Emma Winters: Welcome to CMSOnAir, the podcast on migration and refugee issues, brought to you by the Center for Migration Studies of New York. I’m Emma Winters, CMS’s Communications Coordinator. In this episode, you’ll hear me speak with Josiah Heyman—Professor of Anthropology, Endowed Professor of Border Trade Issues, and Director of the University of Texas, El Paso’s Center for Inter-American and Border Studies. He is the author of Finding a Moral Heart for US Immigration Policy: An Anthropological Perspective and Life and Labor on the Border: Working People of Northeastern Sonora, Mexico, 1886-1986. He has been an editor for influential collections including States and Illegal Practices and The US-Mexico Transborder Region: Cultural Dynamics and Historical Interactions. He’s a teacher, a scholar, and he’s been a part of the El Paso community since 2002. We spoke in his office in November.

Thanks for speaking with me today. It’s really nice to be down here in El Paso. 

Josiah Heyman: El Paso is a lovely place.

Emma Winters: You wrote an essay for CMS — with Jeremy Slack and Daniel Martinez — called “Why Border Patrol Agents [and CBP Officers] Should Not Serve as Asylum Officers.” That essay was centered on the Migrant Border Crossing Study (MBCS), a survey of over 1,000 recently deported Mexican migrants who crossed the border, were apprehended, and deported to Mexico. Some of the findings of that survey were pretty troubling. Could you say a bit about that survey and its findings? 

Josiah Heyman: In the first place, this survey is really an unsurpassed body of information about immigrants’ experience on the whole in the United States with the enforcement system. [It is] about how they crossed the border, how they were arrested, where and how they were deported. The reason it is such a valuable source is that it’s not just selected on people who were expressing complaints or abuses, but rather it is a cross section of everybody who had been deported. So, we have a clearer idea of how often they did encounter problems or didn’t encounter problems. I should give special kudos to Daniel Martínez and Jeremy Slack who did the work in the first place. It’s really their work. I’ve just come in to help apply it to some public policy issues. 

One of the things we found that is very memorable in that data — that just jumps right out at you — is the frequency of abuses by US authorities. Eleven percent of the deported people surveyed said they had been physically abused, and about two-thirds of those physical abuses were by Border Patrol. We’re talking about something on the order of six to seven percent of everybody had been physically abused. Likewise, 23 percent said that they had been verbally abused, and of that about three quarters of those were by Border Patrol. About 18 percent of all the people who had been deported and who had had contact with US authorities — 18 percent of them — said that they had been verbally abused. 

Now the verbal abuse part is really useful and interesting. Physical abuse is terrible, and we shouldn’t accept it. The reason the verbal abuse is interesting is that they recounted what was said to them. That gives us insight into the kinds of stereotypes and biases and attitudes and tendencies. Sometimes people reported things that were fairly innocuous that they were bothered by but weren’t serious, but most of them were quite disturbing. This led to us applying that material to a recent public policy initiative, which is to use Border Patrol agents as Asylum Officers. What we are basically saying, in a very straightforward way, is: There is a significant frequency of Border Patrol agents’ encounters with migrants in which they express prejudicial attitudes through what they say. The reasonable percentage is 18 percent. It is just under one in five encounters, which is really shocking, shockingly frequent. One in five. Not everybody is doing it. This is not a characterization of every Border Patrol agent, but it is a characterization of a really large segment. 

It helps to understand what an Asylum Officer does. An Asylum Officer is the person who first receives a description by the migrants — whether they are authorized or unauthorized migrants — of why they feel they have fear of being returned. The Asylum Officer makes a first stage determination, and this first stage determination… in most cases it’s [called] “credible fear.” There’s another line of legal assessment, depending on the person’s background, that’s called “reasonable fear.” They’re fairly similar. Credible fear is that there is sufficient basis at this first stage for thinking someone has a believable fear of being returned, being deported to the country they came from. It’s essential. It’s a go, no-go decision by the US immigration system. If they’re given credible fear, they then move into the immigration court system where the details of their asylum request are judged. If they don’t, if they’re turned away at the point of credible fear, then they’re deportable. They will be sent home to whatever situation they’re in.

There is very clear legal and regulatory language that governs credible fear. Credible fear is supposed to be based on the plausibility of the evidence in that first interview. It’s not a matter of the final judgement, but just: Is there a reason for thinking that we should go ahead and do a formal immigration court case for asylum? It’s absolutely central to whether or not people can get asylum.

Emma Winters: Is it fair to say that, if Border Patrol agents are acting as Asylum Officers, people seeking asylum will get essentially no chance at the asylum system?

Josiah Heyman: We don’t think they would necessarily get no chance. But both on the basis of what is a well-documented set of negative attitudes toward immigrants — that’s what we have in our data, all of these statements, which is what our report analyzed  — and in addition we have, since the report was written and published, evidence that the percentage of the granting of credible fear is much lower by Border Patrol agents than by the regularly trained and assigned Asylum Officers. We also know from the people who set up this program in the government…. [There were some] very articulate statements by Steven Miller, who’s the immigration policy leader in the Trump administration. We know that they want to cut back on granting credible fear at this first stage. We have three lines of evidence: the statements that we have collected and analyzed, the more recently than our report lower than standard granting rates, and the statements of the key decision makers in the government that they want these officers to not grant. We know that this is deliberately done in order to decrease the chance of people being able to access the asylum system.

Emma Winters: So if someone were to meet a Border Patrol agent they essentially wouldn’t be really meeting the immigration legal system, they would still be meeting the enforcement system?

Josiah Heyman: They’re meeting the enforcement system. Asylum Officers are not part of Customs and Border Protection (CBP). They are part of a different branch of the Department of Homeland Security (DHS), [United States] Citizenship and Immigration Services (USCIS). USCIS has a role in the government that’s different from simply interdicting unauthorized activities and removing people from the country. USCIS has a service function in the government. It’s the organization that gives legal immigration [benefits]; it’s the organization that processes asylum claims; it’s the organization that manages people who are in all of these processes, gets the paperwork for them. It’s an organization that has a very different job and a very different philosophy.

Emma Winters: And is there an analogy for what a USCIS officer is versus a Border Patrol agent? Is that like the difference between a police officer and a social worker? 

Josiah Heyman: Yeah, I think that’s a good analogy. USCIS has the capability of denying benefits and applications. Asylum Officers deny about 20 percent of the credible fear cases that are presented to them. They’re not purely a social worker, who’s always assisting somebody, but they are trained to have an openness and balance that is clearly not part of the organizational culture of CBP and especially the Border Patrol. And the other line on this is not only that what their function is, but what we are able to discover about the culture of the Border Patrol from reading these statements. 

The single strongest theme (of the abusive statements reported in the Migrant Border Crossing Study) is the idea of keeping people out who are violating, that outsiders are coming to violate the country. There is an intense kind of nationalism and often times racialized nationalism, resentment of Latin Americans that we see in the actual text of these statements. Our essay has a number of quotes that are illustrative quotes of different categories of things that were said, and they’re quite often times disturbing and shocking. Now as I said, this is not every encounter. It is maybe one in five encounters. Nevertheless, it’s said often enough — things like: “We’re gonna lose you in the desert” or “Are you coming over here to pop out babies?” [These statements] reflect a real sense of hostility and verbal violence.

Emma Winters: When CMS published that essay back in June, having Border Patrol agents as Asylum Officers was an idea that was being floated at that point. Now it’s moved ahead. Could you provide an update on where the program stands and the scale of it?

Josiah Heyman: It is active, and it’s my understanding that there are about 50 Border Patrol agents now doing this. That I know of, they’re not assigning [other] CBP officers. The government doesn’t make a lot of information available to us, us in the public. It’s my understanding that there’s about 50 Border Patrol agents doing this now. They don’t publish a count of the number of cases that are handled in this way. They don’t publish a count of percentage of credible fear granted and denied, especially not by geographic location, such as the US-Mexico border, or by nationality applying, such as Mexicans, Central Americans, and so forth. So, we try to pry out of the government some understanding of what they’re doing. Meanwhile, they go on doing these things without any regulatory review or regulatory check. We think there are at least 50 [Border Patrol agents serving as Asylum Officers] and that they’re training more.

Emma Winters: And do you have any idea what that training actually consists of?

Josiah Heyman: They have described what the training consists of. It’s a training in the basic legal regulatory language governing what credible fear is… What I have not seen a description of is training in listening, in talking to people who are traumatized, in understanding complicated messy stories, in translating a mixed-up and complex detailed narrative of what happened to me personally into legal categories which have a certain kind of simplicity and rigidity. A well-trained Asylum Officer is trained precisely in listening and categorizing skills. Well-trained Asylum Officers also have access to data on country conditions, and I am not entirely sure how well prepared the Border Patrol agents who are doing this are on country conditions. 

I do know from the quotations that we got from the Migrant Border Crossing Survey that there are distinct prejudices against Mexicans and Central Americans. It’s important to remember that the people presenting and asking for asylum at the US-Mexico border come from all over the world. The single largest group is Central Americans, but there is a great depth of understanding necessary to do credible fear judgements at the US-Mexico border, where you might be getting people from Cameroon, or Uganda, as well as Honduras and Guatemala.

Emma Winters: Zooming out from this particular program I think a lot of people that don’t live in border communities are thinking about the culture of Border Patrol overall for the first time. I think that has to do with how our president has talked about Border Patrol and also because of some of the derogatory and disturbing comments that were made in an at one point secret Facebook group. Could you speak to what the culture of the Border Patrol is like today broadly? And what is its cultural history? Has its culture changed over time?

Josiah Heyman: There’s actually quite a lot of continuity over time, and I personally have been around the Border Patrol and have them studied since I first did ethnography on the Border Patrol as well as other branches of the then-Immigration Naturalization Services (INS) in the early 1990s, so now getting close to 30 years. We additionally have a number of good histories of the Border Patrol and border enforcement. It is an organization that has a highly racialized specialization in identifying, arresting, and expelling Mexicans. The Central Americans get swept up into this, as well as Latin Americans who come through the US-Mexico border, but that’s the nature of the Border Patrol. 

A really clear illustrative example which continues to the present is that they are all trained in Spanish. Some of them speak Spanish already fluently, but probably the majority of them have to have training in Spanish. They’re trained in Spanish, and the Spanish that they are trained in uses examples of Mexican peasants who are migrating to the United States to work — also males. So, they are not particularly well-trained to deal with women; they’re not well-trained to deal with children; they’re not well-trained to deal with non-Mexicans. They’re trained to think of Mexicans as a subordinate laboring population. 

They’re trained in the legal categories of asylum. They memorize a lot of law, but as we know, memorization is the least effective form of learning possible. They memorize law, which makes them think there is this perfect, absolute law that’s rigid, but that’s just the opposite of a complex asylum case. They‘ve memorized law, but they haven’t ever been trained in the realities of people who are fleeing in fear of their lives. 

They’re trained to arrest people who are trying to enter the country covertly, not be found, in order to go to work, which is a significant group of people, for sure. They’re not trained for the people who are fleeing in fear of their lives and may actually — literally, and this is what’s happening at the US-Mexico border — walk up to a Border Patrol agent and surrender and start immediately to express their concerns and their fears. That’s not what the Border Patrol has historically ever done and is concerned with. 

The Border Patrol used to be quite closely associated with racialized white power at the US-Mexico Border. Starting in the 1970s, it gradually integrated a lot of Latino agents of Mexican origin, by now it’s probably 50/50 or a little bit more than 50 percent Hispanic. It’s still a very macho, very masculine workforce. The percentage of women agents is very low, and they tend to drive women out. It’s also a very authoritarian organization which struggles to recruit and retain officers. This is really an indicator that this is an organization that has problems when their own officers are demoralized and discouraged. This past fiscal year with an effort to recruit, to hire many hundreds and thousands of new officers, they managed to get a net 93 which meant that they’re losing almost as many officers as they hire.

Emma Winters: One obvious change is that the number of Border Patrol agents has increased dramatically since the 90s, and most of that staff are concentrated here on the southern border so: Has it been a struggle for them to maintain the quality and training of agents while scaling up?

Josiah Heyman: It’s been an enormous struggle. There had been some waves within this period. The hiring starts about 1994 and carries to the present. There was a wave in the 90s, and then there was another wave after 9/11. During those periods they had serious problems with lack of selectivity. The Border Patrol is not a selective organization. You don’t even have to have graduated from high school to join the Border Patrol. What it is selective for is physical ability to work in a difficult environment, the ability to memorize law and Spanish, and to be very obedient in a highly top-down authoritarian organization. So, they’ve had these waves. They’ve had a lot of problems with corruption and sexual and physical abuse of people — including other officers — among the waves of people that they hired in these big hiring rushes. 

They have become more aggressive in investigating people who are getting hired. They’ve used extensively lie detector tests. There’s more background investigation. At the same time, CBP has something [around] five times the rate of most federal agencies of officers who are disciplined for legal abuses, much of which is in their own lives. It’s not only abuses of immigrants. The abuses of immigrants, I think, is connected to a broader problem of having problematic officers all over the place. We recently received a report that DHS produces on officers who have undergone discipline. [Those offenses range] from lying on paperwork they submit all the way to murder and assault and rape. They have a rate of that discipline that’s about five times the normal expected level of discipline, either in police agencies or in federal agencies. It’s a very troubled organization.

Emma Winters: And as far as being disciplined, what’s their disciplinary process like? Does it actually hold people to account in a successful way? Are the penalties fitting for the issues that are coming up?

Josiah Heyman: That’s a very good and very important question. There is an indication that — I have personally seen this in my work with the organization — this recent reporting has shown that there is a tendency for discipline to be symbolic. And then, [the organization will] put the person back out into the field. This is an organization that has problems with not being able to maintain staffing, and they’re desperate to keep people out in the field. It’s also a very insular, thin green line organization that circles this thin green line around their officers and protects them. They do short periods of suspension, and then they put people back out in the field until they’ve done something so outrageous that they absolutely have to be released; or, they’re just out there abusing people and abusing each other. A lot of the abuses are Border Patrol agents abusing other Border Patrol agents. 

This set of issues is also an Achilles heel for the United States insofar as [it contributes to] US-side corruption at the border…. We think — on the basis of journalistic reporting, analysis of patterns, analysis of these discipline documents — this may well be one of the principal ways by which guns and money are exported from the United States and hard drugs like fentanyl, cocaine, methamphetamines, are imported to the United States. Corruption in the United States in US border agencies is a significant issue.

Emma Winters: In some cases people are paying off agents to take in drugs?

Josiah Heyman: We know that. We know from the cases. The tip of the iceberg cases are the ones where something has been detected, and it has become a court case and there is testimony and so forth — although a lot of this has been kept relatively quiet and secret. People have resigned rather than go to court. But we know the tip of the iceberg, and we think that there’s a plausible reason to think that it extends much further down.

Emma Winters: I’m sure that would include human smuggling as well.

Josiah Heyman: It would absolutely include human trafficking, absolutely human smuggling and human trafficking. It includes anything where there’s money at stake at the border. As much as I love the border — I am a border resident; I’ve committed my entire life and career to the US-Mexico border; I’ve actually been working at the border since 1982 — there’s no doubt that the border is this tremendous location for smuggling of anything from avocados to millions of dollars in physical cash and semi-automatic weapons. This is an Achilles heel. If one were to think about what would be an intelligent alternative to the current US policy, it would be: Why are we going after commonplace, working-class immigrants, people fleeing in fear of their lives, when we should be trying to downsize criminal organizations and the flow of resources that feed criminal organizations across the entire border in both countries?

Many of the people who are seeking asylum actually are people who are trying to get away from these criminal organizations. Many of the people — Jeremy Slack has done important work in a recent book called Deported to Death — many of the people who were being deported are sent back as foot soldiers for criminal organizations. We are feeding that raw meat eating monster of criminality.

Emma Winters: And I’m sure as a professor in this community you’ve taught students whose parents are undocumented as well as students whose parents are Border Patrol agents.

Josiah Heyman: I have taught Border Patrol. Absolutely.

Emma Winters: Is there a tension there?

Josiah Heyman: There is an underlying tension in the community. It is the border, and the border generally creates this sense of mutual tolerance. People have their different domains, and I rarely experience students actively conflicting with each other. In fact, lots of people [who work] in the various branches of the US government at the border, will tell you that they know within their own families other people who are undocumented or are involved in smuggling at various levels. 

The border as a whole is a place of relationships across differences. It’s a place where, just to give you an example, which initially may not seem to deal with these dramatic issues, but it’s a good example: People have to be able to switch between Spanish and English. The average borderlander is bilingual to some degree. The most common borderlanders of all in El Paso and other parts of the US borderlands are fluent bilinguals. This is a model for the capacity of borderlanders to work with relationships [across difference]. 

Now, this is not all happy and romantic and perfect and so forth. Important relationships between a wealthy powerful country like the United States and a large middle-income country like Mexico, are still highly unequal. There’s a lot of economic inequality, there’s a lot of political inequality, inequality of legal immigration status. On the whole the border is a place that can offer a model for how to make working relationships, tolerance, reaching across differences, figuring out how to broker, how to relate. The good side of that is the ability to cross borders literally. The bad side is some of the corruption. These things are part of one package. 

El Paso in particular is close to the center of the US-Mexico border and, with Ciudad Juárez, is one of the largest binational areas in the world. El Paso, in particular, has a community vision for the future. Not everybody is part of this. There are a million people on the US side between El Paso and southern New Mexico, and that means there are a million opinions. But on the whole, El Paso has forged a community vision for the future. It’s been referred to recently by the Border Network for Human Rights as the “new Ellis Island.” The place where new, young adults forming families and going into work are reaching across the border and building new lives in the United States. Some years ago we organized here — the Border Network organized it and I was one of the people who took notes and talked and did write up — a We Are the Border conference. It was a discussion about what a positive constructive future vision would look like. I had the good fortune to publish an article about this in the Center for Migration Studies’ Journal of Migration and Human Security. People can look at it in detail, but [it is about] how we’re going to build on the positive vision and the positive qualities of this binational setting, of the way we bring people together across boundaries of difference and negotiate those differences, and build on that for the long-term future. It’s a reply to the question “Okay, so you’re so critical but what are you going to do that’s different from Donald Trump?” I would say that we have a vision here of what is different from Donald Trump.

Emma Winters: And has it been harder to project that vision as the Trump administration’s policies have been put into effect? 

Josiah Heyman: I think everybody knows that we are undergoing a period of intense polarization. On one side of this polarization is a rhetorical, discursive presentation of the border as a site of fear and danger. This is the border that’s at risk. [The belief that] only an intensely protected border can protect us against all dangerous things that are coming from outside. I call this the womb idea. We’re inside this womb, and the border is protecting us. It’s protecting us from relating to other people. That’s what it is protecting us from, and that is absolutely one side of this highly polarized political scene that we’re in now. 

But the other side that needs to get out there, and I think people understand it, is this new Ellis Island, this America of the future…. People here at the border are constructing, with all the warts and all the challenges and the difficulties, something new for the future. Just as we would look back on American history and say: When the Irish came, we were constructing something new for the future; When the Italians and Jews came, we were constructing something new for the future; when Mexicans came at the time of the Mexican Revolution, fleeing from the Mexican Revolution, we were constructing something new for the future. I think we’re now doing that again, renewing the United States. I think there’s a very positive vision. 

El Paso has been quite remarkable in terms of being a leader. I don’t want to say we’re unique because I admire very much things that people have done in the lower Rio Grande Valley and Yuma and San Diego and other parts of the border, but El Paso has been a leader. For example… 42 years ago a small group of dedicated, then-young people founded Annunciation House as a no-questions-asked migrant shelter, migrant hospitality site for Central Americans. This was in response to Central American asylum seekers because they’ve always been coming to this border. Annunciation House has been a foundational model for providing that sanctuary to people crossing the US-Mexico border. Annunciation House has definitely shaped the community culture of El Paso. It’s an extraordinary institution. When people were being released, a thousand people or more per day in early 2019, Annunciation House summoned over 3,000 volunteers to help feed, clothe, shelter them, get them connected to their relatives in the United States, help them purchase bus and airplane tickets, help them get to their point of transportation, give them instructions, and help them move on.

It was an extraordinary period of openness and generosity. It’s been short circuited by a harshly unfair and really dangerous Trump administration policy called the Migration Protection Protocols. That’s the most cynical term I’ve heard in a long time. The last thing people are being protected by is [a program that is] sending them into these extremely dangerous and criminally-dominated cities of Mexico’s Northern border. Tijuana last year was the most dangerous city in the world. Ciudad Juarez is the fifth most dangerous city. This year it’s worse. Now the United States is parking a lot of people in those Mexican border cities, and we’re now working on how to reach out there and provide help to people who are stuck. This is a much more difficult issue because they are stuck there for months. How are they going to live in tent cities, in criminally-dominated environments, in a much poorer country — because we want to keep brown people out of the United States? 

But we’re out there anyway. The people in El Paso who have been helping migrants are not necessarily rich people. They’re really common people all over the city, a lot of little Spanish language congregations. I know people who have been helping migrants have often been quite humble people and have been absolutely generous. 

Of course we can do a more formal public policy analysis and we can look at: Do we have room for migrants in the United States? We’re a rapidly aging, overdeveloped country. We absolutely have need. It isn’t a question of whether we have room for charity. We absolutely have a need for young people. I don’t think this is something people fully grasp: People migrate when they’re young adults. You just could not ask for a better population to bring into a country than young adults. They’re working age; they have children; the children are renewing the schools. They’re going to make enormous educational and occupational progress, those children. Meanwhile, the adults are working in intense ways. [They are] highly hardworking and productive. Are all immigrants perfect? No, no population is perfect, but you couldn’t ask for a better elixir, or tonic, to revive American society than bringing in new young adults. 

Emma Winters: You can read Josiah Heyman’s essay “Why Border Patrol Agents and CBP Officers Should Not Serve as Asylum Officers” on the CMS website. CMSOnAir’s theme music is provided by Danny Duberstein and The Music Case. To get more information on CMS’s research, publications, and events, visit us at cmsny.org.

This transcript has been slightly edited for clarity and style.