Legislation

FAIR Legislative Update March 4, 2013


White House Domestic Policy Director Insisted 1986 Amnesty Wasn't Big Enough

While pro-amnesty Members of Congress negotiate with each other and the White House on what an "acceptable" amnesty bill might look like, they may be curious to learn more about one of the key players in the negotiations: Cecilia Munoz.  In her position as Director of the Domestic Policy Council, Ms. Munoz coordinates the domestic policy-making process in the White House, including immigration policy. (White House website)   

Prior to her appointment at the White House, Ms. Munoz spent decades advocating for open borders at the National Council of La Raza (NCLR) And from the beginning of her career at La Raza, Ms. Munoz sought to undermine the bi-partisan deal Congress reached when it originally passed the 1986 amnesty, the Immigration Reform and Control Act (IRCA). (Public Law 99-603)  In fact, in her 1990 report entitled Unfinished Business: The Immigration Reform and Control Act of 1986, Ms. Munoz fought not only to expand the amnesty, but to gut the employer sanctions portion of IRCA.  That provision of IRCA for the first time imposed civil and criminal penalties on employers who hire illegal aliens.

The 1986 Amnesty Wasn't Big Enough

In her 1990 report, Munoz blamed Congress and the federal government for unnecessarily making the 1986 amnesty too narrow.  She argued both that the statutory requirements were too restrictive and the government application process and regulations were unfair to illegal aliens.

First, Munoz criticized the government for poorly implementing the amnesty program.  She argued that various regulations damaged the effectiveness of the legalization and were to blame for the seven class action lawsuits in which over 100,000 illegal aliens sued the government for their legal status.  (Report at 7-8) "The INS adopted unreasonably strict requirements at the outset of legalization, prompting a great deal of litigation," Munoz wrote. (Report at 14)

Munoz also criticized the federal government for not granting money to the right community outreach groups with the right strategy for educating illegal aliens. This, she said, prevented illegal aliens from understanding IRCA's requirements and thus stepping forward and claiming their legal status. (Report at 8-9)  Munoz even went so far as to claim the INS "deliberately undermined" these outreach organizations, particularly with respect to the public information campaign. (Report at 12)

Munoz then criticized the application process, which she claimed discouraged illegal aliens from applying for amnesty because they were worried about identifying illegal alien family members.  This, she wrote, "was perhaps the most controversial and damaging to the overall effectiveness of the program." (Report at 10)

Munoz also criticized the $185 fee illegal aliens were to pay, which she claimed was too high. In addition, she criticized the government for only reimbursing community-based organizations with a portion of it, leaving them to absorb the rest.  (Report at 11-12)

Ms. Munoz then called on Congress to fix these problems.  "Congress, the INS, and immigrant service agencies," she wrote, "have an obligation to maximize the final number of persons who become permanent residents." (Report at vi)(emphasis added)  To maximize the number of beneficiaries under the 1986 amnesty, Munoz recommended the government:

  • Extend application deadlines for alien plaintiffs in the class action lawsuit (Report at vi)
  • Conduct a vigorous public education outreach program to illegal aliens. (Id.) Munoz wrote that "immigrant service groups fear that many newly legalized persons do not know there is a second stage [in the process to get a green card]" and for those who are aware, "many are confused about their application deadlines." (Report at 15)
  • Provide sufficient funding to pay for illegal aliens' English courses.  (Report at vi) Munoz estimated that approximately one million aliens (about ½ to 1/3 of the legalized population) would need to enroll in ESL/civics classes.  This, Munoz said, "will require the educational delivery system to expand significantly in a short period of time." (Report at 17) 
  • Implement "family unity" programs "as generously as possible." (Report at vi)

Most importantly, Ms. Munoz outright admitted that the 1986 amnesty did nothing to solve the problem of illegal immigration.  "Legalization fell far short of its goal," she wrote, both because of the 1982 cutoff date and the continued flow of illegal immigration afterwards limited eligibility for the program.  (Report at 23) In fact, Munoz acknowledged that number of illegal aliens in the U.S. post-IRCA, was "of the same magnitude" as when IRCA was enacted. (Report at 22)  "Four years after IRCA, the U.S. faces the same problem."  (Id.)   She concluded, "The moment has arrived to rid ourselves of the notion that IRCA has "fixed" the problems of illegal immigration, and turn again to the difficult business of developing immigration policy which is both effective and humane." (Report at 54)

For these reasons, Munoz argued, Congress must consider "adjusting the status of undocumented residents of the U.S. by a means more effective than the recent legalization program."  (Report at 53)  Munoz therefore recommended that Congress adopt "a program which legalizes individuals living within the U.S. when IRCA was passed, or a a second legalization program with a cutoff date that falls within one year of enactment." (Report at 53) In other words, Ms. Munoz argued that the 1986 amnesty was not big enough.

Congress Must Repeal Employer Sanctions

Barely four years after the passage of IRCA, Munoz not only told Congress it must pass another amnesty for illegal aliens, she also told Congress it had a "moral imperative" to repeal the penalties in IRCA that punished employers for hiring illegal aliens.  According to Munoz, the employer sanctions were not working, were driving illegal workers "further underground," and actually "created inducements for discrimination." (Report, pp. 35-37) She declared, "[E]mployer sanctions have the worst possible policy outcome: they have caused a civil rights disaster without achieving their objective of controlling illegal immigration." (Report at 38)

Moreover, Munoz argued, there was no legislative cure for these claimed defects.  "[A]dopting civil rights protections in response to discrimination that is itself caused by federal legislation is an unprecedented and frightening step in civil rights law." (Report at 46)  And the adoption of a secure identification card, she wrote, "could lead to abuses by law enforcement and other officials…" (Report at 47) "In short," she concluded, "there are strong indications that new systems to "fix" the problem caused by employers sanctions could lead to new forms of discrimination." (Report at 47)  Munoz therefore argued that "repealing employer sanctions is a moral imperative…"  (Report at 48)

Over 20 years later, Cecilia Munoz is now spearheading the Obama Administration's push for another amnesty.  (Associated Press, Feb. 18, 2013)  Speaking to the Wall Street Journal, she said passing an amnesty bill is the right thing to do, and that it is good for the country and good for the economy.  It's about "job creation and entrepreneurship," she said.  "The immigration debate is never easy," Munoz concluded.  The biggest obstacle to passing a bill is "political will" and "getting it over the finish line."  (See Wall Street Journal interview, Feb. 8, 2013)

Obama Administration Sets Free over 2,000 Illegal Aliens, Uses Sequester to Further Amnesty Agenda

After news leaked through several sources, U.S. Immigration and Customs Enforcement (ICE) officials confirmed last week they have been releasing illegal aliens in federal custody in order to satisfy cuts under the sequester.

In fact, according to internal Department of Homeland Security (DHS) documents reviewed by the Associated Press, the Administration released more than 2,000 illegal aliens before the sequester even took effect, releasing roughly 1,000 illegal aliens per week since February 15. In addition, the documents reveal the Administration plans to release 3,000 additional illegal aliens during the month of March. (Associated Press, Mar. 1, 2013)

Under the sequester — which just took effect Friday — ICE must cut 5.3 percent of its budget. However, according to the internal DHS documents, ICE field offices were told to cut their detention capacity five times that amount (or 26 percent) from 34,000 detainees to 25,748 by March 31, 2013. (Id.; see also Washington Free Beacon, Feb. 27, 2013)

Downplaying its actions, when news broke of the releases ICE claimed it had freed only a few hundred illegal aliens. "Over the last week, ICE has reviewed several hundred cases and placed these individuals on methods of supervision less costly than detention," the agency said in a statement. (Washington Times, Feb. 26, 2013) However, according to 2011 Congressional testimony by ICE Director John Morton, alternatives to detention (ATD) actually cost more than detaining an illegal alien. "The real challenge for us on ATD is that it is cost effective on a daily basis," Morton testified. "[It] actually ends up being cheaper when people are in detention because they move much more quickly." (See House Appropriations Homeland Security Subcommittee Transcript at pp. 22-23, March 11, 2011)

ICE has also attempted to minimize its actions by telling reporters that those released were "noncriminals and other low-risk offenders who do not have serious criminal histories." (New York Times, Feb. 26, 2013) Nonetheless, news outlets are already reporting that illegal aliens with violent criminal records have been released. For instance, according to the New York Times, Anthony Orlando Williams, a 52-year-old illegal alien from Jamaica was released from detention despite a 2005 conviction for assault, battery, and child abuse arising from a domestic dispute. (Id.)

Members of Congress have blasted the Administration for releasing dangerous illegal aliens back onto the streets.  They are also suggesting that the sequester is merely a pretext for the release of these illegal aliens, especially as ICE released the illegal aliens before sequester cuts went into effect.  Calling the move "outrageous," Speaker of House John Boehner (R-OH) said, "[it] is very hard for me to believe, that they can't find cuts elsewhere in their agency…I'm looking for more facts, but I can't believe that they can't find the kind of savings they need out of that department short of letting criminals go free," he concluded.  (CBS News, Feb. 26, 2013)

Similarly, Sen. Jeff Sessions (R-AL), Ranking Member of the Senate Budget Committee called the cuts irrational. "There is no logical or rational reason why the 5.3 percent cut to ICE's operating budget would have to result in forcing law officers to immediately release already-apprehended illegal aliens and fugitives in federal detention. The last thing you would do to meet a budget cut of this size would be to voluntarily undertake actions that undermine the rule of law and endanger the public safety," he asserted. (The Daily Caller, Feb. 26, 2013)

Several Members of Congress also wrote letters to Homeland Security Secretary Janet Napolitano, decrying her Department's reckless behavior. "We are concerned about reports that the Department is already taking action to implement sequestration by releasing criminal aliens from detention facilities and seriously putting the safety of the public at risk. Some reports suggest that as many as 10,000 detainees across the country will be released in the near future in order for ICE to reduce its average daily detention population from 34,000 - a Congressionally mandated requirement- to 25,000," wrote Sen. Judiciary Committee Ranking Member Chuck Grassley (R-IA) and House Judiciary Committee Chairman Bob Goodlatte (R-VA)  in a letter Wednesday.  (Read the letter here)

In addition, Rep. Diane Black (R-TN) charged that the cuts to detention funding was nothing more than a political move to further the Administration's backdoor amnesty agenda. "[U]sing the sequester as an excuse to initiate this unprecedented mass release of illegal immigrants is a patently political and deliberate move that undermines law enforcement and places our nation's security at risk," she wrote in her letter to Secretary Napolitano. (buzzfeed.com, Feb. 27, 2013)

Surprisingly, Secretary Napolitano has claimed she learned about the illegal alien releases along with the rest of the public, blaming lower-level officials and claiming no part in the decision. "Detainee populations and how that is managed back and forth is really handled by career officials in the field," Napolitano told ABC. "Do I wish that this all hadn't been done all of a sudden and so that people weren't surprised by it? Of course." (Associated Press, Mar. 1, 2013)

The White House has also denied having any part in ICE's decision to release the illegal aliens. "This was a decision made by career officials at ICE without any input from the White House as a result of fiscal uncertainty over the continuing resolution as well as possible sequestration," spokesman Jay Carney told reporters. (Washington Times, Feb. 27, 2013)

New York City to Ignore ICE Detainers and Undermine Secure Communities

On February 27, the New York City Council passed two measures, both by a vote of 40-7, to further obstruct immigration enforcement. (INT 0982-2012 and INT 0989-2012).

The first measure, INT 0989-2012 amends local law 62 that was passed in 2011. Local law 62 requires the New York City Department of Corrections (DOC) ignore federal civil immigration detainers by holding an individual beyond the time when the individual is eligible for release or notifying immigration authorities of the individual's release unless the individual has previously been convicted of a crime or has a pending criminal case. The amendment contained in INT 0989-2012 restricts the DOC even further by exempting almost all misdemeanor offenses from local law 62's definition of "convicted of a crime" and "pending criminal case." The second measure, INT 0982-2012 extends the mandate to ignore federal immigration detainers to the New York City Police Department.

Proponents hope the passage of these two bills will damage the effectiveness of the federal Secure Communities program. (New York Daily News, Feb. 27, 2013). Secure Communities helps local Immigration and Customs Enforcement (ICE) offices locate aliens held in prisons and jails by state and local officials. Under standard practice, the jail or prison sends digital fingerprints to the Federal Bureau of Investigation for a criminal background check. Then, through Secure Communities, the prints are automatically sent to the Department of Homeland Security (DHS) for an immigration status check. DHS sends the results of these immigration status checks to local ICE offices, which may then request a jail or prison to hold an alien so that ICE can take custody of them and begin removal proceedings. The request from ICE to hold an alien is called a "detainer." (See ICE website: The Secure Communities Process).

Under federal regulation, once ICE issues a detainer for an alien in state or local custody for an independent offense, jail officials shall maintain custody for up to 48 hours (excluding weekends and holidays) to allow ICE agents to pick up the alien. (See 8 C.F.R. 287.7(d)). Immigration and Customs Enforcement officials say honoring detainers helps protect public safety. (The Wall Street Journal, Feb. 27, 2013).

According to New York City Council Speaker Christine Quinn, the city has released at least 267 people who otherwise would have been turned over to ICE since local law 62 went into effect. (New York Daily News, Feb. 27, 2013; see also FAIR Legislative Update, Dec. 5, 2011). Mayor Michael Bloomberg fully supported the 2011 legislation and is expected to sign both new bills into law.(The New York Times, Sept. 30, 2011; New York City Council Press Release, Feb. 27, 2013).

Upon Mayor Bloomberg's signature, New York will join five other localities that have chosen to ignore federal immigration detainers and undermine the federal Secure Communities program. Those include: Santa Clara County (Santa Clara County Policy 3.54 as Amended, Oct. 18, 2011); San Francisco County (San Francisco Sheriff's Department Inter-Office Correspondence, May 3, 2011); Cook County (IL) (Cook County Code Sec. 46-37, Aug. 2011); D.C. (Bill 19-585) and Milwaukie (Adopted Resolution #12-135; See also FAIR Legislative Update, June 12, 2012).

Pro-Amnesty GOP Senators Meet with Obama

Pro-amnesty "Gang of Eight" Sens. John McCain (R-AZ) and Lindsey Graham (R-SC) met with President Obama and Vice President Biden last Tuesday at the White House to discuss comprehensive immigration reform.

Although the Senators declined to discuss specifics of the meeting, they were not shy about praising Obama. "It's one of the best meetings I've ever had with the president," gushed Graham. (CQ Today, Feb. 26, 2013) "I think we'll have presidential leadership in a very productive way on immigration reform, and with that, we've got a very good chance of doing it this year," Graham continued. (Id.) "He committed himself and his office to be helpful, and I believe him," stated Graham. "I believe that the president is very committed to comprehensive immigration reform," exclaimed McCain. (Id.) "We were pleased to hear the president state his firm commitment that he will do whatever is necessary to accomplish this important goal," said the Senators in a joint statement. (The Hill, Feb. 26, 2013)

Remarkably, the duo expressed confidence in Obama's commitment to border security despite his repeated disregard for enforcement. Senator Graham said the president "understands we need border security that we can afford." (Wall Street Journal, Feb. 26, 2013) According to Sen. McCain, the president "understands the parameters of what we're dealing with." (CQ Today, Feb. 26, 2013) "I am more confident after our conversation today," boasted McCain in response to a question on whether Obama understands the border security issue. (Id.)

Democrats, GOP Advocate Expanding Agricultural Guest Worker Programs

During a House Immigration Subcommittee hearing Tuesday, some key Democrats and Republicans found common ground regarding our nation's agricultural guest worker system.  (View the hearing here; see Washington Post, Feb. 26, 2013)

Expressing similar concerns over the existing agricultural (H-2A) guest worker program, Subcommittee Members from both sides of the aisle used adjectives such as "broken," "cumbersome," and "flawed," and expressed their desire to make changes to the program.

In particular, Judiciary Committee Chairman Bob Goodlatte (R-VA) and Immigration Subcommittee Ranking Member Zoe Lofgren (D-CA) agreed that the agricultural guest worker program should be expanded to include other industries. "It is well past the time to replace the outdated and onerous H-2A program," Chairman Goodlatte asserted. "We can do this by…expanding the current universe of jobs to include dairy jobs and work in food processing plants…." (See Judiciary Committee Press Release, Feb. 26, 2013; see also New York Times, Feb. 26, 2013) Agreeing with the Chairman, Rep. Lofgren called for a "year-round dairy and livestock" guest worker program with a "flexible and experienced workforce." 

In addition, both expressed support for legislation that would allow illegal aliens currently working in the U.S. agricultural industry to continue working their farming jobs. "I believe we should enable the large population of illegal farm workers to participate legally in American agriculture," said Chairman Goodlatte. Similarly, Rep. Lofgren asserted, "The only viable solution is a balanced approach that both preserves the current workforce and makes it easier to meet future needs with new workers."

Debate over agricultural guest worker programs has been a sticking point in past comprehensive immigration reform negotiations. During the 2007 amnesty debate, the business lobby supported the creation of additional guest worker programs while many labor groups opposed such expansions.  Recently business and labor groups resumed negotiations to create a new guest worker program and last month announced they had developed "shared principles" for reaching an agreement. (See AFL-CIO & Chamber of Commerce Joint Principles, Feb. 21, 2013; see also FAIR Legislative Update, Feb. 25, 2013)

Nonetheless, the House has yet to produce even an outline of a comprehensive immigration proposal allegedly being worked on by a bi-partisan group of Members. The Senate working group, which introduced its Gang of Eight proposal late January, is anticipated to introduce legislation in mid-to-late March.

Immigration Subcommittee Hearing Highlights E-Verify's Effectiveness

Last Wednesday, the House Judiciary Subcommittee on Immigration and Border Security held a hearing entitled "How E-Verify Works and How It Benefits American Employers and Workers." In opening remarks, full Judiciary Committee Chairman Bob Goodlatte (R-VA) highlighted the importance of a functional workplace enforcement tool. "E-Verify is not the entire solution, but it is a critical part of the enforcement solution, making it easier for employers to be able to know whether the person presenting their credentials to them for a job are indeed the person they say they are and have the authorization that they claim to have," declared Goodlatte. (Bloomberg Government Transcript, Feb. 27, 2013)

Soraya Correa, an Associate Director from U.S. Citizenship and Immigration Services, testified to the impressive accuracy of E-Verify. According to an independent evaluation of E-Verify, the program has a 99.7 percent accuracy rate for authorized employees. (Id.) The study also found that 94 percent of final non-confirmations were accurately issued for unauthorized workers.

Immigration enforcement champion Rep. Lamar Smith (R-TX) noted that E-Verify is one of the government's most successful programs. "E-Verify immediately confirms 99.7 percent of work-eligible work employees. I don't know of any government agency that has that kind of efficiency, and quite frankly, that's probably as close to perfection as we're going to get on this human earth." (Id.) Subcommittee Chairman Trey Gowdy (R-SC) added, "we had a hearing this morning in the very same room on drones, and they don't have a 100 percent get-it-right rate…. I just think that's pretty doggone good." (Id.)

Even the U.S. Chamber of Commerce embraced the benefits of E-Verify despite its previous criticism. "After a lot of analysis, we concluded that the Chamber should support a mandatory E-Verify system," testified Randel Johnson, the Chamber's Senior Vice President for Labor, Immigration and Employee Benefits. (Id.) "I just want to note that we do support, unlike the president's bill, the application of E-Verify to the entire workforce. His leaked bill, in fact, exempted something like 60 percent of all employers," Johnson pointed out. (Id.)

The hearing also illustrated that E-Verify is not cost-prohibitive, as charged by many businesses and pro-amnesty groups. "In regard to the costs, I wanted to point out that another study reveals that three quarters of the employers stated that the cost of using E-Verify was zero," noted Smith. (Id.) "All I can say is our economist has looked at the studies [claiming $2.6 billion in compliance costs, and] believes those studies have overestimated the impact…." added Johnson (Id.)

E-Verify also received near unanimous approval by users. According to Correa, "E-Verify received a customer satisfaction score of 86 out of 100" and "the vast majority of users surveyed were likely to recommend E-Verify to other employers, were confident in its accuracy and were likely to continue using the system." (Id.; see FAIR Legislative Update, Feb. 25, 2013) Chris Gamvroulas, President of Ivory Development, lauded the program. E-Verify "has been proven to be easy to use, protects employees' privacy and rights, and we generally find it to be an efficient and effective system," stated Gamvroulas. (Id.) "We believe that E-Verify is working as intended." (Bloomberg Government Transcript, Feb. 27, 2013)  Representative Smith, noting the ease of passing E-Verify funding extensions through both Houses of Congress, added "it has overwhelming congressional support." (Id.)

The hearing marked the latest example of how amnesty advocates resist any enforcement mechanisms. Despite testimony of the extraordinarily high accuracy rate, pro-amnesty Ranking Member Zoe Lofgren (D-CA) claimed, "I am concerned about the error rate." (Id.) Emily Tulli, an attorney for the pro-amnesty National Immigration Law Center (NILC), expressed "grave concerns" about E-Verify and claimed the program "makes all workers, citizens and immigrants alike, more vulnerable in the workplace." (Id.) Audaciously, Tulli completely dismissed enforcement stating "the best enforcement measure is actually a broad and robust legalization plan." (Id.)

Representative Raul Labrador (R-ID) challenged Tulli's testimony. "I'm having a hard time with your testimony" because "all you're throwing out is reasons why we shouldn't have E-Verify, reasons why we have a problem with E-Verify." (Id.) "And I think that if advocates for immigration reform keep coming here and having problems with the enforcement mechanisms that we need to have in order to have a viable immigration system, I think you're going to spoil any chance that we have right now to have comprehensive immigration reform," Labrador concluded. (Id.)

House Homeland Security Subcommittee Holds Border Security Hearing

Last week, the House Homeland Security Subcommittee on Border and Maritime Security held a hearing examining border security.

From the hearing's outset, the divide between Members of Congress about the role of enforcement in immigration reform was clear. In Subcommittee Chairwoman Candice Miller's (R-MI) opening remarks, she stated that securing the border is "certainly one of the principal responsibilities of the United States Congress and one that we have under the Constitution." (Bloomberg Government Transcript, Feb. 26, 2013) Pro-enforcement champion Rep. Lou Barletta (R-PA) underscored that assessment. "We need to make sure that we're doing first things first — that we're securing our borders," he declared. (Id.)

On the other hand, pro-amnesty Members reiterated Homeland Security (DHS) Secretary Janet Napolitano's specious claim that the border is secure. Ranking Member Sheila Jackson Lee (D-TX) claimed the border can be secure without the Congressionally-mandated fence. "We know that there are 1,993 miles of the border, 651 miles of fencing. And one might make the argument that the un-fenced area is less secure. I would argue against that," she said.  (Id.) "Compare [the U.S.-Mexico border] to the rest of the U.S., we're safer than the country on whole," proclaimed Rep. Beto O'Rourke (D-TX). (Id.)

But Chairwoman Miller dismissed such conclusory statements that the border is secure. She argued, "When we hear individuals saying that the border is more secure than ever, that is not a substitute for very hard, verifiable facts." (Id.) "We can't just say that the border is more secure than ever because we now have lots of agents, we have lots of technology, we have infrastructure on the border without, again, being able to verify from an accountability standpoint how effective they have actually been," she instructed. (Id.)

The Border Patrol Chief Michael Fisher agreed with Chairwoman Miller's assessment that border security is more complicated than simply allocating resources. Fisher cautioned that "the tremendous complexity of the border demonstrates why no single metric can be used to assess border security." (Id.) "A secure border is characterized by low risk, one in which we reduce the likelihood of attack to the nation and one that provides safety and security to the citizens against dangerous people seeking entry into the U.S. to do us harm," declared Fisher. (Id.) Kevin McAleenan, Acting Assistant Commissioner, U.S. Customs and Border Protection, Office of Field Operations, added "a secure border at our nation's ports of entry is a well-managed border, where mission risks are effectively identified and addressed and legitimate trade and travel are expedited." (Id.)

 Notably, the definitions offered by Fisher and McAleenan differ from the one set forth by Congress. (See FAIR Legislative Update, Feb. 22, 2011) In the 2006 Secure Fence Act (H.R. 6061) Congress defined "operational control" as "the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband." (emphasis added)  

As the hearing progressed, it became clear that DHS has no measurable standard for assessing border security since abandoning the "operational control" metric. "Congress and the American people have sort of been in the dark since Secretary Napolitano has abandoned" operational control, charged Miller. (Bloomberg Government Transcript, Feb. 26, 2013) Representative Jeff Duncan (R-SC) noted that Secretary Napolitano stopped reporting the number of miles of the border under operational control in 2010 because she considered the metric "archaic and not representative of security progress along the border." (Id.) According to Government Accountability Office (GAO) testimony, at the time DHS abandoned "operational control," only 44 percent of the southern border was under operational control. (Id.)

Remarkably, DHS has repeatedly failed to deliver on its promise of a new border security metric. "You have [DHS] officials who have been telling us that a new, holistic measure called the border condition index is on its way. That was something that was told to our subcommittee — and to the full committee about three years ago and we are still waiting to understand what that term means and how it would work," noted Miller. "The Border Patrol is in the process of developing goals and measures. However, it has not yet set target timeframes and milestones for completing its efforts," testified Rebecca Gambler, GAO Acting Director of Homeland Security and Justice. (Id.)

Instead of following the law, DHS has used the number of apprehensions at the border as a replacement metric. "Since fiscal year 2011, DHS has used the number of apprehensions on the southwest border between ports of entry as an interim performance goal and measure for border security. This measure provides some useful information but does not position the department to be able to report on how effective its efforts are at securing the border," said Gambler. (Id.) "As an interim goal and measure, the number of apprehensions does not inform program results and therefore limits DHS and congressional oversight and accountability," she continued. (Id.) "Using apprehensions as the only metrics for success, as the GAO and others have already noted, is an incomplete way to look at border security," summarized Chairwoman Miller. (Id.)

Shockingly, Rep. O'Rourke disregarded the hearing testimony and repeated his audacious claim in an interview a few days later that "no additional enforcement" is needed. (Daily Caller, Feb. 28, 2013) "The border is secure. We do not need additional enforcement there. What we need is the full focus and attention on passing comprehensive immigration reform," O'Rourke said. (Id.) "Because we no longer have an active metric from DHS and border security can mean different things to different people," he reasoned, "the border is safer than the rest of the country." (Id.)

GAO: Obama Administration has no Official Metrics to Measure Border Security; Will Not Adopt Any until Late 2013

On February 26, 2013, the Government Accountability Office (GAO) released a report stating that the Department of Homeland Security has no official metrics in place to measure whether the border is secure and has no plans to adopt any such metrics until late this year.

Since 2004, the Department of Homeland Security used the term "operational control" as its metric of whether U.S. borders were secure.  (Testimony, Border Patrol Chief Michael Fisher, Feb. 15, 2011) The Border Patrol defined operational control as "the ability to detect, identify, classify, and then respond to and resolve illegal entries along our U.S. Borders."  (Id.)  Broken down further, the Border Patrol defined its progress as follows:

Definitions of Border Patrol Levels of Border Security under 2004 Strategy

Level of border security Definition
Controlled—operational control Continuous detection and interdiction resources at the immediate border with high probability of apprehension upon entry.
Managed—operational control Multi-tiered detection and interdiction resources are in place to fully implement the border control strategy with high probability of apprehension after entry.
Monitored Substantial detection resources in place, but accessibility and resources continue to affect ability to respond.
Low-level monitored Some knowledge is available to develop a rudimentary border control strategy, but the area remains vulnerable because of inaccessibility or limited resource availability.
Remote/low activity Information is lacking to develop a meaningful border control strategy because of inaccessibility or lack of resources.

(GAO Report 12-688T, May 8, 2012) According to GAO, the top two levels — "controlled" and "managed" — reflect Border Patrol's reported achievement of "operational control," as sufficient resources were in place to detect, respond, and interdict illegal activity either at the immediate border (controlled level) or after the illegal entry occurs (managed level), sometimes up to 100 miles away.  (Id.)

However, through the lens of this metric, it was clear that U.S. borders were still highly vulnerable.  At the end of Fiscal Year 2010, DHS stunningly reported it had operational control over only 13 percent of the border, or 1,107 of the 8,607 miles across U.S. northern, southwest, and coastal borders.  (Id.)  DHS further reported that 44 percent of the 2000-mile southwest border was under operational control.  (GAO Report 113-330T, Feb. 26, 2013) When analyzing the remaining 7,500 miles of border not under operational control, GAO found that that nearly two-thirds of these border miles were "low-level monitored," meaning that the Border Patrol had some knowledge to develop a rudimentary border control strategy, but border security was vulnerable due to limited resources or inaccessibility.  (GAO Report 12-688T, May 8, 2012)

Remarkably, instead of investing the energy needed to secure the border, the Obama Administration simply decided at the end of FY 2010 to abandon the use of "operational control" as a metric.  (GAO Report 113-330T, Feb. 26, 2013)   DHS told GAO that it had abandoned the metric because it needed one that reflects "a more quantitative methodology as well as the department's evolving vision for border control."  In addition, in 2011, Border Patrol Chief Michael Fisher testified that operational control "does not accurately incorporate the efforts of CBP partners and the significance of information and intelligence in an increasingly joint and integrated operating environment." (Fisher testimony, Feb. 22, 2011) 

Even more disturbing is that DHS's abandonment of operational control outright ignores a Congressional mandate.  In 2006, Congress passed the Secure Fence Act, which required DHS to build 700 miles of fencing along the U.S.-Mexico border.  (Public Law 109-367)  While the definition of the term was slightly different, the Secure Fence Act also required DHS to take all actions "necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States."  (Id.)

Perhaps most appalling is that DHS — the agency responsible for ensuring the security of the United States — abandoned the old metric for gauging border security without formulating a new metric.  In fact, despite the Obama administration's push for passing amnesty legislation, GAO reports that DHS has no official measure in place for determining whether the border is secure. (GAO Report 113-330T at 17)  And, during her testimony before the Senate Judiciary Committee on February 13, 2013, Secretary Napolitano said "we should not go back" to the prior definition of operational control.

Instead, GAO reports that DHS is simply using the number of apprehensions as an interim measure.   Before Congress last week, Border Patrol Chief Fischer testified this may be slightly modified to "the likelihood of apprehension" in certain border areas, but gave little additional detail.  (Federal News Service Transcript, Feb. 26, 2013)  Still, GAO criticized the use of apprehensions as a metric, stating it only reported Border Patrol "activity" not "results."  (Id.)  It noted that even CBP-commissioned studies documented "that the number of apprehensions bears little relationship to effectiveness because agency officials do not compare these numbers with the amount of cross-border illegal activity." (Id. at 17-18)  Finally, GAO said, using apprehensions as a metric "limits congressional oversight and accountability." (Id. at 17)

Nevertheless, DHS Secretary Napolitano has been touting a decline in apprehensions over the past few years as proof positive that the government has secured the border.  But even the Border Patrol acknowledges that there were multiple factors causing the decline, including the economic downturn.  (Id. at 6)  The Border Patrol also provided GAO data showing that apprehensions had actually risen from 327,000 in FY2011 to 357,000 in FY2012. (Id.)

Still, the Obama Administration is in no rush to adopt a new measure for border security, despite the fact that it is asking Congress to pass a massive amnesty bill.  In 2011, the Border Patrol told GAO that it intended the new measure to be in place by FY2012. (GAO 11-374T, Feb. 15, 2011, p.12)  But in its February 2013 report, GAO states that DHS will not even establish a time frame for developing a measure until November 30, 2013. (Id. at 19)  Thus, it could still be months, if not years, before the administration is able to point to a consistent, reliable metric that gauges whether the government is in fact securing the border.