Cruelty as Border Policy: the Biden Version

In June 2021, U.S. Customs and Border Protection issued a guide to determine the effectiveness and cost efficiency of the punishments meted out to unauthorized border-crossers. According to documents received by the immigration rights organization the National Immigrant Justice Center (NIJC) under the Freedom of Information Act, Border Patrol agents used this guide to examine costs ranging from pillows and blankets to agents’ salaries. As part of this analysis, they examined a spectrum of punishments under a package whose name captures its authoritarian foundation: the Consequence Delivery System (CDS).

This formula to measure the efficiency of the CDS has been in use for more than a decade, but it is being reupped by the Biden administration. Indeed, the CBP guide was issued just as Biden was declaring that he would create a fair, orderly, and humane border and immigration system. While the administration talked about rescinding Trump initiatives such as the Migrant Protection Protocol (now reinstated) and was hinting that Title 42 would be stopped (it’s still in effect), the CDS and the more long-term deterrence strategies have continued on without much comment. And its policies and infrastructure of incarceration, which for decades has led families to be arrested, detained, and separated, lurks below the dominant rhetoric, particularly that of the White House.

Behind closed doors, agents, like technocrats in a Fortune 500 company, create color-coded graphics to demonstrate the most “efficient” and “effective” enforcement techniques. Even though the effectiveness of deterrence has been questioned and refuted, and even though the question of human rights has not entered the equation at all, the U.S. federal government seems to be plowing ahead with this without any questions.

Implemented in 2011, the Consequence Deliver System both marked a shift in strategy and reinforced deterrence measures that have been the centerpiece of Washington’s strategy on the U.S.-Mexico border since the 1990s and, before that, in the Caribbean, especially in terms of offshore detention camps. It is part of what CBP calls a “layered border,” an enforcement mechanism designed to create extreme hardship for people, which is then supposed to deter people from crossing the border again. In testimony to the U.S. Senate, former acting CBP chief Ron Vitiello epitomized the machinelike official language used to describe the aims of the CDS: “to apply consequences to subjects from attempting further illegal entries.”

As the NIJC’s senior policy analyst, Jesse Franzblau, put it to me, CDS is a prosecutorial and deportation “toolbox” to be used by CBP and the Border Patrol. The “tools” include rapid deportations so people can’t state their case before a judge (known as expedited removal); deportations far from where people were first arrested, known as the Alien Transfer Exit Program; arrest warrants that accompany notices to appear before a judge, which initiate deportation and ICE detention; and other forms of prosecution and incarceration. The effectiveness of these measures is determined by what Border Patrol calls “recidivism,” based on the Homeland Security force’s calculations of how many people who have been through the program cross the border again. If it’s a lower number, then the programs are “working.”

According to the Border Patrol’s color-coded effectiveness and efficiency graphics, the most effective and efficient initiatives are the most punishing, giving the most time behind bars and creating more threat of arrest and more painful family separation, as this 2021 assessment from the San Diego sectorshows. For example, CBP claims that the deterrence consequences were a success because recidivism went from 23.5 percent in 2020 to 9.36 percent in 2021. But according to the NIJC, the calculations are skewed, since they do not include rapid expulsions under Title 42 and people recrossing the border after that (that is, since the pandemic-era policy was put in place in 2020). Border Patrol metrics have also been questioned by the Government Accountability Office, a non-partisan watchdog of the U.S. federal government.

Yet, as the NIJC stresses in its briefing, this enforcement strategy fails on its own terms: “deterrence based measures embodied in CDS enforcement programs do not reduce migration, but instead add layers of punishment that disproportionately impacts people who have family in the United States.” This certainly plays out in the proceedings of Operation Streamline, in which unauthorized migrants are prosecuted en masse: over 50 percent of the people charged with “illegal reentry” have children in the United States. Laws that criminally prosecute people for crossing the border, the NIJC also underscores, have origins in racial malice, according to a Nevada federal district court, and are applied in a discriminatory manner.

I witnessed this Consequence Delivery System first hand during an Operation Streamline proceeding in Tucson, in April 2016. A man named Ignacio Sarabia shuffled up in front of Magistrate Judge Jaqueline Rateau with seven other men. All were shackled around their wrists, waists, and ankles, so they jingled as they approached the judge and formed a straight line in front of her. They wore ripped, worn, and sun-beaten clothes, presumably the same pants and shirts from a few days before, when they crossed the border and walked through the Arizona desert. This contrasted with the attorneys in suits and the professionally dressed interpreter who spoke Spanish into a microphone and sat near the judge.

Each man pleaded guilty. Everything was routine until Sarabia spoke up. He told the magistrate judge that my “infant is four months old and is a U.S. citizen.” He was born with a heart condition. They had to operate. “This,” he said, “is the reason I’m here before you.” The man tried to gesture, but the shackles and chains restrained him.

The judge responded that she was sorry for his predicament. She told him that he couldn’t just come back here “illegally” and that he had to find a legal way to enter the country.

“Your son, when he gets better, and his mother can visit you where you are, in Mexico,” the judge said. She paused, then added, “Otherwise he’ll be visiting you in prison.”

Her words crystallized the harshness of the Consequence Delivery System with a frankness and directness never heard in the sterile officialese of CBP bureaucrats. “You’ll see how it will be for him,” she said, “growing up visiting his father in a prison, where he will be locked away for a very long time.”

Then she sentenced him, along with the rest of the eight men standing side by side in front of her, to prison terms ranging from 60 to 180 days. Sarabia was on his way to a for-profit prison in Florence, Arizona.

As the NIJC concludes, “The newly disclosed records illustrate the pressing need to shift away from programs that seek to punish migrants, and de-prioritize and phase out such prosecutions as an essential step toward ending systemic injustices, protecting fundamental human rights, and preventing family separations.” The burden to do this lies squarely on the shoulders of the Biden administration.

Todd Miller is the author of Build Bridges Not Walls and editor of The Border Chronicle.