Chief Magnus' confirmation for CBP's top position moves forward

The nomination of Tucson Police Chief Chris Magnus to lead U.S. Customs and Border Protection moved forward Wednesday after a Senate committee voted 15-13 to advance his confirmation.

The vote split almost entirely along partisan lines, and came down to Sen. Bill Cassidy, a Republican from Louisiana, who voted in favor of Magnus.

Two weeks ago, Magnus managed to walk a fine line in a hearing, fielding questions from Democrats while avoiding calling this year's rise in encounters with migrants a "crisis" along the border. During the hearing, Magnus agreed that COVID-19 vaccinations for immigrants would be reasonable, and told Senate Republicans that a border wall would make sense in some areas, along with better technology for Border Patrol officers.

"If we spent a little less time debating on what the terminology is and perhaps a little more time trying to fix a broken system and working together, we could address what I’ve already acknowledged is one of the most serious problems that we face right now in our nation," Magnus said.

Backed by Arizona Sens. Krysten Sinema and Mark Kelly, Magnus told the committee that as a resident of a city near the U.S.-Mexico border, it was "essential to recognize that what we think of as the border is not homogeneous, and there is no one solution that will provide us the perfect border security."

"If confirmed, I will do what I have always done in my professional career—uphold the law," he said. "I will also expect–without exception—that all agency personnel be conscientious, fair and humane when enforcing the law," he said.

In a series of answers to questions submitted to Magnus before the hearing, he said that he would push CBP to ensure that personnel have the "proper" training to death with children coming across the border, and he said that "although the men and women of CBP have overwhelmingly risen to meet this incredibly difficult challenge, the current system has no doubt led to issues in terms of safety of migrants, Border Patrol agents, and border communities; border security between the ports of entry; and agent morale."

"If confirmed, I would certainly hope to work with Congress on a bipartisan basis to address the current, broken system," Magnus wrote.

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.

This fiscal year, which ended on September 30, CBP officials encountered people 1.7 million times. However, this figure driven largely by the agency's use of Title 42, as CBP figures show that the recidivism rate among encountered migrants has nearly doubled. In September alone, nearly 26 percent of people had a least one prior encounter in the previous 12 months, said Acting CBP Commissioner Troy Miller, adding that in previous years, the recidivism rate was around 14 percent.

In September, CBP reported encountering people 192,001 times, however, that represents about 142,701 unique individuals, Miller said.

While 2021's figures appear to have passed the number of apprehensions made in 2000, data shows that actual migration figures was lower in 2021.

“There were more encounters at the U.S.-Mexico border during fiscal 2021 than any prior year. But because of repeat crossers and pandemic-era expulsion policies, it’s quite unlikely that 2021 represents record high numbers of individual migrants encountered or numbers that succeeded in illicitly entering the United States,” said Doris Meissner, former commissioner of the U.S. Immigration and Naturalization Service and a fellow at the Migration Policy Institute. 

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.

Magnus was nominated in April to lead 58,000-strong agency by President Joe Biden, but his nomination was held up by the Senate Finance Sen. Ron Wyden, the chairman of the Senate Finance Committee for months because under the Biden administration, the Department of Homeland Security and the Justice Department had "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, Ore., in July 2020.

However, Wyden agreed to let Magnus' nomination move forward in September following a call with Homeland Security Secretary Alejandro Mayorkas. 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.

Idaho Sen. Mike Crapo, the ranking Republican on the U.S. Finance Committee was one of voted against Magnus' nomination.

In a statement released before the hearing, Crapo complained that Magnus would not call this year's apprehension figures, and the increase of Fentanyl seizures "a crisis." 

"I cannot understand why the Administration refuses to call this the crisis that it is—other than to avoid taking responsibility and committing the requisite resources to address it," he said. "The nominee was asked by Members of this Committee multiple times to acknowledge we face a crisis.  He declined to do so."

"Although I will not be voting in favor of Mr. Magnus’ nomination today, I believe we do share common concerns, including combating the importation of goods made with forced labor and enforcing our trade remedy laws," Crapo said.