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Report: Customs and Border Protection's discipline system 'broken'

Corrupt officials 'pose a national security threat'

A federal oversight panel charged with reviewing how Customs and Border Protection handles deadly-force cases and corruption has said nine months after the group submitted recommendations, the agency's disciplinary process still "takes far too long to be an effective deterrent." 

First published by the Los Angeles Times on Monday, the 58-page report was due to be submitted to Homeland Security Secretary Jeh Johnson on Tuesday. In the report, a group from the Homeland Security Council made a series of recommendations designed to mitigate use of force incidents and stop corruption in the agency. 

In the report, the 10-member "integrity advisory panel," which includes former Tucson Police Chief Roberto Villaseñor and former U.S. Rep. Ron Barber, said that corrupt officials "pose a national security threat" that must be addressed. 

While the agency has made improvements, the potential for corruption remains a major issue, as CBP has over 44,000 "sworn law enforcement officers," the council said.

Read the complete report

The council also noted that "until recently CBP lacked the structure, oversight and accountability required to uniformly" implement new standards, as part of an overall effort by CBP Commissioner R. Gil Kerlikowske to improve the agency's transparency and accountability launched in 2014. 

The panel noted that CBP has not been transparent when it comes to use of force incidents, and although this is changing, the agency has "never developed a truly CBP-wide process for receiving, tracking and responding to public complaints." 

"The CBP discipline system is broken," the panel said. "The length of time from receiving an allegation of misconduct to imposing final discipline is far too long." 

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Cases involving allegations of serious misconduct take more than a year and a half, the panel said. 

"This undermines the deterrence goals of discipline. And, it is a disservice to those CBP employees who are left in limbo under the cloud of misconduct allegations that are later disproven or do not warrant disciplinary action," the panel said. 

CBP's discipline process remains byzantine, in part because it involves several different offices of CBP with "different and overlapping responsibilities," the panel said. 

"No one official and no single office of CBP is actually responsible for assuring timeliness for all phases of the discipline process, from intake and investigation to the discipline review board, to the imposition of discipline by the deciding official, through the appeal phase," the panel said. 

This ranges for serious questions about use of force incidents, to discipline regarding alcohol and drug monitoring, anger management training, and fails to follow the best practices within police departments and other law enforcement organizations, the panel said. 

Officials with DHS, CBP, and Border Patrol were not available for comment. 

Last June, a draft of the Homeland Security Council report was released, recommending that the agency should more than double the number of investigators, increasing the number of agents in CBP's Office of Internal Affairs from 218 to 550 agents. The office should also have be given the the lead role in reviewing cases of misconduct, corruption, and excessive force by Border Patrol agents and CBP officers, the panel said.

'Threat of corruption'

However, nine months later, the panel said that "implementation of the principal interim recommendations needed to harden CPB against threats of public corruption have not been completed." 

In October, CBP announced that Border Patrol agents and Customs officers used physical force less often in the past year, even as assaults against agents remained steady over the 12-month period. 

Kerlikowske praised the reduction, noting that the application of force by the agency has dropped 26 percent from fiscal year 2014 to fiscal year 2015, which ended Sept. 30. 

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However, data released by the agency shows that the reduction in incidents is largely due to a drop in the number of "less lethal" weapons, which includes the use of pepper-ball launchers, Tasers and batons. 

Last June, the Homeland Security Council panel said the agency should alter its use of force policy. This included telling agents and officers that: "CBP values human life and the dignity of every person and that the primary duty of every CBP officer/agent is the preservation of human life."

And, the panel said the agency should adopt clearer guidelines on when agents can fire their weapons. In 2014, new rules of engagement required agents to seek alternatives to opening fire on people throwing rocks. If possible, agents were urged to seek cover or move back, Kerlikowske said. 

Agents should also be expressly prohibited from firing at moving vehicles, unless the occupants of the vehicle presents a deadly threat to the agent or another person. This, the panel said, must be other than the use of the vehicle itself.

The recommendations echo those made in 2014 by the Police Executive Forum, which said that the agency lacked diligence with regard to the investigation of use of force incidents, pursuing a "no harm, no foul" approach that led to "tacit approval of bad practices."

If the agency accepted and followed the panel's recommendations, the "risks of endemic corruption taking root within CBP will be eliminated" while the "use of unlawful and unconstitutional force by CBP law enforcement, most especially use of lethal force, will be a rarity." 

The panel submitted 39 new recommendations, to focus the agency’s efforts on stamping out corruption in the agency. 

Among the recommendations: 

  • The commissioner of CBP should have the authority to immediately fire or suspend without pay agents and officers who committed "egregious, serious and flagrant misconduct." 
  • Internal affairs investigators should study patterns in use of force incidents to track repeat offenders, and the current system which flags agents who use force more than three times in six months, is insufficient. 
  • The agency should designate some Border Patrol agents as "Sector Integrity Officers," copying a system done by the Office of Field Operations, which works the nation's ports. 
  • Actively "engage" with the Drug Enforcement Agency and other intelligence agencies and study the movement of drugs through certain U.S. ports. 
  • Use sensors to track pilots and boat crews. 
  • Extend the probation period of new agents and officers from one to two years, and expand the polygraph program to include random and targeted tests after agents are hired.
  • CBP should record all conversations on toll-free “hotlines” that accept complaints, but make it clear that people can report anonymously, and take “reasonable steps” to ensure that anonymity is held.
  • Require all CBP personnel to immediately self-report misconduct, including arrest for DUI or misuse of alcohol, spousal abuse, and bribery attempts within 24 hours.
  • And, officers with OFO should be tasked to perform primary inspections at Border Patrol's permanent interior checkpoints. 
  • Finally, the agency should work to use "cameras most suitable for CBP’s unique environment" and deploy them among agents and officers. 

Last May, the Washington-based American Immigration Council reviewed 809 abuse complaints and found that fewer than two percent of complaints made against agents led to action.

More than a third of those complaints came from Tucson Sector, however, when compared to the number of apprehensions, the Del Rio Sector in Texas had the highest rate of abuse complaints.

The Tucson figures could include the death of Jose Antonio Elena Rodriguez, a 16-year-old boy shot to death in October 2012 by Border Patrol Agent Lonnie Swartz. Swartz fired through the border fence in Nogales, hitting the boy approximately 10 times. The government has claimed that the agent was responding to rock-throwing that broke out in the wake of a report of suspected drug smuggling.

Last September, Swartz was indicted by a grand jury and will face second-degree murder charges in federal court in November. 

More than 50 people have been killed by Border Patrol agents since 2005, including an incident in January when an agent shot a suspected drug smuggler along the Arizona-New Mexico border. 

While the FBI has taken charge of the investigation, CBP has refused to release any information about the man who was shot, or the agent who discharged his weapon, highlighting that even under new rules for transparency, federal officials continue to hold back information. 

And, in November, Border Patrol Agent Juan Pimentel was arrested by Arizona Department of Public Safety officers after they uncovered 50 bundles of cocaine among four suitcases in his car. According to court documents, Pimentel admitted to agreeing to transport the drug to Chicago for $50,000. 

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