle Eastern terrorists joining the caravan to infiltrate the United States. Mexican authorities deported two Honduran nationals wanted on drug and murder charges, but claims of other dangerous individuals in the caravans have been challenged by reporters traveling with the group.

How does the asylum process work?

As a signatory to the 1967 protocol to the UN refugee convention, the United States has committed to providing refuge to people with a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” Applicants must demonstrate a credible fear that they would be killed or tortured if returned to their home country.

The U.S. Immigration and Nationality Act enacts this in domestic law. It makes asylum available to those already in the United States as well as those arriving at its borders. Long waits at ports of entry have driven some asylum seekers to cross at unauthorized points, and Attorney General Jeff Sessions said they would be criminally prosecuted for illegal entry.

The first step for asylum seekers at the border is to pass what is known as a credible fear interview. In recent years, asylum officers have determined that three in four asylum seekers [PDF] have a “significant possibility” of qualifying for asylum. Those who don’t pass can be deported.

Passing this first hurdle gains asylum seekers entry into the United States, but their status remains temporary until an immigration court, under the aegis of the Department of Justice, adjudicates their claims. Asylum seekers must show “well-founded fear” of persecution under the convention’s grounds. Success rates vary widely by court, but are overall quite low, in part because the refugee convention was written with persecution by a strong state, rather than violence enabled by a weak state, in mind. An added factor is that asylum seekers have no right to an attorney, unlike in a criminal trial; those with a lawyer are several times more likely to win. A growing backlog in the immigration courts—320,000 asylum cases as of the end of June—has meant long waits for claims to be heard. Many who lose their cases join the ranks of the undocumented population.

Trump has denigrated the legal right to seek asylum as a “loophole” in immigration policy, subject to fraud and abuse. Border crossers and asylum seekers have been detained under a blanket “zero tolerance” policy that resulted in the government separating children from their parents; after backtracking from this policy over the summer, the administration is now reportedly considering new measures to deter would-be asylum seekers. One such measure, which would likely face legal challenge, would present parents with the choice between keeping their children with them in indefinite detention or having them placed in outside custody.

Sessions has also narrowed the criteria for asylum [PDF], instructing judges that gang or domestic violence generally does not qualify as grounds for asylum. The American Civil Liberties Union is challenging this reversal of precedent in federal court.

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