entry montage.jpg[Blogger’s note:  Today’s post offers a shocking analysis of how the decision by Congress some ten years ago to combine the functions of U.S. Customs, Immigration and Agricultural inspectors into a single agency, U.S. Customs and Border Protection (CBP), has led to disastrous consequences for applicants seeking admission to the U.S. under our nation’s immigration laws.  Written by a senior DHS official, now retired, shows how the supremacy of Customs over Immigration has created an error-prone, inexperienced corps of immigration officers within CBP]

Bordering on the Absurd: Immigration Expertise Lacking at U.S. Border Agency

By Incognito

Once upon a time there was a government agency called the Immigration and Naturalization Service (INS), which many people hated.  INS critics called upon Congress to restructure the agency, thinking that all faults would go away if that happened.  Congress finally did a major restructuring, creating the Department of Homeland Security and abolishing INS.  A funny thing happened on the way to restructuring, as Congress did what Congress meant to do, and not exactly as the INS critics meant for Congress to do.

The INS inspections function transferred to the Office of Field Operations (OFO) in a new agency called U.S. Customs and Border Protection (CBP).  An unintended consequence was that the observed level of immigration expertise has dropped alarmingly in CBP’s new OFO.  How may this have happened?

With any merger, there must be a melding of corporate cultures.  Immigration inspectors had been part of the Department of Justice, Customs inspectors had been part of the Treasury Department, and Agriculture inspectors had been part of the Agriculture Department.  With the common goal envisioned by DHS, the expectation that within a relatively short period, perhaps 1 – 3 years but not more than 5 years, the several cultures would unite into one common purpose.

Relatively quickly, with political backing, agriculture inspectors reestablished themselves and their mission as being unique.  Their critical mission has thrived in the new agency, as better resources and inspection techniques have allowed this OFO/CBP component to better protect against invasive species.

On Day One, March 1, 2003, it was clear, however, that the former U.S. Customs Service had won the decades-old tension with INS over which agency’s culture and structure was better suited to take over the border inspections program.  Ninety per cent or more of OFO/CBP’s top managers came from Customs.  The expectation was that the Customs and Immigration missions would be performed adequately by the same officers.  Ten years later, this realistic expectation has not been met, as observed by immigration practitioners.

Consider this:

In the beginning, the attitude among legacy Customs people was that the reason there was DHS restructuring was because INS had admitted alien terrorists who had carried out the 9/11 atrocities.  As Congress had abolished INS as an agency, the perceived judgment was that all things Customs were good, and all things INS must be bad and not to be trusted.  Also, if INS had not let “those aliens” into the country, terroristic activities would not have happened.  The solution appeared obvious – just don’t let aliens into the country.  However, that simple answer didn’t work, given the hundreds of millions of visitors to the country each year.  Therefore, the new CBP culture fostered the idea of figuring out some reason, any reason, to not admit an alien.  This culture also fit the mind-set of the INS cowboys who had made up a sub-set of the INS inspections program.

There were a certain number of INS district, regional, and headquarters personnel who transferred to CBP.  The question became, what should be done with them?  After all, Customs had operated since 1789 without that resource.  In that way, former INS managers, who previously had managed port of entry operations, found themselves suddenly stripped of wide-ranging responsibilities and assigned duties of little importance.  Not fired, and not particularly valued, their presence was merely tolerated by the dominant culture of the new agency.  Although many (especially younger field supervisors) have survived the new culture, some transferred to other agencies, and more retired when that option became available.  CBP failed to stem the loss of that valuable immigration resource, with the predictable result that the quality of meaningful oversight of immigration decisions has lessened greatly.

Similar things happened to the attorney resource that transferred from INS to CBP.  The overwhelming perception from attorneys who transferred was that CBP’s Office of Chief Counsel (OCC) did not value them as attorneys knowledgeable about immigration issues, but merely as positions that could eventually be filled with the personnel that Customs wanted all along in those slots.  Part of that thought came from the reality that the journeyman grade for an INS attorney was GS-14, while journeymen Customs attorneys were only GS-13s.  OCC welcomed the higher graded positions, but not the incumbents.  Attrition worked its toll, through transfers and retirements, quickly resulting in diminished immigration expertise in OCC.  Not to worry though, because when responsibility for legal counsel on immigration inspections issues was transferred to OCC, OCC attorneys attended a two hour briefing.  Emerging from the briefing, OCC deemed themselves competent to advise on all immigration complexities.  Contributing to the problem, as GS-14 and -15 level former INS attorneys left CBP, they were not replaced with experienced OCC (government) attorneys, but with new kids just out of law school.  Bright people, but, nonetheless, new kids on the block having no experienced immigration attorneys to mentor them.

Are things better now?  At least one field office of Associate Chief Counsel, when presented with an immigration question, simply declines to answer but refers the issue to Headquarters OCC.  More than one former immigration attorney from the former INS/DOJ structure who transferred to the DHS structure has deplored the alarming lack of immigration competence in CBP’s OCC.  From this, a casual observer may conclude that if OCC ever had a goal of maintaining or developing immigration expertise, it has fallen short of realizing that goal.

Lack of knowledgeable oversight has made meaningful decision-making review more difficult.  In the old INS structure, the entire chain of command, from port of entry management, to the INS district, regional, and headquarters offices, consisted of career immigration officers.  The chain of command managers had the knowledge to discern weaknesses in cases when apparent ineligibilities had developed at lower levels.  With expertise gained through time had come the additional experience of making decisions involving discretionary authorities.  In the new CBP environment, top managers were most likely (90%) to have come from legacy Customs and had neither the experience nor the expertise to spot weaknesses in questionable immigration cases.  Also, with the old INS cowboys contributing their version of law and procedure, their attitude of “The only good alien is a refused alien” gained greater dominance.

Nor were the former Customs managers comfortable exercising discretionary authorities.  The Customs culture, dealing with goods and merchandise, had developed a “good or bad” mentality.  If something was good, or permitted, it was allowed entry.  If something was bad, it either was not permitted entry, or penalized in some way.  Therefore, the concept of detecting an inadmissible alien, but permitting that person to continue into the United States, was difficult to adjust to.  Much easier just to send the inadmissible alien home, rather than take a chance of having a discretionary decision questioned by that manager’s chain of command, or agonizing whether the person who had been allowed to travel may commit some further sin.

Contributing to the reluctance of offering discretion is the Customs culture of hanging officers out to dry for the slightest perceived infraction.  Over decades, this culture had trained the Customs chain of command to pass the buck when a decision was even slightly out of the ordinary.  Not having been trained to make discretionary decisions, and, in fact, having been trained to not make discretionary decisions, it is little wonder that exercising discretion was such a difficult concept to embrace.

Over the years, criticism of discretionary decisions is no longer limited to those from the chain above.  Line officers have made reports to internal affairs that supervisors are abusing discretion authority in favor of aliens thought to be inadmissible by line officers.  First and second line supervisors are now damned if they do and damned if they don’t, both by chain of command or internal affairs second guessing. 

Faced with diminishing immigration expertise in OFO/CBP, and with increasing negative publicity about poor decisions at ports of entry, former Commissioner Basham asked a Headquarters working group why “immigration” seemed to be such a dirty word.   The answer should have come easily from OFO/CBP’s top managers, many of whom had developed well-deserved reputations in Customs of having little regard for immigration issues and immigration personnel.  Although publicly articulating allegiance to the combined immigration and customs missions, their actions spoke loudly in exposing their prejudices against that “immigration” dirty word.  Is it any wonder then that line officers, trained observers as they are, pick up on the non-verbal clues noticed by Commissioner Basham when he asked why “immigration” seemed to be such a dirty word in OFO/CBP?  It takes a truly determined effort for any individual officer to develop immigration expertise on the officer’s own initiative when doing so takes the officer outside the dominant agency culture.

Note also how CBP has eliminated the term “immigration” whenever possible, largely replacing discussions of “immigration” issues with “admissibility” issues.  One “Day One” proposal was that the best use of officers historically assigned to immigration secondary would be to reassign that resource to more intensive baggage examinations.  There have even been top-level questions of whether OFO/CBP wasn’t now past using the term “immigration officer.”  Those questions eased only when reminded that Congress had chosen to keep the term “immigration officer” in the INA.  After all, if OFO/CBP had no one designated as immigration officers, who would make decisions about eligibility/ineligibilities under the INA?

Also note the mid-level field manager who recently commented, “I came from Customs, and I just don’t get this Immigration stuff.”  But now we’ve gone ten years down the road in the new agency, and managers still haven’t learned to properly apply Immigration issues.  If legacy Customs managers still haven’t learned, where is the fault – with the manager for refusing to learn about Immigration complexities, or for the agency for not providing training and holding managers responsible for faulty chain of command decisions on immigration issues?

The Customs culture is alive and well.  The Customs culture does not hold OFO top field managers responsible for poor decisions about immigration issues.  There is a cultural lack of emphasis on developing or retaining immigration expertise, in the officer corps, among OFO managers, and in OCC.  Poor decisions are supported by the attitude that OFO/CBP officers’ immigration decisions are considered, in the first instance, to be correct, in spite of the numerous examples, both publicized and not, of incorrect decision making.

CBP’ Office of Field Operations must correct its inadequacies.  Immigration practitioners can help by continuing to bring cases to OFO/CBP’s attention for correction and corrective training.  If these efforts fail, there may be opportunities for reform through judicial review.  Eventually, Congress may step in, again.