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New DHS report provides data on visa overstays

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Earlier today the Department of Homeland Security publicly released a Congressionally-mandated report entitled “Entry/Exit Overstay Report, Fiscal Year 2015.” The report presents detailed country-by-country information on visa overstays for Fiscal Year 2015: data that I don’t recall being compiled or publicly released in previous years.

Two key insights from the report:

1. VWP vs. non-VWP overstay rates. Overall, the report calculates the in-country visa overstay rate for Visa Waiver Program (VWP) countries at 0.65% and non-VWP countries at 1.60%. But it is notable, in taking a granular country-by-country look at the data, that many large non-VWP countries have lower overstay rates than some of the VWP countries. For example, non-VWP country China’s overstay rate is calculated at 0.89% – lower than Austria’s at 1.28%. Indonesia’s overstay rate is 1.21% – lower than Spain’s at 1.40%.

It is of course noteworthy that these are not apples to apples comparisons: the non-VWP countries’ travelers are all people applied for and were approved for visas (whereas many of their compatriots were likely rejected for visas); but travel is permitted freely (pursuant to an ESTA approval) for the vast majority of citizens of VWP countries. But in spite of this fact, it is worth looking more closely at why certain lower and middle-income countries have relatively low overstay rates, and whether there are other non-economic factors (e.g. political stability, social cohesion) that influence overstay rates and should be considered in assessing countries’ applications to join the Visa Waiver Program.

2. Assessment of pilot projects and studies. The report also provides detailed information on current and planned projects at Customs and Border Protection (CBP) that are intended to enhance efforts to reduce overstay rates. Notably, the report discusses CBP’s Biometric Exit Mobile pilot, and notes that it “has afforded a small amount of biometric departure data and provided a significant law enforcement benefit for existing outbound operations.” The report does not quantify what is meant by a “significant law enforcement benefit,” but if such biometric data collection provides a valuable means to detect fugitives and absconders, in addition to its value from a border security standpoint, then an investment to scale up such a pilot project into a nation-wide capability may be warranted.

New Generation drug cartel threat to Mexico

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According to Agence France Presse, Mexico is facing a new and growing security challenge from the Jalisco New Generation drug cartel. As the name suggests, the group first emerged in Jalisco in the western part of the country, as an offshoot of the Sinaloa cartel; but is now an independent entity with links worldwide to gangs and organized crime “in the United States, Latin America, Africa, Europe, and Asia.” In the estimation of a former senior U.S. Drug Enforcement Agency official: “`They are the fastest-growing cartel and if they continue to grow as they have been they will become more powerful than the Sinaloa cartel and the Zetas combined’.”

The Jalisco New Generation cartel is also targeting federal, state, and local security forces; and is taking the violence to an area that “is one of the country’s economic and cultural hubs.” This, plus the group’s growth, has placed the cartel firmly in the crosshairs of Mexico’s government; and commentators have therefore suggested that these tactics will ultimately work against the cartel.

Civil society may also prove to be an increasingly powerful force as these and other challenges continue to play out in Mexico. Recent reporting by The Economist suggests that Mexican NGOs “are gaining big influence” using “hard facts and solid arguments”; hence the government may experience pressure from an additional source, to deal with the latest incarnation of the cartel problem effectively and quickly.

To be fair however, that is no easy task, bearing also in mind the demand side of the equation. Domestic and international drug control policy remains a subject of heated debate; and the pitch of that discussion will undoubtedly rise as the 2016 Special Session of the United Nations General Assembly on the world drug problem draws nearer.

A breakthrough on DHS funding: Four initial thoughts

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The House of Representatives has now passed the “clean” Senate-passed version of the DHS appropriations bill for fiscal year 2015. The bill will now go to President Obama for signature, and the looming threat of a partial shutdown of DHS will be averted. Importantly, the bill that is moving forward is a full appropriations bill, and not another continuing resolution, so new priorities for Fiscal Year 2015 will be funded.

A few initial thoughts on this outcome:

First, it shows that trying to use DHS appropriations as a bargaining chip toward desired policy outcomes is a losing strategy, for either party and regardless of the relative merits of the desired policy outcomes. Just as it would be unwise for either political party to threaten Defense appropriations over disagreements on military strategy, it is also unwise to try to use DHS funding as a bargaining chip in a broader debate on immigration policy or any other DHS-related policy issue. The potential risks of a DHS shutdown – in terms of a degradation of the Department’s frontline activities, and the economic and social impact of not paying employees – are too great, especially during a period of a heightened terrorist threat.

Second, I hope that this outcome does not reduce the imperative for further action by this Congress on immigration and border security. There are significant national and economic security issues that legislation can help to address, and I still believe that there is a middle ground where a common-sense deal can be struck that would receive the support of 70-80% of the members of the House and Senate.

Third, I think that the effort by Secretary Johnson and his team to address this issue, and make the case for funding DHS, has perhaps been the most effective public relations campaign in the twelve years of the Department’s existence. The Secretary has been ruthlessly on message about this issue, and has factually made the case about the potential impact of a shutdown on the Department’s operations and on DHS’s support for state and local responders. He has managed to do this without being adversarial, which likely paid dividends in terms of garnering Congressional support for the pending outcome.

Fourth, I hope that the resolution of this issue clears the path for the Senate to finally confirm Russell Deyo to be the Under Secretary for Management at DHS. I wrote in mid-February about the status of his nomination, which has now been stalled on the Senate floor for nearly four months, perhaps due in part to gridlock related to this broader funding fight. Deyo has broad bipartisan support, and with DHS appropriations now resolved, the Senate should try to approve his nomination this week.

The DHS funding endgame: How can Congress get to yes?

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The U.S. Congress remains gridlocked in its efforts to fund the Department of Homeland Security for the remainder of fiscal year 2015, with the Department’s funding scheduled to lapse after this Friday, Feb. 27th. In the latest development in this saga, the Senate failed again today to achieve the 60-vote threshold for a motion to proceed to the House-passed bill. News reports today in the New York Times and Politico provide in-depth updates on the current state of play.

Recent statements by members of Congress from both parties indicates that very few members of Congress see a partial shutdown of the Department of Homeland Security as being a desirable outcome. A shutdown will not halt the President’s recent immigration orders; instead it will perversely punish the very people who are on the front lines of protecting our nation’s borders including those serving at CBP, ICE and in the Coast Guard. And it would come at a time when the nation faces a significant terrorist threat to the homeland, most recently exemplified by al Shabaab’s stated threat this weekend against shopping malls.

But both parties are so dug into their respective positions on the immigration policy provisions that it is extremely unlikely that one side will simply cave in and accede to the other’s position. Therefore it is time for Congress to consider alternate solutions to try to resolve this impasse. One option currently being weighed by Sen. McConnell is including a narrower set of policy riders that he hopes may win over a handful of Senate Democrats.

Another option is to decouple DHS appropriations from the immigration debate, by passing a “clean” DHS appropriations bill (not a CR) in exchange for a unanimous consent (UC) agreement for a clean Senate process to advance immigration and border security legislation in the 114th Congress. All of this could be accomplished quickly via Senate passage of the House DHS Appropriations bill (as modified, with immigration policy riders removed) concurrent with a UC agreement in the Senate that includes the following provisions:

  • The Senate Majority Leader would be provided with the authority in the 114th Congress to bring a motion to proceed to broad-based immigration and border security legislation (as defined by the Senate Parliamentarian) to the floor (either from the House or the Senate Judiciary Committee) at a simple majority vote threshold, instead of at 60 votes per normal procedures
  • The Senate could proceed immediately to consideration of the bill after the passage of a motion to proceed, without needing the cloture motion to “ripen”;
  • Each side would be guaranteed at least 15 amendments (as determined by the Majority Leader and Minority Leader) at a simple majority vote threshold, and not subject to filibuster;
  • Final passage of the bill would be subject to a simple majority vote threshold, and not subject to filibuster;
  • Other dilatory tactics currently allowed under Senate rules (e.g. the clerk reading the bill) would not be allowed under the terms of the agreement.

Such an agreement would also need to be conditional on the House actually passing the clean Senate-passed bill without further changes, so that it could then be signed by the President.

This unanimous consent agreement would provide a much clearer procedural path for the House and the Senate to advance immigration and border security legislation in the 114th Congress than currently exists, giving them a direct legislative pathway to address this set of issues. At the same time, the agreement would preserve the President’s ability to veto any legislation, which hopefully would provide the basis for a constructive negotiation between the two parties on these issues and lead to immigration and border security legislation that has bipartisan support.

This is optimistic on my part, to be sure. But the consequences of allowing DHS funding to lapse are so serious that it is time to consider options such as this one, or any other face-saving outcomes that allow both sides to “get to yes” on funding the Department.

Lengthy Politico story examines the Border Patrol

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A new 11,000 word article in Politico’s magazine entitled “The Green Monster” provides an in-depth look at the U.S. Border Patrol’s growth since September 11, 2001, and the problems that have accompanied this growth, particularly with respect to increasing corruption and use-of-force issues among Border Patrol agents.

The article is well-researched, and relies on interviews with nearly all of the senior DHS and CBP leaders from the past decade. It highlights a number of critical organizational and policy issues that need to be addressed by DHS and CBP leadership, and by Congress, including (a) the Border Patrol’s insular culture, even within CBP; (b) constraints on CBP’s investigative authorities, a byproduct of the CBP-ICE split when DHS was created; and (c) the impacts of not having a Senate-confirmed leader at CBP for the first 5+ years of the Obama Administration, until Gil Kerlikowske’s confirmation in March of this year. The article also serves as a stark warning about the folly of additional major increases to the size of the Border Patrol, as the 2013 Senate immigration bill would have required.

My only complaint about the story is that in pointing out these very real problems, it fails to adequately put into context the fact that the vast majority of Border Patrol agents are honorable and hardworking, carrying out a very difficult mission, often in harsh physical operating conditions. But overall, the story makes a number of important points and is worth reading in full.

Fear Canada? Examining the Border-Counterterrorism nexus

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Garrett Graff from Politico (and also the author of a very good book on the post-9/11 FBI) wrote an article that was released late last week entitled “Fear Canada: The Real Terrorist Threat next Door.”

The piece assesses the relative risks of terrorists attempting to travel to the United States via our southern or northern border, and examines US strategies to address these risks, arguing that Canada presents a greater risk that Mexico in terms of potential efforts by ISIS or other terrorist groups to enter the United States. It also argues that counterterrorism is a secondary priority for the US border security mission:

The frenzied debate [about ISIS fighters coming across the Southern border], though, has unwittingly exposed one of the strangest disconnects in post-9/11 American politics: While much of the political rhetoric around border security is focused on stopping terrorism, comparatively few of the U.S. border security resources are directed toward stopping terrorists from entering the United States. Instead, the billions of dollars of fencing, technology and personnel assigned since 9/11 to police the border has almost entirely been aimed at stopping illegal immigration along the southern border.

I think this point is valid with respect to the U.S. Border Patrol’s mission between the US Ports of Entry; their primary operational areas of focus are preventing illegal immigration and smuggling. But I’d argue that this point is not valid for the other half of CBP; the Office of Field Operations’ border security activities at Ports of Entry (and prior to international arrival), where it plays a very important role in preventing and deterring potential terrorists from entering the United States.

In terms of the discussion in the article of the relative threat to the US from the northern vs. southern border, I tend to think that the piece overplays the northern border threat, given the strong cooperation and information sharing between the two countries, and the important fact that would-be Canadian terrorists seem to be primarily focused on carrying out attacks against Canadian targets, as we have sadly witnessed this week.

With respect to the southern border, while I think that there have been excessive political rhetoric of late about this potential threat, I also don’t think it is wise to wholly discount the possibility of ISIS or other terrorist groups attempting to exploit the southern border for entry into the United States, even if there is no “specific intelligence” at this point to suggest such actions. We know that there are well-established human smuggling pathways from East Africa and South Asia to the United States via Latin America and the Caribbean, and that several hundred people from “Special Interest Countries” such as Somalia and Pakistan are caught each year at the US-Mexico border. And if ISIS has significantly greater financial resources than al Qaeda and its affiliates, then that potentially gives it a capability to exploit or corrupt the border system that other terrorist groups have not recently possessed.

Overall, this is a piece worth reading, on an important set of issues of issues that are worthy of further debate and analysis.

DHS Secretary outlines plans for Southern border task forces

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In a speech today at CSIS, DHS Secretary Jeh Johnson outlined his plans for addressing border security challenges. His remarks were accompanied by a Powerpoint presentation that included a number of trend-line charts on the current state of border security.

The major policy announcements in the speech were the development of a new DHS strategy for the Southern border, and the related decision to establish three new task forces that are intended to integrate the activities of its major operating components at the field level on the Southern border. The three key paragraphs:

To pursue this Southern Border campaign plan, we are, first, developing a Department-wide strategy for the security of the Southern border and approaches. We will then direct the resources and activities of the Department’s components accordingly.

Our overarching goals will be effective enforcement and interdiction across land, sea, and air; degrade transnational criminal organizations; and do these things without impeding the flow of lawful trade, travel, and commerce across our borders. We are now in the midst of developing the more specific plan to pursue these goals, and associated metrics. A planning team from across the Department led by Coast Guard Vice Admiral Charles Michel is developing lines of effort, actions, and milestones to accomplish these goals in an effective, cost-efficient manner.

We will then take the logical next step in this plan and establish three new Department task forces, each headed by a senior official of this Department, to direct the resources of CBP, ICE, CIS and the Coast Guard in three discrete areas. The first, Joint Task Force-East, will be responsible for our maritime ports and approaches across the southeast. The second, Joint Task Forces-West, will be responsible for our southwest land border and the West coast of California. And the third will be a standing Joint Task Force for Investigations to support the work of the other two Task Forces.

This focus on enhancing the integration of DHS activities in the field is a very sensible approach; the Secretary is correct when he notes that there is inadequate integration between CBP, ICE, the Coast Guard and other entities in the field. (Even within CBP, I’d argue that its three major operating elements – the Border Patrol, the Office of Field Operations, and Air & Marine Operations – are insufficiently integrated).

But the Secretary’s proposal leaves some unanswered questions:

a) How do these three new task forces overlay and interact with existing interagency centers and task forces at the Southern border that DHS is already participating in, including JIATF-South, EPIC, AMOC, and the Border Enforcement Security Task Forces (BESTs)?

b) What types of activities will the two regional task forces be undertaking? Are they primarily focused on planning, resource allocation, and other strategic issues? Or will they be operational in their day-to-day activities? Will they have an intelligence-related role, and if so, how will that be managed?

c) What incentives will be establish to encourage and incentivize jointness among the DHS component staff at the southern border? Are new programs to encourage personnel rotations or details being considered? Does DHS need its own version of Title IV of the Goldwater-Nichols Act to increase incentives for joint duty among personnel at CBP, ICE, the Coast Guard and other agencies?

Hopefully more information will be provided in the coming weeks that fills in the details about this proposal. But overall, this is a constructive and necessary initiative by the Secretary and his team, one that if implemented effectively will result in improved operational efficiency and coordination in DHS’s operations on the southern border.

House Homeland puts forward its southern border blueprint

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The Chairman of the House Committee on Homeland Security, Rep. Michael McCaul, released a report on Monday of this week entitled “Blueprint for Southern Border Security”, a detailed analysis of the operational challenges that DHS faces on the southern border and a proposed framework for addressing them. Some of the major principles articulated as part of this “blueprint” include:

a) improving situational awareness through use of technology deployments and improved intelligence;
b) improving unity of effort among agencies on the southern border, including those with maritime responsibilities;
c) developing improved outcome-based metrics for border security;
d) increasing penalties as a means of deterring future border crossing attempts;
e) engaging internationally, including with countries in Central America.

Notably and laudably, the report does not call for an increase in the size of the Border Patrol – something that was included in the immigration reform bill passed by the Senate in 2013, but as I argued at the time, would be a terrible and costly idea. Instead, the report focuses on providing the current Border Patrol agents with the capabilities that can serve as a force multiplier, enabling them to do their job more efficiently and effectively.

Overall, this is a solid assessment of the current operational situation at the southwest border that includes sensible options for how to improve southern border security. What is needed to complement this is a detailed cost-benefit analysis of these proposals (both as isolated proposals and as a whole) that considers and quantifies where DHS can get the greatest return on its investments in southern border security, and where (by contrast) investments would have little value and/or face diminishing marginal returns.

DHS IG critiques Visa Security Program

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The Department of Homeland Security’s Office of Inspector General has released a new, detailed report looking at the Visa Security Program, run by U.S. Immigration and Customs Enforcement (ICE).  

The objectives of this program are clearly worthwhile, especially in light of the growing threat of foreign fighters in Iraq and Syria attempting to travel to the United States to carry out attacks. But the report raises serious unanswered questions about the effectiveness of the program. The key finding from the report:

ICE is required to develop measures that accurately assess performance. However, current performance measures for the VSP do not accurately measure effectiveness. In addition, ICE did not take appropriate actions to ensure that (1) data needed to assess program performance is collected and reported, (2) appropriate advice and training is provided to consular officers, and (3) the amount of time needed for VSU‐related activities at each post is tracked and used in determining staffing and funding needs. As a result, ICE is unable to ensure that the VSP is operating as intended.

ICE concurs with all of the recommendations in the report, so hopefully this will provide the basis for ongoing assessment of the program’s performance. In particular, it may be beneficial to examine this program (a) in light of the maturation of other terrorist travel programs in the last decade, and (b) whether additional VSP functions can be performed as effectively (and at a lower cost) in the United States instead of at U.S. embassies overseas.