Why Border Patrol Agents and CBP Officers Should Not Serve as Asylum Officers
Josiah Heyman, Jeremy Slack, and Daniel E. Martínez
June 21, 2019
United States Border Patrol agent Matthew Bowen allegedly hit an undocumented migrant with his truck in November 2017. In preparation for trial, federal prosecutors revealed that Bowen had a history of making derogatory statements about migrants in text messages, including calling them “disgusting subhuman shit unworthy of being kindling for a fire.” Mr. Bowen’s attorney tried to suppress the disclosure of his text messages, offering the damning argument that this attitude was “commonplace throughout the Border Patrol’s Tucson Sector,” and “part of the agency’s culture” (Elfrink 2019). This case is not isolated, and our evidence raises serious concerns about a new proposal to have Border Patrol agents function as asylum officers.
The Trump administration has proposed that about 60 Border Patrol agents serve as asylum officers at the US-Mexico border (Taxin 2019). These agents would receive an unspecified period of training. Their role would be to conduct initial interviews to determine whether asylum-seekers have a credible fear of returning to their countries or should be sent back. Those who pass such interviews can seek asylum before an immigration judge (ibid.). This process applies to people entering without authorization at the Mexican border, either presenting themselves without visas at ports of entry or entering without inspection. Despite it being legal to cross the border and request asylum, Border Patrol agents and Customs and Border Protection (CBP) inspectors are otherwise trained to target unauthorized border crossings as violations of the law. Border Patrol agents-turned-asylum officers would mark a significant change to the Border Patrol’s role and in the asylum process overall.
As the Bowen case suggests, many Border Patrol Agents have negative attitudes toward immigrants and are unsuitable for the role of asylum officers. Clara Long from Human Rights Watch reports: “What we see over and over again is Border Patrol just has a culture of disbelieving asylum seekers. It’s really hard to imagine these agents being able to create the openness and trust and listening that’s really required for a credible fear interview” (Taxin 2019). In fact, this seems to be the very reason for the proposal. NBC reports that “Trump’s senior adviser Stephen Miller in particular has argued that CBP agents will be tougher on asylum-seekers and will pass fewer of them on the initial screening” (Ainsley, Lee, and Welker 2019). Yet the point of a credible fear interview is not to be negative or positive; the relevant regulations state that “the asylum officer…will conduct the interview in a non-adversarial manner… The purpose of the interview shall be to elicit all relevant and useful information bearing on whether the applicant has a credible fear of persecution or torture.” The thinking is that the United States would rather afford people the benefit of the doubt and give them access to a full immigration hearing than to send them back home where they may be persecuted or killed. We have robust data that supports Long’s concern over Border Patrol agents being given this responsibility.
As part of the second wave of the Migrant Border Crossing Study (MBCS), we surveyed 1,109 recently deported Mexican migrants who crossed the border without documents, were apprehended, and deported to Mexico. From 2010-2012, we completed surveys in Tijuana and Mexicali, Baja California; Nogales, Sonora; Ciudad Juárez, Chihuahua; Nuevo Laredo, Tamaulipas; and Mexico City. Our response rate was over 90 percent. The cities where we worked received 65 percent of all deportees along the US-Mexico border during the study period. Table 1 (below) provides basic descriptive findings from the MBCS. The typical MBCS respondent was male, between the ages of 18 and 34, from west-central (e.g., Jalisco or Michoacán) or southern/southeastern Mexico (e.g., Chiapas, Guerrero, Oaxaca), with some prior migration experience, who most recently crossed through the Tucson, San Diego, or Laredo Border Patrol sectors.
The MBCS focused on a broad range of people’s experiences during their most recent unauthorized border crossing attempt, apprehension, and deportation, including whether they experienced any form of mistreatment by US authorities. Table 2 (below) offers greater insight on some of these experiences. As noted, 11 percent of the 1,095 MBCS respondents who answered the question on physical abuse reported being hit, pushed, grabbed, or attacked physically while in US custody (Martinez, Slack, and Heyman 2013, 3). Sixty-seven percent of the physical abuse reports were attributed to the Border Patrol (ibid., 7). Twenty-three percent of the 1,092 respondents who answered the question reported being yelled at, threatened, or verbally abused while in US custody (ibid., 5). Seventy-five percent of those verbal abuses reports were attributed to the Border Patrol (ibid., 7). These findings are broadly consistent with other studies using different methods and samples, increasing our confidence in the findings (Phillips, Rodriguez, and Hagan 2002; Phillips, Hagan, and Rodriguez 2006; No More Deaths 2008, 2011; Danielson 2013, 2015).
The aggregate statistics are shockingly bad, but they do not tell us much about how Border Patrol agent attitudes might affect their work as asylum officers. To explore this question, we need to look at the content of the statements reported as verbal abuse. These are only ones reported from encounters with CBP (mostly Border Patrol) agents. With respect to agents serving as asylum officers, the most revealing theme in the verbal abuse is 33 reports of insulting statements to the effect that it is wrong to cross the border, enter without papers, and the like.
These include statements of angry rejection such as, “We don’t want you here. What bastards you are. Don’t complain because it is going to be worse.” And “in English, what are you doing here you fucking immigrants, we don’t want you here.” Some are specific rejections of immigration: “we don’t want Mexicans and there is no work [here].” Xenophobic nationalism is widespread: “you are a fool, what are you doing here, this is not your land” and “I was threatened with being locked up, and told go back to your fucking Mexico” Most disturbingly, the anti-immigration statements often involved threats and physical abuses: “an immigration agent shouted we don’t want you, go back to your country, and the agent in a green uniform [Border Patrol] took out his gun and threatened them, using bad words.” And the agent said, “Go back to your country and shoved him to the floor.” One respondent said: “I didn’t have any rights. I better shut up or they were going to beat us. Said we were invading the US. They threatened you all the time but you just stay quiet, so you don’t have problems.” Asylum officers need to make the credible fear decision without prejudice for or against unauthorized entrants, and these statements (and many others) suggest many agents are biased against such migrants.
Closely related are abusive statements that evince racist or nationalistic prejudice. Our report found that many of these statements were aimed at Mexicans, because the people we interviewed were deported Mexicans. We suggest that these sentiments likely apply also to other Latin Americans, especially Central Americans, seeking asylum at the Mexican border. Thirty-nine statements demonstrating prejudice against Latin Americans were reported (some statements were counted in several categories). As one migrant reported in English, [they] “speak angrily, insult in English because they think you can’t understand. Racist, talk[ing] about [my] country badly.” The racist terms “wetback” and “beaner” were widely reported. Other racist themes were also sounded: “a migra [Border Patrol agent] referred to me as a ‘filthy Indian.’” There was significant overlap with the rejection of immigration: “Mexicans are worthless. Return to your country, we do not want you here.” And “Thank God you’re leaving this country, you’re useless without being able to speak English. Oh, you just come over to pop your baby out, that’s a bigger crime.” Racist and nationalist categorical rejection of Latin American immigrants (many of them indigenous, Afro-Latino, or mestizo) poses a profound problem for a fair assessment of credible fear.
A relatively small but important category of verbal abuse, 12 instances, was aimed at LGBQT people. Agents “yelled and made fun of her for being lesbian.” Or they made bigoted comments, such as “Puto [male prostitute] faggot, fucking Mexican” and “get out putos, eat ass.” An important basis for credible fear is sexual orientation. A wide variety of other insults were reported, including being described as stupid, as animals, and smelling/stinking (10 diverse insults). Twelve instances of being laughed at and made fun of were reported.
Yelling or screaming was very often reported (54 times). This might occur normally in some law enforcement situations and cannot necessarily be taken as a sign of underlying attitudes, although the tenor of anger in the reports is striking. Reinforcing this interpretation, and less easily excused, is widespread reporting of cursing, 85 instances, the single most common category of verbal abuse. To list examples of cursing would be tedious and unpleasant, while some specific curses are discussed above. The negative attitudes revealed by widespread cursing raises concerns that Border Patrol Agents are too hostile and biased to serve appropriately as asylum officers.
Migrants often reported (28 cases) threats of physical abuses: “they were going to hit us because we didn’t understand, that we didn’t learn and we were going to try again [to enter the United States].” And they said, “don’t move you putos or you are going to see bullets,” or “they thought we were drug mules, they asked him for marijuana, and they were going to kill him.” Likewise, 27 statements reported threats of legal punishment, such as, “they accused him of lying, they said he was Guatemalan and for this he would be buried for two years in prison.” (The subject presumably was Mexican.) Another migrant reported that he received “threats of years in prison, and additionally they [agents] tried to convince him to confess something that he had not done.”
A small but important category (eight cases) was being denied legal rights or told they have no rights (relatedly, there were 16 denials of arguably legitimate requests, such as for blankets). A telling example of denial of legal rights was when a migrant was told “he threatened me with a year in prison: ‘I hate when these fucking people try to read everything! What are they trying to read!’”
There is a general resentment of legal due process. This is expressed shockingly in the use of threats to try to force migrants to sign forms and otherwise capitulate on process issues: “they insulted us a lot, they treated us poorly because of not wanting to sign a paper, and he threatened him by saying ‘the desert is very big and some accident could happen.’” As noted in Table 2, among the 96 percent of interviewees who signed paperwork during their most recent apprehension, 28 percent felt forced to sign, 28 percent were not informed about what they were signing, and 27 percent did not know what was being signed. Both threats and resentment of rights come out in this quote: “[He said] ‘Don’t run or [I] will shot.’ To not talk because they [migrants] had no right, ‘they had not rights’” [sic, exactly as reported in English]. Distancing and devaluing immigrants, especially from Latin America, is expressed in Border Patrol statements that migrants have no rights and, alternately, resentment that they do have rights and access to legal processes. These attitudes, in turn, cast doubt on the agents’ fitness to make life or death legal decisions.
Background evidence of systematic problems with CBP’s organizational culture comes from the documented failures by CBP Officers to carry out the simple but crucial first step of the asylum application process. Before the credible fear interview, an enforcement officer (Border Patrol, CBP inspectors at Ports, or ICE officers) should recognize expressions of fear in part by applying four very simple questions to identify fear (CBP 2018). Any indication of fear should result in a halt to expedited removal and referral of the migrant to an asylum officer. However, “the US Commission on International Religious Freedom has twice found that border officials fail to refer to the asylum process a significant percentage of persons who express a fear of persecution or request asylum, which they are legally required to do” (Kerwin 2018, 196, citing USCIRF 2016, 17-23). If CBP enforcement officers fail to move qualified migrants to “credible fear” interviews, why would anyone think they will fairly make credible fear determinations?
If CBP Officers effectively become asylum officers, then enforcement-minded officers will occupy the roles of police, judge, and jury. In the process of expedited removal, immigrants do not appear (in most cases) before an immigration judge; removal decisions are made directly by enforcement officers. Nearly 90 percent of removals may now involve summary, non-court processes (Kerwin 2018, 195). Complete and proper referrals from arresting officers to an asylum officer are one of the very few ways that asylum seekers can have their information fairly heard and evaluated outside of the closed expedited removal process. Moving enforcement officers into the role of asylum officers, especially officers who resent immigrants having legal rights, exacerbates this closed circuit of police-judge-removal.
There are several limitations to our data. The data represents reports of verbal and physical abuse by recipients, not a direct survey of agent attitudes. We cannot take the percentage of surveys with abuse reports to be the percentage of officers with such attitudes. Rather, they are one indication that these sentiments are common. Likewise, verbal and physical abuse does not occur in the majority of reported encounters. It is experienced by about quarter of surveyed migrants, not a small aberrant phenomenon. Finally, the survey was done in Mexico with recently deported Mexican migrants. Mexicans are among the asylum seekers at the southern border, but a larger number are non-Mexican, many of them Central American (especially from Guatemala, Honduras, and El Salvador). There is no reason to assume that Border Patrol agents are distinctly more favorable to Central Americans than to Mexicans or to persons from other nations, such as Cubans or people from African countries. Earlier studies show that abuses were experienced at similar frequencies by deported Central Americans. One might speculate that racist statements and other abusive language came from white officers toward Latin American immigrants. In fact, officers of many races were involved: 66 whites, 63 Latinas/os, 22 mixed groups, and 3 others. Nationalist and xenophobic attitudes toward non-US, especially dark-skinned, peoples occur across the range of officers. The issues are systemic.
One might envision that careful training could overcome these broad problems of limited or prejudiced organizational culture. Asylum officers are specially trained to make credible fear determinations fairly. However, in 2017, United States Citizenship and Immigration Services (USCIS) withdrew many of the training modules that prepared asylum officers for this complex and sensitive role. For example, the asylum officer training manual lessons on values, legal standards, international law, and eliciting information in non-adversarial manner have disappeared (Web Integrity Project 2018). Officers will be left with attitudes that they bring with them from previous enforcement roles in a deeply troubled organization. While DHS could select the most open and fair-minded Border Patrol agents to serve as asylum officers, Stephen Miller’s explicit goal suggests this initiative will select for officers inclined to limit asylum, and provide them with asylum-restrictive training and guidelines.
In summary, our research shows that US Border Patrol agents and other CBP officers abuse migrants, physically and verbally, with significant frequency. In addition, many resent immigrants in general, and display racism toward Mexicans and other Latin Americans, as well as prejudice on the basis of sexual orientation. This suggests that the proposal to make Border Patrol agents asylum officers could lead to imbalanced and adversarial decision-makers, the opposite of what is called for in law. There was a widespread tone of anger and little restraint in the use of cursing and yelling. We found that Border Patrol threats of physical abuse — such as killing, shooting, and abandonment in the desert — were common, which raises concern over the safety and the handling of traumatized people in an asylum context. Finally, there were numerous threats to use law as a form of punishment, which indicates a problematic attitude among persons that might be tasked with gathering information and making legal decisions. Formal abuse complaints against CBP seldom result in disciplinary action. It is not the case that CBP is unaware of these types of abuses. Rather, they are choosing not to do anything about them (Martínez, Cantor, and Ewing 2014; Cantor and Ewing 2017).
Indeed, we suggest that the proposal to vest Border Patrol agents with the responsibility for screening for credible fear is part of a longer-term strategy to reduce access to the US asylum system, in this case by biasing and truncating the screening and interview process (Kerwin 2018, 196). In many way this policy is unfair both to migrants and to a law enforcement agency already struggling to make the transitions from an institution that apprehends hundreds of thousands of (mostly single male) individuals seeking to avoid detection, to primarily addressing the needs of women, children, and families, turning themselves in in order to being an asylum claim. There is a need for more asylum officers, but they need to be selected from backgrounds and receive training that assure us of fair and equitable gathering of information and application of the law. This proposal fails on both counts.
 “‘These agents are going to be receiving weeks of training. They’re going to be here at least a month,’ [L. Francis] Cissna [former director of US Citizenship and Immigration Services] said in an interview with The Associated Press” (Taxin 2019).
 8 CFR § 208.30.
 All translations from Spanish by Josiah Heyman. Some statements were made in English, and have been reported directly. Original wording available from Heyman.
 In Spanish, the third person verb endings do not indicate male or female verb subjects; I have chosen arbitrarily to use the male subject pronoun here. Also in this quote, the speaker changes the agent(s) from third person plural to third person singular.
 See Phillips, Rodriguez, and Hagan (2002); Phillips, Hagan, and Rodriguez (2006) specifically identify abuses toward Central Americans.
 The numbers of officers involved does not match number of cases due to incomplete and mixed reporting.
Ainsley, Julia, Carol E. Lee, and Kristen Welker. 2019. “Trump admin wants to make asylum harder by putting border agents in charge.” NBC News, April 9. https://www.nbcnews.com/politics/immigration/trump-admin-wants-make-asylum-harder-putting-border-agents-charge-n992436.
Cantor, Guillermo, and Walter Ewing. 2017. Still No Action Taken: Complaints Against Border Patrol Agents Continue to Go Unanswered. Washington, DC: American Immigration Council. https://www.americanimmigrationcouncil.org/research/still-no-action-taken-complaints-against-border-patrol-agents-continue-go-unanswered.
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———. 2015. Our Values on the Line: Migrant Abuse and Family Separation at the Border. Jesuit Conference of Canada and the United States. https://www.kinoborderinitiative.org/wp-content/uploads/2017/11/REPORT_2015_Our_Values_on_the_Line.pdf.
Elfrink, Tim. 2019. “‘Mindless murdering savages’: Border patrol agent used slurs before allegedly hitting migrant with his truck.” Washington Post, May 20. https://www.washingtonpost.com/nation/2019/05/20/mindless-murdering-savages-border-agent-used-slurs-before-allegedly-hitting-migrant-with-his-truck/.
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———. 2011. A Culture of Cruelty: Abuse and Impunity in Short Term US Border Patrol Custody. Tucson, AZ: No More Deaths. http://forms.nomoredeaths.org/wp-content/uploads/2014/10/CultureOfCruelty-full.compressed.pdf.
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USCIRF (US Commission on International Religious Freedom). 2016. Barriers to Protection: The Treatment of Asylum Seekers in Expedited Removal. Washington, DC: USCIRF. http://www.uscirf.gov/sites/default/files/Barriers%20To%20Protection.pdf.
Web Integrity Project. 2018. Removal of 26 Documents for Asylum Officer Training from the USCIS Website. Washington, DC: Sunlight Foundation. http://sunlightfoundation.com/wp-content/uploads/2018/05/AAR-6-USCIS-Asylum-Training-Materials-180529.pdf.