Commentary

Border Control Challenges – A Year Later

by Robert C. Hutchinson

One year ago, DomPrep convened subject matter experts to discuss their experiences with and knowledge about border control challenges. A lot has happened in that year, so it is time to examine what has changed, what still needs to be addressed, and what will likely still be discussed a year from now.

In March 2016, 28 subject matter experts from the public and private sectors participated in a roundtable discussion at Florida International University in Miami to discuss the impact of numerous border control issues on homeland security and public safety. The discussions ranged from legal and illegal immigration to visa waiver and overstay concerns to international public health threats. From within those topics, valuable conversations included the refugee crisis in Europe, the expansion of relations with Cuba, the Ebola virus, and other emerging global health threats.

In the past year, many of the concerns have evolved along with international and national policy changes and responses by affected nations and organizations. However, the majority of issues have not been resolved but transformed into different or broader border security challenges requiring serious focus and resources to address before the next evolution. Many border security challenges changed, but not necessarily due to directed planning, preparedness, and action, but because of time.

Evolving Cuban Policy

A topic of special interest one year ago in the South Florida area was the quickly changing United States foreign policy with Cuba. The roundtable discussed the controversial “wet foot, dry foot” policy for determining which Cuban migrants could stay in the United States. In the marine or maritime environment, this subject has always been contentious due to safety and political concerns. The topic became even more relevant due to the approximately 50,000 Cuban nationals that had traveled through Mexico to the United States, a new and growing route at that time that automatically provided a dry foot status for entry. The majority of these Cuban migrants reportedly intended to travel to South Florida after their immigration processing in Texas.

Over the past year, the previous administration continued to advance a new foreign policy with Cuba, further expanding trade and travel that had not been seen for over 50 years. These policy changes had a great political, social, and financial impact on the South Florida region as well as the entire United States. One of the greatest policy changes was the no-notice rescinding of the “wet foot, dry foot” policy. The unexpected cancellation of this over 20-year policy changed the dynamic of border enforcement on the land and marine borders with very little warning to the agencies that secure the border.

Beyond the new policy involving the interdiction of Cuban migrants attempting to enter the United States, the future removal of Cuban nationals from the United States to Cuba remains an extraordinarily divisive and volatile subject due to decades-old practices and preferences. It is still unknown if the new administration shall cancel or modify any of the policy changes involving Cuba and Cuban nationals.

Border Control Challenges – A Year Later
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Public Health Concerns

The discussions regarding public health concerns were wide-ranging a year ago with the diminishing Ebola virus outbreak in Africa and the continued concern for its next emergence or another serious infectious disease. The Zika virus was emerging on the radar screen as the newest public health threat that ignored physical borders, strategies, and policies during the discussions.

Information infrastructures were identified as critical for communicating risk factors and determining if people are traveling from high-risk areas during outbreaks. It was agreed upon that public health surveillance capabilities varied in countries around the world, which affected U.S. strategy and policy. It was also agreed upon that lessons were not fully learned from the Ebola virus and other previous infectious disease outbreaks to establish a level of preparedness needed for the future.

One of the many roundtable concerns was that public health agencies often do not understand law enforcement authorities, responsibilities, expectations, and preparedness levels – and vice versa. The infrequent utilization of quarantine and isolation laws results in confusion for which agency or organization is in charge of coordination and enforcement – public health, law enforcement, military, or local officials. The great confusion and conflict for the initial reaction and response to the Ebola virus in the United States demonstrated this challenge for the roundtable.

One of the roundtable subject matter experts dispelled the myth that the Centers for Disease Control and Prevention (CDC) has the resources to sufficiently cover and screen the numerous ports of entry for the hundreds of thousands of legal entries into the United States each day. Due to its limited resources, CDC leverages the border security resources of the Department of Homeland Security (DHS) to assist in public health surveillance, screening, and enforcement. However, internal government audits questioned the preparedness of DHS components to adequately plan for and respond to a serious pandemic threat in the border environment.

The DHS Office of Inspector General (OIG) issued a report in 2014, entitled “DHS Has Not Effectively Managed Pandemic Personal Protective Equipment and Antiviral Medical Countermeasures.” In January 2016, DHS OIG released an audit report regarding the department’s response to the 2014 Ebola virus outbreak, which found that DHS components did not ensure that all personnel received adequate training on the passenger screening process or the use of certain protective equipment. In October 2016, DHS OIG released a follow-up report entitled “DHS Pandemic Planning Needs Better Oversight, Training, and Execution,” indicating that DHS cannot be assured that its preparedness plans can be executed effectively during a pandemic event.

Since the roundtable, the CDC issued a new rule to improve and modernize its abilities to respond to infectious diseases by expanding its powers to screen, test, and quarantine people traveling into the United States as well as interstate travel. According to the CDC, the new rule, effective 21 March 2017, improves its ability to protect against the introduction, transmission, and spread of communicable diseases while ensuring due process. Unfortunately, this new rule, which is viewed as overdue and critical by many involved in the border security and public health fields, is seen as a serious threat to civil liberties to many others.

Visas, Waivers & Overstays

A year ago, there was a strong focus by the roundtable participants on the threat of foreign fighters entering the United States from visa waiver nations. The flow of migrants and refugees from the Middle East into Europe, as well as the returning foreign fighters from that region, was a topic of serious discussion and concern for the ease of entry into the United States. Recent terrorist attacks in Europe only strengthened these fears and concerns.

One year later, the topic remains relevant, but from a different angle. The new administration executed executive orders to expand visa and entry screening for persons from seven nations, many with ongoing conflicts; it was later reduced to six countries. Rather than focusing on visa waiver nations and travelers from conflict zones, it focused on nations of concern from the previous and current administrations. It shall be interesting to assess the relevancy of both concerns one year from now. The focus and interest shall likely track closely with the frequency and severity of terrorist attacks in Europe and around the world involving subjects from those nations.

In June 2016, it was estimated during a congressional hearing that as many as five million foreign nationals had overstayed their visas and illegally remained in the United States over the years. The subject of travelers overstaying their permitted amount of time and remaining in the United States without a robust process to identify and document their departure also faded from frequent discussion over the past year, especially when compared to the expansion of interior immigration enforcement under the new administration. This increase in the arrest and removal of illegal aliens appeared to be a new policy, but was actually returning to the policies from earlier in the decade. The return to routine interior immigration enforcement operations shall address both visa overstays and entry without inspection of border crossers – the segment most often identified as illegal aliens.

The topic of discussion a year from now may likely be the abuse of immigration programs such as the U visa program. U visas were designed for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity. However, the U visa program has reportedly been abused with little oversight, creating a considerable vulnerability for public safety and homeland security.

Senate and House Judiciary Committee Chairmen identified significant fraud within the U visa program through falsified applications and the ignoring of congressional limits for the program. According to congressional findings, recent cases have highlighted how the program is being exploited through falsified police reports and bribes to secure U visas, thus allowing foreign nationals to avoid deportation; whistleblowers report that illicit activity to secure U visas is common. Program oversight has been reportedly insufficient, thus allowing improper utilization and further delaying deportation well beyond the legal limits and eligibility for the program. This program could be leveraged not only by criminal aliens and other undeserving applicants, but also by those who wish to do even greater harm by exploiting this vulnerability to remain out of detention and in the country for years pending a review or hearing.

One Year Later

One thing that has not changed since the roundtable is that, in a global environment, border security is not confined to geographical boundaries. It remains critical to expand physical boundaries and capture information throughout the entire emergency preparedness and homeland security enterprise. Border security remains a critical yet controversial subject that requires constant attention in an ever-changing world.

A year from now the conversations may have changed, but the fundamental challenges and threats may appear rather familiar. The topics shall likely include Cuban foreign and immigration policy changes, emerging public health threats such as pandemic influenza, and the misuse of the immigration system due to lack of oversight or fortitude. However, with a strong collaborative mindset and effort, many of these border control challenges can be addressed and mitigated, so focus may shift to new challenges in the future.

Robert C. Hutchinson is a former deputy special agent in charge and acting special agent in charge with the U.S. Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement’s Homeland Security Investigations in Miami, Florida. He retired in September 2016 after more than 28 years as a special agent with DHS and the legacy U.S. Customs Service. He was previously the deputy director and acting director for the agency’s national emergency preparedness division and assistant director for its national firearms and tactical training division. His writings, interviews and presentations often address the important need for cooperation, coordination and collaboration between the fields of public health, emergency management and law enforcement. He received his graduate degrees at the University of Delaware in public administration and Naval Postgraduate School in homeland security studies.