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TPD Chief Magnus' confirmation for top Customs & Border Protection post to finally move ahead

DHS agrees to review actions in Portland, create watchdog council; Senator lifts hold on Tucson police chief's nomination

Five months after Tucson Police Chief Chris Magnus was tapped to lead U.S. Customs and Border Protection, his nomination will move forward after the head of the Senate committee responsible for the process resolved a months-long dispute over questions about the actions of federal officers during unrest in Portland, Oregon last year.

Since April, U.S. Sen. Ron Wyden, a Democrat from Oregon, has stalled Magnus' nomination because under the Biden administration, the Department of Homeland Security and the Justice Department have "failed to answer basic questions" about how federal officers — including members of the U.S. Border Patrol's special operations group BORTAC — operated during unrest in Portland last July, under President Donald Trump.

Magnus is set to become the commissioner of CBP during a time when the agency faces significant pressure over a massive influx of people attempting to cross the U.S.-Mexico border, as well as serious questions about how agents treat migrants while two Trump-era policies remain in place, and may be shuttered by federal courts.

This includes a process known as "metering" when CBP officials have told asylum seekers that their facility is full, when this simply wasn't true. Magnus will also have to deal with the fallout of challenges against Title 42—a policy ostensibly supported by the CDC that allows the agency to rapidly deport those who crossed into the U.S. after they traveled through a country with COVID-19 infections—which has been successfully challenged by immigrant and civil rights groups on behalf of migrant children and families.

On Wednesday, Wyden said that following a call with Homeland Security Secretary Alejandro Mayorkas, he would schedule a hearing on Magnus' nomination. Wyden said that Mayorkas called the actions of some federal officers in Portland "unacceptable," and promised to release a report by the agency's Office of Intelligence and Analysis that reviewed the actions of DHS personnel in Portland last year.

Wyden's move comes after DHS said it would create the Law Enforcement Coordination Council to oversee its law enforcement agencies.

Wyden said that the head of DHS said it would "begin this week reviewing its law enforcement policies, including use of force and of chemical munitions – a review I've been calling for since Trump first deployed federal troops to Portland and other U.S. cities in the summer of 2020."

"And Secretary Mayorkas told me he agrees that the human toll of tear gas is serious and that the use of tear gas in or near schools is unacceptable," he said. "I am gratified that CBP confirmed in written responses to my questions that it has not deployed any law enforcement personnel to Portland since January 2021 and that DHS is both committed to reviewing its training and engaging with communities of color to hear their concerns," he said.

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"I have heard firsthand from Oregonians how Donald Trump's dispatch of troops to Portland back in the summer of 2020 led to tear gas damaging their health, and from school officials how tear gas canisters were left wantonly in a school sandbox where children play," Wyden said. "Simply put, that adds up to an unacceptable response, and Secretary Mayorkas has told me that what went on in Portland is unacceptable."

Wyden said that DHS would begin reviewing law enforcement policies, especially around the use-of-force and the use of chemical munitions. "Secretary Mayorkas told me he agrees that the human toll of tear gas is serious and that the use of tear gas in or near schools is unacceptable," Wyden said.

"Today marks the beginning of a long-needed process to examine Trump's unilateral deployment of federal law enforcement in U.S. cities that left Oregonians with serious injuries, as well as federal troops' indiscriminate use of tear gas against overwhelmingly peaceful protesters," Wyden said.

Magnus told TucsonSentinel.com that he couldn’t comment on the process Wednesday, but would if his nomination went through.

In July, he told TucsonSentinel.com he could not discuss the delay in confirmation, but added he hoped the matter will be resolved soon "so I can move forward in the process."

With Magnus' nomination delayed since April, Troy Miller has been the acting commissioner since January 20 when the Biden administration began. If Magnus is confirmed as CBP's head, he would be the twelfth person to lead the 58,000-strong agency as commissioner since its creation in March 2003.

Even as Magnus' nomination remains delayed, CBP faces an continued influx of people coming across the U.S.-Mexico border, including thousands of unaccompanied minors and families, largely seeking legal asylum in the U.S. In recent weeks, the agency came under withering pressure as thousands of Haitians sought refuge near Del Rio, Texas.

In fact, the use-of-force became a major focus after U.S. Border Patrol agents mounted on horseback were accused of "whipping" Haitians attempting to cross the river carrying food for their families waiting to seek asylum. The agents were carrying "split reins," a common piece of tack for riding horses in the bushy and complex terrain along the Rio Grande.

While hundreds of families were brought into the U.S. to seek asylum, the agency also processed at least 5,000 Haitians for immediate expulsion under Title 42.

Meanwhile, in August, CBP personnel encountered nearly 209,000 people, and since the beginning of the fiscal year on October 1, the agency has encountered more than 1.5 million people. However, officials said that encounters do not refer to individual people, largely because Title 42 explusions allow thousands to attempt to try to enter the U.S. multiple times.

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As Miller put it during a statement on Sept. 15, the number of unique people during August was 156,641. And, around 25 percent of people encountered by CBP officials "had at least one prior encounter in the previous 12 months."

Miller said that from 2014 to 2019, that rate was around 14 percent.

Although he opposed a local "sanctuary city" initiative as Tucson's police chief, a post he's held since 2016, Magnus was a staunch critic of President Donald Trump's border policies, and he regularly blasted members of that administration, including former Attorney General Jeff Sessions.

"The harsh anti-immigrant rhetoric and Mr. Sessions's reckless policies ignore a basic reality known by most good cops and prosecutors," Mr. Magnus wrote in a New York Times opinion piece in 2017. "If people are afraid of the police, if they fear they may become separated from their families or harshly interrogated based on their immigration status, they won't report crimes or come forward as witnesses."

Magnus also joined Pima County officials in rejecting grants from Operation Stonegarden, which funds cooperation between local law enforcement and the Border Patrol.

Federal officers clash with protesters in Portland

Over the summer of 2020, thousands of protesters clashed with federal officers outside the U.S. courthouse in downtown Portland during a prolonged protest focused on racial justice and police accountability.

The incidents continued for weeks in the Oregon city.

As the protests accelerated, federal officers had lasers shined in their eyes, and endured a hail of Molotov cocktails, unknown liquids, rocks, and fireworks. BORTAC agents detained some people, grabbing them off the street and cramming them into unmarked vehicles. Federal agents also fired tear gas and pepper-balls into the crowd, injuring several people.

This included 26-year-old Donavan La Bella, who suffered a fractured skull after he was shot in the head with a "less-than-lethal" round fired by federal agents.

Wyden blamed the former president for that incident. "The consequences of Donald Trump unilaterally dispatching fed'l law enforcement into U.S. cities played out in Portland w/a peaceful protester shot in the head," wrote Wyden on Twitter. "Trump & Homeland Security must now answer why fed'l officers are acting like an occupying army," he said.

The U.S. Marshals Service told the Washington Post in July 2020 that it was investigating the incident, saying that it occurred while officers were "securing the perimeter of the federal courthouse."

Following the incidents in Portland, members of the Senate Intelligence Committee wrote they had "grown increasingly concerned" about the role and operations of the Department of Homeland Security, and the Office of Intelligence and Analysis "in particular." In a letter, signed by seven Senators, including Wyden, the committee asked more than two dozen questions of DHS, that still remain unanswered.

In March 2021, U.S. Sen. Mark Warner, a Democrat from Virginia, sent a new letter to DHS asking for further review of the intelligence gathered by the Office of Intelligence and Analysis and said DHS should "prepare a reported suitable for public release."

The following month, the Inspector General's office with DHS issued a report, outlining the events in Portland.

While DHS had the authority to send federal agents to protect federal office buildings in Portland, the OIG wrote that DHS was "unprepared to effectively execute" operations with other agencies to protect those buildings, including a federal courthouse.

"Specifically, not all officers completed required training; had the necessary equipment; and used consistent uniforms, devices, and operational tactics when responding to the events in Portland," the OIG wrote.

Between June 4 and Aug. 31 2020, DHS sent a total of 755 officers—including 337 Border Patrol agents—to Portland as part of an effort dubbed "Operation Diligent Valor." The officers made 62 arrests, and protesters reportedly damaged the Hatfield U.S. Courthouse to the tune of around $1.6 million. The total cost of the operation was around $12.3 million, the OIG wrote.

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"This occurred because DHS did not have a comprehensive strategy that addressed the potential for limited state and local law enforcement assistance, as well as cross-designation policies, processes, equipment, and training requirements," the watchdog wrote. "Without the necessary policies, training, and equipment, DHS will continue to face challenges securing Federal facilities during periods of civil disturbance that could result in injury, death, and liability."

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Paul Ingram/TucsonSentinel.com

Tucson Police Chief Chris Magnus during a press conference in August 2020.

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